Milavsky v Milavsky Estate, 2016 ABQB 333

Court of Queen ’ s Bench of Alberta Citation: Milavsky v Milavsky Estate, 2016 ABQB 333 Date: 20160617 Docket: 4801 139446; FL01 10034 Registry: Calgary

Action No. 4801 139446 Between: Marilyn Theresa Milavsky Plaintiff/Applicant - and - Dwayne Lashyn, Charlene Molotsky and Gregory Milavsky, Executors of the Estate of Harold Philip Milavsky, Deceased Defendant/Respondents Action No. FL01 10034 And Between: Marilyn Theresa Milavsky Plaintiff/Applicant - and - Dwayne Lashyn, Charlene Molotsky and Gregory Milavsky, Executors of the Estate of Harold Philip Milavsky, Deceased; 353396 Alberta Inc.; and Gregory Milavsky, Dwayne Lashyn and Charlene Molotsky, Each as Trustees of Each of the Harold Milavsky Family Trust; H.

Milavsky Residential Trust, The Harold Milavsky Grandchildren’s Trust and Harold P. Milavsky Descendants’ Trust Defendants/Respondents _______________________________________________________ Memorandum of Case Management Decision of the Honourable Mr. Justice W.A. Tilleman

_______________________________________________________ Introduction [ 1 ] The Plaintiff, Marilyn Milavsky, seeks one million dollars in advance costs to fund a complex lawsuit involving estate and trust matters. [ 2 ] Initially, Ms. Milavsky, applied for an order for an advance payment of costs as well as an order in relation to the “conduct” of the parties. These applications were brought as part of the case management of the consolidated divorce and trusts actions that are scheduled for trial in October, 2016.

Counsel had been instructed to provide a letter articulating the issues that they wished to have heard by the Case Management Justice. The top two issues submitted on behalf of the Applicant were advance costs and “conduct” issues. At the application, counsel for the Defendants objected to proceeding on the issue of “conduct”, given that a formal application had not been filed in that regard. It was agreed that Mr. Marlowe would file the “conduct” application within one week and that it would be heard as part of the case management meeting on August 9, 2016.

Accordingly, this current application is for advance costs only. [ 3 ] Specifically, the applicant requests an order for the following relief: 1. Advance payment of costs in the amount of $1,000,000.00 or such other amount this Honourable Court may deem appropriate, payable by the Estate of Harold Philip Milavsky or payable jointly and severally by the Defendants; and 2. Awarding such further and other relief as counsel may request and this Honourable Court may deem appropriate.

Background [ 4 ] Marilyn and Harold Milavsky began cohabiting in December 1989, were married on February 14, 1999, and separated on or about February 25, 2009. Mr. Milavsky died on December 5, 2012. After seven years of litigation, these consolidated files are once again set for trial. Further background for these files has been set out in five previous court decisions (most recently in Milavsky v Milavsky , 2015 ABQB 395 ), as well as in the Litigation History requested from the parties and attached as Appendix A. Issues [ 5 ] Three issues arise out of the application for advance costs: 1.

What is the appropriate test for determining whether an advance costs award should be granted?: rule 12.36 of the Alberta Rules of Court, AR 124/2010, or the test developed by the Supreme Court of Canada in British Columbia (Minister of Forests) v Okanagan Indian Band , 2003 SCC 71 [“ Okanagan Indian Band ”]? 2. If rule 12.36 applies, does the applicant meet the test? If the Okanagan Indian Band test applies, does the applicant meet the test? 3. If an advance costs award is to be made, what is the appropriate quantum? And by whom are the costs payable?

Position of the Parties The Applicant’s position [ 6 ] The Applicant argues that she requires an advance payment of costs to allow her to pursue this litigation through trial. [ 7 ] The applicant characterizes the litigation as being fundamentally a matrimonial property claim, and as such, argues that rule 12.36 of the Rules of Court applies. Citing McDonald v McDonald, 1998 ABCA 241 [ McDonald ] , she submits that advance costs are rooted in the principle that a spouse should not be left without the means of putting their case fairly before the court due to their economic dependence on their former spouse.

Advance costs awards in family law litigation, she argues, are made “for the purpose of levelling the playing field between the parties.” In oral argument, counsel submitted that it would be “tautological” that a person might have a valid claim, but they can’t advance it because they don’t have the funds to do so. Further, she argues that the primary consideration on an application for advance costs under rule 12.36 is the needs of the applicant. She also argues that the merits of an applicant’s claim are not a factor when determining whether advance costs should be awarded. [ 8 ] To prove the need of Ms.

Milavsky, the following was submitted: the Applicant is described as a 68-year-old woman on a fixed income with no prospect of obtaining meaningful employment who was financially dependent on Mr. Milavsky for twenty combined years of cohabitation and marriage. She describes the Respondents, on the other hand, as being able to “marshal the late Mr.

Milavsky’s immense resources”. [ 9 ] Although the Applicant argues that rule 12.36 is the appropriate test (given that this is fundamentally family law litigation and that Alberta courts have clearly determined that the Okanagan Indian Band test does not apply in the family law context), in the event that the Okanagan Indian Band test does apply, they argue that Ms. Milavsky meets the stricter test for it as well. [ 10 ] As for quantum, the applicant asks the Court for a one million dollar advance costs award, payable on a joint and several basis by the Respondents.

Citing a costly “scorched earth” litigation strategy on behalf of the Respondents, she argues that the cost of advancing her

claim through the upcoming 8-week trial will be at least $500,000 for the trial itself, plus significant other legal fees for trial preparation and any remaining interlocutory proceedings. [ 11 ] In

summary, the applicant argues that although rule 12.36 applies, she meets the tests under both rule 12.36 and Okanagan Indian Band , and that an advance costs award of one million is required in order to “level the playing field”. The Respondents’ positions Estate of Harold Milavsky (the “Estate”) [ 12 ] The Estate Respondents oppose Ms.

Milavsky’s application for advance costs, requesting that the application be dismissed. [ 13 ] The Estate’s position is that any advance costs the Court sees fit to award should only be for prospective funds and not for past costs incurred, and should be made by way of a secured loan. The Estate argues that Ms.

Milavsky is not prepared to put her own assets at risk, that she hasn’t accepted interim asset distribution proposals that would have allowed her access to sufficient funds to litigate, that she hasn’t accepted loan proposals, hasn’t explored alternative loan arrangements, that she refuses to provide a litigation budget, and that the trial in any event should take 3-4 weeks as opposed to the 8 weeks currently scheduled. [ 14 ] In terms of the applicable test, the Estate argues that the “levelling the playing field” test is too simplistic, that Lakhoo v Lakhoo, 2015 ABQB 357 [ Lakhoo ] is distinguishable, and that there is Alberta authority for applying the Okanagan Indian Band test in a matrimonial property action.

The Estate further alleges that even if the levelling the playing field test were used, it is inappropriate with respect to the trust litigation and to the specific facts of this case since Ms. Milavsky has received property and assets of approximately $1.807 million, which is more than the $1.73 million the Estate is currently valued at. The Trusts [ 15 ] Like the Estate Respondent, “the Trusts” (Harold Milavsky Family Trust, H. Milavsky Residential Trust, The Harold Milavsky Grandchildren’s Trust and Harold P.

Milavsky Descendants’ Trust) request that the application be dismissed, but with costs. [ 16 ] The Trust Respondents argue that since the action against the Trusts does not fall within

Part 12 of the Rules of Court (“Family Law Rules”), rule 12.36 does not apply as against them, and instead, they argue that the three-part Okanagan Indian Band test applies. Further, they argue that Ms. Milavsky’s claim against the Trusts is a “private dispute” where there is no underlying presumption of liability, which Okanagan Indian Band sets out as the case for marital cases. [ 17 ] As for the first part of the three-part Okanagan Indian Band test, the Trusts argue that Ms. Milavsky has not stated that she is impecunious; indeed they argue that she is a millionaire. The Trusts assert that Ms.

Milavsky has failed to take any steps to explore alternative funding options, and that she has rejected several offers from the Estate which would have assisted her with funds for her litigation. As for the second step, the Trusts argue that there is no evidence before the Court which this Court can rely on to assess whether Ms. Milavsky has a prima facie case, or a case worthy of pursuit. They claim that the onus is on Ms. Milavsky to “establish a prima facie case of sufficient merit to warrant pursuit”, and that she has failed in this regard.

They also argue that she has failed the third part of the test which requires that there is proof of “special circumstances that satisfy the court that the case is within a narrow class of cases where this extraordinary exercise of its powers is appropriate.” The Law [ 18 ] Rule 12.36 of the Rules of Court makes provision for the advance payment of costs: The Court may, in addition to an order under rule 4.22, make any order that it thinks fit for the advance payment of the costs of either party. [ 19 ] The Supreme Court of Canada established the criteria to grant an advance payment of costs in Okanagan Indian Band .

The criteria relevant to the exercise of this power are: first, the party seeking the order must be impecunious to the extent that, without such an order, that party would be deprived of the opportunity to proceed with the case. Second, the claimant must establish a prima facie case of sufficient merit. Finally, there must be special circumstances sufficient to satisfy the court that the case is within the narrow class of cases where this extraordinary exercise of its powers is appropriate. Decision [ 20 ] Advance costs will be made payable to Ms.

Milavsky from the Estate, in the amount and on the terms set out below. Advance costs will be ordered payable by the Estate, but not the Trusts, because matrimonial property actions are in the first instance between married (or previously married) parties, and the action against the Trusts is an extension of the applicant’s matrimonial property claim. Analysis [ 21 ] The informational note in the Rules of Court ,

Part 12, states that: This Part applies to proceedings under the Divorce Act , the Family Law Act , the Matrimonial Property Act ... and to ... actions for unjust enrichment in the family law context. Since the advance costs are payable from the Estate only, rule 12.36 clearly applies as this is matrimonial property litigation. [ 22 ] In McDonald v McDonald it was established that “the court should be provided with affidavit evidence which demonstrates that the appellant does not have sufficient resources to pay for his or her part of the litigation” (at para 539). The affidavit evidence provided on Ms.

Milavsky’s behalf states that she is 68 years old, earns no employment income, and has an income that is insufficient to keep up with the

ongoing legal fees required to advance her claim. The applicant meets the test for advance costs: Ms.

Milavsky has proven a need for access to funds to litigate the matrimonial property claim, which will be very expensive over the course of the trial, whether it runs for the low-end estimate of one month, or for the eight weeks it is currently scheduled for. [ 23 ] Rule 12.36 provides the court with wide discretion: “[T]he Court may...make any order that it thinks fit for the advance payment of the costs of either party.” Gates, J in Lakhoo makes the point that “[t]he assessment of advance costs is a fact specific inquiry...” (at para 50). It always will be.

Other courts have even quoted Okanagan Indian Band which is modified to “level the playing field” in a family law context; c.f . Bousfield v Bousfield, 2016 ONSC 3145 at paras 15 , 52. [ 24 ] Following the principle from McDonald v McDonald that “[A]n award of interim costs is made for the purpose of levelling the playing field between the parties in matrimonial litigation” (at para 36), and having considered the evidence of need on the applicant’s behalf, the application for a payment of advance costs is granted under the following terms: i. A loan be made to Ms.

Milavsky by the Estate in the sum of $500,000 to be used solely for ongoing legal fees for the trial and trial preparation in court files 4801-139446 and FL01-10034, such funds to be held in trust by counsel for Ms. Milavsky and to be applied to prospective fees, other charges and disbursements; ii. The loan be secured by way of a mortgage in favour of the Estate registered against only Ms. Milavsky’s 50% interest in the Millarville property; iii. There will be no interest payable by Ms. Milavsky nor monthly payments required on the mortgage; iv. The loan will be repayable upon the death of Ms.

Milavsky, the transfer of her interest in the Millarville property, or in the event that she recovers an amount at trial in excess of the loan amount from any of the Defendants, whichever first occurs; v. Ms. Milavsky will pay for all property taxes, utilities and other assessments until disposition; vi. Ms. Milavsky will be responsible to maintain the property in good and tenantable repair until disposition; vii. Ms. Milavsky will not lease the property, grant a life estate in the property to any third party, or otherwise encumber the property; viii.

There will be no contamination or commercial use of the property without the express written consent of the mortgagee. [ 25 ] Counsel for the Applicant cautioned the Court against reducing Ms. Milavsky’s net worth, however, the goal is to level the playing field not in comparative net worth, but in access to litigation funds: Ms. Milavsky claims that she requires access to funds to litigate her claim for matrimonial property, and she will have access to those funds. [ 26 ] Although Ms.

Milavsky requested one million dollars advance costs, that figure was predicated upon the trial lasting all of the eight scheduled weeks. In awarding advance costs, consideration was given to the estimate provided by counsel that the trial should last only four of the currently scheduled eight weeks. Since the trial is estimated to be half the length, the advance costs award reflects that adjustment. [ 27 ] Counsel for the Applicant also argued that neither Mrs. Hughes ( Hughes v. Hughes , 2009 ABQB 154 ) nor Mrs. Lakhoo ( Lakhoo, supra ) had to present a litigation budget. However, Mrs.

Hughes provided the Court with the anticipated costs of expert witnesses in the very broad field of valuation. Mrs. Lakhoo had to present proposed Bills of Costs for review by opposing counsel, with a trip to the Court if counsel couldn’t reach an agreement, prior to the monies being released.

Not requiring proposed Bills of Costs at this stage will provide a more streamlined process that will also eliminate the legal fees required to process them. [ 28 ] The Applicant also argued that in Gerlitz v Gerlitz, 2005 ABCA 424 , the Court of Appeal determined that a loan based on the collateral of a recreational property was an inappropriate way to fund litigation. In that case, however, the property was in the husband’s name alone and would need to be transferred to the wife’s name before she could use it for a loan.

Noting that that transfer had not yet happened, the court went on to say that “[I]n order to facilitate this matter proceeding to trial quickly”, a payment of $35,000 would occur instead of a property transfer. Given their further order and directions for the parties to “request an early trial date” (at para 9), the Court wasn’t critical of using recreational properties per se , rather they were concerned about the delay it would take to transfer the title in order to get the money to advance the litigation. Gerlitz ( supra ) is distinguishable in that Ms.

Milavsky currently is on title to property which can be used as collateral for a loan. [ 29 ] Because of my decision that the advance costs are payable from the Estate only, there is no need to consider which test would apply as against the Trusts. [ 30 ] It is clear from McDonald v McDonald that “ the award of interim costs was not made with a view to the ultimate success of the party in need. Rather, an award of interim costs is made for the purpose of levelling the playing field between the parties in matrimonial litigation” (at para 36).

Since the advance costs order is to ensure that each disputant has access to adequate legal resources, and not to identify the likely winner, no consideration need be given to the merit of the claim ( ibid ).

Even if consideration were to be given to merit, as the applicant argued, the Court of Appeal has confirmed twice that there are genuine issues to be tried ( Milavsky v Milavsky , 2013 ABCA 253 at paras 11-13 ; Milavsky v Milavsky , 2011 ABCA 231 , at para 41 ). [ 31 ] An accounting of the advance costs will be dealt with by the trial judge in such manner as the trial judge deems appropriate, having regard to all the issues between the parties. [ 32 ] It goes without saying that this ruling is intended in no way to affect the discretion of the trial judge regarding costs or to impute or suggest any disposition of assets or matrimonial property in a certain way.

Case Management Directions [ 33 ] In addition to presiding at case management meetings with the parties, I have reviewed the Litigation Histories provided to me by counsel. According to the histories provided, there have been 28 applications and at least 12 case management meetings over the course of the 7 year history of these two files. [ 34 ] At least 37 affidavits have been filed, plus an additional 12 Affidavits of Record. There have been 2

summary dismissal applications and a corresponding appeal of each of those. There have been 17 questionings and 10 cross-examinations on affidavits. This matter has been set for trial three times, and, following contested applications brought by the Plaintiff on each occasion, the trial has been adjourned three times. [ 35 ] This matter is now set down for trial a fourth time. Initially the trial was set for 7 days; it is now set for 8 weeks. There are currently 7 senior counsel and a number of junior associates currently retained for this file.

It is important that these matters be heard and resolved at the October 2016 trial; it is in the interests of all involved to bring finality to this litigation. (Currently, a trial of this length cannot be rebooked until at least 2018). [ 36 ] Certain issues in these files have been exhaustively litigated. Thus, in order to avoid further litigation delay, no further applications may be brought by any party on either of these two files prior to the trial, without leave of the Case Management Justice.

To expedite any leave applications that may be brought – although I would caution counsel to be prudent in this regard – the application will be by written submission only, unless the Court determines that it wishes to hear oral argument. [ 37 ] At the August 9, 2016 case management meeting, advance witness lists, including experts, and any other issues necessary to finalize trial matters, will be discussed. Conclusion [ 38 ] Ms. Milavsky is granted an advance costs award of $500,000, on the terms set out above.

No further applications may be brought by any party on either of these two files prior to the trial, without leave of the Case Management Justice. [ 39 ] Costs of this application and the ultimate disposition of any property will be left to the discretion and decision of the trial judge. Heard on April 11 th , 14 th and the 24 th day of May, 2016. Dated at the City of Calgary, Alberta this 17 th day of June, 2016. W.A. Tilleman J.C.Q.B.A. Appearances: L. Allen/K. Marlowe/C. Smith for Marilyn Milavsky Robert W.

Calvert, Q.C/Tina Mihoc for the Estate of Harold Milavsky Dan McDonald, Q.C./Melanie Teetaert For the Trustees Gregory Milavsky and Charlene Molotsky J.P. Peacock, Q.C./J. Price

For the Trustee Dwayne Lashyn and 353396 Alberta Inc.

Date Appendix A Step I Activity Notes 16 June 2016 Statement of Claim for Divorce and Division of Matrimonial Property, 4801-139446 Filed by: Marilyn Theresa Milavsky 27-Feb-09 Application/Notice to Disclose To be heard: 7-Apr-09; Result: Response provided (6-Apr-09) Filed by: Marilyn Theresa Milavsky 11-Mar-09 Application/Notice to Disclose To be heard: 14-Apr-09; Result: Response provided (15-Apr-09) Filed by: Harold Philip Milavsky 30-Sep-09 Appointment to Examine Marilyn to be held on October 22, 2009 ; Result: Did not proceed Served by: Harold Philip Milavsky 06-Jan-10 Statement of Defence and Counterclaim for Divorce and Division of Matrimonial Property, 4801- 139446 Filed by: Harold Philip Milavsky 12-Jan-10 Questioning of Harold Milavsky Two half-days 13-Jan-10 Affidavit of Marilyn Theresa Milavsky, filed 20-Jan-10, in support of application for preservation order and interim support Filed by: Marilyn Theresa Milavsky 13-Jan-10 Questioning of Harold Milavsky Two half-days 15-Jan-10 Statement of Defence to Counterclaim for Divorce and Division of Matrimonial Property, 4801- 139446 Filed by: Marilyn Theresa Milavsky 20-Jan-10 Application for a Preservation Order and Spousal Support, returnable: 26-Jan-2010 , Affidavits filed: 1, Result: Adjourned sine die by consent Filed by: Marilyn Theresa Milavsky Date Step I Activity Notes 20-Jan-10 Interim Without Prejudice Support Agreement signed between Marilyn Theresa Milavsky and Harol Philip Milavsky whereby Harold Philip Milavsky paid periodic spousal support of $11,400 per month commencing January 1, 2010 and continuing until this Agreement terminated Production Document No.

HPM003404 15-Mar-10 Questioning of Marilyn Milavsky Two half-days 16-Mar-10 Questioning of Marilyn Milavsky One half day 08-Apr-10 Pre-Trial Conference held before Horner, J.- Cert of Read to be filed to set matter down for 7 day Trial; Justices Hawco, Hughes, Horner and Macleod not to preside; Plaintiff to file required pleadings to add any claims relating to period of cohabitation; Exams for Discovery to be completed and responses to undertakings to be provided by July 30, 201O; Exam responses to undertakings to be completed by Aug 27 , 2010 ; Exhibits and Expert reports to be provided to Court 10-May-10 Statement of Claim, FL01-10034 : added unjust enrichment for pre-marriage cohabitation and Trust action against three of the Trusts.

Filed by: Marilyn Theresa Milavsky 28-May-10 Certificate of Readiness for 7 day Trial Filed by: Harold Philip Milavsky and Marilyn Theresa Milavsky 26-Jul-10 Conditional Certificate of Readiness Filed by: Harold Philip Milavsky 05-Aug-10 Amended Letter from Trial Coordinator conditionally setting down trial for 7 days commencing November 15, 2010 30-Sep-10 Application by Dunphy Best and Order of Hawco, J. granting leave for Dunphy Best to remove themselves as counsel Filed by: Dunphy Best on behalf Marilyn Milavsky Date Step I Activity Notes 08-0ct-10 Notice of Ceasing to Act Filed by: Dunphy Best on behalf of Marilyn Milavsky 27-0ct-10 Affidavit of Marilyn Theresa Milavsky in support of application for adjournment Filed by: Marilyn Theresa Milavsky 29-0ct-10 Application to Adjourn Trial, returnable November 1, 2010, 4801-139446 Heard: 4- Nov-2010; Affidavits filed: 3; Result: Granted Filed by: Marilyn Theresa Milavsky 01-Nov-10 Affidavit of Dwayne Lawrence Lashyn in opposition to adjournment of trial (Dwayne Lashyn is signing as the representative of Harold Philip Milavsky under an Enduring Power of Attorney) Filed by: Harold Philip Milavsky 04-Nov-10 Affidavit of Marilyn Theresa Milavsky - The Defendants do not have a copy of this Affidavit Filed by: Marilyn Theresa Milavsky 22-Nov-10 Notice of Change of Representation from Dunphy Best to Allen Hryniuk Filed by Marilyn Theresa Milavsky 03-Mar-11 Affidavit of Dwayne Lawrence Lashyn in support of application for divorce Filed by: Harold Philip Milavsky 11-Mar-11 Statement of Defence of Harold Philip Milavsky, FL01-10034 Filed by: Harold Philip Milavsky

14-Mar-11 Application for Divorce and Severance of Corollary Relief, 4801-139446 returnable: 13-Apr-2011 and 20-Apr-2011; Affidavits filed: 1; Result: Consent Order Granted on April 14, 2011 Filed by: Harold Philip Milavsky 15-Mar-11 Statement of Defence of 353396 Alberta Ltd., Harold Milavsky Family Trust, The Harold Milavsky Descendants Trust, The Harold Milavsky Grandchildren's Trust, FL01-10034 Filed by: 353396 Alberta Ltd., Harold Milavsky Family Trust, Harold Milavsky Grandchildren's Trust and The Harold Milavsky Descendants Trust Date Step I Activity Notes 22-Mar-11 Application for

Summary Judgment, FL01-10034 Heard: 20-Apr-2011; Affidavits filed: 3; Result: Granted by Hawco J.; Overturned on Appeal Filed by: 353396 Alberta Ltd., Harold Milavsky Family Trust, Harold Milavsky Grandchildren's Trust and The Harold Milavsky Descendants Trust 22-Mar-11 Affidavit of Dwayne Lashyn in support of

summary judgment based on limitation issues Filed by: 353396 Alberta Ltd., Harold Milavsky Family Trust, Harold Milavsky Grandchildren's Trust and The Harold Milavsky Descendants Trust 29-Mar-11 Affidavit of Marilyn Theresa Milavsky in opposition to

summary judgment Filed by: Marilyn Theresa Milavsky 04-Apr-11 Affidavit of Dwayne Lawrence Lashyn - responding to MTM's Affidavit of March 29, 2011 Filed by: 353396 Alberta Ltd., Harold Grandchildren's Trust and The Harold Milavsky Descendants Trust 18-May-11 Letter from Trial Coordinator setting joint trial for 4801-139446 and FL01-10034, commencing on 19-Sep-11 for 10 days 26-May-11 Consent Consolidation Order of Hawco, J. ordering that actions 4801-139446 and FL01- 10034 shall be heard at the same time and shall be tried during the two-week trial commencing September 19, 2011 Filed by: Harold Philip Milavsky 31-May-11 Affidavit of Records of 353396 Alberta Inc. and others Filed by: 353396 Alberta Ltd., Harold Milavsky Family Trust, Harold Milavsky Grandchildren's Trust and The Harold Milavsky Descendants Trust Date Step I Activity Notes 01-Jun-11 Appeal of the Decision of Hawco J, FL01-10034 - Appeal No. 1101-0141 AC Heard: 11- Jul-2011; Factums filed: 2; Result: Granted on 21-Feb-13 Filed by: Marilyn Theresa Milavsky 14-Jun-11 Confirmation of Trial Date for 10 days commencing 19-Sep-11 Filed by: Harold Philip Milavsky 21-Jun-11 Unsworn, untiled Affidavit of Records of Marilyn Milavsky Served June 21, 2011 by Marilyn Theresa Milavsky 21-Jun-11 Divorce Judgment pronounced by Wilson, E.C.

Filed by: Harold Philip Milavsky on June 24, 2011 26-Jul-11 Certificate of Divorce Filed by: Harold Philip Milavsky 17-Aug-11 Affidavit of Marilyn Theresa Milavsky in support of application to adjourn trial Filed by: Marilyn Theresa Milavsky 19-Aug-11 Application to Adjourn Trial, 4801-139446, returnable and heard: 23-Aug-11; Affidavits filed: 1; Result: Granted by Romaine, J. on 09-Sep-11 - adjourned sine die Filed by: Marilyn Theresa Milavsky 08-Sep-11 Affidavit of Mitchell Jo Brody in support of application to disqualify Laurie Allen Filed by: 353396 Alberta Ltd., Harold Milavsky Family Trust, Harold Milavsky Grandchildren's Trust and The Harold Milavsky Descendants Trust Date .

Step I Activity Notes 09-Sep-11 Application to Disqualify Laurie Allen, FL01-10034, returnable 14-Sep-11 adjourned to: 22-Sep-11, 29-Sep-11, 06-0ct-11, and sine die, Application based on her having confidential information which was provided to Ms. Allen in the summer of 2001 with respect to the HMFT, HMGT and her having sent their material to Marilyn Theresa Milavsky in these proceedings. Heard: 2-Feb-2012; Affidavits filed: 4; Cross-examinations : 2 half-days; Result: Denied by Mcintyre,J.

Filed by: 353396 Alberta Ltd., Harold Milavsky Family Trust, Harold Milavsky Grandchildren's Trust and The Harold Milavsky Descendants Trust

14-Sep-11 Affidavit of Cathy A.

Flanagan -Milavsky Family Trust, Harold Milavsky - in support of application to disqualify Laurie Allen Filed by: 353396 Alberta Ltd., Harold Grandchildren's Trust and The Harold Milavsky Descendants Trust 10-Nov-11 Affidavit of Marilyn Theresa Milavsky in opposition to application to disqualify Laurie Allen Filed by: Marilyn Theresa Milavsky 23-Nov-11 Affidavit of Dwayne Lashyn in support of application to disqualify Laurie Allen Filed by: 353396 Alberta Ltd., Harold Milavsky Family Trust, Harold Milavsky Grandchildren's Trust and The Harold Milavsky Descendants Trust 09-Dec-11 Notice of Withdrawal of Counsel, 4801-139446 and FL01-10034 - Macleod Dixon - Glenda Graham (Retired) Filed by: Counsel for Harold Philip Milavsky 15-Dec-11 Cross-Examination of Dwayne Lashyn One half-day 15-Dec-11 Cross-Examination of Marilyn Milavsky One half-day 15-Dec-11 Cross-Examination of Mitchell Jo Brody One-half-day by Counsel for Marilyn Theresa Milavsky Date Step I Activity Notes 17-Jan-12 Notice of Change of Representation Filed by: Harold Philip Milavsky 10-May-12 Case Management Commenced with Justice McIntyre 09-Jul-12 Application for a Sealing Order, 4801-139446 and FL01-10034, returnable 11-0ct-2012 adjourned : sine die Filed by: 353396 Alberta Ltd., Harold Milavsky Family Trust, Harold Milavsky Grandchildren's Trust and The Harold Milavsky Descendants Trust 09-Jul-12 Affidavit of Dwayne Lashyn in support of applications to seal file and sever issues Filed by: 353396 Alberta Ltd., Harold Milavsky Family Trust, Harold Milavsky Grandchildren's Trust and The Harold Milavsky Descendants Trust 09-Jul-12 Application for Severance of Liability and Damages, returnable 11-0ct-12 Heard: 11-0ct- 2012; Affidavits filed: 2; Result: Denied Filed by: 353396 Alberta Ltd., Harold Milavsky Family Trust, Harold Milavsky Grandchildren's Trust and The Harold Milavsky Descendants Trust 24-Jul-12 Application/Notice to Disclose returnable 28-Aug-12 adjourned:31-Aug-12, and sine die by consent Filed by: Marilyn Theresa Milavsky 10-Sep-12 Supplemental Affidavit of Dwayne Lashyn in support of application to sever issues Filed by: 353396 Alberta Ltd., Harold Milavsky Family Trust, Harold Milavsky Grandchildren's Trust and The Harold Milavsky Descendants Trust Date Step I Activity Notes 25-Sep-12 Amended Statement of Claim, 4801-139446 Filed by: Marilyn Theresa Milavsky Note: No Amended Statement of Defence filed 14-Nov-12 Application/Notice to Disclose, returnable 18-Dec-12 Filed by: Harold Philip Milavsky adjourned : 11-Jan-12, and sine die by consent 30-Nov-12 Affidavit of Marilyn Theresa Milavsky in support of application for interim spousal support Filed by: Marilyn Theresa Milavsky 30-Nov-12 Application for Interim Spousal Support, returnable 20-Dec-12 at 2:00 pm Filed by: Marilyn Theresa Milavsky 04-Dec-12 Harold Philip Milavsky passed away 20-Dec-12 Case Management Meeting 16-Jan-13 20-Dec-12 Case Management Meeting 16-Jan-13

Date Step I Activity Notes 15-Feb-13 Application for Leave to File Judgment Roll, Appeal No A 1101 0141AC Memorandums Filed: 1; Result: Granted Filed By: Marilyn Theresa Milavsky 31-May-13 Application to be added as an appellant, Appeal No A 1301-0023AC Memorandums Filed: 1; Result: Granted Filed By: Estate of Harold Philip Milavsky 14-Jun-13 Notice to Produce Filed By: Estate of Harold Philip Milavsky 08-Aug-13 Notice to Admit Facts I Notice to Admit Opinions Served by Harold Philip Milavsky 28-Aug-13 Notice of Addition of Co-Counsel Filed By: Marilyn Theresa Milavsky 10-Sep-13 Notice of Change of Representation of Greg Milavsky and Charlene Molotsky filed by Burnet Duckworth & Palmer LLP Filed By: Greg Milavsky and Charlene Molotsky 28-0ct-13 Affidavit of Dwayne Lashyn, FL01-10034, filed 17-Mar-14, in support of application for

summary judgment re: HMRT Filed by: Estate of Harold Philip Milavsky and HMRT 07-Nov-13 Case Management Meeting 11-Nov-13 Affidavit of Records on behalf of the Estate of Harold Philip Milavsky, sworn by Dwayne Lashyn Filed By:Estate of Harold Philip Milavsky 02-Dec-13 Affidavit of Records of Marilyn Theresa Milavsky Filed By: Marilyn Theresa Milavsky 09-Dec-13 Reply to Notice to Admit Facts Served by Marilyn Theresa Milavsky Date Step I Activity Notes 18-Dec-13 Supplemental Affidavit of Records of 353396 Alberta Inc. and others, sworn by Dwayne Lashyn Filed by: 353396 Alberta Ltd., Harold Milavsky Family Trust, Harold Milavsky Grandchildren's Trust and The Harold Milavsky Descendants Trust 20-Jan-14 Cross-Examination of Dwayne Lashyn on Affidavit sworn 28-0ct-13 One half-day 06-Feb-14 Case Management Meeting 10-Feb-14 Affidavit of Marilyn Theresa Milavsky, FL01-10034, in opposition to

summary judgment application Filed by: Marilyn Theresa Milavsky 11-Mar-14 Cross-Examination of Marilyn Milavsky on Affidavit sworn February 10, 2014 One half-day 11-Mar-14 Amended Application for Confidentiality Order, returnable for May 22-23, 2014 Special Heard: 22-May-2014 and 23-May-2014 ; Affidavits filed: 2; Briefs filed: 2; Cross- examinations : 1 half- day; Result: Denied by Mcintyre, J. and subsequently a Consent Order was filed Filed by: 353396 Alberta Ltd., Harold Milavsky Family Trust, Harold Milavsky Grandchildren's Trust and The Harold Milavsky Descendants Trust 17-Mar-14 03-Apr-14 Applications for

Summary Judgment, returnable for May 22-23, 2014 Special re: HMRT Heard: 22-Jan-2015, 2-Feb-2015; Affidavits filed: 2; Briefs filed: 8; Cross-examinations : 3 half-days; Result: Denied Briefs: Joint Brief of Trust Defendants 7-Nov-14 and Joint Reply Brief of Trust Defendants on 21-Nov-14; Submissions and Reply briefs of HPM on 7-Nov-14 and 21- Nov-14; Plaintiff on 14-Nov-14 and Surreply on 24- Nov-2014; Supplemental Authorities of HPM on 6-Jan-15; Reply submissions of HPM on 2-Feb-15 Filed by: The Estate of Harold Philip Milavsky, 353396 Alberta Ltd., Harold Milavsky Family Trust, Harold Milavsky Grandchildren's Trust and The Harold Milavsky Descendants Trust & H.

Milavsky Residential Trust 04-Feb-13 Appeal of the Decision of McIntyre J, 4801-139446 and FL01-10034 Appeal No. 1301- 0023 AC Heard: 14-Jun-2013 ; Factums filed: 4; Result: Dismissed on 16-Jul-13 Filed by: 353396 Alberta Ltd., Harold Milavsky Family Trust, Harold Milavsky Grandchildren's Trust and The Harold Milavsky Descendants Trust 13-Feb-13 Demand for Production of Specific Documents Filed By: Marilyn Theresa Milavsky Date Step I Activity Notes

Date Step I Activity Notes 02-May-14 Application to Compel Responses to Questions and Undertakings and to Compel Joe Katchen to attend at Questioning, returnable 22-May-14 and 23-May, 2014 Heard: 22-May-14 and 23-May-14, Affidavits filed: 1, Briefs filed: 4, Result: Denied and Consent Order followed allowing Mr.

Katchen to be questioned Briefs filed: Harold Philip Milavsky on May 9, 2014, Trust Defendants on May 9, 2014, Plaintiff on May 16, 2014 Filed by: Marilyn Theresa Milavsky 02 May 14 Application for declaration of no waiver of solicitor and client privilege, returnable 22-May- 14 and 23-May-14 Heard: 23-May-14; Result:Adjourned sine die; Plaintiffs are given leave to question Dwayne Lashyn on his Affidavit sworn April 19, 2014.Parties are given leave to have the application heard by any Master or other Justice Filed by: Estate of Harold Philip Milavsky 09-May-14 Affidavit of Marilyn Theresa Milavsky re:sale of condo by HMRT Filed by: Marilyn Theresa Milavsky 23-May-14 Case Management: Order of Mcintyre, J.:

Summary Judgment Applications scheduled for January 5, 2015, but if an earlier date becomes available and all counsel are available, the trial coordinator will arrange to have the

Summary Judgment application heard on earlier date; briefs to be filed by end of August, 2014,so everyone is ready to go if earlier date opens; Action 4801-139446 and FL01-10034 shall be heard at the same time and evidence adduced shall apply to both actions; eight-week trial commencing October 5, 2015; next case management meeting on July 2, 2014 at 1:00 p.m.

Filed by: Harold Philip Milavsky , 353396 Alberta Ltd., Harold Milavsky Family Trust, Harold Milavsky Grandchildren's Trust and The Harold Milavsky Descendants Trust 28-May-14 Case Management :Order of Mcintyre, J.re: Confidentiality - Plaintiff's counsel to obtain written undertakings from internal and external service providers etc.,filed 25-Jun-14 Filed by: Marilyn Theresa Milavsky 29-May-14 Application for Declaration of No Waiver booked with Masters' Chambers for September 16, 2014 at 2:00 p.m.Result:Application withdrawn from list on September 15, 2014.

Filed by: Harold Philip Milavsky 12-Jun-14 Letter from Trial Coordinator setting trial for 8 weeks commencing October 5, 2015 17-Jun-14 Cross-Examination of Dwayne Lashyn on Affidavit sworn April19,2014 One half-day 27-Mar-14 Affidavit of Dwayne Lashyn in support of application for confidentiality order Filed by: 353396 Alberta Ltd., Harold Milavsky Family Trust, Harold Milavsky Grandchildren's Trust and The Harold Milavsky Descendants Trust 03-Apr-14 Cross-Examination of Dwayne Lashyn on Affidavits sworn March 22,2011,April4, 2011, November 23, 2011,July 9, 2012 and March 27,2014 One half-day 11-Apr-14 Affidavit of Mandy Darazs in support of application to adjourn

summary judgment application Filed by: Marilyn Theresa Milavsky 14-Apr-14 Application to Adjourn Application for

Summary Judgment, returnable 22-Apr-14 Heard: 22-Apr-2014; Affidavits filed: 3; Cross-examinations : 1 half-day; Result: Granted Filed by: Marilyn Theresa Milavsky 14-Apr-14 Affidavit of Dwayne Lashyn in response to Marilyn Milavsky's undertaking given on application for adjournment of

summary judgment application Filed by: Estate of Harold Philip Milavsky 16-Apr-14 Cross-Examination of Dwayne Lashyn on Affidavit sworn 28-0ct-13, continued from January 20, 2014 One half-day 19-Apr-14 Affidavit of Dwayne Lashyn in opposition to adjournment of

summary judgment application Filed by: Estate of Harold Philip Milavsky 23-Apr-14 Cross-Examination of Dwayne Lashyn on Affidavit sworn April 14, 2014 One half-day 25-Apr-14 Affidavit of Dwayne Lashyn in support of amended application for confidentiality order and in reply to Undertaking Requests made at a questioning held on April3,2013 Filed by: 353396 Alberta Ltd., Harold Milavsky Family Trust, Harold Milavsky Grandchildren's Trust and The Harold Milavsky Descendants Trust 02-May-14 Affidavit of Mandy Darazs in support of application to compel D.

Lashyn to respond questions and to compel Joe Katchen to attend at Questioning Filed by: Marilyn Theresa Milavsky Date Step I Activity Notes 02-Jul-14 Case Management Meeting 21-Jul-14 Affidavit of Dwayne L. Lashyn sworn in support of application to compel production of Howard Mackie and Shennette Leuschner McKay files - Untiled Served by:Harold Philip Milavsky on July 31,2014

31-Jul-14 Application to Compel Production of Files from Howard Mackie and all Shennette Leuschner McKay files with respect to the proposed Pre-Nuptial, Cohabitation or Post- Nuptial Agreements and all documents received from, notes taken and records kept by Marilyn Theresa Milavsky from her dealings with Howard Mackie and Shennette Leuschner McKay and their successors, as well as any other records in the possession or control of Marilyn Theresa Milavsky ,such records to include all communications and discussions with respect to the ownership of the Eau Claire Condominium by the H.

Milavsky Residential Trust, be produced in this action; returnable July 30, 2014 - Untiled; Result: Consent Order of McIntyre filed September 18, 2014 Served by: Harold Philip Milavsky 27-Aug-14 Affidavit of Marilyn Theresa Milavsky in support of application for waiver of privilege etc.

Filed by: Marilyn Theresa Milavsky 29-Aug-14 Application Regarding Waiver of Privilege (No. 2), returnable 16-Sep-2014 (adjourned sine die), Affidavits filed: 1, Briefs filed: 3, Result: Consent Order Briefs: Plaintiff on 29-Aug-14; Harold Philip Milavsky on 16-Sep-14; Joint Reply Brief of Trust Defendants on 05-Sep-14 Filed by: Harold Philip Milavsky, 353396 Alberta Ltd., Harold Milavsky Family Trust, Harold Milavsky Grandchildren's Trust and The Harold Milavsky Descendants Trust 2-Sep-14 Affidavit of Catrina Webster in support of fiat for late brief filing Filed by: Harold Philip Milavsky Date Step I Activity Notes 02-Sep-14 Application for Fiat for Late Filing of Brief, Heard: 3-Sep-2014 , Affidavits filed: 1, Result: Granted Filed by: Estate of Harold Philip Milavsky 24-0ct-14 Questioning of Joseph Katchen One half-day by counsel for Marilyn Theresa Milavsky 20-Nov-14 Case Management Meeting scheduled for November 13,2014 - Justice McIntyre requested an adjournment to the following week- adjourned 27-Nov-14 Supplemental Affidavit of Records of Marilyn Milavsky Filed by: Marilyn Theresa Milavsky 2-Dec-14 Questioning of Marilyn Milavsky Two half-days 3-Dec-14 Questioning of Marilyn Milavsky Two half-days 4-Dec-14 Questioning of Marilyn Milavsky One half-day 5-Dec-14 Questioning of Marilyn Milavsky Two half-days 9-Dec-14 Cross-Examination of Dwayne Lashyn on Affidavits of Records sworn May 31, 2011, December 18, 2013 and November 11, 2013 Two half-days 10-Dec-14 Cross-Examination of Dwayne Lashyn on Affidavits of Records sworn May 31,2011,December 18, 2013 and November 11, 2013 One half-day Date Step I Activity Notes 24-Feb-15 25-Feb-15 26-Feb-15 27-Feb-15 Questionings of Marilyn Theresa Milavsky CANCELLED at the request of the Plaintiff 10-Mar-15 Application to Compel Responses to Questions and Undertakings returnable 24-Mar-2015; Adjourned to 4-Dec-2015; Cross-examinations: 3 half-days; Result: Withdrawn as per Email from Keith Marlowe on September 28, 2015, as follows:" Based on the disclosure received from the Defendants and from Quantico, we are prepared to forego our application to compel for the time being.

We can take up any additional document requests that we have in questioning for discovery." At case management on March 24, 2015, directions were given to the Plaintiff and to the Defendants with respect to the scheduling for the responses to undertakings given.

Filed by: Marilyn Theresa Milavsky 20-Mar-15 First Supplemental Affidavit of Records on behalf of the Estate of Harold Philip Milavsky Filed by: Estate of Harold Philip Milavsky 20-Mar-15 Amended and Consolidated Affidavit of Records of 353396 Alberta Inc. and others Filed by: 353396 Alberta Ltd., Harold Milavsky Family Trust, Harold Milavsky Grandchildren's Trust and The Harold Milavsky Descendants Trust 20-Mar-15 Affidavit of Records of the Harold P.

Milavsky Descendants' Trust and others Filed by: 353396 Alberta Ltd., Harold Milavsky Family Trust, Harold Milavsky Grandchildren's Trust and The Harold Milavsky Descendants

Date Step I Activity Notes 21-Jan-16 Questioning of Dwayne Lashyn Two half-days 22-Jan-16 Questioning of Dwayne Lashyn Two half-days 22-Jan-16 Questioning of Gregory Milavsky One half-day 10-Feb-16 Affidavit of Dwayne Lashyn to compel answers to MTM's undertakings etc., filed 03-May-16 Filed by: Estate of Harold Philip Milavsky 14-Mar-16 Notice to Admit Facts I Notice to Admit Opinion No. 2 Filed by: Estate of Harold Philip Milavsky on May 27, 2016 30-Mar-16 Second Supplemental Affidavit of Records of Marilyn Milavsky Filed by: Marilyn Theresa Milavsky 11-Apr-16 Case Management Meeting 14-Apr-16 Case Management Meeting 29-Apr-16 Affidavit of Marilyn Theresa Milavsky in support of application for advance costs Filed by: Marilyn Theresa Milavsky 29-Apr-16 Application for Advance Payment of Costs returnable 09-Aug-16 Heard: 24-May-2016; Affidavits filed: 2; Briefs filed: 3; Cross-examinations: 1 half-day; Result: Reserved Filed by: Marilyn Theresa Milavsky 5-May-16 Affidavit of Joseph B.

Katchen Filed by: Estate of Harold Philip Milavsky 5-May-16 Affidavit of Dan Silvester Filed by: Estate of Harold Philip Milavsky Date Step I Activity Notes 20-Mar-15 Affidavit of Records of the Harold Milavsky Grandchildren's Trust and others Filed by: 353396 Alberta Ltd., Harold Milavsky Family Trust, Harold Milavsky Grandchildren's Trust and The Harold Milavsky Descendants Trust 20-Mar-15 Affidavit of Records of the Harold Milavsky Family Trust and others Filed by: 353396 Alberta Ltd., Harold Milavsky Family Trust, Harold Milavsky Grandchildren's Trust and The Harold Milavsky Descendants Trust 24-Mar-15 Case Management Meeting 5-May-15 Questioning of Marilyn Milavsky Two half-days 6-May-15 Questioning of Marilyn Milavsky Two half-days 7-May-15 Questioning of Marilyn Milavsky One half-day 8-May-15 Questioning of Marilyn Milavsky Two half-days 24-May-15 Questioning of Marilyn Milavsky One half-day 11-Aug-15 Application to Adjourn Trial Result: Consent Order (13-August-2015) Filed by: Marilyn Theresa Milavsky 30-Sep-15 Letter from Trial Coordinator confirming trial dates for 8 weeks commencing 24-0ct-2016 Date Step I Activity Notes 6-May-16 Affidavit of Dwayne Lawrence Lashyn in response to application for advance on costs Filed by: Estate of Harold Philip Milavsky 10-May-16 Application to compel Responses to Undertakings of MTM, returnable 17-Jun-16 Filed by: Estate of Harold Philip Milavsky 13-May-16 Cross-Examination of Marilyn Milavsky on Affidavit sworn 29-Apr-16 One half-day 18-May-16 Affidavit of Joseph F.

Killi Filed by: Estate of Harold Philip Milavsky on May 31, 2016 19-May-16 Affidavit of Dwayne L. Lashyn Filed by: Estate of Harold Philip Milavsky on May 31, 2016 26-May-16 Affidavit of Dwayne Lashyn in support of amended application re: Notice to Admit Filed by: Estate of Harold Philip Milavsky

27-May-16 Application to Compel Responses to Questions and Undertakings, returnable 17-Jun-16 Affidavits filed: 1; Result: Not yet heard (Master Robertson, Q.C.) Filed by: Marilyn Theresa Milavsky 27-May-16 Affidavit of Keith Marlowe in support of Plaintiff's application to compel Filed by: Marilyn Theresa Milavsky 27-May-16 Amended Application to Compel Responses to Questions and Undertakings, returnable 17- Jun-16 Affidavits filed: 2; Briefs filed:1; Result: Not yet heard (scheduled to be heard by Master Robertson, Q.C.) Filed by: Estate of Harold Philip Milavsky 31-May-16 Notice of Appointment for Questioning of Heather McKay on June 3, 2016 Filed by: Estate of Harold Philip Milavsky