McAuley v. Sinclair Estate, 2015 MBQB 53

• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: March 25, 2015
• Jurisdiction: Manitoba
• Citations: 2015 MBQB 53;(2015), 317 Man.R.(2d) 102 (QBM)

McAuley v. Sinclair Estate (2015), 317 Man.R.(2d) 102 (QBM)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. MY.019

Todd Henry McAuley, on his own behalf and as Litigation Guardian for Todd Jr. Rhyse McAuley (an infant) (applicant) v. Craig Genaille as the Executor of the Estate of Lori Ellen Sinclair (respondent)

(CI 13-01-81875; 2015 MBQB 53)

Indexed As: McAuley v. Sinclair Estate

Manitoba Court of Queen's Bench

Winnipeg Centre

Sharp, Master

March 25, 2015.

Summary:

Common law parents separated in 2011. They had two children, one adult and one 14 year old (the son), who was in the father's custody. The mother paid child support. In 2012, the mother died. Her brother was her executor. The mother left the proceeds of her employment life insurance to her mother. The estate's residue was to be divided between the two children. The son's share was to be held in trust until he was 21 with no amounts to be paid before then. The will made no provision for the father nor for the son during his minority. The father applied for relief for himself and the son under the Dependants Relief Act. The executor moved for orders declaring the law firm that represented the father and son to be in a conflict of interest and for an order appointing the Public Guardian and Trustee (PGT) as litigation guardian for the son.

A Master of the Manitoba Court of Queen's Bench appointed the PGT as the son's litigation guardian. Any other issue of conflict was resolved by the appointment.

Barristers and Solicitors - Topic 1619

Relationship with client - Conflict of interest or duties - Situations resulting in a conflict - [See Practice - Topic 138 ].

Family Law - Topic 6750

Dependents' relief legislation - Practice - General - [See Practice - Topic 138 ].

Infants - Topic 6086

Legal proceedings - Representation of infants - As guardian - [See Practice - Topic 138 ].

Practice - Topic 138

Persons who can sue and be sued - Infants - Litigation guardian - Appointment of - Common law parents separated in 2011 - They had two children, one adult and one 14 year old (the son), who was in the father's custody - The mother paid child support - In 2012, the mother died - Her brother was her executor - The mother left the proceeds of her employment life insurance to her mother - The estate's residue was to be divided between the two children - The son's share was to be held in trust until he was 21 with no amounts to be paid before then - The will made no provision for the father nor for the son during his minority - The father applied for relief for himself and the son under the Dependants Relief Act - The executor moved for orders declaring the law firm that represented the father and son to be in a conflict of interest and for an order appointing the Public Guardian and Trustee (PGT) as litigation guardian for the son - A Master of the Manitoba Court of Queen's Bench appointed the PGT as the son's litigation guardian - There was an obvious conflict - The father sought maintenance and support not only for himself, but also for the son and asked that this be paid out of the estate - The father had provided no details of his or the son's need, as required under s. 8(1) of the Act - This raised a concern as to what costs might be generated against both the father and the son if the father's application was dismissed due to that failure - The son's interests would be greatly assisted by appointing the PGT as litigation guardian instead of the father - Any other issue of conflict was resolved by the appointment.

Cases Noticed:

MacDonald Estate v. Martin and Rossmere Holdings (1970) Ltd., [1990] 3 S.C.R. 1235; 121 N.R. 1; 70 Man.R.(2d) 241, refd to. [para. 10].

Canadian Pacific Railway Co. v. Aikins, MacAulay & Thorvaldson (1998), 123 Man.R.(2d) 281; 159 W.A.C. 281 (C.A.), refd to. [para. 10].

Canadian National Railway Co. v. McKercher LLP - see Wallace v. Canadian Pacific Railway et al.

Wallace v. Canadian Pacific Railway et al. (2013), 446 N.R. 1; 423 Sask.R. 1; 588 W.A.C. 1; 2013 SCC 39, refd to. [para. 20].

R. v. Neil (D.L.) (2002), 294 N.R. 201; 317 A.R. 73; 284 W.A.C. 73; 2002 SCC 70, refd to. [para. 20].

Lam v. Le Estate (2002), 161 Man.R.(2d) 318 (Q.B.), refd to. [para. 37].

Authors and Works Noticed:

Harvey, Cameron, Succession and Conflict of Laws (2005), 31 Man. L.J. 67, para. 22 [para. 36].

Harvey, Cameron and Vincent, Linda, The Law of Dependants' Relief in Canada (2006), p. 166 [para. 38].

Law Society of Manitoba, Code of Professional Conduct (2010), rule 3.4-2 [para. 21]; rule 3.4-5 [para. 22].

Counsel:

Carla B. Paul, for the applicant;

Tanya M. Keller, for the respondent.

These motions were heard by Sharp, Master, of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on March 25, 2015.