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.
Dec 17, 2024
It seems that the past few months have been full of guardianship applications, each with their own nuances and challenges. After a brief moment of respite, I thought this would be a useful occasion to document some of the things I have learned along the way. Below are some tips “from the trenches”:
1. Give your Client a Realistic Timeline
Guardianship applications do not follow the typical roadmap of litigation, even if they are uncontested. Depending on your client, he or she may have little to no information about the alleged incapable person’s finances or care needs. This means that you need to build in more time than usual to make inquiries with banks, healthcare providers, and family members.
And then there are all of the nuts and bolts of putting together an application record for the court, some of which can be deceptively cumbersome or easy to overlook. Take, for example, the requirement to include a statement by the applicant indicating that he or she has informed the person alleged to be incapable of the nature of the application as well as their right to oppose it. How will your client communicate this? What happens if the incapable person refuses to meet with your client? Or, consider the requirement to serve the incapable person with the application and to allow them to participate at the court hearing. How will you communicate the Zoom coordinates to the incapable person if the hearing takes place virtually?
The short of it is that you need to be clear with your client that guardianship applications take time, and it is prudent to have a work plan from the start setting out all the steps that need to take place and who will be responsible for each step.
2. If Retaining a Capacity Assessor, Be as Comprehensive as Possible in your Retainer Letter
I have found that the best practice for retaining a capacity assessor is to be as forthright as possible, and to document your retainer in a letter. When retaining a capacity assessor, be sure to:
- Make it clear that you do not represent the alleged incapable person, only the person(s) applying to be his or her guardian;
- Set out the background leading to the assessment, making sure to frame things neutrally;
- Identify any known conflicts or outstanding pieces of litigation;
- Specify what type(s) of assessment(s) you are retaining the assessor to conduct, and provide the legal criteria associated with each type of assessment;
- Provide collateral information about the alleged incapable person’s care needs and property; and
- Remind the assessor that your client(s) should not be present when the assessment takes place.
This list is certainly not comprehensive, but can provide a helpful start.
3. Ensure the Management and Guardianship Plans are Clear and Flexible
One of the best parts about reviewing applications to pass accounts is that you get to see all sorts of guardianship and management plans. Over time, I have learned that some simple additions to a plan can make a world of a difference in allowing a guardian to effectively manage another person’s assets without being put in an impossible position where they cannot comply with the plan.
The following are some of the notable additions to plans that I have seen or used in guardianship applications:
- Index all amounts to account for inflation;
- Include an annual contingency fund, in case expenses end up being higher than initially anticipated;
- Include a reallocation clause, in case one category of expenses exceeds the others in a given year;
- Build in the cost of future passings, including accounting and legal fees; and
- Add in discretionary language, where reasonable and appropriate.
4. Give Your Client A Roadmap for the Future
Once you have your guardianship judgment in hand, it may be tempting to think that your job is complete. The reality is that the real work has just begun. The point of bringing a guardianship application is not to get a piece of paper, but to ensure that your clients have the necessary tools to effectively manage another person’s property or care. The most common pitfall I see when reviewing guardianship accounts is that the applicant has not received adequate advice about how to comply with the terms of the judgment appointing them.
I recently got into the practice of preparing a detailed reporting letter following a guardianship appointment, explaining the terms of the order, setting out the guardian’s duties and obligations, and providing some examples of common situations they can expect to navigate. Another important consideration is the application to pass accounts, which most guardians of property will be required to commence within the first few years of their appointment. Working backwards from this deadline, you can give your clients helpful information about how to keep records, how to manage or consolidate bank accounts, when to begin preparing the accounts in court format, and when to commence the necessary court application. To this end, I will often give clients customizable spreadsheets so that they can track their transactions on a monthly basis in preparation for the passing.
The role of a court-appointed guardian is to step into the shoes of another person, to protect their welfare and best interests. For this reason, lawyers should take special care to ensure that clients are fully aware of the scope of this responsibility and are well-equipped to carry out the role with honesty, integrity, and trust.
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 30, 2024
We are proud announce that Casey & Moss LLP partners Angela Casey, Angelique Moss, Cara Zacks, and Laura Cardiff have been recognized in the 2025 Edition of The Best Lawyers in Canada™.
Additionally, we are thrilled to congratulate Zara Wong and Adam Giancola on their well-deserved achievement of being named in the 2025 Edition of the Best Lawyers: Ones to Watch in Canada™.
We are extremely honoured to be recognized by Best Lawyers since 2017!
Aug 18, 2022
Casey & Moss LLP is pleased to announce that Adam Giancola, an associate at our firm, has earned the Trust and Estate Practitioner (TEP) designation. The Society of Trust and Estate Practitioners grants this internationally recognized designation to formally identify qualified practitioners in trusts and estates, and distinguishes them from non-specialists. The designation indicates to clients and fellow practitioners that Adam has an advanced understanding in the trusts and estates field.
Adam is also the recipient of the STEP Advanced Certificate in Cross-Border Estates. The Advanced Certificate is a specialist qualification that offers detailed insight into the different issues that arise when dealing with cross-border estate planning and succession worldwide.
