Tag: real and substantial connection

02 Apr

Alberta or British Columbia? Conflicts of Law Issues in a Guardianship Case

Kira Domratchev Capacity, Guardianship, Litigation Tags: , , , , , , , , , , , , , , , , , , , 0 Comments

The Court of Appeal of British Columbia (the “BCCA”) recently dealt with an appeal from an Order of the British Columbia Supreme Court which declined to exercise jurisdiction by staying a petition for guardianship of an incapable person. This Order also included various terms relating to the person’s care and property.

This appeal dealt with the guardianship of Ms. Dingwall, the mother of both the Appellant and the Respondent.

At all material times, Ms. Dingwall and the Appellant lived in Alberta and the Respondent resided in British Columbia. Between 2010 and 2014, Ms. Dingwall resided for various periods in both Alberta and British Columbia. At the time of this appeal, Ms. Dingwall lived in a care home in British Columbia. She suffered from advanced dementia.

The Alberta Proceedings

On February 5, 2015, the Appellant sought an Order from the Alberta Court of Queen’s Bench appointing him as Ms. Dingwall’s guardian and trustee. The Respondent opposed this Order and in September, 2015 filed an Application to move the proceedings to British Columbia. This Application was never heard and the matter continued to be heard in Alberta.

On July 7, 2016, the Court granted the Order sought by the Appellant which appointed him as Ms. Dingwall’s guardian and provided him with the authority to make decisions with respect to Ms. Dingwall’s health care, the carrying on of any legal proceeding not related primarily to Ms. Dingwall’s financial matters and Ms. Dingwall’s personal and real property in Alberta.

The British Columbia Proceedings

A few weeks prior to the Alberta hearing, the Respondent filed a petition with the Supreme Court of British Columbia seeking a declaration that Ms. Dingwall was incapable of managing herself or her affairs due to mental infirmity and an Order appointing her as committee of Ms. Dingwall’s person and Estate. The Appellant opposed the Respondent’s petition by arguing that the Supreme Court of British Columbia lacked jurisdiction.

The Supreme Court of British Columbia asserted jurisdiction because Ms. Dingwall was at the time of the decision, ordinarily resident in British Columbia and because there was a “real and substantial” connection to British Columbia. The Court found that, in this case, both Alberta and British Columbia had jurisdiction.

Despite British Columbia having jurisdiction in this case, the Court found that the Alberta forum was nonetheless more appropriate and cited the following factors in favour of its decision:

  • The similarity of the proceedings;
  • Alberta having issued a final order; and
  • The Respondent having attorned to Alberta’s jurisdiction by opposing the Appellant’s petition.

As a result, the Court stayed the Respondent’s petition but also made several Orders respecting Ms. Dingwall’s care and property. The parties’ costs on a “solicitor client basis” were to be payable by Ms. Dingwall’s Estate.

The Appellant appealed the following Orders made by the Court, other than the stay of the Respondent’s proceedings:

  • issuing an Order on the matter after declining to exercise jurisdiction respecting it;
  • finding the Court had territorial competence over the matter; and
  • awarding solicitor-client costs payable from Ms. Dingwall’s Estate.

The BCCA Decision

The BCCA allowed the appeal and found that the lower Court erred in making Orders concerning the very matter over which it had declined to exercise jurisdiction. The Court noted that a decision to decline jurisdiction over a particular matter renders a judge incapable of deciding issues or making orders as to the substance of that matter.

As a result, the Court set aside the Orders respecting Ms. Dingwall’s care and property. In light of that finding, the Court of Appeal found it unnecessary to deal with the issue of whether British Columbia had territorial competence over this matter, given that the lower Court declined to exercise jurisdiction, in any event.

The Court of Appeal found that the Appellant was entitled to special costs payable by Ms. Dingwall’s Estate and that the Respondent was not entitled to costs.

The full decision can be found here: Pellerin v. Dingwall, 2018 BCCA 110

Thanks for reading.

Kira Domratchev

14 Sep

The Case of the Forged Holograph Will

Ian Hull General Interest, Wills Tags: , , , , , , , 0 Comments

A recent decision of the Ontario Superior Court of Justice, Grillo Estate v Grillo, 2015 ONSC 1352, considered an Application for an Order invalidating the holograph Will of Domenico Grillo. The Applicant was the adult daughter of Mr. Grillo, who also had two other adult children. Mr. Grillo had been born in Italy but prior to his death, was domiciled in Ontario. He had family in Italy, namely his sister and her children, and would frequently visit them. One of these such visits was in March 2014, despite the fact that at the time he was very ill.

On July 1, 2014, Mr. Grillo’s niece, Anna (in Italy) called his daughter in Canada, to tell her that Mr. Grillo was very ill. Anna subsequently made several other calls that seemed suspicious to Mr. Grillo’s children. The three children decided to go to Italy to check on their father. However, before they were able to reach him, Mr. Grillo passed away on July 4, 2014. Upon arrival, the children found that many of their father’s possessions were missing from the home he owned and in which he had been staying. Among the missing possessions were his wallet, bank cards, credit cards, passport, and jewellery.

The children were then presented with a document which Anna purported to be a holograph Will executed by Mr. Grillo on May 5, 2014, while he was in Italy. The beneficiaries under this Will were his three adult children, as well as Anna, his niece. Mr. Grillo had executed a prior Will in 1994, under which his three adult children were equal beneficiaries. Mr. Grillo’s children could immediately see that the alleged holograph Will was not written in their father’s handwriting. An Italian handwriting expert also came to the same conclusion.

As this case had an international aspect, the court had to determine whether there was a real and substantial connection to the jurisdiction of Ontario, using the tests laid down in Club Resorts Ltd v Van Breda, [2012] 1 S.C.R. 572. The Court found that there was a real and substantial connection, due to the following:

  • Notwithstanding that Mr. Grillo was in Italy when he died, he was a resident of Ontario and Rule 17.02(b) and (c) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 permits service ex juris in respect of the administration of the estate of a deceased person who was a resident of Ontario, or for the setting aside of a will in respect of personal property in Ontario;
  • All presumptive connecting factors generally pointed to a relationship between the subject matter of the litigation and the forum of Ontario such that it would be reasonable to expect that the defendant, in this case Anna, would be called to answer legal proceedings in Ontario;
  • As per section 26(2) of the Succession Law Reform Act, R.S.O. 1990, c. S.26, the fact that Mr. Grillo was domiciled in Ontario at the time of his death, means that the law of Ontario will govern the formalities and validity of both the 1994 will and the 2014 will.

Perhaps the most interesting element of this case is that criminal charges had been laid in Italy for various counts of theft, and writing and registering a forged will. In light of this evidence, as well as the evidence from the Applicant and the handwriting expert suggesting that Mr. Grillo had not written the 2014 holograph Will, the Court had little trouble finding that the holograph Will was not valid.

Thanks for reading.

Ian M. Hull

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