Foster Estate v. Foster

Foster Estate v. Foster Court Supreme Court Date 2025-07-22 Citation 2025 NSSC 251 Docket Ken, No. 527749 Judge/Registrar/Adjudicator Gatchalian, Gail L. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Foster Estate v. Foster, 2025 NSSC 251 Date: 20250722 Docket: Ken, No. 527749 Registry: Kentville Between: Michael Foster as Personal Representative of the Estate of Ruth Charlene Foster Applicant v. Bonny Foster and Robert Foster Respondents Motion of Bonny Foster to Testify by Video Judge: The Honourable Justice Gail L. Gatchalian Heard: July 10, 2025, in Kentville, Nova Scotia Counsel: David Hutt and Quila Gillott, for the Applicant Peter Rumscheidt, for the Respondents By the Court: Introduction [1] Ruth Charlene Foster died on August 29, 2020. She is survived by her three adult children: the Applicant, Michael Foster, and the Respondents, Bonny Foster and Robert Foster. Because the parties share the same last name, I will refer to them by their first names to avoid confusion. I mean no disrespect to them in doing so. Michael is the Personal Representative of the Estate. Michael, Bonny and Robert are the only beneficiaries of their mother’s will. Michael has filed an application under s.71 of the Probate Act, S.N.S. 2000, c.3. to “pass the accounts” of the Estate, i.e. to obtain the court’s approval of his administration of the Estate. Bonny and Robert have filed a Notice of Objection to the passing of accounts. The hearing is scheduled to take place before me on November 12 and 13, 2025 at the Kentville Courthouse. Bonny has filed several affidavits in support of the position of the Respondents. Counsel for the Estate intends to cross-examine her. Bonny does not want to attend the hearing in person. She resides in Kemptville, Ontario, which is near Ottawa. Bonny has filed a motion asking the court for permission to testify by video. The main reason for her request is her assertion that being in the same room as Michael will be detrimental to her mental health. The Estate objects to her request. [2] The presumptive rule is that, for an adversarial hearing, the witnesses will be in the courtroom. This presumption is reflected in the default positions adopted by the Supreme Court of Nova Scotia for the format of proceedings published on the Courts of Nova Scotia website on February 27, 2023, effective March 1, 2023. Although I am sitting as a judge of the Probate Court in this matter, the same presumption applies. [3] Bonny agrees that she bears the burden of establishing that the circumstances justify a departure from the presumptive rule. [4] Civil Procedure Rule 51.08 allows the presiding judge to permit testimony by video conference or telephone in accordance with Rule 56 – Commission Evidence and Testimony by Video Conference. Under Civil Procedure Rule 56.02(1), I may make an order for the transmission of evidence by video conference received in open court without a commissioner, as requested here by Bonny. [5] Civil Procedure Rule 56.02(2) sets out the factors that I must consider in determining whether to permit the transmission of evidence by video conference received in open court: (a) the circumstances of the person to be examined, including the potential for disruption to employment or personal life if the witness were to travel to the place of trial or hearing; (b) the chances that the person will not be available to testify in the courtroom; (c) the chances that the person will be beyond the ability of the court to compel attendance and will not attend voluntarily; (d) the expense of bringing the person to the trial or hearing, and, if the person is in Nova Scotia, the expense of bringing the trial or hearing to the person; (e) the apparent importance of having the person’s testimony; (f) the possibility of convening court where the witness is located, if that place is in Nova Scotia; (g) the possibility of appointing the judge to take evidence under commission, if the witness is outside Nova Scotia and there is no jury. [6] Civil Procedure Rule 56.08(3) states that, where a judge has allowed for evidence to be given by video, the judge must be satisfied on each of the following: (a) the required oath or affirmation is administered; (b) the witness is in a room with doors closed; (c) no one other than the witness is in the room, except as permitted by the judge; (d) the witness agrees to comply with all directions of the court, not to communicate with others during examination unless the judge permits, not to look at a note or other thing containing information unless the judge permits, and to report to the judge anything unusual that happens in the room. [7] A judge who decides whether to allow for evidence to be given by video must also consider the quality of the proposed transmission for the purposes of the hearing, especially for assessment of the evidence by the judge: Civil Procedure Rule 56.02(4)(a). [8] Bonny filed an affidavit in support of the motion, and relied on affidavits she previously filed in the main proceeding. Michael filed an affidavit in response to the motion. On the consent of the parties, Bonny and Michael were cross-examined while appearing by video at the motion hearing. [9] Bonny did not suggest that she would not attend the hearing if required to do so in person [see Civil Procedure Rule 56.02(2)(b) and (c)]. Neither party suggested that a judge be appointed to take Bonny’s evidence under commission [See Civil Procedure Rule 56.02(2)(g)]. [10] In order to determine whether Bonny should be permitted to testify virtually at the November, 2025 hearing, I will consider the following: • Bonny’s claim that personal attendance for cross-examination will be detrimental to her mental health [see Civil Procedure Rule 56.02(2)(a)], • the expense of having to travel to attend the hearing [see Civil Procedure Rule 56.02(2)(d)], • Bonny’s agreement to comply with the conditions of Civil Procedure Rule 56.08(3) and with all directions of the court, • the quality of the transmission [Civil Procedure Rule 56.02(4)(a)], • Bonny’s status as a party who is objecting to the passing of accounts [see Civil Procedure Rule 56.02(2)(e)], and • whether Bonny’s credibility will be at issue [see Civil Procedure Rule 56.02(2)(e)]. Effect on Mental Health [11] Bonny appended copies of the following medical documents to her affidavit to support her assertion that attending court in person will be detrimental to her health: • A note from Dr. Hatef Mottaghi on “Rideau Crossing Family Health Centre” letterhead dated April 8, 2024 and addressed “To Whom It May Concern,” stating, “Patient presented in Sep 2023 with worsening anxiety symptoms in context of psychosocial stressors related to her mother’s estate settlement. After a medical evaluation, it was recommended for her to increase her does of anxiety medication Effexor.” • A copy of a note from Dr. Leigh Waters on “Rideau Crossing Family Health Centre” letterhead dated February 13, 2025 and addressed to me, stating “Please excuse Ms. Foster from attending the legal proceedings in Nova Scotia on July 7th and 8th in person. Ms. Foster has anxiety, which I believe would be aggravated by the requirements and circumstance of attending in person.” • A copy of a letter from Dr. Waters addressed to me and dated April 9, 2025, asking me to excuse Bonny Foster from attending the legal proceedings in Nova Scotia on November 12 and 13 in person because, in her medical opinion, this would cause Ms. Foster “significant psychological distress.” Dr. Waters also wrote that Bonny Foster: o has been a patient of the practice since 2016, and under her direct care since 2020; o has a history of depression with anxious mood; o has presented with increased frequency (5x) in the last year with significant distress surrounding the disbursement of her family’s estate; o reports a history of verbal abuse from the time of childhood perpetrated by her brother, Michael; o is displaying signs of post-traumatic stress disorder with delayed expression related to the verbal abuse from Michael and requiring her to attend the hearing would expose her to the source of her historical trauma. • A chart note of Dr. Mottaghi “Locum for Dr Leigh Waters” dated September 14, 2023, which contains a recitation of what Bonny told Dr. Mottaghi, Dr. Mottaghi’s observations, assessment/opinions and treatment recommendations. The note contains the word “depression,” but it is not clear whether that was a diagnosis made by Dr. Mottaghi. • A chart note dated May 21, 2025 from Dr. Waters, in which Dr. Waters summarizes her discussion with Bonny Foster about these court proceedings and refers to an apparent request from a lawyer for a copy of her medical records. The note refers to “stress reaction with difficult estate situation.” The note does not refer to anxiety, depression or symptoms of post-traumatic stress disorder. [12] Bonnie did not file an affidavit from Dr. Waters or Dr. Mottaghi. [13] The Estate did not object to the admissibility of the medical documents. Rather, the Estate says that the medical documents are not reliable. Nonetheless, I cannot rely on inadmissible evidence. [14] Bonny’s lawyer acknowledged that the contents of the medical documents are hearsay (factual assertions made out-of-court adduced to prove the facts asserted), but asserted that hearsay is admissible in a motion such as this, which is a motion to determine a procedural right: Civil Procedural Rule 22.15(2)(c). [15] There are three problems with this position. [16] First, pursuant to Civil Procedure Rule 39.02(2), an affidavit that includes hearsay permitted under the Rules must identify the source of the information and swear to, or affirm, the witness’ belief in the truth of the information. Bonny did not swear to or affirm her belief in the truth of the medical information appended to her affidavit. The medical records, which are hearsay, are inadmissible for their truth. [17] Second, the statements attributed to Bonny in the medical records are prior consistent statements and are therefore inadmissible for their truth. [18] Third, the medical records contain opinions from experts who have not been properly qualified. Opinion evidence is presumptively inadmissible. Civil Procedure Rule 55 – Expert Opinion – does not apply to this motion, as the rule only applies to expert opinion sought to be introduced at the trial of an action or hearing of an application in court: Rule 55.01(1). However, the admissibility of expert opinion evidence offered on a motion is governed by the common law: see Layes v. Bowes, 2020 NSSC 345 at paras.35-36, 41 and 50-60. As the Supreme Court of Canada stated in the first paragraph of White Burgess Langille Inman, 2015 SCC 23: Expert opinion evidence can be a key element in the search for truth, but it may also pose special dangers. To guard against them, the Court over the last 20 years or so has progressively tightened the rules of admissibility and enhanced the trial judge’s gatekeeping role. These developments seek to ensure that expert opinion evidence meets certain basic standards before it is admitted. … [19] The expert opinion evidence offered by Bonny must meet the test for threshold admissibility under White Burgess. One requirement for threshold admissibility is a properly qualified expert, which includes the requirement that the expert be willing and able to fulfil the duty to the court to provide evidence that is impartial, independent and unbiased. [20] The threshold admissibility requirement is not particularly onerous: White Burgess at para.49. Nonetheless, the expert opinions offered by Bonny do not meet this low threshold. There is no statement or attestation from either physician in which they acknowledge their duty to the court, nor was there an opportunity for me to ensure that the physicians understood their duty to the court. [21] The opinions of the doctors contained in the medical records are inadmissible as unqualified expert opinion. [22] Even if I were to admit the medical documents, I would give them no weight because: • The doctors’ opinions rely on what Bonny told them. That hearsay evidence was not confirmed by Bonny in her own evidence. • Dr. Mottaghi does not set out the basis for the opinion expressed in the very short April 8, 2024 note. • Dr. Waters does not set out the basis for the opinion expressed in the very short February 13, 2025 note. • The evidence is insufficient for me to conclude that Dr. Waters is qualified to offer opinion about post-traumatic stress disorder. • I am not persuaded, on the record before me, that Bonny is currently experiencing symptoms of post-traumatic stress disorder because the events that allegedly triggered those symptoms occurred when Bonny was a teenager more than 40 years ago, in the late 1970s, before Bonny moved out of the family home, and Bonny has not been in the same room as Michael since then, except for his wedding in the 1980s. Bonny did not assert that she suffered any ill effects while attending Michael’s wedding. [23] In the body of her affidavit, Bonny states that she has been experiencing the symptoms associated with Post Traumatic Stress Disorder, that most of those symptoms have been triggered by needing to deal with the administration of the Estate, the uncertainty of the process, and the length of time that it has gone on, but that she has been able to manage these symptoms to an extent by not having to have direct communication with Michael. This evidence is inadmissible as unqualified expert opinion. [24] What is left is Bonny’s assertion in her affidavit that the thought of being in the same room as Michael causes her “extreme stress and upset,” that she has “very serious reservations that [she] could properly focus [her] attention to being cross-examined at the Hearing if [she] were physically in the same room as Michael,” and that she thinks it would be “very detrimental to [her] ability to properly answer questions.” [25] I am prepared to accept that Bonny feels stressed and upset at the thought of being in the same room as Michael. However, she has not satisfied me that attending court in person to be cross-examined will be detrimental to her mental health. The Expense of Travel [26] Bonny says that, if she is required to testify in person, she would need to secure transportation and accommodations, and that given her anxiety, she would want her husband to come with her for support. I accept that this would increase the cost to her, and would be inconvenient. Bonny’s Agreement to Certain Conditions [27] Bonny is agreeable to testify from the office of a lawyer and to commit to all of the safeguards required in Rule 56.08(3). The Quality of the Transmission [28] Bonny proposes to testify from the offices of a lawyer who lives in her community. I have no information about the quality of the proposed video transmission from her lawyer’s office. When Bonny was cross-examined on the motion, she testified from her home. Bonny’ video feed froze briefly during her testimony on the motion. Bonny’s Status as a Party [29] Bonny is a party to these proceedings. Her evidence will not be peripheral. [30] A hearing to pass the accounts of the Estate would not be required but for the Notice of Objection filed by Bonny and Robert. [31] In the Notice of Objection, Bonny and Robert say that Michael unreasonably delayed the administration of the Estate and failed to appropriately invest the assets of the Estate, resulting in lost investment income to the beneficiaries. They object to the legal fees incurred by the Estate. They also object to Michael receiving a commission. [32] These circumstances distinguish Bonny’s situation from that of a mere witness, or a defendant or respondent drawn unwillingly into a proceeding. Credibility of Bonny at Issue [33] Bonny’s lawyer asserted at the motion hearing that the facts are undisputed, and that the passing of accounts will involve an application of the law to the undisputed facts. Bonny’s lawyer says that the case will turn on what Michael did or did not do, and that neither Bonny nor Robert had any say or any involvement in Michael’s administration of the Estate. [34] The Estate disagrees. The Estate says that Bonny’s credibility will be at issue and that her evidence will be challenged. The Estate disputes all of Bonny’s allegations. The Estate will say that Michael took a conservative approach to the administration of the Estate because of the history of his relationship with Bonny and Robert. [35] The affidavits filed in the main proceeding strongly suggest that the parties’ credibility will be at issue. For example, in her affidavit sworn on July 16, 2024, Bonny states at paragraph 13 that, “[f]or approximately two years after the Grant of Probate was issued, I made efforts to obtain information from Michael with respect to the status of the administration of the Estate, including the nature and value of the Estate assets,” that “Michael did not respond to my inquiries,” and that, “[a]s such, me and Robert were left largely in the dark with respect to the administration of my Mother’s Estate.” By contrast, in his affidavit sworn on November 22, 2024, Michael refers to paragraph 13 of Bonny’s July 16, 2024 affidavit, and states that, “[a]s set out herein, neither Bonny nor Robert ever contacted me directly, and their requests through counsel were, I understand, generally answered.” [36] In these circumstances, I find that it is likely that Bonny’s credibility will be challenged at the hearing. Conclusion [37] Bonny has agreed to comply with the requirements of Civil Procedure Rule 56.08(3) and with the court’s directions if she were to testify by video. However, Bonny has not persuaded me that the circumstances of this case justify an order permitting her to testify by video, for the following reasons: • Bonny has not persuaded me that attending court in person to be cross-examined will be detrimental to her mental health. • I am satisfied that adequate measures will be in place to mitigate any stress or upset that Bonny may experience as a result of having to testify in person. Bonny will have her lawyer in the courtroom to protect her interests. I will ensure that all those present in the courtroom will maintain appropriate decorum. There will be Sheriffs present in the building. Bonny will not have to interact directly with Michael. I will provide her with breaks if she requires them to manage her stress level. • Bonny has not persuaded me that the cost of attending in person will be of significant concern nor that it will be more than an inconvenience for her to attend in person. • Bonny’s evidence is important, not peripheral. Moreover, unlike a defendant or respondent unwillingly named in a proceeding, she has chosen to participate in these proceedings. • It is likely that Bonny’s credibility will be challenged. A credibility assessment is best accomplished by an in-person hearing: see, for example, the decision of the Honourable Justice James L. Chipman in George v. LeBlanc, 2023 NSSC 329 at paras.9-11. • I have no information about the quality of the proposed video transmission from the office of the lawyer in Bonny’s community. [38] Sometimes, the effectiveness of in-person testimony for assessing credibility should give way to other considerations: see, for example, Wintrup v. Adams, 2023 NSCA 19 at paras. 92-109. This is not one of those cases. [39] In all of the circumstances, I conclude that it is in the interests of justice to require Bonny to testify in person. Trial fairness will be better served by such a requirement. I am not satisfied that Bonny’s access to justice will be impaired by such a requirement. [40] Bonny’s motion for permission to testify virtually at the hearing to pass accounts is dismissed. If the parties cannot agree on costs, I will receive written submissions from them within two weeks of this decision. Gatchalian, J.