Mediation of Estate Disputes in Ontario: Mandatory Mediation

If you are in an estate lawsuit, you may be told the case must go to mediation. That can feel like one more hurdle when you would rather have a decision.

This article explains how mandatory mediation in estate matters works in Ontario, what the timelines look like, and how to prepare. Whether it applies to you depends on your proceeding and where it was started.

What mandatory mediation means

Mediation is a structured discussion where a neutral mediator helps the parties look for a settlement. The mediator does not decide the case.

Under Rule 75.1, certain lawsuits about estates, trusts and substitute decisions are referred to mandatory mediation unless the court grants an exemption. Rule 75.1.02(1) makes mediation mandatory in certain estates proceedings, including contested passings of accounts, claims against an estate, and proceedings under the Substitute Decisions Act, 1992.

• Contested passings of accounts, where someone with an interest in the estate disputes how it was handled.
• Claims against an estate.
• Proceedings under the Substitute Decisions Act, 1992.

A passing of accounts is one common way into this process. A court will not require an executor or administrator to account for the deceased's property unless a person interested in the estate or a creditor asks for it, so a beneficiary can apply to compel accounts. On a passing of accounts, the judge may inquire into any complaint or claim by any person interested in the accounts.

Where it applies

The Ontario government says the Mandatory Mediation Program operates in Toronto, Ottawa and Windsor. The rule itself sets out the areas and start dates, and those details can change, so check the current wording of Rule 75.1.02 or ask a lawyer whether your court is covered.

In the Toronto Region, the Estates List of the Superior Court of Justice hears estate, trust and capacity matters, including Rule 74 and 75 proceedings and guardianship proceedings. Procedures differ by region, so the practice direction for the court where your case will be heard is the place to look.

Where your case is heard also affects the paperwork. In the Toronto Region, a party seeking an urgent Estates List hearing must complete an Urgent Hearing Request form through the Ontario Courts Public Portal. An applicant on a passing of accounts gets a hearing date by submitting a Request Form through the same Portal. Rule 75.06 gives the court considerable discretion and flexibility to set a process for resolving a contested estate.

The timeline step by step

Missing these steps can slow a case, so keep a calendar from the date the Notice of Appearance deadline passes.

Reading the table in order helps. The first deadline belongs to the person who started the proceeding, and it runs from the last day for submitting a Notice of Appearance. Once the court gives directions, the parties have a limited window to agree on a mediator. If you are responding to a claim, check early who is responsible for each step, because different people carry different deadlines.

Cost and who pays

The court's directions order sets the cost of mediation and how it is shared. Under the program, parties pay mediators directly. If you are worried about the split, raise it when directions are sought.

Because the directions order sets how the cost is shared, the split can differ from one case to the next. Since parties pay mediators directly under the program, it is practical to ask early what the mediator's charges will be and when payment is due.

What to do next

Mediation is a chance to be heard and to test the other side's position. How it fits with the rest of your case depends on your situation, so it is worth confirming with a lawyer.

• Confirm whether your proceeding and court fall within mandatory mediation, or whether an exemption could be sought.
• Diarize each Rule 75.1 deadline once the Notice of Appearance period closes.
• Draft your Statement of Issues early, with the key documents attached or ready.
• Gather the accounts, letters and estate records that relate to your complaint.
• Decide in advance what outcomes you can accept, including non-money options.
• In Toronto, remember that motions and applications need a costs outline filed through the Ontario Courts Public Portal before the hearing.
• Talk to an estates lawyer about whether to settle at mediation or keep the matter on the court track.

Frequently asked questions