Higgins v. Labadie – Evidentiary Requirements on Rule 7 Approval Motions for Minors
Rule 7 approval motions routinely arise in estates related litigation where a portion of settlement proceeds are payable to children or persons under disability as defined by the Rules. Although such motions are often treated as procedural “follow-through” after settlement, Higgins v. Labadie[1], 2025 ONSC 4465 illustrates that the Court requires a substantive evidentiary foundation tailored to the interests of the party under disability. The decision underscores that adequacy of quantum, fee treatment, and compliance with Rule 59 formalities must be affirmatively demonstrated before a settlement will be approved.
Background
Kenneth Higgins (the “Deceased”) died on December 30, 2022 after he was struck by a vehicle while walking as a pedestrian. His estate, widow, two sons, and six grandchildren (the “Plaintiffs”) sued the defendant driver.[2] One grandchild has since reached the age of majority, leaving three minors whose proposed settlement shares required judicial approval pursuant to Rule 7.08.
The plaintiffs asked the Court to approve payment of $10,000 per minor grandchild into court, along with ancillary relief concerning the draft order, a release term, the solicitor-client account, and service on the Office of the Children’s Lawyer.[3]
The Court adjourned the motion and directed supplemental materials, concluding that the record was insufficient to demonstrate that the proposed resolution was in the best interests of the minors.[4]
Issues
The Court addressed the following issues:
- The Quantum of the Settlement;
- The Settlement on Behalf of the 17-year old Grandchild;
- The Contingency Fee Retainer Agreement and Solicitor-Client Account;
- The Balance of the Relief Requested;
- The Draft Order.
Analysis
1. The Quantum of the Settlement
The Court found that, although the $10,000 figure appeared reasonable at first glance, the record did not permit a meaningful assessment of whether this amount reflected what the minor grandchildren would likely recover if the matter proceeded to trial.[5] The endorsement notes the absence of evidence comparing the proposed amount to awards in analogous fatality claims involving grandchildren and the absence of counsel’s explicit opinion that the proposed amount is reasonable for these plaintiffs.[6] The record also did not include evidence that the litigation guardian understood the basis of the amount or endorsed it as being in the minors’ best interests.[7] The Court emphasized that it cannot rely on inference simply because the adults in the family reached a global settlement.
2. The Settlement on Behalf of the 17-Year-Old Grandchild
One of the grandchildren will turn eighteen less than six months after the anticipated return of the motion. She also resides outside Ontario.[8] The Court questioned whether it is appropriate or cost-effective to require payment into court for such a short period, given the administrative process and associated withdrawal procedures.[9] The Court directed that counsel may wish to consider relief under Rule 7.09, together with supporting evidence, if a direct-payment alternative is warranted.[10]
3. The Contingency Fee Retainer Agreement and Solicitor-Client Account
The Court also concluded that the evidence was insufficient to determine whether the minors were, directly or indirectly, contributing toward counsel’s legal fees.[11] The affidavit material referred to the contingency fee retainer and to the overall legal account but did not confirm whether the $10,000 figure was gross or net of any allocation toward disbursements or fees.[12] As a result, the Court held that the evidence before it was not insufficient to permit the Court to determine the request for approval of both the solicitor’s contingency fee retainer and the minor beneficiaries’ contributions towards the solicitor’s proposed account.[13]
4. The Balance of the Relief Requested
The Court also took issue with the plaintiffs’ request to dispense with service of the motion record on the OCL. Rule 7.08 does not require service of the materials on the OCL unless the Court directs otherwise, and no such direction had been sought or made.[14] What is required, however, is service of the final order on the OCL, together with the minors’ full dates of birth and addresses, pursuant to Rule 59.03(5).[15] The draft order did not contain this mandatory language and therefore could not be approved in its existing form.
5. The Draft Order
The Court also found the draft order to be procedurally deficient.[16] It was styled as a “Judgment” rather than a Rule 7.08 order, did not comply with the formatting requirements of Rule 4 and Form 59A, and improperly incorporated materials and terms unrelated to the Rule 7 approval itself, including provisions dealing with the global settlement and release. The Court directed that a revised order be prepared in proper form.[17]
Interim Disposition
The Court adjourned the motion and directed that it be continued in writing once a supplementary motion record is delivered containing only the additional evidence addressing the deficiencies identified, together with a revised draft order reflecting the required amendments.[18] No new notice of motion will be required. The Court remains seized of the matter and directed that the supplementary materials be filed electronically and uploaded to Case Center before the motion may be returned.
Concluding Remarks
The decision serves as a practical reminder that Rule 7 approval requires more than a consent-based endorsement of what the parties have negotiated. The Court’s protective jurisdiction over parties under disabilities obliges counsel to demonstrate that the proposed payment reflects a principled assessment of the party’s claim, that the litigation guardian understands and supports the resolution, and that the form of order strictly complies with the procedural framework governing settlements on behalf of persons under disability. Absent that foundation, even uncontested monetary awards will not be approved.
—
[1] Higgins v. Labadie, 2025 ONSC 4465
[2] Ibid at para 2.
[3] Ibid at para 4.
[4] Ibid at para 8.
[5] Ibid at para 15.
[6] Ibid at para 9.
[7] Ibid.
[8] Ibid at para 17.
[9] Ibid at para 18.
[10] Ibid.
[11] Ibid at para 20.
[12] Ibid at paras 7, 20, 24.
[13] Ibid at para 23.
[14] Ibid at paras 5-26.
[15] Ibid at paras 27-28.
[16] Ibid at para 30.
[17] Ibid at para 36.
[18] Ibid.
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Written by: Emily Caza
Posted on: November 7, 2025
Categories: Commentary
Rule 7 approval motions routinely arise in estates related litigation where a portion of settlement proceeds are payable to children or persons under disability as defined by the Rules. Although such motions are often treated as procedural “follow-through” after settlement, Higgins v. Labadie[1], 2025 ONSC 4465 illustrates that the Court requires a substantive evidentiary foundation tailored to the interests of the party under disability. The decision underscores that adequacy of quantum, fee treatment, and compliance with Rule 59 formalities must be affirmatively demonstrated before a settlement will be approved.
Background
Kenneth Higgins (the “Deceased”) died on December 30, 2022 after he was struck by a vehicle while walking as a pedestrian. His estate, widow, two sons, and six grandchildren (the “Plaintiffs”) sued the defendant driver.[2] One grandchild has since reached the age of majority, leaving three minors whose proposed settlement shares required judicial approval pursuant to Rule 7.08.
The plaintiffs asked the Court to approve payment of $10,000 per minor grandchild into court, along with ancillary relief concerning the draft order, a release term, the solicitor-client account, and service on the Office of the Children’s Lawyer.[3]
The Court adjourned the motion and directed supplemental materials, concluding that the record was insufficient to demonstrate that the proposed resolution was in the best interests of the minors.[4]
Issues
The Court addressed the following issues:
Analysis
1. The Quantum of the Settlement
The Court found that, although the $10,000 figure appeared reasonable at first glance, the record did not permit a meaningful assessment of whether this amount reflected what the minor grandchildren would likely recover if the matter proceeded to trial.[5] The endorsement notes the absence of evidence comparing the proposed amount to awards in analogous fatality claims involving grandchildren and the absence of counsel’s explicit opinion that the proposed amount is reasonable for these plaintiffs.[6] The record also did not include evidence that the litigation guardian understood the basis of the amount or endorsed it as being in the minors’ best interests.[7] The Court emphasized that it cannot rely on inference simply because the adults in the family reached a global settlement.
2. The Settlement on Behalf of the 17-Year-Old Grandchild
One of the grandchildren will turn eighteen less than six months after the anticipated return of the motion. She also resides outside Ontario.[8] The Court questioned whether it is appropriate or cost-effective to require payment into court for such a short period, given the administrative process and associated withdrawal procedures.[9] The Court directed that counsel may wish to consider relief under Rule 7.09, together with supporting evidence, if a direct-payment alternative is warranted.[10]
3. The Contingency Fee Retainer Agreement and Solicitor-Client Account
The Court also concluded that the evidence was insufficient to determine whether the minors were, directly or indirectly, contributing toward counsel’s legal fees.[11] The affidavit material referred to the contingency fee retainer and to the overall legal account but did not confirm whether the $10,000 figure was gross or net of any allocation toward disbursements or fees.[12] As a result, the Court held that the evidence before it was not insufficient to permit the Court to determine the request for approval of both the solicitor’s contingency fee retainer and the minor beneficiaries’ contributions towards the solicitor’s proposed account.[13]
4. The Balance of the Relief Requested
The Court also took issue with the plaintiffs’ request to dispense with service of the motion record on the OCL. Rule 7.08 does not require service of the materials on the OCL unless the Court directs otherwise, and no such direction had been sought or made.[14] What is required, however, is service of the final order on the OCL, together with the minors’ full dates of birth and addresses, pursuant to Rule 59.03(5).[15] The draft order did not contain this mandatory language and therefore could not be approved in its existing form.
5. The Draft Order
The Court also found the draft order to be procedurally deficient.[16] It was styled as a “Judgment” rather than a Rule 7.08 order, did not comply with the formatting requirements of Rule 4 and Form 59A, and improperly incorporated materials and terms unrelated to the Rule 7 approval itself, including provisions dealing with the global settlement and release. The Court directed that a revised order be prepared in proper form.[17]
Interim Disposition
The Court adjourned the motion and directed that it be continued in writing once a supplementary motion record is delivered containing only the additional evidence addressing the deficiencies identified, together with a revised draft order reflecting the required amendments.[18] No new notice of motion will be required. The Court remains seized of the matter and directed that the supplementary materials be filed electronically and uploaded to Case Center before the motion may be returned.
Concluding Remarks
The decision serves as a practical reminder that Rule 7 approval requires more than a consent-based endorsement of what the parties have negotiated. The Court’s protective jurisdiction over parties under disabilities obliges counsel to demonstrate that the proposed payment reflects a principled assessment of the party’s claim, that the litigation guardian understands and supports the resolution, and that the form of order strictly complies with the procedural framework governing settlements on behalf of persons under disability. Absent that foundation, even uncontested monetary awards will not be approved.
—
[1] Higgins v. Labadie, 2025 ONSC 4465
[2] Ibid at para 2.
[3] Ibid at para 4.
[4] Ibid at para 8.
[5] Ibid at para 15.
[6] Ibid at para 9.
[7] Ibid.
[8] Ibid at para 17.
[9] Ibid at para 18.
[10] Ibid.
[11] Ibid at para 20.
[12] Ibid at paras 7, 20, 24.
[13] Ibid at para 23.
[14] Ibid at paras 5-26.
[15] Ibid at paras 27-28.
[16] Ibid at para 30.
[17] Ibid at para 36.
[18] Ibid.
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