Estate litigation can be complex at the best of times. An Order Giving Directions, obtained at the early stages of the litigation, can set out not only the substantive issues to be tried, but may also provide for a number of procedural issues that need to be addressed in order to assist in the advancement of the litigation and also the administration of the estate.
These matters can be made much more complex during the current pandemic.
Such complications are illustrated in the recent decision of Lima v. Ventura (Estate of), 2020 ONSC 3278 (CanLII). There, an Order was made on February 6, 2020 which provided for a number of procedural matters, including the sale of the deceased’s home. The deceased’s home was occupied by one of her children and his family. The Order provided that that son had the option of purchasing the property at a price to be agreed to by the parties, with the sale to be completed by April 14, 2020.
After the February 6, 2020 Order was made, things hit the fan. The son, who was out of the country at the time of the Order, returned on February 26, and was forced to self-quarantine for 14 days. He tried to get a real estate person to do a Comparative Market Evaluation of the property, but the person would not make a site visit due to COVID-19. The son was not able to get other information needed to be disclosed under the Order due to bank and municipality closings.
The son moved for an Order extending the time to exercise the option to purchase. The motion was denied.
The court recited cases addressing the need to obey a court Order. Court Orders are not “suggestions” or “frameworks” but are mandatory in nature and must be obeyed. This continues to be true during the COVID-19 emergency. As stated by Chief Justice Morawetz in the Consolidated Notice to the Profession and others, effective May 19, 2020, “During this temporary suspension of in-court operations, counsel and parties are expected to comply with existing orders and rules of procedure, as well as procedures in this and other Regional Notices, to bring cases closer to resolution, to the extent that they can safely do so through virtual means. This guidance also applies to self-represented parties.”
In refusing the request to vary the prior Order, the court listed some of the factors to be considered. These include:
- a) The steps not taken were necessary to carry out the terms of any order, and no other alternative to taking those steps would have served that purpose;
- b) The steps were not taken because of the moving party’s inability to access business, professional or institutional offices physically or electronically because of COVID-19 protocols;
- c) An extension of time would not be contrary to any law, or the rights of other person under an order of any court;
- d) A reasonable explanation is provided for not taking the required steps, or why it was difficult or impossible to comply with the order for COVID-19 related reasons;
- e) The moving party has made best efforts to otherwise comply with the order, and all other terms of the order that were not impeded by the COVID-19 protocols have been met; and
- f) The moving party has acted in good faith.
The onus of providing necessary and persuasive evidence with respect to these factors is on the party seeking to have the order varied. In the case before the court, the son did not provide sufficient persuasive evidence to justify his inability to comply with the order. His request for an extension of the time within which to exercise his option to purchase was denied. Carriage of the sale was granted to the other estate trustees.
The decision also addresses the issue of occupation rent and the circumstances where it might be ordered to be payable. I will leave that for another day.
Have a great weekend. Stay safe and healthy.