



COURT OF APPEAL FOR ONTARIO

CITATION: Lockhart v. Lockhart, 2021 ONCA
    807

DATE: 20211112

DOCKET: C68973

Fairburn A.C.J.O., Roberts J.A.
    and Van Melle J. (
ad hoc
)

BETWEEN

Barbara
    Lockhart personally and in her capacity as attorney for property

of June Lockhart

Applicant/Moving
    Party/Responding Party

(Respondent)

and

Robert
    Lockhart personally and in his capacity as attorney for property of

June Lockhart

Respondent/Responding
    Party/Moving Party

(Appellant)

and

June Lockhart personally and in her capacity as named Estate Trustee

of the Estate of Frank Lockhart, deceased, and Christine

Lockhart

Respondents

Robert Lockhart, acting in person

Matthew Rendely and Bryan Gilmartin,
    for the respondent

Jacob Kaufman, for the Estate Trustee, CIBC Trust

Heard and released orally:
    November 8, 2021 by video conference

On appeal from the order of Justice Bernadette
    Dietrich of the Superior Court of Justice, dated December 11, 2021.


REASONS
    FOR DECISION

[1]

These proceedings arise out of the administration of the estate of the
    late Frank Lockhart. The appellant and the respondent are siblings and were
    appointed as attorneys for property for their nonagenarian mother, June
    Lockhart, the widow of their father, Frank Lockhart, who has been found
    incapable of managing her property.

[2]

The appellant and respondent brought motions that were heard at the same
    time but disposed of by the application judge in two separate orders. Among
    other issues, they dealt with: 1) the question of whether their father had made
    a will subsequent to his 1974 Will, that, according to the appellant,
    disinherited their mother; and 2) whether an election should be filed on behalf
    of their mother, under s. 6(1) of the
Family Law Act
,
    R.S.O. 1990, c. F.3 (
FLA
), to take an
    equalization amount as opposed to the benefits provided to her as sole
    beneficiary under her late husbands 1974 Will, and to extend the time for
    doing so.

[3]

In her October 14, 2020 judgment, the application judge allowed the
    respondents motion, appointed CIBC Trust as Estate Trustee, and declared that
    the 1974 Will of Frank Lockhart was his last will and testament. The appellant
    has not appealed the October 14th judgment.

[4]

The application judge dismissed the appellants cross-motion in her
    December 11, 2020 order, which the appellant appeals. The respondent raised a
    threshold issue about the appellants standing to appeal, which we do not
    accept. As a party to the proceedings before the application judge, the
    appellant has standing to appeal.

[5]

Returning to the merits of the appeal, the application judge rejected
    the appellants submission that there was a possibility that his father had
    made a subsequent will in which he had disinherited the appellants mother and
    that the appellant needed more time to find it. Based on the evidence of the
    extensive but ultimately fruitless efforts that had been carried out, the
    application judge was satisfied on a balance of probabilities that there was no
    subsequent will and that the likelihood of one is very remote. She also found
    that the appellant had failed to show that it would be in the best interests of
    Mrs. Lockhart, as sole beneficiary under the 1974 Will, to make an election
    under s. 6(1) of the
FLA
. She was concerned
    that any further delay in the administration of the Estate was unfair and to
    Mrs. Lockharts prejudice alone.

[6]

As a result, the application judge determined there was no basis to
    order the
FLA
election or to extend the time
    for Mrs. Lockhart to make the election past the existing deadline of January
    31, 2021.

[7]

The appellant maintains that the election or his other requested
    alternative remedies are necessary to protect his mother from disinheritance
    under the subsequent will allegedly made by his late father. He also seeks
    leave to appeal the costs award made against him in favour of the respondent.

[8]

The appellant argues that the application judge erred in her treatment
    of the evidence, her failure to provide reasons, and her refusal to entertain
    his requested alternate relief.

[9]

We do not agree. All the appellants arguments stem from his
    disagreement with the application judges findings of fact that are firmly
    grounded in the record and were open to her to make, in particular, her
    findings that there was no subsequent will and the 1974 Will was Mr. Lockharts
    last will and testament. Essentially, the appellant is asking this court to
    retry the matters before the application judge. That is not our task. We see no
    error in the application judges careful and thorough reasons and decision.

[10]

We
    also see no merit in the appellants allegations of bias against the
    application judge. They are groundless.

[11]

The
    appeal is therefore dismissed.

[12]

With
    respect to costs, we find no error in the application judges costs order that
    would displace the high deference owed to her exercise of discretion. Her
    findings underpinning her costs award are amply supported by the record. Leave
    to appeal costs is granted sparingly. There is no basis to grant leave here.

[13]

The
    respondent is entitled to her costs from the appellant in the amount of
    $20,000, inclusive of disbursements and applicable taxes, to be paid within 30
    days by the appellant personally.

Fairburn A.C.J.O.

L.B. Roberts J.A.

Van Melle, J. (ad hoc)


