Canada Case Law

Trefry-Sweeney v. Matthews

Court

Supreme Court of Nova Scotia

The application to vary the trust was granted conditionally: the Court exercised its discretion under s.3(3) of the Variation of Trusts Act and concluded that requiring the applicant to obtain and maintain a term life insurance policy in the amount of $342,329 naming the Trust as beneficiary until age 35 sufficiently protects contingent beneficiaries and removes the prohibitive detriment, thereby permitting the amendment to clause 10(b)(iv).

Source excerpt

• Trust variation
• Settlor intention
• Contingent beneficiaries
• Life insurance as security
• Court-imposed conditions

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Savoie v. Daye

Court

Supreme Court of Nova Scotia

Applying Rule 77 and authorities, the court used Tariff A at scale 3 for a matter slightly over one day, allocated $20,000 to the 1+ day category and derived a rule-of-thumb award of $7,000; because each party had partial success and the applicant contributed to disclosure failures, the court apportioned the $7,000 among issues and parties, resulting in a costs award to the applicant of $3,499.83 inclusive of disbursements, payable by the respondent within 60 days.

Source excerpt

• Costs assessment
• Property division
• Disclosure
• Consent orders
• Trust variation

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West Vancouver (District) v. British Columbia (Attorney General)

Court

Supreme Court of British Columbia

The court held rental income from trust property belonged to the trust, refused an administrative-scheme route, but allowed a limited variation under s. 184 of the Community Charter.

• Trust variation
• Cy-près and administrative schemes
• Statutory interpretation
• Accounting for trust funds
• Interpretation of wills
• Municipal trustee obligations

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The John Risley Family Trust 2009 (Re)

Court

Supreme Court of Nova Scotia

The court held the proposed change is properly characterized as a variation (not a revocation or resettlement), the variation is not materially or demonstrably detrimental to beneficiaries incapable of consenting, and in light of the settlor's intention, trustees' and beneficiaries' positions and the statutory test in s.3 the court will confirm the arrangement.

Source excerpt

• Trust variation
• Variation of trusts act
• Beneficiary consent
• Resettlement vs variation
• Court approval of trust variations
• Cross-border estate tax planning

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McLeod Lake Indian Band Trust Agreement (Re)

Court

Supreme Court of British Columbia

The court refused to approve a trust amendment under the Trust and Settlement Variation Act because it would significantly reduce benefits for future and unborn Band members.

• Trust variation
• Benefit test for non sui juris beneficiaries
• Perpetuities
• Fiduciary duties of trustees
• Court approval procedure under statutory scheme
• Trust-variation

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Gellen v. Public Guardian and Trustee of British Columbia et al

Court

Supreme Court of British Columbia

The court dismissed a trust variation application, holding it had no jurisdiction to vary the trust on behalf of an adult beneficiary who had not consented.

• Trust variation
• Beneficiary consent
• Construction of trust deed
• Jurisdiction under trust and settlement variation act s.1
• Implied consent
• Accrual among shares

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Buschau v. Rogers Communications Inc.

Court

Supreme Court of British Columbia

La Cour suprême de la Colombie-Britannique conclut que le tribunal peut consentir à la terminaison du régime de pension au nom de bénéficiaires désignés dont le consentement manque.

• Trust variation
• Termination of pension plan
• Consent of beneficiaries
• Removal/replacement of trustee and administrators
• Actuarial valuation dispute
• Trust-variation

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Quallie v. Quallie

Court

Supreme Court of British Columbia

The court varied child support under the Guidelines and ordered specified contributions to the children’s education, while holding the trust funds unavailable without consent.

• Variation of separation agreement
• Post-secondary education costs
• Child support guidelines
• Trust variation
• Enforcement of separation agreement
• Child-support

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Byrn v. Mackin et al.

Court

Supreme Court of British Columbia

The court dismissed an application to pay $75,000 from a testamentary trust to fund legal retainers, finding no sufficient benefit to trust interests or prospect of success.

• Trust variation
• Funding litigation from trust assets
• Testamentary capacity
• Custody and access
• Appointment of estate administrator
• Leave to commence litigation

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