Posts by Cassandra Martino

In Ontario civil litigation, lawyers are familiar with motions to compel answers to undertakings following examinations for discovery in an action. Applications, however, proceed differently. They are typically determined on affidavit evidence rather than the full discovery process. Despite this difference, courts in Ontario can still compel answers to undertakings arising during cross-examinations on affidavits…

Who decides how to address a deceased person’s remains? Disputes over the disposition of a loved one’s remains are among the most urgent and emotionally charged matters in estate litigation. When family members disagree about burial, cremation, or repatriation — the question becomes: who has the legal authority to decide? In Ontario, the answer is…

The policy behind legal costs of estate litigation in Ontario has undergone a significant evolution. Historically, courts frequently ordered costs to be paid out of the estate. Today, however, the dominant approach aligns estate litigation with ordinary civil litigation principles: loser pays, subject to important exceptions. Understanding this shift is critical for estate trustees, beneficiaries,…

Gifts mortis causa (also referred to as donatio mortis causa) occupy a narrow but important space in Ontario estate litigation. They arise when a person makes a gift in contemplation of death, intending it to take effect only if death occurs. These gifts fall somewhere between an inter vivos gift and a testamentary disposition under…

Estate litigation in Ontario is evolving rapidly. An aging population, increased longevity, and shifts in end-of-life law—especially Medical Assistance in Dying (“MAID”)—are reshaping estate litigation trends. This creates new litigation patterns and strategic considerations for estates and trusts practitioners, estate planners, families, and estate trustees alike. Demographic Shift Is a Driving Force Ontario is experiencing…

When someone applies for probate in Ontario (formally called a Certificate of Appointment of Estate Trustee), the process is usually administrative. If the application is complete and uncontested, the certificate is often issued without a hearing. Where there is a genuine dispute about whether probate should be granted, to whom, or in what form, an…

One of the most misunderstood concepts in estate and capacity litigation is the idea that a person either “has capacity” or “doesn’t.” In Ontario law, capacity is not a single, global condition. It is task-specific, context-specific, and variable. The level of mental capacity required depends on what the person is doing — and courts have…

Proprietary estoppel is an equitable doctrine that can create or affect property rights where strict legal title would result in unfairness. Unlike contractual claims, proprietary estoppel can override strict legal title if someone reasonably relied on a promise about property and suffered detriment as a result. In Ontario and Canadian practice, proprietary estoppel often arises…

A constructive trust is an equitable remedy that courts impose to prevent unjust enrichment or remedy wrongful acts. The remedy is discretionary and not limited to any specific relationship; it may be applied in commercial, family, or estate contexts. In Ontario litigation (especially estates, family/property disputes, and fiduciary cases), constructive trust claims often determine who…

Ontario is on the verge of its most significant overhaul of the Rules of Civil Procedure in decades. The Civil Rules Review (CRR) Working Group — comprised of judges, practising lawyers, and academics — has proposed sweeping reform to make civil litigation faster, more efficient, and more predictable. These reforms are currently under review and…