CITATION: Clayton v. Clayton, 2022 ONSC 33

DIVISIONAL COURT FILE NO.: 781/21-ML

DATE: 2022/04/08

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: DANIEL STEPHEN CLAYTON, Applicant (Responding Party)

AND:

SHIRLEY VIOLET CLAYTON, KAREN ELIZABETH DAVIES, AND PATRICIA ANNE LEWINGTON IN THEIR CAPACITY AS TRUSTEES OF

THE CLAYTON FAMILY TRUST, Respondents (Moving Parties)

BEFORE: SACHS, BACKHOUSE and LEDERER JJ.

COUNSEL: Kathleen McDormand, for the Applicant (Responding Party)

Douglas D. Buchmayer and Joel Reinhardt, for the Respondents (Moving Parties)

HEARD: in writing

ENDORSEMENT

[1] The motion for leave to appeal the order of Corthorn J., dated August 31, 2021, is dismissed.

[2] The Order of the motions judge was to remove Karen Elizabeth Davies and Patricia Anne Lewington as Trustees of the Clayton Family Trust and to replace them with the Bank of Montreal.

[3] This Court has held that an Order removing an estate executor is a final Order. Thus, any appeal would be to the Court of Appeal (Virdo v. Virdo 2013 ONSC 6235 (Div. Ct.)). This is consistent with the general understanding that an order that ends the proceeding before the court is not interlocutory merely because it does not determine another, possibly larger issue between the parties which may be subsequently determined in some other proceeding (Buck Bros. Ltd. v. Frontenac Builders Ltd. (1994), 19 O.R. (3d) 97 (C.A.), at para. 8).

[4] The case of Assaf v. Assaf Estate, 1999 CarswellOnt 4308 (C.A.), 31 E.T.R. (2d) 157, on which the moving parties (the removed trustees) rely, is distinguishable. In that case there was an application to remove the executor of an estate. Rather than being granted, it was dismissed. The substantive rights of the parties were unchanged. The order dismissing the application was interlocutory. It “was part of the orderly administration of the estate” (Assaf at para. 1).

Page: 2

[5] Costs of this motion reserved to any appeal that may be brought, heard and determined in the Court of Appeal.

BACKHOUSE J. SACHS J.

I agree

LEDERER

I agree

J.

Released: April 8, 2022