Consolidated Practice Direction Concerning the Estates List in the Toronto Region

Notice of Amendment:

Effective June 14, 2022, Part B, paragraph 16 was amended to further clarify procedures regarding passings of accounts and new paragraphs 17, 18, and 19 were added regarding the same. Part F was amended to clarify that parties may schedule a case conference, as opposed to a 9:30 scheduling appointment, to deal with matters on which they require assistance beyond scheduling.

Effective April 20, 2022, paragraphs 16 and 17 were amended to clarify procedures regarding passings of accounts, and paragraph 36 was amended to require confirmation forms for applications and motions to be submitted five days in advance of the hearing.

Effective February 22nd, 2022, housekeeping amendments were made to (1) indicate a new email address for the Estates Trial Scheduling Office, (2) provide links to the updated hearing Request Form and Confirmation Form, (3) specify that leave of the court is required to file a factum that exceeds 25 pages in length, and (4) move references to guardianship applications to Part D.

Effective October 18, 2021, housekeeping amendments were made to indicate the email address where documents can be filed, remove references to fax, remove references to Consent and Capacity Board appeals as they are no longer heard by Estate List judges, and updates a website address.

Effective October 18, 2021, Part I is amended to add an email address and remove reference to a fax number. Part IV has an updated website link. 

Effective March 9, 2021, Part VII (Contested Matters – Estates) has been amended to make reference to model orders prepared by the Estate List Users’ Committee.

Effective July 1, 2014

The Estates List has been established for the hearing of certain proceedings in the Toronto Region involving issues of estate, trust, and capacity law.

This Practice Direction applies to matters on the Estates List in the Toronto Region, effective July 1, 2014. It supersedes all previous Practice Directions concerning Estates List matters in the Toronto Region issued before July 1, 2014, which are hereby revoked.

Counsel and parties are advised to refer to the relevant Parts of the Consolidated Provincial Practice Directions as well as any other relevant Toronto region-specific Practice Directions and Guides which are available on the Superior Court of Justice website at: www.ontariocourts.ca/scj.

Part I: The Estates Office

  1. The Toronto Region Estates List is administered through the Estates Office, 9th floor, 330 University Avenue, Toronto. The email address is Toronto.estates@ontario.ca and telephone number is (416) 326-2940. All filings relating to Estates List matters are done through the Estates Office.

Part II: Principles Guiding the Estates List

  1. The following principles shall guide all proceedings conducted on the Estates List:
  1. The time and expense devoted to a proceeding should be proportionate to what is at stake in the proceeding; and,
  2. Co-operation, communication, civility, and common sense should prevail amongst all parties and counsel.

Part III: Matters heard on the Estates List

  1. The Estates List hears the following matters:
  1. all matters arising under Rules 74 and 75 of the Rules of Civil Procedure;
  2. applications under Rule 14.05 regarding estates, wills and trusts, including  applications for advice under section 60 of the Trustee Act;
  3. applications relating to inter vivos trusts, whether under Rule 14.05, the Variation of Trusts Act, or otherwise;
  4. proceedings involving the proof or validity of wills, including lost wills;
  5. proceedings concerning the administration of estates;
  6. summary procedures for claims against estates pursuant to the Estates Act, ss. 44 and 45;
  7. passing of accounts applications by estate trustees or any other person acting in a fiduciary capacity, including guardians and those acting under powers of attorney;
  8. applications under the Succession Law Reform Act;
  9. proceedings under the Substitute Decisions Act, 1992, including proceedings  under that Act involving powers of attorney;
  10. applications for the appointment of a guardian of property of a child under s. 47 of the Children’s Law Reform Act, if brought in the Superior Court of Justice;
  11. proceedings under the Declarations of Death Act, 2002or Absentees Act;
  12. proceedings under the Charities Accounting Act, Charitable Gifts Actor Religious Organizations’ Lands Act;
  13. applications for the extension of time to make an election under s. 6(1) of the Family Law Act regarding the interest of a spouse under section 5(2) of that Act;  and,
  14. such other matters concerning estate, trust or capacity law as a judge may direct be heard on the Estates List. In considering whether to make such a direction, the judge may take into account the current and expected case load of matters on the Estates List.
  1. Where an estate trustee(s) is either a plaintiff or a defendant in a civil action which does not specifically concern estate or trust law, or where an estate trustee becomes a party in such an action by virtue only of an order to continue under Rule 11.02, the action shall proceed as any other action and shall not be placed on the Estates List unless the court orders otherwise.

A. Transfers of matters to the Estates List

  1. A matter that should have been commenced on the Estates List may be transferred to it by a judge who is hearing the matter, but who is not sitting on the Estates List.
  2. Matters may be transferred to the Estates List on consent, provided the matters fall within the categories outlined in sub-paragraphs 3(a) – (n), or on a motion to a judge sitting to hear matters on the Estates List.
  3. The place of commencement of a proceeding is governed by Rule 13.1.01. Requests to transfer matters commenced outside the Toronto Region to the Estates List are governed by Part III of the Consolidated Provincial Practice Direction.

Part IV: Administrative Matters

A. Courtrooms and Gowning

  1. Matters listed on the Estates List usually are heard at 330 University Avenue, Toronto, unless notice to the contrary is given.
  2. Counsel shall gown for all hearings or attendances, except pre-trial conferences and 9:30 Appointments.

B. Estates List Documents and Forms

  1. Copies of forms specified by the Rules of Civil Procedure can be found on the Court Services Division Forms website: ontariocourtforms.on.ca/en/. Confirmation and other administrative forms used by the Estates List may be obtained from the Superior Court of Justice website: www.ontariocourts.ca/scj/practice/practice-directions/toronto/#Estates_List_Forms. Counsel and parties using documents obtained from a website must remember that the Rules of Civil Procedure require that all documents filed in a proceeding must use characters of at least 12 point, or 10 pitch, size; as a result, some conversion of the font size of web-sourced documents may be required.

Part V: Scheduling Matters on the Estates List

A. The Daily List 9:30 Appointments and the Hearing List

  1. The daily list of matters heard by a judge sitting on the Estates List consists of two parts: (i) the hearing of 9:30 Appointments of 10-minutes each, immediately followed by (ii) the hearing of contested matters or unopposed matters that require some time for a judge to review (“Hearing Matters”). 9:30 Appointments take place in chambers and deal with minor and/or unopposed matters. Counsel are not required to gown. Contested matters and application or motions are conducted in open court commencing 10:00 a.m.
  2. Booking dates for a 9:30 Appointment or a Hearing Matter can be done by completing the Request Form and emailing it to toronto.estateslist@ontario.ca.
  3. 9:30 Appointments will be booked for no more than 10 minutes for each matter booked and must be booked at least two days in advance. Any materials required for a 9:30 Appointment should be filed no later than 12 noon the day before the appointment.
  4. If a party fails to appear at a 9:30 Appointment, the court may set a timetable and hearing date for the matter in the party’s absence.
  5. In order to ensure the most efficient use of court time and to enable contested matters to be heard at the earliest reasonable date, procedures for booking time on the Estates List for the hearing of a proceeding vary according to the type and length of proceeding as described below.

B. Passing of Accounts Applications

  1. When initiating an application for a passing of accounts, the Notice of Application to Pass Accounts (Form 74.44) is filed at the court office through the Justice Services Online “Civil Submissions Online” portal or in person. This notice can be issued with the hearing date “to be fixed by the Trial Coordinator”. When filing an application to pass accounts through the online portal, you must choose as the proceeding type – “new proceeding” or “existing proceeding”.
    • Select “existing proceeding” if you have a court file number for an estate litigation matter for the same estate (whether active or not) and there has been no passing of accounts application previously filed. You can enter the 14-digit court file number that was assigned to this estates litigation file when submitting the Notice of Application to Pass Accounts through the portal in the following format: CV-YY-0000XXXX-00ES.The court file number assigned to a probate application or certificate must not be used.
    • For all other applications to pass accounts, select “new proceeding”. Each new passing of accounts application will be assigned a unique 14-digit court file number, which will be sent to you by email.Where you submit any documents through the Civil Submissions Online portal for filing or issuance, court staff will send you an email to advise whether the document has been accepted for filing or issuance (RCP rule 4.05.2(4)(8)).
  2. Once the applicant receives confirmation that the application for a passing of accounts has been issued and receives a copy of the issued notice of application, the applicant must contact the Trial Coordination Office to obtain a date for the hearing at toronto.estateslist@ontario.ca.
  3. The applicant must serve the issued Notice of Application in accordance with RCP rule 74.18(3) and advise those persons who must be served of the trial date once it has been scheduled.
  4. Responding materials can be filed through the Civil Submissions Online portal or in person. When using the online portal, respondents should select “existing proceeding” and then enter the 14-digit court file number that is set out on the application.
  5. After filing the Notice of Application to Pass Accounts, in all circumstances – whether the passing of accounts of estate trustees or of any other person acting in a fiduciary capacity, including guardianships and those acting under powers of attorney –the applicant should request a 9:30 a.m. scheduling appointment by emailing a completed hearing date Request Form to the Trial Coordination Office at Toronto.estateslist@ontario.ca and copying all other parties.
  6. If no notices of objection are received or if notices of objection are received but are withdrawn within the prescribed time in respect of the application to pass accounts, and no request for increased costs has been filed and served, the applicant may request, upon filing the material required by subrule 74.18(9), that the application proceed as an unopposed matter to be dealt with by a judge in chambers without the need for the parties to attend.
  7. If no notices of objection are received or if notices of objection are received but are withdrawn within the prescribed time in respect of the application to pass accounts, and a request for increased costs has been filed and served, the judge hearing the matter on the initial return date may determine the amount of the costs at that time or, if the judge is of the view that there is not sufficient time on the initial return date to hear the matter on the initial return date, the judge can schedule a date for a further hearing on the costs issue.
  8. If notices of objection are received and not withdrawn in response to the application to pass accounts, and if the parties can agree in advance of the initial return date on the terms of an order giving directions (including a timetable for each pre-hearing step and, where practicable, the hearing date), then the parties can obtain a consent order giving directions on the scheduled initial 10 minute return date for the application.
  9. If notices of objection are received and not withdrawn and if the parties cannot agree on an order for directions prior to the initial return date, the parties should file, at least two days in advance of the initial return date, copies of their respective draft orders giving directions, including timetables for each pre-hearing step and proposed hearing dates. If the dispute about directions can be resolved during the 10-minute appointment on the initial return date, the judge can issue an order giving directions, including a timetable for pre-hearing steps and a hearing date. If the argument about the terms of an order giving directions will require longer than the 10-minute appointment on the initial return date, the judge can schedule a date for the hearing of a contested motion for directions.
  10. Draft orders giving directions should address the items described in paragraph 48 (below).

C. Applications involving Wills where an Order giving Directions is required

  1. Where a notice of objection has been filed to the issuance of a certificate of appointment of estate trustee and an application for directions is required, the applicant, or other person applying for directions, should book an initial 10 minute 9:30 Appointment for the initial return date of the application for directions.
  2. If prior to their attendance at the 9:30 Appointment, the parties can agree on the terms of a consent order giving directions, including a timetable for each pre-hearing step agreed upon, the judge at the 9:30 Appointment may issue a consent order giving directions.
  3. If the parties cannot agree on an order giving directions prior to the 9:30 Appointment, the parties should file, at least two days in advance of the 9:30 Appointment, copies of their respective draft orders giving directions, including timetables for each pre-hearing step. If the dispute about directions can be resolved during the 10-minute 9:30 Appointment, the judge may issue the order giving directions, including a timetable for pre-hearing steps. If the argument about the terms of an order giving directions will require longer than the 10-minute 9:30 Appointment, the judge can schedule a date for the hearing of a contested application for directions.

D. Guardianship Applications

  1. Part III of the Substitute Decisions Act, 1992 sets out the procedure and filing requirements for applications to appoint guardians of adults. Part III of the Children’s Law Reform Act sets out the procedure and filing requirements for applications to appoint guardians of minors. In addition, the general requirements of Rule 38 governing applications apply to applications to appoint guardians.
  2. Applications for the appointment of a guardian under the Substitute Decisions Act, 1992 or the Children’s Law Reform Act should be commenced by filing an application record using the “Civil Submissions Online” portal of Justice Services Online or in person at the Toronto Estates Office counter. In the Estates List Confirmation Form, applicants should advise the court of the expected length of time for the application and whether the application is opposed or unopposed. Guardianship applications arising out of personal injury actions, including medical negligence actions, should be filed using the “Civil Submissions Online” portal of Justice Services Online or in person at the Toronto Civil Office Counter. If possible, the Guardianship application should be sought to be heard by the same judge who approved the settlement for the party under disability. The Notice of Application for the guardianship application should indicate the name of the judge who approved the settlement for the party under disability.

E. Any other type of Application or Motion brought on the Estates List

Matters that will require less than one hour to argue on the merits

  1. For other matters heard on the Estates List where the applicant or moving party realistically estimates that the argument of the matter by all parties involved will take less than one hour, an appointment may be booked on the list for Hearing Matters, through the Estates Office, for a hearing of up to one hour by emailing toronto.estateslist@ontario.ca.

Matters that will require more than one hour to argue on the merits

  1. Where an application or a motion will require more than one hour to argue on the merits, the applicant or moving party, on notice to all other parties, shall request a 10-minute 9:30 Appointment for the court to set a timetable for pre-hearing steps and a hearing date for the application or motion to be argued on the merits by sending the Request Form to toronto.estateslist@ontario.ca and copying all other parties.

F. Other matters that can be dealt with at a Case Conference

  1. Apart from the circumstances described above, there may be other occasions during a proceeding when the parties may wish to book a case conference to obtain the assistance of the court in setting timetables for further steps in the proceeding, including steps required to ready the matter for trial. On notice to other interested parties, such case conferences may be booked on by emailing the Request Form to toronto.estateslist@ontario.ca.

G. Adjournments

General Principles

  1. Parties are expected to be ready to proceed with matters for which hearing dates have been agreed to or set by the court; adjournments of previously scheduled matters shall be granted only in special circumstances and for a material reason. Parties are expected to have conscientiously to have sought to resolve most adjournments and waiting periods among themselves before a hearing in a way which minimizes inconvenience and difficulty for the parties.
  2. Parties are expected to retain counsel promptly. A request for an adjournment because counsel has not been retained promptly or because new counsel has been retained just prior to the hearing shall be dealt with accordingly.

Where the hearing date was set at a 9:30 Appointment

  1. Requests for adjournments of hearing dates which were set as a result of attendances at a 9:30 Appointment should occur infrequently since the reasonableness of the hearing date would have been canvassed at that appointment. Any such request for an adjournment, even on consent, should be made through a further 9:30 Appointment so that the court can be satisfied that the matter has reached a stage of readiness which justifies assigning a new hearing date. If the matter is not ready for hearing, it may be removed from the hearing list, leaving it to the parties to re-apply subsequently through a 9:30 Appointment for a new hearing date once the matter is ready to be heard.

Where the hearing date was not set at a 9:30 Appointment

  1. Where the hearing date for a matter was not set through a 9:30 Appointment attendance, a first consent adjournment of the hearing of the matter may be arranged through the Estates Office.
  2. If the parties wish to seek a second consent adjournment of the matter, they should adjourn the matter, in advance of the scheduled hearing date, to a 9:30 Appointment. If the request for a second adjournment is not made until the appearance before the judge scheduled to hear the matter, that judge may direct the matter to be adjourned to a 9:30 Appointment before it proceeds further. On the return of the matter at a 9:30 Appointment, the court can determine whether the matter is ready for hearing, or whether it would be more appropriate to remove the matter from the hearing list, leaving it to the parties to reapply subsequently through a 9:30 Appointment for a new hearing date once the matter is ready to be heard.

Part VI: Contested Matters – General

A. Confirmation of Applications and Motions

  1. Parties must confirm the hearing of an application or motion at least five days in advance of the hearing date (excluding weekends and holidays) by completing the Confirmation Form and emailing it toronto.estateslist@ontario.ca. Parties will receive an email from CaseLines with a link to the case. Parties must upload their documents to CaseLines at least three days in advance of the hearing. For matters being heard virtually, Zoom coordinates will be added to CaseLines two to three days in advance of the hearing.

B. Urgent Applications or Motions

  1. A party who considers a matter to be urgent may complete and submit to the Estates Office an an Urgent Hearing Request form describing the nature of the matter, the reason for the urgency, the time required for the matter, and any scheduling discussions the party has been able to engage in with the other party or parties in the circumstances, attaching a copy of the proposed Application or Notice of Motion must be attached to the form.
  2. Requests for the hearing of urgent applications or motions will be heard on an “as required” basis, by the supervising judge or designate. The Estates Office will notify the parties of the time and location for the hearing of the urgent request.

C. Pre-Trial Conference and Trial Dates

  1. Pre-trial conferences must be held in all matters proceeding to trial. Dates for pre-trial conferences and trials should be obtained from the Estates Office at the time the proceeding is set down for trial.
  2. Normally, two hours will be assigned for a pre-trial conference. If the parties think that a longer pre-trial conference would be appropriate in the circumstances of their case, they may book a 9:30 Appointment to secure a date for a longer pre-trial conference. If the parties are unable to agree upon a pre-trial conference date, trial date, the length of time for the trial, or any other matter concerning the conduct of the trial, a party may book a 9:30 Appointment to determine such matters.
  3. At least five days prior to the date of a pre-trial conference, each party must serve and file with the Estates Office an Estates List Pre-Trial Conference Form.

Part VII: Contested Matters – Estates

A. Orders Giving Directions: General

  1. Orders giving directions in contested matters are designed to provide the parties with a procedural framework in which to prepare the proceeding for final adjudication. Rule 75.06 provides the court with considerable discretion and flexibility to put in place a process that will ensure the just, expeditious and least expensive determination of a proceeding on its merits. Parties are expected to take time and care in preparing proposed orders giving directions for consideration by the court.
  2. If the parties cannot agree upon an order giving directions before or at a 9:30 Appointment, and a contested motion for directions is required, each party must file with its motion materials a copy of the draft order giving directions it is seeking.
  3. Draft orders giving directions should address, where applicable, the following matters:
  1. the issues to be decided;
  2. who the parties are – who is propounding the will(s), who is challenging the will(s), and who is submitting rights to the court;
  3. whether there is any party under disability, who requires representation, and if so, whether notice to the Public Guardian and Trustee or the Office of the Children’s Lawyer should be directed;
  4. whether an estate trustee during litigation should be appointed, and the amount of security, if any, such an estate trustee should post;
  5. who shall be served with the order for directions, and the method of and time for service;
  6. whether the parties should exchange pleadings or put before the court their respective positions and the material facts upon which they rely by some other means;
  7. procedures for bringing the matter before the court in a summary way;
  8. the timing and conduct of a mediation session under Rule 75.1, including (i) whether the mediator should provide any report to the court on procedural issues, (ii) the desirability of multiple mediation sessions, and (iii) when a pre-trial conference should be held if the mediation session does not result in a settlement of the proceeding;
  9. any other pre-hearing steps to be undertaken, including documentary disclosure, obtaining medical, accounting or legal records, examinations for discovery, and the availability of a motion for summary judgment;
  10. the timing for the delivery of any expert report and the utility of a pre-hearing meeting between experts to narrow the issues in dispute;
  11. the timing of a pre-trial conference, including how long after an unsuccessful mediation session the pre-trial conference should be held; and,
  12. the procedure to be followed at the hearing, including the method of adducing evidence-in-chief.

The preparation of draft orders for consideration by the court at the end of a hearing will greatly expedite the issuance of orders. Where relevant model orders have been approved by the Estate List Users’ Committee, a copy of the draft order blacklined to the model order and indicating all variations sought from the model order must be filed.

B. Orders Giving Directions: Contested Passing of Accounts

  1. Where a hearing will be held on a passing of accounts, orders giving directions proposed by the parties should address the following issues, where applicable:
  1. the timing and conduct of a mediation session;
  2. the issues to be tried and each party’s position on each issue;
  3. the timing and scope of relevant disclosure;
  4. the witnesses each party intends to call, the issues each witness intends to address, and the anticipated length of each witness’ testimony (examination-in-chief and cross-examination); and,
  5. the procedure to be followed at the hearing, including the method of adducing evidence-in-chief.

The preparation of draft orders for consideration by the court at the end of a hearing will greatly expedite the issuance of orders. Where relevant model orders have been approved by the Estate List Users’ Committee, a copy of the draft order blacklined to the model order and indicating all variations sought from the model order must be filed.

Part VIII: Mandatory Mediation – Rule 75.1

  1. Rule 75.1.02(1) stipulates that mandatory mediation applies to the following proceedings:
  1. contested applications to pass accounts;
  2. formal proof of testamentary instruments;
  3. objections to issuing a certificate of appointment;
  4. return of a certificate of appointment;
  5. claims against an estate;
  6. proceedings under Part V of the Succession Law Reform Act;
  7. proceedings under the Substitute Decisions Act, 1992;
  8. proceedings under the Absentees Act, the Charities Accounting Act, the Estates Act, the Trustee Act, or the Variation of Trusts Act;
  9. applications under Rule 14.05(3) whether the matters at issue relate to an estate or trust; and,
  10. proceedings under s. 5(2) of the Family Law Act.
  1. On contested passing of accounts applications, parties should be prepared to deal with the issue of directions for mandatory mediation on the initial return date specified in the notice of application.
  2. In all other matters, motions for directions for the conduct of a mandatory mediation, normally, should form part of, or be combined with, a motion for directions under Rule 75.06. Consent mediation orders can be obtained through a 9:30 Appointment.
  3. In addition to addressing the matters set out in Rule 75.1.05(4), an order giving directions for mediation should, where appropriate, deal with any further information the parties require in advance of the mediation in order to ensure a productive mediation session.

Part IX: Materials for use of the Court

A. General Requirements

  1. Parties are strongly encouraged to file any materials for use of the court earlier than the dates specified in the Rules, especially for more complex hearings. All materials must be filed by the moving party at least seven days before the hearing. All material must be filed by the responding party at least four days before the hearing.
  2. Application/Motion Confirmation Forms must clearly specify the materials that each party wishes the court to read for use on the application/motion.

B. Multiple-appearance Proceedings: Records for use at the Hearing

  1. Many proceedings on the Estates List involve multiple attendances before the court. Over time, materials can become voluminous. Parties are reminded that the Rules require that the application and motion records used at a hearing must contain all materials that the parties intend to use on that particular hearing.
  2. The Estates List strongly discourages the practice of relying at a hearing on materials used at previously disposed of hearings in a proceeding. If a party intends to do so, the party must ensure that a representative attends at the Estates Office sufficiently in advance of the hearing to ensure that the correct materials are available for the judge. It is the responsibility of the parties, not the Estates Office, or the judge, to ensure that materials from previously disposed of hearings are available for a current hearing.
  3. In complex cases where a large volume of materials will be placed before the hearing judge, it is of great assistance to the court for the parties to coordinate on a common numbering scheme for the records, transcripts, factums, authorities and other materials intended for use by the court and to ensure that the materials are properly organized for use on the hearing.

C. Multiple-appearance Proceedings: Upload Endorsements, Reasons for Judgment, and Orders into CaseLines

  1. Where a proceeding likely will involve multiple attendances before the court, it is of assistance to judges hearing matters in the proceeding to be able to review previous orders, endorsements, and reasons for judgment. In such cases, the person starting a case is responsible for uploading into CaseLines all previous orders, endorsements, and reasons for judgment into the “Orders and Endorsements” folder within five days of the date of the issuance of a new endorsement or reasons for judgment, or entry of an new order in the proceeding.

D. Compendium of Documents

  1. In appropriate cases, to supplement any required formal record, parties are requested to consider preparing a Compendium of the key materials to be referred to during oral argument (fair extracts of documents, transcripts, previous orders, authorities, etc.) to assist in focusing the case for the court. Relevant portions of the Compendium should be highlighted or marked. Parties are encouraged to consult among themselves to prepare a joint Compendium, if possible.
  2. The court encourages the use of diagrams, family trees, lists of persons involved, corporate organization charts, point-form chronologies, and other synopses of complex or technical evidence.
  3. The prior preparation of draft orders for consideration by the court at the end of a hearing will greatly expedite the issuance of orders.

E. Factums and Short Statements of Issues

  1. For applications, the Rules require that each party must file a factum for use at the hearing. Unless leave is obtained to file a longer factum, the factum shall not exceed 25 pages in length.
  2. Although under the Rules, factums are not mandatory on the hearing of a motion, parties are reminded that factums are of great assistance to the court where the motion will be contested or where an understanding of a large amount of materials will be required in order for the court to deal with an unopposed matter. In appropriate cases, filing a short, point-form or simple statement of issues, facts and/or law may provide an alternative way by which parties can assist the court in understanding the issues on the motion.

F. Evidence at Trial

  1. The court encourages the use, in appropriate circumstances, of sworn witness statements at trial in substitution for the examination-in-chief of witnesses, in whole or in part. Where sworn witness statements will be used, they must be exchanged with all other parties and counsel well in advance of the hearing and, unless a prior order is made, the witnesses should be available for cross-examination at the trial.

Part X: Matters without a Hearing

  1. Judges on the Estates List deal with a variety of applications without a hearing. The most common applications involve requests to dispense with administration bonds and uncontested passings of accounts. It is important that parties filing applications without a hearing ensure that their materials contain all the information and evidence required by statute, the Rules and any published filing endorsements emanating from the Estates List, as well as clear, detailed explanations of the reasons for the relief they are requesting.
  2. The filing requirements for requests to dispense with administration bonds are set out in Re Henderson Estate, 2008 CanLII 69136 (ONSC).
  3. Two copies of the draft order sought must be filed with the application materials.

Part XI: Costs

  1. Parties are reminded that the traditional practice of awarding costs in estate litigation to all parties out of the estate has been tempered by jurisprudence relating to the conduct of parties and their relative success in the litigation. Parties are expected to be aware of this jurisprudence and to be prepared to make submissions with respect to its application in particular cases.

Part XII: Settlements Affecting Parties under a Disability

  1. The partial or full settlement of a claim made by or against a person under disability requires the approval of a judge under Rule 7.08. Often the implementation of such a settlement will require the appointment of a guardian of property under Parts I and III of the Substitute Decisions Act, 1992 or section 47 of the Children’s Law Reform Act.

A. Settlements of Estates List Proceedings

  1. 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.

B. Settlements of other Civil Proceedings

  1. Where the settlement of any other civil proceeding will require the appointment of a guardian of property for a person under disability, the application for the appointment of a guardian should be brought on the Estates List. However, where the settlement occurs during the trial or pre-trial conference of a civil matter, the trial or pre-trial judge may deal with the application to appoint a guardian of property where the circumstances make it more practical to do so.
  2. Where the settlement involves an adult under disability, in most circumstances the application to appoint a guardian of property should be brought on the Estates List prior to the filing of a motion for approval of the settlement so that an authorized person has been appointed to receive any settlement funds on behalf of the party under disability prior to the approval of the settlement.
  3. Since the Children’s Law Reform Act does not authorize an amendment to a management plan for a guardian of property of a minor except by court order, where the settlement involves a minor under disability, the application to appoint a guardian of property initially should be made returnable at a 9:30 Appointment on the Estates List so that the court can coordinate the hearing of the application to appoint a guardian with the motion to approve the settlement.

Part XIII: Applications under Part V of the Succession Law Reform Act

  1. In an application for dependant’s support under Part V of the Succession Law Reform Act, a court must consider numerous circumstances, including the dependant’s current assets and means, the assets and means that the dependant is likely to have in the future, and the dependant’s needs in light of the dependant’s accustomed standard of living. Although the Rules of Civil Procedure do not prescribe the manner by which an applicant should place before the court evidence about these matters, applicants are encouraged to include in their application materials comprehensive lists of the dependant’s assets and liabilities, as well as information about the dependant’s income and expenses.

Part XIV: Family Law Act Elections

  1. An application for the extension of time to make an election under s. 6(1) of the Family Law Act regarding the interest of a spouse under section 5(2) of that Act should be brought on the Estates List.

Dated: April 11, 2014
Amended: June 15, 2018, March 9, 2021, October 18 2021, February 22nd, 2022, April 20, 2022, June 14, 2022.

Stephen E. Firestone
Regional Senior Justice
Superior Court of Justice, Toronto Region