All About Estates

Divisional Court Appeals: Not The Place For New Issues

In Luck v. Hudson, 2020 ONSC 3811 (Div. Ct.), the Divisional Court confirmed that an appeal is not the time to raise new issues and seek directions regarding an estate.

In this case, the deceased and his wife owned a house together jointly which then sold (it is not clear whether the house was sold before or after the deceased’s death). At some point, litigation was commenced. While the exact nature of this underlying litigation is unclear (as only the Divisional Court’s decision is available), at some point an order was made paying funds into court arising from the sale of this house (it is unclear whether all of the net sales proceeds were paid into court or whether the house had ever passed to the wife by right of survivorship).

In 2018, Justice Salmers made an interlocutory order that (1) that the aforementioned funds paid into court would be paid out in accordance with the deceased’s will and (2) the deceased’s wife was removed as an estate trustee.

The deceased’s son appealed to the Divisional Court. On his appeal, he also sought directions regarding the estate administration and an accounting.

Subsection 10(1) of the Estates Act states that any party to a proceeding under that statute “may appeal to the Divisional Court from an order, determination or judgment” if the amount at issue is over $200.00 (when the statute was drafted, this was presumably a more significant sum*). The son did not seek leave to appeal the interlocutory order, relying upon this provision that he had an appeal as of right.

The Divisional Court disagreed. It found that s. 10(1) did not oust the general principle in the Courts of Justice Act that leave to appeal was required in order to appeal an interlocutory order. As other provisions in s. 10 of the Estates Act require leave, there is an argument that the express lack of a leave requirement in s. 10(1) combined with the broad language of “an order, determination or judgment” contemplates that leave is not required. Ultimately, however, nothing turned on this as the Divisional Court granted leave to appeal even though it was not initially sought.

However, despite granting leave to appeal the Divisional Court quickly dismissed the appeal. The son’s real motivation, according to the Divisional Court, was to raise concerns with the validity of the will in order to obtain security for an unrelated proceeding he had against his father. This was an attempt to secure execution before judgment which the Divisional Court rejected. In any event, the Divisional Court confirmed that notice of objection had been filed nor had any proceeding been commenced to challenge the will. Neither was a request for directions properly before Justice Salmers.

The Divisional Court confirmed here that appeals are not a free-standing opportunity to air grievances. The son’s attempt to do so was rejected and he was saddled with $25,000.00 in costs. Potential appellants should take heed.

*Inflation has been even less kind to lawyers involved in a Forestry Workers Lien for Wages Act claim as their fees are capped at $10.00.


About Jacob Kaufman
Jacob Kaufman is a lawyer with de VRIES LITIGATION LLP. Jacob assists clients with will challenges, dependant support claims, guardianship applications, power of attorney disputes and other estate and trust litigation matters. He has appeared before various levels of court, including the Superior Court of Justice and the Court of Appeal for Ontario. Jacob obtained his law degree from the University of Western Ontario (with distinction) after completing an Honours Bachelor of Arts degree from Queen’s University in history (with distinction). He has written articles for the International Law Office, Legal Alert and the OBA’s Deadbeat. Email:


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