Aug 26, 2025
I will never forget the first time I received a judge’s Endorsement. We had won our case, putting an end to months of protracted litigation. I remember poring over the judge’s reasons, carefully reviewing the analysis and spotting all of the cases taken from our factum. After the excitement subsided, one of my colleagues pointed out something I had no idea was required: we now needed to convert the judge’s reasons into an issued Order. Even though the judge’s decision was immediately effective, the precise terms of that decision needed to be set out in a signed Order, approved by the parties as to form and content and issued and entered by the Court registrar.
But what happens if the parties cannot agree on the form and content of the draft Order? What if there are disagreements about what the judge intended to order in his or her reasons?
Thankfully, Rule 59.04(9) of the Rules of Civil Procedure provides a clear mechanism for settling an Order where the parties remain at a deadlock. Rule 59.04(9) states that
[i]f an objection is taken to the proposed form of the order in the course of its settlement before a registrar, the registrar shall settle the order in the form the registrar considers proper and the objecting party may obtain an appointment with the person who made the order to settle the part of the order to which objection has been taken, in which case the objecting party shall serve notice of the appointment (Form 59D) on all other parties who participated in the hearing or conference and file it, with proof of service, at least seven days before the appointment date.[1]
In other words, if the parties cannot agree on the form of the Order, any party can serve a “Notice of Appointment to Settle Order” (Form 59D) to attend before the judge who made the Order to settle its terms. Similar to a Notice of Motion, a Notice of Appointment requires the objecting party to set out the purpose of the appointment, the grounds for the relief being sought, and the documentary evidence to be relied on at the appointment. Best practice is to include all relevant materials that the judge will need to settle the Order, including the underlying Endorsement, the originating process or motion, the form of the draft Order proposed by the objecting party, and the draft proposed by the responding party or already settled by the registrar.
If the Order was made by a court consisting of more than one judge, the appointment will be before the judge who presided at the hearing or, where unavailable, any other judge who participated in the hearing.[2] Should the judge cease to hold office or become incapable after making the order but before it is signed, any other judge may settle and sign it.[3]
It should be noted that settling an order is not a mere formality. For example, if the Order contemplates the payment of money into or out of Court, a judge’s Endorsement will not be sufficient to effect payment.[4] Moreover, a party wishing to appeal a court’s decision will not be able to perfect their appeal without first getting an issued order. The Court of Appeal recently confirmed that an appeal always lies from the court’s order, not its reasons.[5] It is the appealing party’s obligation to take all necessary steps to perfect their appeal, including drafting the order and, failing agreement of the parties, seeking an attendance to settle it.[6]
[1] Rules of Civil Procedure, RRO 1990, Reg 194, Rule 59.04(9).
[2] Ibid, r 59.04(10).
[3] Ibid, r 59.04(14).
[4] Ibid, rr 72.02(2); 72.03(2).
[5] Toronto Standard Condominium Corporation No. 2931 v Tsatskin, 2025 ONCA 323 (CanLII) at para 6.
[6] Ibid at para 7.
Adam Giancola
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Aug 21, 2025
If you had kids, wouldn’t you make sure they were taken care of if something were to happen to you? Of course. So why aren’t we doing the same for our furry friends?
I’ve worked in Estates for 5 years and have been an animal lover for 28. I’ve seen a lot of Wills, however, I’ve noticed that none of them specify what would happen to their pets if they were to pass.
Now I know what you are thinking, not everyone likes these messy, smelly, hairy, EXPENSIVE (but adorable) animals, but did you know that 60% of Canadian households own at least one pet? By my calculations, that means I should have come across at least a handful of Wills that mentioned their fur babies.
I suspect that people don’t include their pets in their Wills because they either don’t know you can, or they assume a loved one will automatically care for them. Whether it be because they couldn’t imagine giving the animal away or because it may be the last living thing tied to your deceased loved one. However, that’s not realistic to assume nor expect, because animals are a big responsibility.
Now, who is “qualified” to take on the responsibility of being a fur parent?
- Consider their lifestyle. Do they have enough space/room? Are they renting or owning their home? Are they physically fit/capable of giving the animal the care it needs? Does anyone in the household have pet allergies?
- Consider the time commitment. What is their work schedule? Do they have any upcoming travel plans? If they have any kids already, are the kids ready to interact safely with a pet (and is the pet able to interact safely with children?) Are they planning to start a family soon?
- Consider the financial responsibility. Can they afford the ongoing costs and unexpected expenses?
The list goes on.
Please make sure you consider these questions when you are drafting your Will and planning to include your pets. If you have a specific person in mind, ask yourself the above questions, and once you think you have a suitable person, have a conversation with them and make sure they’re agreeable to taking on the responsibility. And it never hurts to have a backup – just in case!
The reality is, if you don’t properly consider the future care of your fur baby, they can end up in a shelter. Shelters are extremely overcrowded and underfunded, and with the cost of living getting more and more expensive, people can hardly afford kids, let alone animals. While children are almost always accounted for in the case that their parents pass, pets are not, and there aren’t the same securities and care put in place to keep them homed, fed, and cared for. Abandoned pets are often (and sadly) euthanized.
It’s important we also don’t forget the furry friends that have already passed and live on a shelf in your loved one’s home. Don’t let them end up in the trash or on a new shelf in a Value Village or Good Will.
Now, here is where I say something crazy, stay with me. I don’t have kids. My dogs are my kids and that is crazy to some people because animals don’t share the same DNA. But real animal lovers will get it.
Introducing the Casey & Moss LLP furry friends. The emotional support behind our toughest days.
Samantha’s dogs: Rusty and Phoebe
Hannah’s family dogs: Bubba, Andy and Kevin
Hannah’s family cat: Bucky
Hannah’s cats: Glep and Coraline
Colleen’s dog: George
Diana’s cat: Ollie
Jenny’s dog: Kaycie
Angelique’s cat: Ginger
Rebecca’s cat: Chester
Jennifer’s cat: Molson
Angela’s dog: Zoey
If you’ve stayed this long, and have a pet, give them a cuddle for me! <3
Samantha Valvona
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Aug 8, 2025
This blog is part 2 of a series which started with this one: “Re-thinking Power of Attorney Litigation.”
My first modest suggestion for power of attorney (“POA”) litigation is to fully explore clients’ assumptions about the rights and powers of POAs before initiating litigation.
If the aggrieved party uses words like “power”, “in charge” and “control” when describing the role of a POA, rather than “duty”, “responsibility”, “accountability” and “service”, it is a sign that the person who wants the job doesn’t fully understand the role.
For example, I am shocked by the number of children who believe that as soon as the family home is sold and a parent enters a care setting, that is the time to divide up the house sale proceeds among themselves. They mistakenly think that the POA gets to decide how and when to divide up the parent’s money. Not so. The incapable person’s money must be carefully managed solely for the incapable person’s benefit during his or her lifetime.
Yes, that is true even if the nursing home costs will not exceed the incapable person’s income. Yes, that is true even if the children are all counting on their inheritance as a pathway to home ownership and would like to receive at least part of their inheritance early. Yes, that is true even if the parent’s dementia has progressed to the point that he or she would not even miss the house sale proceeds.
Another common reason litigants want to be “in charge” is the mistaken belief that a POA can make unilateral decisions without talking to anyone else. POA litigation usually involves high conflict families. The person who wants to be POA or Guardian of Property needs to understand that, if successful, there will be a duty to consult with supportive family members and friends of the incapable person, including the despised sibling.
The Substitute Decisions Act uses the word “consult” to describe this duty on substitute decision makers. This is different from informing after-the-fact. To do the job of POA correctly, the POA will need to share all information relevant to a substitute decision with the incapable person’s family members, then listen to their feedback and opinions before implementing a substitute decision. If you are unable or unwilling to communicate effectively with your immediate family members, you are not qualified for the job.
Before initiating POA litigation, I often refer clients to this helpful summary of the duties and obligations of Guardians of Property on the Public Guardian and Trustee’s website [1].
It is important to fully explore how taking on this 24/7 responsibility will impact the POA’s life. Vacations could be interrupted by a call from the nursing home. POAs will face practical problems like banks that won’t provide online access to bank accounts and paid caregivers who don’t work out. Tax returns to be filed, forms to be filled out, doctor and dentist appointments to be tracked, medications to be managed. The POA will ultimately be responsible to account to the beneficiaries of the incapable person’s estate, and possibly the Court, about every transaction during the POA period. A lost receipt could become a personal liability.
These duties and obligations should be fully explored before heading down the destructive and expensive path of POA litigation so that the client has eyes wide open about what “winning” entails.
[1] Most of the duties imposed on Guardians of Property are also applicable to fiduciaries acting under a power of attorney, the primary distinction being that a Guardian of Property will be obligated to act in accordance with a Management Plan and will have to pass accounts to the Public Guardian and Trustee by a particular deadline.
Angela Casey
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Jul 18, 2025
After months of waiting, you’ve finally received your Certificate of Appointment from the Court, and you can now manage the estate, pay debts, bring in the assets, file taxes, and distribute funds.
But what do you do if you don’t know the full value of the estate and the Estate Information Return (EIR) deadline is 180 days away and fast approaching?
As an estate trustee, you have the responsibility to determine the assets of the estate and confirm the values as of the Date of Death, and it can often be a long and difficult process to obtain the information you need from a financial institution.
If you are not aware of the assets, you can consider using a service like Estatesearch or hire a lawyer to do a deep dive and uncover any accounts.
Here are a few tips and steps you should take to obtain the information you need:
1. Hire a Lawyer: In many ways it is valuable to have a lawyer assisting and advising you on the estate administration process and to reach out to the different financial institutions on your behalf. There is a cost associated with this work, so take this into consideration.
2. Prepare notarized copies of the following documents (notaries, lawyers, and paralegals can provide this service):
- Will (if obtaining prior to issuance of your Certificate of Appointment)
- Death Certificate
- Issued Certificate of Appointment
3. Provide a copy of a valid government-issued photo ID to the bank.
4. Walk into the bank branch and provide them with the notarized documents and inquire about how you can obtain statements showing balances as of the date of death. Some estate departments of banks require the branch staff to verify the physical copies of the documents and your ID in person before speaking to the Estate Trustee on the phone or via email.
5. If applicable: Call the bank and inquire about how to submit the documents needed to gain access to the statements. Some will accept clear, scanned emailed, mailed or faxed-in copies and others require you to attend in person.
6. If applicable: Mail or fax the above documents to the relevant estate department along with your request for the balance of the account and statements as of the date of death.
7. Follow-up and keep good records. On that first conversation with the bank, ask for a reference number, and phone number or email address so that you can follow up on the status of your request. Once you receive the requested information, save it and make note of the documents and values received for when you need to report to the court and on your Estate Information Return.
Olesya Johnson
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Jul 3, 2025
I am the type of person who spends a lot of time planning for the future. When I was 16, I developed a ten year plan: Attend Queen’s University for the commerce program, move out to British Columbia to go to UBC for law school, then move back to Toronto to work in corporate law at a large law firm, and eventually make partner. That, to me, was what success looked like.
In my pursuit of these goals, I had come to accept the fact that to achieve this, I would likely have to work harder and make more sacrifices than most men with similar aspirations. One of the most prominent issues in the conversation about the challenges that women face in the workplace is the choice between family and career. Although I am still in the early stages of my career, having only just completed my undergrad, like many other ambitious women, I have already found myself questioning how my career will be affected if I decide to one day start a family? Similarly, how will my career affect my ability to prioritize family? Ultimately, I decided that if I want to achieve my version of success, these sacrifices would be unavoidable.
When the opportunity to join Casey and Moss for the summer first presented itself to me, of course, I looked up the firm online. I was pleasantly surprised to find that the firm, and more importantly, the partnership was overwhelmingly female. Before ever stepping foot in the office, I was excited at the prospect of working with and under other women who essentially are who I have always wanted to be.
I have been working here at C&M for about two and a half months now and have not been disappointed. In this time, I have noticed two things in particular:
- The women here are highly accomplished in their work. They are widely respected and praised by their peers and clients, and they have been repeatedly recognized for their excellence both individually and as a firm. From what I have seen and in my experience working with these lawyers, they are all passionate about their work and always do right by their clients. Overall, they are everything that I always imagined success would look like.
- At the same time, they all seem to be able to balance their varying priorities. For some, this has meant prioritizing their families and their personal lives at times. If they are sick or a family member is sick, they can work from home. If they are pregnant, they can take maternity leave without fear of falling behind. This is done without undermining their professional success.
While these may seem trivial to some, many young, ambitious women have to choose between the two, whereas men are not faced with the same choice. This is only one of the many ways that the women at this firm have changed my perception of what success needs to look like. Every day, I am both fascinated and inspired by the lawyers at this firm. Each of them has been the embodiment of what the legal field (and the broader workforce) should be like for women. It has been and continues to be a privilege to work at C&M, a place where the partnership has carved out a space for women in law. In the mere two and a half months that I have been here, I have come to recognize C&M not just for the value it brings to clients, but what it represents to women like me: a symbol of change for female success in a male-oriented workforce.
Jenny Sun
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Jun 18, 2025
I work all night, I work all day, to pay the bills I have to pay
Ain’t it sad?
And still there never seems to be a single penny left for me
That’s too bad…
My colleague Rebecca Suggitt previously blogged about the importance of keeping proper accounts as an attorney or guardian of property. One of the reasons she gave was that a guardian or attorney’s compensation is tied directly to the receipts and disbursements person under guardianship or attorneyship (who will be referred to as the “incapable person”).
Generally, the rule that applies to a guardian or attorney’s compensation is a charge of 3% on all receipts and disbursements in the guardianship or attorneyship accounts, per the regulations under the Substitute Decisions Act, 1992. (For simplicity, I will use the term “fiduciary” to mean “guardian” or “attorney” for the remainder of this blog, but be aware that “fiduciary” is a broader term that is not limited to guardians or attorneys.)
The broad purpose of this 3% charge is to compensate fiduciaries for the work they do to manage the incapable person’s assets, such as paying their bills, purchasing necessities and personal items, and collecting and managing money from their sources of income.
However, like many legal principles, there are exceptions to this general rule. There are certain receipts and disbursements that the 3% charge should not be applied to. Below are a few commonly seen non-compensable transactions:
Transfers Between Accounts
People often own more than one bank or investment account. The fiduciary may need to move money from the savings to chequing account to pay the incapable person’s monthly bills, or decide to invest the excess funds in chequing account by moving it into an investment vehicle. These transfers will appear in the accounting as a disbursement (when the money leaves the original account) and a corresponding receipt (when the money is deposited into the second account). But, because the money is not leaving the guardianship/attorneyship to pay a third party, nor is new money coming in, these are not compensable transactions. They should be recorded in the accounting bookkeeping or “memo” transactions only.
Refunds
The accounts will reflect refunds, for instance, when items are returned to a store and a credit is issued back to the incapable person. The refunded money will appear in the accounting as a receipt. Since these receipts are not deposits of new money or income, they are not compensable transactions.
Capital Losses
Capital losses occur when an asset is sold for less than its adjusted cost base. The fiduciary may need to liquidate stocks, investments, or other assets because the incapable person needs cash to pay for their expenses. Capital losses appear in the accounting as disbursements. However, they are not true disbursements because no money leaves the guardianship or attorneyship to pay for a good or service. As such, they are non-compensable.
Compensation Paid to the Fiduciary
Fiduciaries are permitted to pay themselves compensation on a monthly, quarterly, or annual basis, pursuant to the Substitute Decisions Act, 1992. If so, the accounts will reflect compensation payments to the fiduciary throughout the period of accounting. As it would be duplicative for the fiduciary to pay themselves for paying themselves, these transactions are non-compensable.
How to Reflect Non-Compensable Transactions in the Calculation for Compensation
The value of these identified non-compensable transactions should be deducted from the value of total receipts and disbursements during the accounting period. After making all deductions, apply the 3% to the net receipts and disbursements to calculate the compensation.
Zara Wong
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
May 29, 2025
When it comes to scheduling a date with the courts and subsequently serving and filing materials, you must first consult your region’s Practice Directions. These handy guides provide detailed steps to ensure your date is secured and your materials are provided to opposing counsel and your presiding Judge.
The Superior Court of Justice is divided into eight different regions, each with their own Practice Direction:
- Central East: Barrie/Bracebridge, Newmarket, Oshawa, and Peterborough/Cobourg/Lindsay,
- Central South: Hamilton, Kitchener, St. Catherines, Welland, Brantford, Simcoe, and Cayuga
- Central West: Brampton, Orangeville, Guelph, Milton, and Owen Sound/Walkerton,
- East: Ottawa, Kingston, Belleville, Brockville, Cornwall, L’Orignal, Napanee, Pembroke, Perth, and Picton
- Northeast: Sudbury, Cochrane/Timmins, Gore Bay, Haileybury, North Bay, Parry Sound, and Sault Ste. Marie
- Northwest: Thunder Bay, Kenora, and Fort Frances
- Southwest: Chatham/Kent, Goderich/Huron, London/Middlesex, Sarnia/Lambton, St. Thomas/Elgin, Stratford/ Perth, Windsor/Essex, and Woodstock/Oxford
- Toronto: This region of the Superior Court of Justice includes the Estates List, Civil List, and Family List. Importantly, each of these lists have their own practice direction.
Practice Directions provide an up-to-date overview of the court’s scheduling, filing and administrative procedures. Importantly, these directions are separated by the subject of the matter, such as civil law, family law, and criminal law.
While each court will have varying directions, there are some consistencies across the regions, such as:
If you find that a region’s Practice Direction does not adequately address your questions, you can do the following:
- Consult the consolidated Provincial Practice Directions
- Contact the court’s administration and ask them to clarify their scheduling and filing procedures
- Review the Rules of Civil Procedure
*(When in doubt, it is always best practice to review the Rules. They govern the entire Superior Court of Justice and are the basis of all region’s court procedures.)
Remember to always read the most recent iteration of a region’s Practice Directions and Notices to the Profession. These guides are often amended to reflect updates to court’s scheduling and filing procedures.
Hannah Henley
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
May 15, 2025
Many people in the midst of planning their estate consider adding an adult child as a joint owner on a bank account as a straightforward way to avoid probate taxes and to ensure what they expect will be a smooth transfer of funds after death. In fact, many clients tell us that their deceased parent received explicit advice from their bank that adding an adult child as a joint account holder is an appropriate probate planning strategy. However, relying on joint accounts to transfer inheritance to your children can carry legal complexities that are misunderstood and can lead to unintended consequences.
Under Ontario law, naming an adult child as a joint account holder does not automatically mean that the child becomes the rightful owner of the funds upon the parent’s death. Unless there is clear evidence that the parent intended to gift the funds outright to their child, the law applies what is known as the presumption of resulting trust. This is a legal principle that when a parent transfers property to an adult child without receiving value in return, it is presumed the child is holding the property in trust for the parent’s estate, not as a personal gift. In practical terms, unless the child can prove that the parent intended a true gift, the funds in the account may be treated as part of the estate and are subject to probate.
Disputes typically arise when one child is added as a joint account holder and, after the parent’s death, claims the funds as their own. Other beneficiaries may object, arguing that the account was intended for estate purposes or convenience only. The presumption is that the funds were being held in trust for the estate. Meaning, without clear, contemporaneous evidence of a gift, these cases will often result in lengthy and costly litigation.
These disputes can delay estate administration, trigger court applications, and lead to fractured family relationships. Legal costs pursuing litigation can erode the very funds the joint account arrangement was intended to preserve.
When assessing whether the funds in a joint account are held in resulting trust, courts will consider factors such as: who deposited the funds; how the account was used; whether the deceased retained control; and any written or verbal statements made about the account. Where the evidence is unclear or contradictory, the surviving joint account holder often faces an uphill battle to prove a gift was intended.
Joint accounts can be an appropriate estate planning tool, but they should be used with care and proper documentation. What appears to be a simple banking decision can have far-reaching legal consequences.
Cara Zacks
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
May 12, 2025
In today’s financial and legal world, wire transfers are a routine part of many transactions – whether it’s settlements, estate distributions, or real estate transactions. With the growing convenience of wire transfers, it is important to stay alert and informed about cybercrime and to take the necessary steps to protect your funds throughout the process.
Wire fraud usually happens when criminals impersonate a trusted person or organization, typically through email or other electronic means, to trick people into transferring funds to an unauthorized recipient. These scams often take the form of phishing emails that appear to come from someone to you know, like a lawyer or team member, asking about changes to bank details or requesting urgent action unexpectedly on a wire payment. As these scams become more sophisticated, it’s important to stay alert and carefully review any financial emails. Even if they seem convincing, taking a moment to verify can help protect you.
While cybercrime is a growing concern in many fields, there is good news: with the right systems, precautions, and habits in place, we can minimize the risks!
Steps We Take to Protect Your Transactions
Our firm takes a proactive stance on cybersecurity and fraud prevention. Below are key steps we take to help protect your transactions:
Verifying Wire Instructions
We will call you to confirm your wire details using a phone number we know and trust. We encourage you to do the same. If anything seems unusual, please contact us immediately.
Ongoing Education and Policies
Our staff and IT have regular discussions on best practices for cybersecurity and fraud prevention strategies. Additionally, we have internal policies in place to ensure we consistently take an active approach to keep your transactions running smoothly and securely.
Account Oversight and Monitoring
All transactions are carefully reviewed, and only authorized members can initiate or approve wire transfers. We also monitor accounts daily to identify any suspicious activity.
How You Can Help Protect Your Transactions
Here are a few simple recommendations to protect yourself:
- Be mindful of unexpected emails: If an email about a transaction feels unusually urgent or unexpected, take a moment to call us and confirm, and always double-check the sender’s information.
- Avoid clicking on unfamiliar links: If you are ever unsure about an email with a link, please reach out for confirmation.
- Take your time: Slow down and read through all emails carefully – especially ones that seem out of the ordinary.
- Use strong passwords: Protect your email account with a strong, unique password. If possible, activate two-factor authentication to provide additional security.
While cybercrime is an unfortunate reality of our modern age, taking thoughtful precautions and maintaining clear communication can make a meaningful difference in keeping your information and transactions safe. Casey & Moss is committed to protecting your interests every step of the way!
Emilia Szczepkowski
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Apr 25, 2025
When someone is appointed as an executor of an estate or as an attorney under a Power of Attorney, they are usually provided with one original Will or Power of Attorney document signed in wet ink by the testator or principal. This document is known as the “original.” While acting in your role as executor or power of attorney, you may be asked to produce the original Will or Power of Attorney to prove that you are authorized to act on behalf of the Estate (if probate has not yet been received) or another person (for attorneyships). These requests usually come from financial institutions, healthcare providers, or the Canada Revenue Agency. Because there is only one original document, it is important to avoid giving it away permanently. A solution to this is to have notarized copies made.
What is a notarized copy?
A notarized copy of a document is a true copy of an original, meaning that the copy is verified to match the original exactly. This is done by a notary public (usually a lawyer or government official). A notarized copy includes a notarial certificate on the first page, which states the name of the notary and their attestation that the copy is a true copy of the original document. The certificate is signed by the notary and embossed with a red stamp called a “notary seal”. In most cases, a notarized copy holds the same validity as the original document. However, there are some circumstances where a notarized copy cannot be used (i.e. when you are applying to the court for probate).
Generally, our clients find it helpful to obtain several notarized copies of any original documents they hold, such as death certificates, original wills, powers of attorney, and probate certificates.
Stacie Chrysanthopoulos
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
