BMO Trust Company v. Childs, 2020 ONCA 21

Court of Appeal for Ontario

Date: 2020-01-15 Docket: C66915

Before: Sharpe, Juriansz and Nordheimer JJ.A.

Between:

BMO Trust Company, in its capacity as Guardian of Property for Eileen Vera Childs Applicant (Respondent in Appeal)

and

Michael Childs, in his capacity as Litigation Guardian for Eileen Vera Childs Respondent (Respondent in Appeal)

Peter Childs, appellant acting in person

Counsel: David M. Smith, for the respondent Michael Childs in his capacity as Litigation Guardian for Eileen Vera Childs A. Sean Graham, BMO Trust in its capacity as Guardian of Property for Eileen Vera Childs

Heard: January 10, 2020

On appeal from the judgment of Justice Charles T. Hackland of the Superior Court of Justice, dated April 29, 2019.

Reasons for Decision

[1]

Analysis

The appellant appeals from the decision of the motion judge refusing to allow him to participate in the passing of accounts of his mother Eileen Childs. His mother, 92 years of age, is an incapable person with Alzheimer’s disease. Michael Childs, the appellant’s brother, is Mrs. Childs’ litigation guardian. Michael and his sister, Caroline, are jointly guardians for personal care of Mrs. Childs. BMO Trust has been appointed Mrs. Childs’ property guardian.

2We find it unnecessary to deal with the appellant’s submissions that, as a beneficiary under the will of the incapable Mrs. Childs, he had the right to standing in the passing of accounts. While the motion judge expressed the view the appellant required leave to participate, the primary basis of his decision is that the appellant is a vexatious litigant. In explaining his disposition, the motion judge said:

In summary, I order that Peter Childs will not be accorded standing in this passing of accounts on the basis that he is a vexatious litigant in this proceeding and that his primary objective is clearly to relitigate issues which are the subject of previous final court orders.

3The motion judge reviewed the appellant’s Notice of Objection and was satisfied he sought to relitigate issues already decided by the original motion judge and by this court. He found that the arguments the appellant wished to advance on the passing of accounts were “an abuse of process which can only have the effect of turning what should be a simple accounting and oversight exercise into a lengthy and unproductive relitigation of positions previously rejected by the court.”

4The record provides ample support for the motion judge’s findings. The appeal is dismissed.

5We note that this court on September 11, 2019 dismissed the appellant’s motion under rule 59.06(2) to vary this court’s earlier order of June 20, 2017, on the basis that it was an abuse of process and frivolous and vexatious. The court said that an order contemplated by rule 2.1.02 was “not only warranted, but essential in the circumstances of this case.” A similar order is warranted in this case. The appellant is prohibited from filing any further motions in this court in respect of the passing of accounts proceeding without leave.

[6]

Costs

The respondents are entitled to their costs fixed at $10,000 for Michael Childs and $3,752.00 for BMO, both figures inclusive of disbursements and taxes, payable by the appellant from his share of his mother’s estate.