COURT OF APPEAL FOR ONTARIO

CITATION: Coady v. Barrie, 2014 ONCA 751

DATE: 20141028

DOCKET: C58456

Juriansz, Rouleau and van Rensburg JJ.A.

BETWEEN

Martha Coady

Appellant/Plaintiff

and

Nathan Barrie and Rachel McKay, personally and in their capacity as Executors of the Estate of Robert Bruce Barrie

Respondents/Defendants

Martha Coady, acting in person

John J. Cardill, for the respondents

Heard: October 24, 2014

On appeal from the judgment of Justice Brian W. Abrams of the Superior Court of Justice, dated February 6, 2014.

APPEAL BOOK ENDORSEMENT

[1] Both parties agree the appeal should be allowed in part. We would not disturb the motion judge’s finding that there was no bequest to the appellant of any interest in the cottage, nor with his dismissal of her claim for damages. His error was in leaving the estate in limbo. In our view, upon noting the respondents were prepared to renounce being trustees of the estate he should have made an order removing them. We modify his order to include a term removing them as trustees effective the date of his decision.

[2] Today, the parties agree that the appellant should be appointed trustee. We so order on the term that she not dispose of any real property, excepting the farm property, without the approval of the Superior Court. There is no issue as to the appellant’s entitlement to the farm property. However, we cannot at this point make a vesting order, as requested, because we do not know all the circumstances.

[3] We also order the respondents to pass accounts for the period from the death of the deceased to today within 60 days subject to further order of the Superior Court, and to cooperate in transferring responsibility for the estate to the appellant. The appellant is to return to the estate a bracelet and ring and to dispose of them as residue of the estate as directed by the Will.

[4] We fix the costs of the motion below in the amount of $12,500 all-inclusive in favour of the respondents. Considering the appellant’s success on a motion in this court, and the divided success on appeal, there will be no costs of the appeal.