Doherty v. Doherty

Doherty v. Doherty

The appeal is dismissed because the appellants failed to timely and properly challenge the October Order and cannot collaterally attack it after fully participating in the proceedings; on the merits the trial judge properly found insufficient evidence of gifts and concluded there was unjust enrichment and breach of...

Source-derived case information.

Citation
2023 ONCA 763
Parties
Applicant (respondent): Kathleen Florence Doherty; Respondent (appellant): Terrence Raymond Doherty; Respondent (appellant): Sylvia Joan Kurkowski Doherty; Respondent (appellant): Liam Alexander Doherty
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
14 November 2023
Procedural Posture
Estate Litigation Application for Directions and Accounting; Appeal From Superior Court of Justice / Court of Appeal — Final Disposition on Appeal From Superior Court Decision
Outcome
Appeal dismissed; Superior Court judgment affirmed
Legal Topics
Service of Process, Accounting, Unjust Enrichment, Breach of Fiduciary Duty, Collateral Attack, Costs
Source Language
english
Estate Law Civil Procedure Trusts and Fiduciary Duty Appeal Procedure Service of Process Accounting Unjust Enrichment Breach of Fiduciary Duty +2 more

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Parties

Kathleen Florence Doherty

Applicant (respondent)

Terrence Raymond Doherty

Respondent (appellant)

Sylvia Joan Kurkowski Doherty

Respondent (appellant)

Liam Alexander Doherty

Respondent (appellant)

Procedural Posture

Estate Litigation Application for Directions and Accounting; Appeal From Superior Court of Justice / Court of Appeal — Final Disposition on Appeal From Superior Court Decision

Legal Issues

  1. 1 Validity of service of the notice of application
  2. 2 Whether the appellants' challenge to the March/October Orders is a collateral attack
  3. 3 Whether transfers of approximately $330,000 constituted valid inter vivos gifts

Ratio Decidendi

The appeal is dismissed because the appellants failed to timely and properly challenge the October Order and cannot collaterally attack it after fully participating in the proceedings; on the merits the trial judge properly found insufficient evidence of gifts and concluded there was unjust enrichment and breach of fiduciary duty, entitling the estate to an accounting and restitution of approximately $330,000; costs of the appeal were fixed at $24,000.

Court Disposition

Appeal dismissed; Superior Court judgment affirmed

Orders

  • Appeal dismissed
  • Superior Court judgment ordering accounting and transfer of approximately $330000 to the estate affirmed