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Appellate Litigation


Milosevic & Associates partner Cameron Fiske had a recent success before the Ontario Court of Appeal, defending a client’s award from her late mother’s estate for providing personal care to her mother in the years leading up to her death.


The testator in this case had two daughters. One daughter (the Respondent) and her son lived in the testator’s home both before and after her death. The other daughter had previously passed away but had two daughters of her own, the Appellants in this matter. All three parties were beneficiaries under the will.

The will provided for the Respondent and her son to remain in the home for six months after the testator’s death at which time the house was to be sold. The terms of the will also provided the Respondent with a right of first refusal to buy the home herself. This was due to the Respondent having cared for the deceased during a prolonged illness.

She and her son provided twenty-four/seven care for the deceased for five years before the death. Prior to the care period, the Respondent and her son had lived in the home and shared the occupancy costs with the deceased. During the care period, the Respondent and her son lived in the home without paying their share of the occupancy costs. After the death, the Respondent and her son continued to live in the house and had done so for over five years when the trial started.

Soon after the death, the Appellants sought and received an undertaking from the Respondent that she would not sell the home until after the litigation was concluded. This agreement also prevented the Respondent from buying the home herself.

At the trial, the Respondent was successful. She was awarded $273,039.54 from the estate for providing personal care for the deceased from 2007 until her death in 2012. In addition, the Respondent was found to be not responsible for any occupation rent for the five-year period of occupancy after the death. She was not however entitled to be repaid for the occupancy costs which she paid for items such as property taxes and maintenance expenses.

The Issues

The appellant granddaughters appealed the award for personal care, arguing that it should be offset by the following amounts:

  1. Occupancy rent for the home after the death, as the Respondent’s care obligations were no longer needed;
  2. Further occupancy costs that were not correctly assessed by the trial judge;
  3. A small amount of income for the estate that was unaccounted for.

The Decision

The ONCA dismissed the appeal and agreed with the trial judge’s reasoning as follows:

It reflects the trial judge’s approval of [the Respondent’s] honest, but mistaken, belief in her legal rights, her sacrifice of her own interests for [the deceased’s] care, and the complex and challenging relationship between [the Respondent] and her nieces both before and after [the deceased’s] death. We cannot say that the trial judge erred in declining to grant the appellants equitable relief.

The reality is that in late 2007 [the deceased’s] health began a catastrophic descent and this descent lasted for more than five years, until her death on February 2012. This fundamentally changed the dynamic in the household and introduced a very different role for [the Respondent and her son] as full-time caregivers. Accordingly, we agree with the trial judge’s ultimate conclusion on this issue.

The ONCA also found that since the Appellants had been the ones to insist that the house not be sold prior to the end of any litigation, they could not then hold the Respondent liable for occupation rent for that period.

At Milosevic & Associates, our team of Toronto lawyers regularly represent clients in appellate litigation on a variety of issues. Over the years, our team of exceptional litigators has seen it all and has successfully fought for our clients’ rights. Our impressive track record speaks for itself.  Call us at 416-916-1387 or contact us online for a consultation.