Ontario Civil

Civil Practice and Procedure

Actions involving parties under disability

Mental incompetents

Client had no status to bring motion to remove litigation guardian or vary appointment order

Status. Daughter of deceased brought application to obtain accounting of deceased father’s estate after bring stonewalled by respondent siblings for years. In course of siblings’ unsuccessful attempt to have applicant’s counsel removed, they disclosed email from their lawyer that expressed doubt about mother’s capacity currently and at time she executed power of attorney in favour of son. Applicant was granted right to appoint estate trustee during litigation. Mother’s incapacity was confirmed during assessment and litigation guardian was appointed. Accounting had still not advanced and litigation guardian obtained mother’s personal banking records, which siblings’ counsel objected to as beyond his jurisdiction. Litigation guardian had brought application on behalf of mother to require siblings to pass accounts. Parties knew mother had received spousal trust distributions; issue was what siblings did with funds once in mother’s account. Respondent sibling’s counsel brought series of objections to proceedings brought by litigation guardian and estate trustee, and proposed motion to remove litigation guardian or vary appointment order. Litigation guardian requested case conference to address his status in relation to upcoming motions. This was endorsement made in case conference. Respondent’s counsel was unable to cite basis on which his client had status to bring motion to remove litigation guardian or vary appointment order, so proposed motion was not to be scheduled as it disclosed no prima facie case. Litigation guardian remained under terms of appointment. If mother wished to bring motion to remove litigation guardian, she could not do so on ex parte basis, as capacity issues required transparency.

Mayer v. Rubin (2018), 2018 CarswellOnt 15062, 2018 ONSC 5273, F.L. Myers J. (Ont. S.C.J.).

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