Tag: Estates List

03 Sep

Motions to approve a settlement – Are they brought in writing or in person?

Stuart Clark Estate Litigation Tags: , , , , , , , , , , , 0 Comments

I have previously blogged about the need to have any settlement which affects the interests of a party under a “legal disability”, whether on account of them being a minor or otherwise, to be approved by the court in accordance with rule 7.08 of the Rules of Civil Procedure before the settlement is binding upon the party under a disability. Although rule 7.08 is clear what materials need to be included in any Motion to approve a settlement, with affidavits being required both from the incapable person’s litigation guardian as well as the litigation guardian’s lawyer outlining why they believe the settlement should be approved, what is less clear is the actual procedure by which such a Motion is brought before the court.

There has been some debate recently about whether in Toronto a Motion to approve a settlement should be brought in writing or if they should be brought before a Judge in person. The apparent confusion appears to be caused by what appear to be competing instructions that are contained in the practice direction for the Toronto Region as well as the practice direction for the Estates List, with one appearing to tell you to bring the Motion in writing and the other appearing to tell you to do the opposite.

The general practice direction for the Toronto Region provides the following regarding an approval Motion under rule 7.08:

A motion under Rule 7.08 must be brought in accordance with the Best Practice’s Guidelines and Checklist for rule 7.08 matters.”

The Best Practice’s Guidelines and Checklist in turn provides:

Rule 7.08 requires the approval of a judge for any proposed settlement on behalf of a party under a disability. This is done by way of a motion made in writing or if no action has been commenced, then the approval of a judge is obtained by way of an application. In Toronto, Rule 7 motions and applications are to be filed as in-writing motions through the civil intake office, in the motions department.” [emphasis added]

The checklist appears clear that if you are bringing a motion to approve a settlement in Toronto that it is to be done in writing. As a result, if your matter is subject to the general Toronto practice direction, it would appear fairly clear that your approval Motion must be brought in writing.

Although the general Toronto practice direction appears clear that approval Motions are to be brought in writing, many, if not most, estates matters in Toronto are adjudicated on the specialized Estates List. The general Toronto practice direction notes that it does not apply to matters on the Estates List unless it is specifically mentioned, stating:

This Practice Direction does not apply to motions or applications heard on the Commercial and Bankruptcy Lists, Estates List, or under the Class Proceedings Act, 1992, unless specifically mentioned.” [emphasis added]

There appears to be no reference in the general Toronto practice direction that the “in writing” rule for approval Motions is to apply to matters on the Estates List. As a result, it would appear that such a rule does not apply to matters on the Estates List, and that we are to revert to any direction provided in the Estates List practice direction regarding approval Motions.

The Estates List practice direction provides the following regarding how approval motions are to be brought before the court:

Where the settlement of a proceeding on the Estates List requires court approval, the motion for approval of the settlement and the application for the appointment of a guardian of property should be brought before a judge on the Estates List.” [emphasis added]

There is no reference in the Estates List practice direction to the approval motion having to be brought in writing, with the practice direction simply stating that it has to be brought “before a judge”. Although a technical reading of such a direction may suggest that a matter could be brought “before a judge” in writing, in the absence of any specific bar to bringing the approval Motion before a Judge in person, and as Judges often have questions about a settlement before granting their approval, it would appear that absent any additional direction from the court that approval motions on the Estates List can (and probably should) still be brought before a Judge in person.

The result of all of this appears to suggest that if you are seeking the approval of a settlement in Toronto and your matter is on the general civil list that you have to bring the approval motion in writing. If you matter is on the Estates List however it would appear likely that you can continue to bring your approval Motions in person before a Judge. Matters in jurisdictions outside of Toronto should consult with your local practice direction for any direction regarding how they may want you to bring any approval Motions.

Thank you for reading.

Stuart Clark

11 Apr

New Practice Advisory for Video Conferencing in the Toronto Estates List: Effective March 8, 2017

Doreen So Continuing Legal Education, Estate & Trust, General Interest, In the News, Litigation, News & Events Tags: , , , , , , , 0 Comments

Our firm attended the OBA Professional Development Dinner With Your Honourable Estates List Judges on April 5, 2017.  The topic of the new practice advisory on video conferencing, and its intended use, was one of the topics that were discussed that evening.

This particular practice advisory is applicable only to 9:30 scheduling appointments on the Toronto Estates List and it was made in accordance with Rule 1.08 of the Rules of Civil Procedure.  The new practice advisory is clear that, unless otherwise directed by the court, video conferencing is available in consent matters, unopposed matters, and scheduling matters.  Parties or counsel who chose to appear by video conference must make their own arrangements and they may use CourtCall without prior Court approval.  An appearance by CourtCall should be communicated to the Court in either the request or confirmation form filed for the appearance.  As a matter of convenience, the Order, once issue and entered, will be sent to you by CourtCall.
For those who are interested, further details with respect to what CourtCall is and how it works are available on their website, https://courtcall.com.
Any other arrangements with alternative technologies for this purpose will require prior Court approval.

According to the Honourable Estates List Judges who were present during the Dinner, regardless of whether a matter is on consent or unopposed, video conference may still be less than ideal in situations where substantive relief is sought, such as an unopposed guardianship application.

For future OBA Trusts and Estates Law events like the Dinner, please check out the section group here.

Thanks for reading,

Doreen So

26 Nov

Words to Practice By Regarding the Toronto Estates List

Doreen So Estate & Trust, General Interest, In the News, Litigation, News & Events Tags: , , , , , , , , 0 Comments

The Honourable Mr. Justice Thomas McEwen spoke at the Estates Litigation Networking Reception hosted by the Advocate’s Society on November 23, 2015.

Justice McEwen was appointed to the Superior Court of Ontario in June, 2009 and he is currently the Civil Team Leader and Head of the Estates List in the Toronto Region.  Justice McEwen spoke at length on various issues that he wishes to convey to the estates bar which is my pleasure to reiterate on this blog.

Given the volume of matters on the Estates List, Justice McEwen noted that the Court should be provided with notice of a settlement as they occur, rather than last minute notice near the time of a scheduling appointment or hearing.  He advised that too many days on the list are being lost by last minute cancellations.  Notice of a settlement may be provided to the Court by e-mail to toronto.estates@ontario.ca.

Moreover, he spoke of the fact that each 9:30 scheduling appointment is allocated with ten minutes of time and counsel are expected to converse with one another and resolve as much as possible prior to entering the Judge’s chambers.

In cases where there are issues relating to persons under disability on a motion for directions, the Court prefers that counsel request 10:00 a.m. hearings, rather than 9:30 a.m. scheduling appointments, in order to provide the Judge with 20 minutes to canvas such issues with counsel.  Moreover, it allows the Judge to have the benefit of being able to review the full record in advance.

Lastly, communication between counsel is key in order to avoid unnecessary motions for directions.

Click here to review the Consolidated Practice Direction Concerning the Estates List in the Toronto Region as well as the relevant parts of the Consolidated Provincial Practice Direction, the Consolidated Practice Direction for Divisional Court Proceedings as well as any other relevant Toronto region-specific Practice Directions and Guides.

Thank you for reading!

Doreen So

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