Docket: CACV2313 Karen Hawryluk, Executrix of the Estate of Mike Kushnerek, deceased Appellant - v. -, 2013 SKCA 68

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 68 Date: 2013-06-24 Between: Docket: CACV2313 Karen Hawryluk, Executrix of the Estate of Mike Kushnerek, deceased Appellant - and - Annie Katherine Kushnerek Respondent Coram: Jackson, Caldwell & Herauf JJ.A. Counsel: Karen Hawryluk, on her own behalf Larissa de Padua for the respondent, Annie Katherine Kushnerek Appeal: From: F.L.D. No. 40 of 2009, J.C. Melfort Heard: January 24, 2013 Disposition: Appeal Decided

Written Reasons: June 24, 2013 By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice Herauf Jackson J.A. [ 1 ] The issues in this appeal arise in the context of a contested testamentary disposition of a comparatively small estate. Notwithstanding the size of the estate, numerous applications have been made to the Court of Queen’s Bench and to this Court. This appeal represents the second occasion when the parties are before a full panel of the Court of Appeal. [ 2 ] By way of background, on February 24, 2006, Mr.

Mike Kushnerek executed his Last Will and Testament. At that time, Mike and Annie Kushnerek had been married for almost 50 years; they had a large family, but their daughter, Karen Hawryluk, was her father’s principal support at that time. According to the terms of his will, Mr. Kushnerek nominated his wife and his daughter, Ms. Hawryluk, to be the Executors and Trustees of his will. According to the terms of his will, Mr. Kushnerek granted his property to his “Trustees” and directed them to make certain dispositions of personal and real property. For the most part, his children, other than Ms.

Hawryluk, did not benefit under the will. [ 3 ] Under the terms of his will, Mr. Kushnerek granted his wife a life estate in the principal asset, being a piece of farm land, and granted Ms.

Hawryluk the residual interest in that land: 3(c)(iv) hold and keep invested the residue of my estate including, inter alia, my agricultural land legally described as SW Sec 05 – Twp 45 – Rge 11 – W2; Surface Parcel #135190885, in the Province of Saskatchewan, and to allow to my wife ANNIE KATHERINE KUSHNEREK a life interest therein with sole and exclusive right to the use and occupancy thereof and to receive all rents and net profits derived therefrom after payment of municipal and other taxes and assessments; and following upon the death of my said wife, to deliver, pay over, transfer and convey the said residue or the amount thereof then remaining to my said daughter, KAREN HAWRYLUK, for her own use absolutely.

This particular piece of property has been valued variously between $40,000 and $60,000. One affidavit on file puts the total estate value at approximately $100,000 as of sometime in 2007. [ 4 ] Mr. Kushnerek passed away on August 13, 2006. Since that time, his family has been mired in litigation. Mrs. Kushnerek resigned as one of the executors of her husband’s will, and then in 2007, two separate court actions were instigated against Ms. Hawryluk in Mrs. Kushnerek’s name. [ 5 ] Mrs.

Kushnerek first sued to contest the validity of the will on the basis of undue influence when the will was made, on the footing that her husband lacked testamentary capacity. An application was brought to determine if there was a genuine issue to be tried. Acton J. dismissed the application, finding that no such issue existed ( 2008 SKQB 454 ). He awarded Ms. Hawryluk her costs on a solicitor-client basis to be paid from the estate. Following Justice Acton’s decision in this matter, Mrs. Kushnerek changed solicitors. [ 6 ] Mrs.

Kushnerek then sued for an unequal division of family property and for an order setting aside the division of property contemplated under her husband’s will pursuant to The Family Property Act , S.S. 1997, c. F-6.3, as well as relief under The Dependants’ Relief Act, 1996 , S.S. 1996, c. D-25.01. Following numerous procedural steps, on June 1, 2010, Mrs. Kushnerek and Ms. Hawryluk jointly requested a family law pre-trial conference with respect to these matters. [ 7 ] On October 21, 2010, Wright J. of the Court of Queen’s Bench conducted a pre-trial settlement conference. Over the course of the day, Mrs.

Kushnerek and Ms. Hawryluk executed Minutes of Settlement addressing the real property and personal property in issue between them. The Minutes of Settlement were executed by “the Petitioner, Annie Kushnerek, and the Respondent, Karen Hawryluk, both personally and as Executor of the Estate of Mike Kushnerek.” The principal parts of the Minutes of Settlement are clauses one and three: • Clause 1 deals with the quarter

section of land, referred to in clause 3(c)(iv) of the Mr. Kushnerek’s will, and provides as follows: (

a) The farmland shall be sold with Annie to determine the method of sale and the price at which it is sold; (

b) The proceeds of sale, after deducting the costs of sale and any outstanding taxes, shall be paid as follows: (

i) the sum of $14,000 to Kapoor, Selnes & Klimm in trust for Ms. Hawryluk (ii) the balance to be paid to the Zatlyn law firm in trust for Mrs. Kushnerek • Clause 3 concerns a series of items of personal property, including religious pictures, a Honda Big Red and wagon, a Polaris sled, a riding lawn mower, and a truck and camper. The property described in clause 1 continues to be undistributed. Ms. Hawryluk claims that the property in clause 3 has not been distributed or what she has been given is damaged. [ 8 ] On February 9, 2011, Mrs. Kushnerek applied for an order that the farm land be sold. Ms.

Hawryluk refused to consent and, instead, swore an affidavit wherein she indicated that the personal property referred to in clause 3 of the Minutes of Settlement had not been delivered to her or it had been delivered in a damaged state or damaged property had been substituted for it.

[9] On March 31, 2011, Scherman J. dismissed Mrs. Kushnerek’s application. He noted several difficulties with it. First, counselhad erroneously treated the Minutes of Settlement as constituting an enforceable sale of land. Second, it was unclear whether theproposed purchaser of the land continued to be interested in buying the land. Third, other aspects of the Minutes of Settlement appearednot to have been fulfilled.

With respect to this latter point, Scherman J. wrote: [5] The court was advised by counsel for Karen Hawryluk that she has arranged for title to issue in her name as executor but that shewould not be prepared to transfer the property unless and until her complaints with respect to alleged non-compliance by AnnieKushnerek with the terms of clause 3 of the same minutes of settlement were satisfied.

Karen Hawryluk, through her counsel, thenproposed terms on which she would transfer the property which would essentially have involved rewriting the minutes of settlement.[Emphasis added] [10] Nonetheless, Scherman J. would have been prepared to enforce clause 1, if there had been an enforceable agreement in place: [6] If, despite the absence of evidence before the court, there were an enforceable agreement in place in respect of the subjectproperty I would have ordered the requested compliance with clause 1.

While not necessary to my decision I make this statement andwhat follows for the guidance of the parties in the future. [7] If and when a legally enforceable agreement to purchase the land at a price acceptable to Annie Kushnerek is presented to KarenHawryluk, it will be her obligation as executor to give effect to that transaction without regard to her personal issues relating to non-compliance with clause 3. The obligations of Karen Hawryluk in respect of paragraph 1 of the minutes of settlement are owed by her inher capacity as executor since she holds title to the subject property in her name as executor.

The claims that Karen Hawryluk makes inrespect of breaches of clause 3 of the minutes of settlement relate to obligations owed to her in her personal capacity. Karen Hawryluk isnot entitled to set off against or refuse to perform her obligations as executor by reason of claimed or actual breaches of obligations owedto her personally by Annie Kushnerek. Further, there is not before the court an application by Karen Hawryluk in her personal capacityrespecting alleged breaches of clause 3 of the minutes of settlement and seeking a remedy in respect thereof. [Emphasis added] [11] On May 4, 2011, Mrs.

Kushnerek brought another application to enforce clause 1 of the Minutes of Settlement. This time herapplication was accompanied by an offer to purchase dated April 23, 2011, which was stated to be open for a short period of time only. The same affidavit of Mrs. Kushnerek, which was filed in relation to the previous application, accompanied this new application. Thepersonal property continued not to be addressed. [12] On this occasion, Ms. Hawryluk filed two new applications of her own. The first was prepared by her solicitor, Mr.

Selnes, askingthat his client be paid an additional sum from the proceeds of the sale to compensate for the failure to distribute the personal propertyforming part of the Minutes of Settlement. A second application was prepared by Ms. Hawryluk personally wherein she wanted theMinutes of Settlement set aside in their entirety. [13] The matters came on for hearing before Kraus J. on June 6, 2011. Ms. Hawryluk states that Kraus J. did not consider herapplication to have the Minutes set aside in their entirety.

In any event, Kraus J. ordered that the land be sold, with the proceeds to beheld in trust until further order of the Court, and with the matter to be spoken to on June 27, 2011. [14] By June 27, 2011, Mr. Selnes had withdrawn; Ms. Hawryluk was now representing herself and she had filed the first notice ofappeal with this Court. When Ms. Hawryluk arrived to argue the second motion on that day, Mills J. advised that the application wouldhave to be adjourned as her Notice of Appeal to this Court stayed the proceedings in the Court of Queen’s Bench. [15] When Ms.

Hawryluk’s appeal came on for hearing in this Court for the first time, Ms. Hawryluk sought to adduce fresh evidence inthe form of an affidavit prepared by her, dated June 3, 2011, which she argued she had been prevented from filing in the Court ofQueen’s Bench before the June 6, 2011 hearing and which she intended for use with respect to what became the June 27, 2011application. [16] This Court granted Ms.

Hawryluk’s application to adduce fresh evidence and set aside the decision of Kraus J., saying thefollowing: [2] The appellant Karen Hawryluk, as executrix of the estate of Mike Kushnerek, applied for leave to adduce fresh evidence on theappeal. She submitted that some of the material and, in particular, her affidavit dated June 3, 2011 which, for various reasons, was notpresented to the chambers judge on the application for leave to approve the sale, be admitted as fresh evidence as going to the issue ofthe validity of the minutes of settlement on which the sale was founded.

That is a fundamental issue that must be decided on theapplication to approve the sale of the subject land. [3] We are all of the view that, in accordance with the principles set forth in R. v. Palmer, (SCC), [1980] 1 S.C.R.759, the application to admit fresh evidence is granted only with respect to the affidavit of Ms. Hawryluk dated June 3, 2011. None of theother material contained in the application was either relevant and/or could not have been discovered without due diligence on the part ofthe applicant.

[4] With respect to the appeal proper, we are all of the opinion that having regard for the evidence contained in the affidavit of Ms. Hawryluk admitted on this appeal and the submissions of the appellant, we are not in a position to determine the validity of the minutes of settlement and the resultant approval of the sale of the subject property.

As a result, the matter is remitted to the Court of Queen’s Bench for a determination of the validity of the minutes of settlement and all issues which flow therefrom. [5] With respect to costs, the parties will have leave to come back to a judge of this panel after the determination by the Court of Queen's Bench of the validity of the minutes of settlement and any orders made pursuant thereto. [2011 SKCA 155, emphasis added] [ 17 ] According to the affidavit of June 3, 2011, which the Court accepted as fresh evidence, Ms. Hawryluk had two primary issues: (

i) whether the agreement with respect to the farm land could be enforced if it were no longer possible to properly fulfil the terms of the Minutes of Settlement pertaining to the personal property; and (ii) she had been compelled or coerced into entering into the Minutes of Settlement. [ 18 ] The Court of Appeal’s decision is dated December 16, 2011. From then until the summer of 2012, the parties were engaged in discussions as to who bore the onus of putting the matter back on the Chambers list or otherwise taking steps to enforce or challenge the Minutes of Settlement. [ 19 ] Finally, on July 3, 2012, Mrs.

Kushnerek brought an application for the following relief: 1. an order naming William A. Selnes as a party to the within action so that there shall be a determination of the validity of the Minutes of Settlement dated October 21, 2010; 2. an Order requiring the Respondent, Karen Hawryluk, executor of the estate of Mike Kushnerek, deceased, to proceed with the action against William A.

Selnes in a timely fashion, and, in any event, no later than August 13, 2012, failing which the land described as: Surface Parcel #135190885 Reference Land Description: SW Sec 05 Twp 45 Rge 11 W2 Extension 0 As described on Certificate of Title 68PA09729 shall be sold; 3. an Order remitting the within matter to Chambers for a determination of all the issues flowing therefrom, upon a determination of the validity of the Minutes of Settlement; 4. an Order requiring the Respondent, Karen Hawryluk, executor of the estate of Mike Kushnerek, deceased, to give notice to the Applicant/Petitioner, Annie Katherine Kushnerek, of all the proceedings in the action against William A.

Selnes; 5. in the alternative, this Honourable Court provide further direction with respect to the decision of the Court of Appeal dated December 16, 2011; 6. costs of the application to the Applicant/Petitioner. [ 20 ] Ms. Hawryluk also brought her own notice of motion to “strike the validity of the October 21, 2010 Minutes of Settlement and have them thrown out of court.” She filed an affidavit demonstrating why the minutes of settlement should “be abolished” and “thrown out of court.” Largely, her complaints concern the same matters that had been raised on the first occasion before the Court of Appeal: (

i) inability to enforce the agreement with respect to the farm land when it is no longer possible to comply with the terms of the Minutes of Settlement as they pertain to the personal property; and (ii) her counsel’s handling of the minutes of settlement and the actions of Mrs. Kushnerek and her siblings in relation to the willed property and other personal property, not mentioned in the will, that had been returned to her.

For example, she appended exhibits to her affidavit showing her wedding pictures badly defaced. [ 21 ] This time the matter came before Dufour J. who wrote as follows: The Petitioner wants to join Mr. Selnes to an action that is already a hodgepodge. There are the original pleadings followed by minutes of settlement and the Court of Appeal sending this matter back to this court for a determination as to whether the Minutes of Settlement are valid. …. In any event, although Mr.

Selnes obviously does not relish being hauled into the mix, he accepts that fate and asks only that the process be fair, clear and sensible. That is not asking too much. Simply tossing him into the mix with nothing more would not be fair to him and would not advance this litigation. In my view, it is essential that the pleadings very clearly set out the facts and the causes of action that purport to make Mr. Selnes liable. As well, and of course, the pleadings will have to set out the nature and amount of damages claimed against him, whatever those are alleged to be.

If the petitioner wants to sue for judgment on the agreement and have Mr. Selnes at the table, she will have to commence a new action in the General Division. Just how she frames her pleadings, I leave to her. I also leave to the Respondent just how she will claim over against Mr. Selnes and for what . Normally, I would have awarded Mr. Selnes costs of this application but I will instead leave that to be determined and assessed in the context of the claim I expect will be issued in the General Division. In the event no claim is commenced against Mr.

Selnes within 60 days, he shall have costs in the amount of $1,500 to be paid out of the estate immediately . [Appeal Book, pp. 256-57] This fiat was issued July 17, 2012. [ 22 ] On August 16, 2012, Ms. Hawryluk filed a notice of appeal of the order of Dufour J. She indicates that the whole of the matter is being appealed. [ 23 ] Ms. Hawryluk interprets the decision of Dufour J. as requiring her to commence an action against her mother.

She asserts that her application to have the Minutes of Settlement declared invalid was not on the list, as it is not shown on the Chambers list for that day, or if it were on the list, Dufour J. did not consider it. While she continues to make allegations against her former counsel and Mrs. Kushnerek’s counsel, she does not want an action started against Mr. Selnes to declare the Minutes of Settlement invalid on that basis, and she does not want him to be paid $1500 out of the estate. She asks for the following relief: 1.

I WANT THIS COURT ACTION AND ALL ORDERS WITHDRAWN/STRUCK FROM COURT AGAINST ME AND RULE MINS. OF SETTLEMENT INVALID. 2. TO HAVE ALL COURT COSTS IN THE CAUSE PAID AND BE COMPENSATED FOR MY TIME AND EXPENSES BY BOTH LAWYERS WHO ARE THE CAUSE OF ALL OF THESE EXPENSES AND PROBLEMS. 3. I WANT COMPOUND FEES PAID BY PETER KUSHNEREK AND MS. L. De PADUA AS THEY PUT MIKE’S HONDA BIG RED BIKE IN THERE. 4. I WANT RESTITUTION ORDER REGARDING FREDRICK SIMPSON PAID TO ME, KAREN HAWRYLUK, IN FULL FOR $2486.00. 5.

I ASK THAT NO FEES BE PAID TO THE LAWYERS AS THEY ARE 100% RESPONSIBLE FOR WHAT HAS HAPPENED TO THIS ENTIRE ESTATE AND THAT THEY HAVE A LESSON TO LEARN DUE TO THEIR ACTIONS. 6. I WANT THIS SECOND APPEAL FINALIZED TODAY, AS I’M FINISHED WITH COURT! 7. I WANT TO BE ABLE TO SELL FARM MACHINERY, PAY TAXES, REMOVE TAX LIEN, RENT THE LAND AND MOVE THIS LIFE ESTATE FORWARD. 8. I WANT CERTIFICATE OF PENDING LITIGATION REMOVED OFF LAND. 9. I WANT BY COURT ORDER THE REMOVAL OF THE TRESPASSERS WHO FOR 6 YEARS HAVE FARMED THIS LAND WITHOUT PERMISSION. 10. I WANT COMPENSATION FOR MY TIME AND EXPENSES! 11.

I REQUEST A COURT ORDER THAT SHOWS ME THE COST OF MIKE KUSHNEREK’S FUNERAL. 12. I NEED PAYMENT FOR ALL WILLED AND PERSONAL PROPERTY TAKEN/STOLEN FROM ME.

[ 24 ] Mrs. Kushnerek did not cross-appeal. According to Mrs. Kushnerek’s counsel, Dufour J. ordered that Ms. Hawryluk is required to commence an action in the Court of Queen’s Bench division to set aside the Minutes of Settlement. Mrs. Kushnerek interprets the decision of Dufour J. as follows: 11. Having made allegations of such a nature, the onus is on the Appellant to prove her claims against her then solicitor. The Respondent can offer no evidence to assist the Court in trying the issues between Mr. Selnes and the Appellant. As such, the Appellant would be the Plaintiff and Mr.

Selnes the Defendant. [ 25 ] Mrs. Kushnerek’s counsel states the issue on this appeal as follows: “what is the appropriate process to decide the validity of the Minutes of Settlement dated October 21, 2010”? She states: 6. From his decision, it is clear that, in ordering an entirely new action, the Honourable Mr. Justice Dufour was concerned that the claim would not be sufficiently set out against Mr. Selnes if he were joined in the same action; therefore, pleadings were required.

It would seem that proceeding in this fashion would also require the parties to proceed through the usual civil litigation steps of mediation, discovery, pre-trial, and trial. 7. It also appears that Mr. Justice Dufour relied on statements made by the Appellant in open Court. When asked by him directly if she wanted to sue Mr. Selnes, she advised that she did. Now, in her Written Submissions, she indicates otherwise (Appeal Book, p. 11). 8.

It is submitted that triable issues have been raised about the Settlement Agreement by the Appellant in her Affidavits sworn on June 3, 2011 (Appeal Book, pp. 38-129); July 10, 2912 (Appeal Book, pp. 155-196); and July 10, 2012 (Appeal Book, pp. 197-211). The portions that reference the Appellant’s claim against Mr. Selnes can be found in the Appeal Book at pp. 39, 40, 48, 157, 160, 161, 201, 208 and 209. 9. These issues can be summed up as claims of duress, undue influence and coercion from Mr. Selnes when the Agreement was negotiated and executed.

The Respondent respectfully suggests that the merits of the Appellant’s claims against Mr. Selnes could be more appropriately and directly determined through a trial of an issue. [ 26 ] Mrs. Kushnerek asserts that the onus is on Ms. Hawryluk to prove her claims against her former solicitor and as such, Ms. Hawryluk should be the plaintiff and Mr. Selnes should be the defendant. She does not discuss the other issue—namely, whether the Minutes of Settlement are enforceable because of a failure to comply with the Minutes as they pertain to the personal property. Ms.

Kushnerek asks instead that there be “an order directing a trial of an issue” instead of an order compelling a new hearing. She suggests that the triable issue is as follows: 13. … The issue to be tried would be whether the Minutes of Settlement dated October 21, 2010, were prepared by the exertion of coercion, duress and undue influence upon the Appellant by William Selnes. It is further suggested that, while pleadings would not be required, cross-examination on the Affidavits filed by the Appellant could be conducted to ensure that Mr.

Selnes knew the case he had to meet. [ 27 ] In the alternative, she requests that the matter be returned to the Queen’s Bench for an order that there be a trial of an issue, with the issue to be determined by the Chambers judge. Once the issue has been tried and the enforceability of the Minutes of Settlement decided, then the matter could be returned to a Chambers judge for a determination of all of the issues as between Ms. Hawryluk and Mrs. Kushnerek resulting therefrom. [ 28 ] I will deal first with Mrs. Kushnerek’s arguments. Quite clearly, Dufour J. has directed her , not Ms.

Hawryluk, to commence an action to enforce the Minutes of Settlement. It is, after all, Mrs. Kushnerek who wants to enforce the Minutes, not Ms. Hawryluk. In light of the obiter comments of Scherman J. and this Court’s decision setting aside the order of Kraus J., which would have seen the funds from the sale of the land paid into Court, the action is not about seeking to enforce the Minutes of Settlement on the basis only that everything took place appropriately during the negotiation process. It will be necessary to determine whether Mrs.

Kushnerek can enforce the Minutes of Settlement pertaining to the farm land, in light of what has transpired in relation to the personal property. [ 29 ] That said, however, it is not legally possible for Mrs. Kushnerek to commence an action against Mr. Selnes. She has no claim against him and he is clearly not a party to the Minutes of Settlement. Dufour J.’s order must be taken to read on this point that Mrs. Kushnerek is directed to commence an action to enforce the Minutes of Settlement, but it is for Ms. Hawryluk to issue a third party claim against Mr.

Selnes pursuant to Rule 107 of The Queen’s Bench Rules , if she intends to resist the enforcement of the Minutes on the basis of coercion. [ 30 ] Turning to Ms. Hawryluk’s appeal proper, she does not want a trial. She clearly wants the matter to be brought to an end, and believes this Court can simply declare the Minutes of Settlement invalid. Unfortunately, matters are just not that simple. [ 31 ] The Court’s options on an appeal of this nature are limited. Indeed, Dufour J.’s order is the best type of order that could be made in the circumstances. The order of Dufour J. requires Mrs.

Kushnerek, and those of the family who support her, to decide whether they want to incur the cost of another court action, the outcome of which is uncertain and which may result in the Minutes of Settlement being declared unenforceable. However, the matter would still not be over at that point. If the Minutes of Settlement are declared unenforceable, Mrs. Kushnerek would still have the option of resuming her action for relief under The Family Property Act and The Dependants’ Relief Act, 1996 .

Both sides still have much to lose. [ 32 ] While the order of Dufour J. is the wisest course to attempt to bring this matter to an end, some modifications intended to move the matter along may assist the parties. If no action is commenced to enforce the Minutes of Settlement within a reasonable time, a mechanism should be put in place to have the matter set down for trial to determine whether, in light of all that has transpired, Mrs. Kushnerek has a claim for an unequal division of family property or an order under The Dependants’ Relief Act, 1996 .

Orders should also be made dispensing with mandatory mediation and examinations for discovery.

[ 33 ] One final matter remains. Dufour J. ordered that in the event no claim is commenced against Mr. Selnes within 60 days, he shall have costs in the amount of $1,500 to be paid out of the estate immediately. Ms. Hawryluk objects to this aspect of the order as, in her view, it was Mrs. Kushnerek’s application, requiring her to commence an action against Mr. Selnes, that now sees him being compensated out of the estate when she has no interest in pursuing him. [ 34 ] The difficulty with Ms. Hawryluk’s argument in this regard is that almost all of Ms.

Hawryluk’s affidavits contain allegations to the effect that she was coerced into signing the Minutes of Settlement by Mr. Selnes and others. One would be forgiven for thinking that one of the ways―indeed, one of the principal ways in which Ms. Hawryluk was attacking the Minutes of Settlement―was grounded in her allegations against Mr. Selnes. Allegations against principal actors within the justice system, which appear based on the affidavit evidence before us to be without merit, cannot be left without consequences.

Thus, this aspect of the decision remains. [ 35 ] For greater clarity, this Court orders as follows: 1. To enforce the Minutes of Settlement, Mrs. Kushnerek is directed to commence a new action in the General Division against Ms. Hawryluk in her capacity as Executor and in her personal capacity within 60 days from to-day’s date. If an action is commenced against Ms. Hawryluk within that time period, Ms. Hawryluk will have an additional 30 days from the date of service upon her to issue a third party claim against Mr. Selnes. If no action is commenced against Ms.

Hawryluk or if an action is commenced against her, but she does not third party Mr. Selnes, he shall have costs in the amount of $1,500 to be paid out of the estate within 90 days of to-day’s date. 2. If Mrs. Kushnerek commences an action against Ms. Hawryluk, and Ms. Hawryluk serves Mr. Selnes with a third party claim, the matter shall be returned to the Melfort Chambers list for the purposes of establishing the procedure to be followed and establishing timelines. 3. If Mrs. Kushnerek commences an action against Ms. Hawryluk, and Ms. Hawryluk does not serve Mr.

Selnes with a third party claim, the matter shall be set down for trial as soon as reasonably practicable without proceeding through mandatory mediation and examinations for discovery. A pre-trial settlement conference should take place as it appears other issues exist that divide the family and the parties beyond the distribution of the estate, which an experienced settlement conference judge may be able to resolve. It may at some point become appropriate to attempt to settle the underlying action, but this is of course left to the pre-trial settlement conference judge and the parties.

Nothing in this order should be taken as constraining a case management judge or a trial judge from devising a trial procedure to determine the validity of the Minutes of Settlement, according to the proper exercise of his or her discretion. 4. If Mrs. Kushnerek does not commence an action against Ms. Hawryluk within 60 days of to-day’s date, she will be considered by her failure to do so as having abandoned her claim to enforce the Minutes of Settlement. 5. If Mrs. Kushnerek does not commence an action against Ms.

Hawryluk within 60 days of to-day’s date, the matter shall be returned to the Queen’s Bench Chambers list in Melfort for the judge to determine whether Mrs. Kushnerek intends to proceed with her claim in the action under The Family Property Act or The Dependants’ Relief Act, 1996 and, if so, to establish timelines and procedures. [ 36 ] I will now address the question of costs in this Court. Under normal circumstances, Mrs. Kushnerek would be entitled to costs under Column 2 of this Court. She would be entitled to costs because Ms. Hawryluk’s appeal to this Court is substantially dismissed. Ms.

Hawryluk appealed, believing that the Chambers judge or this Court could declare the Minutes of Settlement invalid and requesting that the order with respect to Mr. Selnes’s costs be set aside. On the other hand, Mrs. Kushnerek’s response to her daughter’s appeal is more in the form of a cross-appeal when none had been filed. As a result of the submissions from both parties, modifications have been made to the order of Dufour J. Having regard for these circumstances, it appears fit to fix costs at $500, payable personally by Ms. Hawryluk to Mrs. Kushnerek but that they not be payable until the estate is settled.

DATED at the City of Regina, in the Province of Saskatchewan, this 24 th day of June, A.D. 2013. __ “Jackson J.A.” ____________ Jackson J.A. __ “Caldwell J.A.” ___________ Caldwell J.A. __ ” “Jackson J.A” ___________ for Herauf J.A.