SUPREME COURT OF NOVA SCOTIA
Citation: Day v. Day, 2009 NSSC 98
Date: 20090608
Docket: Hfx No. 225867
Registry: Halifax
Between:
Courtney Nicole Day and Joshua James Day
Plaintiffs
and
Marilyn Day
Defendant
and
Troy Day and Betty Laverne Day
Third Parties
LIBRARY HEADING
Judge: The Honourable Justice Gerald R P Moir
Heard: 17 and 18 November 2008 at Halifax
Subject: Trusts, implied, breach; Consent by beneficiaries’ guardian; Discretion to forgive breach.
Summary: Defendant was the designated beneficiary under her brother’s life policies, but she knew that her brother had been ordered to cause the proceeds to be used for two of his children, who were minors. The defendant paid most of the money for the two children, but she; 1) gave $30,000 to their half-brother, 2) took $30,000 for herself, and 3) lent some to herself. The mother of the children consented to the $30,000 payments.
Issue: Whether the consent of the mother bound the children? Whether the discretion to excuse breach should be exercised?
Result: It was not disputed that the loaned money had to be paid back, but some details remained in issue. These were resolved. The mother was a guardian under s. 5 of the old Guardianship Act. A s. 5 guardian receives s. 8 power over property of the child. She, too, is a trustee. She does not have power to authorize a breach of trust. The payment to the half brother ought to be excused under s. 64 of the Trustee Act, but not the payment to the defendant.
THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.