Executive Summary: Key Legal and Evidentiary Issues

• Status of the late spouses’ relationship (married vs. separated) was determinative of whether Lascelles’ estate ever had a right to half the condominium sale proceeds.
• Prior Family Law Act focused hearing, which found that Hortense and Lascelles were not separated, bound the estate and effectively eliminated any entitlement to the sale proceeds.
• The estate’s current claim against solicitor Michael Housley rests narrowly on an alleged promise to pay half the proceeds, without pleading any duty of care, negligence, or breach of duty.
• Evidence of the estate’s lack of assets, including an unpaid $60,000 costs award, supported the conclusion that it had insufficient means to satisfy any future costs order.
• The court found the estate’s claim to be highly unlikely to succeed, devoid of practical merit, and frivolous and vexatious, justifying an order for security for costs.
• Security for costs totaling $39,819.08 (plus HST), along with $11,386.64 in costs of the motion, was ordered in favour of the defendants, to be posted by the estate in staged tranches.

Background and parties

Lascelles Burnett and Hortense Burnett were married in the 1970s, separated at some point in the 1980s, and later remarried in 2001, remaining married until Lascelles’ death in March 2022. In between those marriages, Lascelles married Ralfina Burnett in 1989; they divorced in 1994. Ralfina later acted as Lascelles’ attorney for property and now serves as executor of his estate. The plaintiff in this action is the Estate of Lascelles George Burnett, represented by executor Ralfina. The defendants are the law firm Heakes, Housley, Barristers & Solicitors, and solicitor Michael K. Housley. Associate Justice Jolley heard the motion. The estate had been represented by counsel earlier in the related Family Law Act (FLA) proceedings and in this action, but counsel was removed in January 2025 and Ralfina proceeded self-represented at the motion, based on her own affidavits and factum. The associate justice cautioned that, as executor of an estate, she was likely required to act through counsel under rule 15.01(1), and directed that the estate either retain a lawyer or obtain advice confirming that no lawyer was needed, but allowed the motion to proceed so as not to prejudice the defendants.

Family law proceedings over the condominium sale

Hortense had purchased a condominium in 1998 in her sole name. When she and Lascelles remarried in 2001, they moved into that condominium, which always remained in Hortense’s name. In late 2021, as Hortense moved into long-term care, her attorney for property (her sister) listed the condominium for sale. To complete the sale, Lascelles, as Hortense’s spouse, was required to sign an acknowledgement and direction indicating that he was Hortense’s spouse and consenting to the transaction. Before he could sign, Lascelles fell on 23 February 2022, lapsed into a coma and never recovered. Ralfina, holding his power of attorney, attended at Mr. Housley’s office and signed the acknowledgement on his behalf, confirming that Lascelles was the spouse of Hortense and consented to the sale. After the closing, Ralfina and Lascelles’ sons complained that Lascelles should have received half of the sale proceeds. On learning of this complaint, Mr. Housley initially paid half the proceeds to his client, Hortense, and held the other half in trust for two weeks to see if Lascelles commenced a claim. No claim was commenced within that period, and the remaining proceeds were paid out to Hortense. The estate later commenced an FLA proceeding seeking half of the condominium sale proceeds. During that proceeding, the court ordered Hortense’s estate to pay the disputed amount into court, pending determination of the parties’ marital status at the time of sale, so that the funds would be held until rights were clarified.

The focused hearing and its key findings

A focused hearing was held in May and June 2024 before Stewart J. to determine whether Hortense and Lascelles were “separated” in March 2022 for Family Law Act purposes. This factual question was crucial: if they were still married and not separated, the proceeds of sale belonged entirely to Hortense; if they were separated, Lascelles could claim half the proceeds. Despite having signed the acknowledgment confirming that Lascelles and Hortense were spouses, Ralfina took the position in the focused hearing that they were in fact separated. She tried to explain her earlier signature by saying that her lawyer, Mr. Weir (now deceased), told her to sign but to inform Mr. Housley that the spouses were separated. Evidence from Mr. Weir’s former law clerk that Lascelles had told Mr. Weir he was separated from Hortense was found “incredible” by Stewart J., and was not accepted. Mr. Housley provided affidavit evidence that he had never been told that Hortense and Lascelles were separated and that he satisfied himself they were married at the relevant time. This directly contradicted Ralfina’s version, in which she claimed he had indicated Lascelles would receive half the proceeds because the spouses were separated. After reviewing the evidence, Stewart J. concluded that Hortense and Lascelles were not separated and that there was no evidence that Lascelles intended to live separate and apart from Hortense, to whom he had been married for two decades. Once that determination was made, it followed that Lascelles had no claim to half the condominium proceeds. The funds held in court were therefore released back to Hortense’s estate.

The estate’s new claim against the solicitor

Before the focused hearing concluded, Ralfina, as executor, commenced this separate action against Mr. Housley, seeking to recover from him personally the half share of sale proceeds that had already been found not to belong to Lascelles. According to the statement of claim, Mr. Housley allegedly advised Ralfina that the estate would be receiving certain proceeds from the sale of Hortense’s condominium but later told her that he had been misled and that no funds would, in fact, be paid to the estate. On that basis, the estate sues for an order requiring Mr. Housley to honour the alleged statement and pay to the estate damages equal to half the sale proceeds of Hortense’s property. Importantly, the pleading does not allege that Mr. Housley owed a duty of care to Lascelles or the estate, nor that any such duty was breached. It is framed instead as an alleged representation that half the proceeds would be paid, followed by a refusal to pay after Mr. Housley learned that the underlying factual premise (separation) was wrong. This narrow framing becomes central to the court’s analysis of the merits.

The security for costs motion and legal framework

In response, the defendants brought a motion for security for costs under rule 56.01(1)(b), (d) and (e). They argued that: (i) there was another proceeding pending for the same relief; (ii) the estate was a nominal plaintiff and there was good reason to believe it had insufficient assets in Ontario to pay any costs award; and (iii) there was good reason to believe the claim was frivolous and vexatious and that the estate lacked assets to pay the defendants’ costs. Once a moving party shows that the case falls within any of the enumerated situations in rule 56.01(1), the onus shifts to the plaintiff to show either that it has sufficient assets in Ontario to satisfy a potential costs award, that it is impecunious but the claim is not plainly devoid of merit, or that although it cannot meet a costs order, the claim has a good chance of success on the merits. On the first limb, the associate justice accepted that, although the FLA action had not been formally dismissed, there was no other proceeding pending for the same relief. The prior proceeding was grounded in an FLA claim to half the proceeds, and that basis had already been rejected by the focused hearing finding that Hortense and Lascelles were not separated.

Evidence of financial position and prior unpaid costs

The estate did not contend that it had sufficient assets in Ontario to cover the defendants’ costs. In a first affidavit, Ralfina vaguely referred to a “lack of liquid assets” and described the claim to half of Hortense’s sale proceeds as the estate’s “primary asset.” In a supplementary affidavit sworn 7 January 2026—after receiving the defendants’ factum—she deposed more starkly that the estate had “no income or assets” and that she and Lascelles’ sons had paid for Lascelles’ funeral because the estate had no money. The record showed that there was already an unpaid costs order against the estate: Stewart J. had ordered the Lascelles estate to pay $60,000 in costs to Hortense’s estate in the earlier FLA proceeding, and that award remained wholly unpaid. The associate justice noted that an unpaid costs award has been recognized as sufficient evidence that a plaintiff lacks assets to meet another costs order, and concluded that the defendants had met their onus to show good reason to believe the estate could not satisfy any future costs order. When the onus shifted back, the estate did not provide the level of detailed financial disclosure typically required to establish impecuniosity. There was no information on Lascelles’ income or pension during his lifetime, any life insurance, liabilities, estate borrowing capacity, or what assets he held immediately before death. Nor was there evidence of any disbursements from the estate. Even if impecuniosity had been established, the estate still had to show the claim was not plainly devoid of merit, or had a good chance of success—something the court found it could not do.

Assessment of the merits and characterization as frivolous and vexatious

On the merits, the estate’s theory was that Mr. Housley should be compelled to honour an alleged statement to Ralfina that half the condominium proceeds would be paid to Lascelles’ estate, even if that statement was made under a factual mistake. The court assumed for analytical purposes that such a statement had been made, noting that Mr. Housley denied it, and focused on what legal consequences it could have. If a promise was made, it would have been premised on the spouses being separated, which is the only scenario in which Lascelles could have claimed half the proceeds. But the focused hearing already resulted in a binding judicial finding that Hortense and Lascelles were not separated. As a result, any payment of half the proceeds to Lascelles would have been a pure windfall: funds to which he had no legal entitlement under the family property regime. The court observed that if Mr. Housley had, on his own initiative, paid half to Lascelles, Hortense (his client) would likely have sued to recover the proceeds rightfully owing to her. Likewise, if Ralfina had refused to sign the acknowledgment affirming spousal status, the matter would still have gone to court for a status determination, and the estate would have ended up in exactly the same position once the court found the parties were not separated. The path by which events unfolded caused the estate no legal prejudice; the contested funds were paid into court and would have been released to the estate had it succeeded. Given the decisive finding that the spouses were not separated, the court concluded that there was “little likelihood of success” in the action against Mr. Housley. The claim did not plead any duty of care or negligence, only a bare assertion that he first indicated that half the proceeds would be paid and later retracted. In the associate justice’s view, this made the claim “highly unlikely to succeed” and “devoid of practical merit,” and supported the conclusion that it was frivolous and vexatious under rule 56.01(1)(e).

Whether ordering security for costs is just

Having found the criteria for security for costs met, the court then exercised its discretion by looking at the merits, the balance of interests and the overall justice of the situation. Relying in part on principles from Yaiquaje v. Chevron Corp., the associate justice concluded that an order for security was just. There was no evidence that requiring the estate to post security would necessarily terminate the action. In fact, Ralfina had been able to retain counsel and litigate the FLA matter and focused hearing even when the estate allegedly had no assets, and there was no indication that the beneficiaries who stand to gain from any successful claim could not fund security. Citing Painter v. Painter Estate, the court emphasized that there is nothing unfair in requiring a party who insists on re-litigating issues already decided to shoulder the costs of doing so, including security for costs. Given the weak merits, unpaid prior costs, and the repeat-litigation character of the case, ordering security was found to be appropriate.

Amount and structure of the security and costs

The defendants sought $80,000 in security to trial, along with inclusion of certain historical costs and expert-related projections. They tendered a draft bill of costs that included projected trial fees, fees from the earlier focused hearing, actual fees to date in this action, incurred disbursements, and substantial projected disbursements for an expert. The court took a more restrained approach. It declined to order security in respect of the prior focused hearing costs, or for a prospective expert report, and refused to include fees related to a potential future amendment motion (which could be addressed by a motions judge if and when such a motion is brought). Instead, the court ordered the estate to post security for costs in three tranches, all on a partial indemnity basis: $10,819.08 within 30 days of receiving the decision and related order, covering the defendants’ costs and disbursements to date and projected discovery costs; $9,000 within 90 days after examinations for discovery are completed, for costs associated with mediation (including a mediator’s fee); and $20,000 within 90 days after completion of mediation, for pretrial and trial costs. The estate was also ordered to pay applicable HST on these security amounts. In addition, the defendants were awarded their costs of the motion: $11,047.64 in partial indemnity costs plus $339 in disbursements, which the court found fair and reasonable. Overall, the successful parties on the motion are the defendants, Heakes, Housley, Barristers & Solicitors, and Michael K. Housley, in whose favour the court ordered security for costs in the total principal amount of $39,819.08 plus HST, together with motion costs of $11,386.64, for a combined principal total of $51,205.72 (exclusive of applicable HST), with no damages awarded to the estate at this stage.