Court of Appeal for Ontario

Date: 2025-06-16
Docket: COA-24-CV-1116
Before: Peter Lauwers, Bradley W. Miller, Jonathon George

In the Estate of Billie Francis Farmer, deceased

Between:
Peter Ross Farmer and Robert Eric Farmer
Applicants (Respondents)

and

Kyrle Blake Farmer
Respondent (Appellant)

Appearances:
Jonathan Collings, for the appellant
Alissa N. Winicki, for the respondents

Heard: June 9, 2025

On appeal from the order of Justice James A. Ramsay of the Superior Court of Justice, dated September 16, 2024.

Reasons for Decision

Background

[1] The appellant, Kyrle Blake Farmer, served as estate trustee and attorney for property for his aunt, Billie Frances Farmer (“Billie”). The respondents, Peter Ross Farmer (“Ross”) and Robert Eric Farmer (“Eric”), are his brothers and the three were to share equally in her estate. Ross and Eric took issue with their brother’s distributions and the expenses taken as their aunt’s attorney and executor. They brought an application for an accounting and several other forms of relief relating to the appellant’s activities as estate trustee and attorney for property, which the application judge granted. The appellant appeals.

[2] We dismissed the appellant’s appeal with reasons to follow. These are our reasons.

[3] Billie suffered a severe brain injury from a car accident in 2015. The appellant deposed that, shortly before the accident, Billie told him that she wanted him to preserve her “nest egg” (her house). About a year after the accident, Billie allegedly told the appellant that she wanted him not to be out of pocket for taking care of her. The application judge recorded the appellant’s evidence:

[Billie] negotiated an arrangement whereby he would be paid minimum wage and expenses every time he came down to Norfolk County where she lived, from the Ottawa area where he lived. She gave him instructions to use her money for gifts to himself, his wife and … Eric.

[4] We address the issues raised by the appellant in turn.

(1) The Adequacy of the Application Judge’s Reasons

[5] As an opening submission, the appellant argued that the reasons were inadequate in light of the standard expressed in this court’s decision in Farej v. Fellows, 2022 ONCA 254, at paras. 41-43, leave to appeal refused, [2022] S.C.C.A. No. 180. As we will explain, the reasons, while sparse, do address the live issues in the case and do permit appellate review. The appellant complains that the application judge did not take the time to review carefully the “voluminous record”, which shows that the appellant did considerable work that should be compensated. Much of the record consists of accounting records. In argument, the appellant took the panel to nothing that he says the application judge overlooked, which might have had an impact on the decision. We infer that there is nothing material despite the volume. The reasons are adequate.

(2) Billie Lacked Capacity to Provide Instructions to the Appellant

[6] The application judge found that Billie lacked capacity to provide instructions on the management of her property to the appellant because Billie was not able to understand relevant information when making these decisions and she was unable to fully appreciate the reasonably foreseeable consequences of the decisions.

[7] The appellant said that his aunt had “moments of lucidity and that her instructions were consistent with her stated intentions before her accident.” However, the application judge assessed the appellant’s evidence in the context of the medical evidence and found that Billie did not have capacity. He considered the outcome of this capacity issue to be “one which determines much of this application.”

[8] The application judge set out the evidence at some length:

She was admitted to hospital in August 2015 at the age of 92. She had suffered a head injury. She was disoriented and confused and suffered symptoms which mimicked dementia. She also had vascular dementia. In May of 2016 she thought she was a person of a different name. She did not know where she was or how she had got there. She was diagnosed with a major neurocognitive disorder. Psychological tests showed deterioration i[n] the months before February 2017. The person with the best evidence on this point was her case manager who worked with her from the time of her admission to hospital until her death. She deposed that while there were periods of lucidity in which Billie played the piano and went to the theatre and played cards with her friends, during the entire period she was not able to manage her finances. I note also that after the accident Billie’s signature does not appear on any cheque or other instrument that has anything to do with her finances. An assessment of the evidence of the whole leads me to conclude that she was incapable of managing her finances or understanding the consequences of giving these gifts.

[9] The appellant submits that these reasons are inadequate. We do not agree. The application judge was alive to the essential evidence as to Billie’s capacity. We defer to his assessment.

[10] However, the appellant especially questions this statement: “I reject the respondent’s evidence. I did not find him to be a credible witness.” The medical evidence and the evidence of the case manager most familiar with Billie as to her capacity, simply belie the appellant’s evidence. But the application judge went on to question the appellant’s approach:

Also the stated reason for making these preliminary distributions [to himself, his wife and his brother Eric (but not his brother Ross) was to avoid estate tax, which is not particularly honest. Ultimately his entire administration the of the estate of his aunt, whether as attorney or executor, demonstrates an essentially rapacious approach. He charged his aunt expenses to attend her own funeral. He charged attorney’s fees for money he paid himself. He never visited her without being paid. This also informed my assessment of his credibility.

[11] These reasons for the credibility assessment are adequate and are rooted in the evidence. The appellant has shown no palpable and overriding error or an error in principle.

(3) The Appellant’s Compensation as Attorney for Property for Billie

[12] The appellant collected both statutory compensation in the sum of $26,652.38 and an alleged negotiated compensation as honorarium in the sum of $58,694.40 for himself and his wife. The appellant said that the negotiated compensation was based on the minimum wage of $14 an hour. The application judge rejected this evidence:

The negotiated compensation was said to be based on the minimum wage of $14 an hour but at the time of negotiation the minimum wage was about $11 an hour. And later he paid himself $16 and $18 an hour. The explanation was obviously an afterthought. I do not believe that it was ever negotiated. If it was, it was not understood by Billie.

[13] The application judge pointed to the fact that the appellant charged Billie’s insurer $47,742.44 for “visitor expenses” in order to show that the appellant was clearly not “out of pocket” and in need of reimbursement. For the last four years of her life, all Billie’s needs were paid for by her insurance company, including her care residence, occupational therapist, personal and rehabilitation support workers.

[14] In considering the appellant’s compensation as attorney for property, the application judge also noted that the appellant charged his aunt for significant additional and unnecessary expenses, including expenses to keep up Billie’s home and to install cable TV and high-speed internet, even though it would have been obvious months after the accident that she was never going to return to it.

[15] Lastly, the home was sold in 2019. The appellant gave $20,647.96 each to himself, his wife, and Eric, out of the proceeds of the home and Billie’s TFSA. The appellant stated that this was done under his aunt’s express instructions. The application judge did not believe this because the only supporting evidence the appellant produced was an old note, purported to have been signed by Billie, that was undated and spoke of “income”, not proceeds of the sale of the home.

(4) The Appellant Failed to Act Reasonably as Billie’s Attorney for Property

[16] The application judge found that the appellant “did not come close” to keeping proper accounts as attorney for property and as executor, noting: “He only produced accounts when ordered, and the ones he produced were incomplete.” As such, he failed his requirement to retain accounts while acting as attorney for property and executor and trustee under s. 6 of the Accounts of Records of Attorneys and Guardians, O. Reg. 100/96, and s. 48 of the Estates Act, R.S.O. 1990, c. E.21, respectively.

(5) The Appellant Was Not Entitled to an Executor Fee

[17] Under s. 61(1) of the Trustee Act, R.S.O. 1990, c. T.23, executors may be compensated at the rate of 2.5% for capital receipts and disbursements, 2.5% for income receipts and disbursements, and 0.4% on the average annual value of the assets as a management fee, but compensation may not be taken in advance unless the will provides for it: Re Jeffery Estate (1990), 39 E.T.R. 173 (Ont. Surr. Ct.), at para. 13; Laing Estate v. Hines, 41 O.R. (3d) 571 (C.A.), at paras. 4-9. The application judge found that the will did not provide for advance compensation but, despite this, the appellant paid himself $9,600.97 six months after his aunt died, before any beneficiary had been paid. The funeral was already prearranged by Billie, and her estate at the time of her death was all money, meaning the appellant did not have much to do. The will provided for gifts to charities, which the appellant did not make. He also did not make any payments to the residuary heirs, except $35,000 to Eric and $60,000 to himself and his wife. The application judge noted that the amount given to Eric was transferred in order to lower the assets of the estate to below $100,000 in order to avoid probate and estate tax.

(6) The Appellant Was Required to Pay Back the Estate

[18] Because the application judge found that the appellant engaged in dishonest and negligent administration as an attorney and executor, he disentitled himself to compensation. The application judge ordered the appellant to repay the estate the $26,652.38 attorney for property compensation, $58,694.40 honorarium; $20,647.86 paid to himself as a gift from the proceeds of the sale of the home and TFSA; $20,647.86 paid to his wife as a gift; and $9,600 in executor fees. Of the $24,384.04 in expenses incurred or expenses reimbursed without supporting documents, the appellant was required to repay $10,000 along with the $60,000 advance distribution to himself (he stated it was $30,000 for his wife and himself each but his wife denied getting the money). The application judge found that $5,524.50 was a legitimate expense of the estate. He also ordered that the money in the estate should be distributed $55,647.86 to Ross, and the rest split evenly between Eric and Ross.

[19] We see no error in the exercise of the application judge’s authority to compel some repayment in light of the appellant’s plain misconduct.

Disposition

[20] The appeal is dismissed with costs. We agree with the application judge that the estate is not answerable for costs and the appellant is not entitled to be paid his costs from the estate. We also agree with the application judge that partial indemnity costs are appropriate. We therefore fix the costs to be paid by the appellant to the respondents at $10,000, all-inclusive.

“P. Lauwers J.A.”
“B.W. Miller J.A.”
“J. George J.A.”