Mandatory Mediation in Ontario Estate Disputes: Toronto, Ottawa, Essex

If an estate dispute is heading to court in Toronto, Ottawa or Windsor, you may find that the court expects you to try mediation before the case goes much further. That can come as a surprise to people who thought a dispute over a will, a trustee or a power of attorney would go straight to a judge.

This article explains in plain terms how mandatory mediation under Rule 75.1 works, the deadlines that apply, who may need to be told about the process, and what you can prepare while the steps unfold. It is general information, and the details of your case matter, so a lawyer should confirm how the rules apply to you.

What mandatory mediation is and where it applies

Rule 75.1 requires mediation in certain estate, trust and substitute-decision lawsuits. It applies in Toronto, Ottawa and Windsor (Essex), unless the court grants an exemption.

Mediation is a structured meeting where a neutral person, the mediator, helps the parties talk through the issues and look for a settlement. The mediator does not decide who is right. If the dispute does not settle, the court case generally carries on.

Whether your particular lawsuit falls within the rule, and whether an exemption is realistic, depends on the type of claim and the facts. That is worth confirming early with a lawyer.

The steps and deadlines

The process runs on short timelines. The table below sets out the main steps described by Ontario.

Because the first deadline runs from a date set by the court process, it is easy to lose track of it. Mark each date as soon as you know it.

The directions order

The directions order is the document that shapes the mediation. It sets which parties must attend, who has carriage of the mediation, and how the mediation cost is shared.

Directions proceedings under rule 75.06 use a Notice of Application for Directions (Form 75.5) or a Notice of Motion for Directions (Form 75.6), both stating the grounds as rule 75.06. An order giving directions is in Form 75.8 or 75.9.

Read the order carefully when you receive it. If you are unsure whether someone should be attending, or you have concerns about how the cost is divided, raise it with a lawyer promptly rather than waiting until the session.

Children and incapable beneficiaries

Many estate disputes involve people who cannot speak for themselves in court. The Office of the Children's Lawyer must be served on behalf of a child in applications that may affect a child's interest, such as will interpretation, will challenges and trustee removal. It should also be served when there is an unborn or unascertained interest in an estate or trust.

For notice of an estate trustee application, notice goes to the guardian or attorney of a mentally incapable beneficiary, or to the Public Guardian and Trustee if there is no guardian or attorney with authority in the proceeding. For a minor, notice goes to a parent or guardian and to the Children's Lawyer.

If you are involved in a dispute where a child or incapable adult may have an interest, ask a lawyer who needs to be notified. Missing a required party can slow the case down.

What to prepare

Mediation goes better when you arrive knowing what you want and what you can prove. The Statement of Issues is due early, so start gathering material as soon as the directions order is made.

• The will, any codicils, and any earlier wills you know about
• A list of the estate's assets and debts, with dates and values where you have them
• Key correspondence, emails and notes of conversations about the dispute
• Any estate accounts that have been prepared or requested
• A short written summary of your main issues, in order of importance
• A realistic idea of what outcomes you could accept
• The names and contact details of everyone with an interest in the estate

What to do next

Start with the dates. Write down the Notice of Appearance deadline, the 30-day motion for directions deadline, and the 30-day period to choose a mediator.

• Confirm with a lawyer that your lawsuit is covered by Rule 75.1 and whether an exemption is worth asking for.
• Check who must be served or notified, especially if a child, an unborn beneficiary or an incapable adult has an interest.
• Begin drafting your Statement of Issues well before the seven-day deadline.
• Think about who you would be comfortable with as mediator, so you can respond quickly if the other side proposes someone.

Frequently asked questions