COURT FILE NO.: 24882/11

DATE: 2012/06/08

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE ESTATE OF JOHN A. DENOFRIO

between:

MANDY DENOFRIO, RON DENOFREO, and RAVI SHARMA

Applicants

– and –

AUDREY DENOFRIO, DEBBIE DENOFRIO, DINO DENOFRIO

and LINDA DENOFRIO-MILITO

Respondents

COUNSEL: Philip W. Augustine, for the Applicants

David Cutler, for the Respondents

HEARD IN OTTAWA: May 1, 2 and 3, 2012

REASONS FOR JUDGMENT

KERSHMAN j.

INTRODUCTION

[1] This is a contested application to pass accounts in the Estate of John A. Denofrio (“Mr. Denofrio”) for the period from June 9, 2010, through to June 30, 2011.

FACTUAL BACKGROUND

[2] John Denofrio was a majority shareholder of Shamrock Parking Ltd (“Shamrock”) and Denofrio Holdings Ltd. Shamrock was a company that operated parking lots in Ottawa. At its peak, it owned and/or leased over 50 locations.

[3] John Denofrio was married to Audrey Denofrio (“Mrs. Denofrio”). They had four children: Mandy Denofrio, Debbie Denofrio, Dino Denofrio and Linda Denofrio‑Milito (“Children”). Mr. Denofrio passed away on June 9, 2010.

[4] In June 2006, Mr. Denofrio prepared a Will which named Mandy Denofrio, Ron Denofreo, and Ravi Sharma as Estate Trustees.

[5] Ron Denofreo is the nephew of the late John Denofrio. He is 66 years of age and is retired from the federal government where he worked as an engineer and procurement officer.

[6] Ravi Sharma is the retired General Manager of Shamrock. He started with Shamrock in about 1975 and retired in approximately 2008.

[7] According to Mr. Denofrio’s Will, the residue of the Estate is to be divided into two equal shares: (1) one of the shares is to be transferred to Mrs. Denofrio; and (2) the other share is to be divided amongst the Children. The payments to each of the four children are to be made over a period of ten years at the rate of $2,500.00 per month per child, except for Linda Denofrio‑Milito who is to receive $1,000.00 per month for six years and then $2,500.00 per month for the next four years. At the end of the ten years, the balance of the funds in this share is to be paid out to Mr. Denofrio’s then surviving children in equal amounts. The Will included other bequests, but those are not applicable for the purpose of this passing of accounts.

[8] At the same time as he prepared his Will, Mr. Denofrio prepared Powers of Attorney for personal care and for property, naming Mandy Denofrio, Ron Denofreo, and Ravi Sharma as the Powers of Attorney.

[9] The Power of Attorney for property included the following provision:

I confirm that my Attorney(s) has or have agreed to accept no compensation for any work done by him, her or them, pursuant to this Power of Attorney for property.

[10] A similar provision was included in the Power of Attorney for personal care:

I confirm that my Attorney(s) has or have agreed to accept no compensation for any work done by him, her or them, pursuant to this Power of Attorney for personal care.

[11] The Powers of Attorney and the Will were all dated and signed June 14, 2006.

[12] In March 2007, with his health failing, Mr. Denofrio was deemed no longer competent to manage his affairs. The three Attorneys began to actively manage his affairs in the fall of 2007 until his death on June 9, 2010.

[13] After taking over the management of his affairs, the Powers of Attorney sold the assets of the business for approximately 18 million dollars, and Shamrock was wound up.

[14] In June 2008, Mrs. Denofrio commenced legal proceedings against Mr. Denofrio and the three Attorneys claiming, among other things, damages of approximately 7.2 million dollars based on a 1989 marriage contract and $150,000.00 per month or $1,800,000.00 per year for spousal support.

[15] The Attorneys defended the family law litigation on behalf of Mr. Denofrio and dealt with various motions brought by Mrs. Denofrio.

[16] Orders were made by de Sousa J. on August 5, 2009 and November 18, 2009, that Mr. Denofrio pay Mrs. Denofrio $15,000.00 per month and that she take over financial responsibility for all expenses relating to the matrimonial home, except for property taxes and property insurance. Justice de Sousa did not characterize the payments to be made to Mrs. Denofrio. She said, “I make no order as to whether these payments should be considered as an advance on any future payments and leave that issue to the trial judge.”

Passing of Accounts

[17] The Estate Trustees brought an application to pass their accounts for the period from June 9, 2010, through to June 30, 2011. The application was commenced on September 21, 2011. An Affidavit Verifying Accounts was filed by the Applicants.

[18] At the hearing, all parties agreed that there was no issue with respect to the accounts, save and except the amount of compensation claimed by the Estate Trustees.

[19] The Estate Trustees’ compensation claim is as follows:

Accounts

Accounts	Amounts	Tariff	Amount at Tariff	Amount Claimed
Capital Receipts	$9,436,862.30	2.50%	$235,921.56	$235,921.56
Capital Disbursements	$641,507.72	2.50%	$16,037.69	$16,037.69
Revenue Receipts	$66,457.28	2.50%	$1,661.43	$1,661.43
Revenue Disbursements	$124.24	2.50%	$3.11	$3.11
				$253,623.79
Management and Other Fees
Management Fee	$0.00
Other Fees	$0.00
Others Fees	$0.00			$253,623.79
Total Estate Trustees’ Compensation				$253,623.79

[20] The only witnesses testifying at the passing of the accounts hearing were Ron Denofreo and Ravi Sharma.

Objections Made by the Beneficiaries

[21] Notices of Objection were filed by Mrs. Denofrio, Debbie Denofrio, Dino Denofrio and Linda Denofrio‑Milito (“Objecting Beneficiaries”). The objections are as follow:

a) The amount of compensation claimed by the Estate Trustees of $253,623.79 for the period June 9, 2010, through to June 30, 2011, is excessive;

b) The legal fees incurred in defending the family law action commenced by Mrs. Denofrio against Mr. Denofrio and the Estate Trustees were unreasonably incurred and excessive.

[22] The Court notes that the Objecting Beneficiaries did not give evidence at the hearing. The Court draws no adverse inference from this.

ISSUES

1. Were the legal fees incurred in defending the family law action commenced by Mrs. Denofrio against Mr. Denofrio and the Estate Trustees unreasonably incurred and excessive?

2. Is the amount of compensation claimed by the Estate Trustees of $253,623.79 for the period June 9, 2010, through to June 30, 2011, excessive?

3. If the amount of compensation is excessive, what is the proper quantum of compensation?

Issue # 1 – Were the Legal Fees Incurred in Defending the Family Law Action Commenced by Mrs. Denofrio against Mr. Denofrio and the Estate Trustees Unreasonably Incurred and Excessive?

Applicants’ Position

[23] The Applicants’ position is that only clients can assess legal accounts and that the Objecting Beneficiaries have no right to assess the accounts as issued by either Soloway Wright or Augustine Bater since they were not retain as solicitors.

[24] In addition, in terms of the content of the legal bills, in the context of the passing of accounts, the Applicants argue the matter was dealt with in the case of Geffen v. Goodman Estate, 1991 CanLII 69 (SCC), [1991] 2 S.C.R. 353. Wilson J. says at pp. 391-392 the following:

75 There can be no question that the trustees in this action acted reasonably. They were initially accused of having perpetrated a fraud against the deceased, an allegation which has not won the approval of any of the courts that have heard the matter. They were, however, obliged to defend the action. The appellants were cleared at trial of any exercise of undue influence on the settlor and, although they lost in the Court of Appeal on the basis of a presumption of undue influence, they were ultimately vindicated in this Court on the basis of the trial judge's finding that no undue influence had in fact been exercised.

76 Nor can there be any serious question that the appellants in defending the action were acting, not for their own benefit, but for the good of the trust. For William Geffen, of course, defending the action promoted both his personal interest as well as that of his fellow beneficiaries. While we have not been referred to a case in which trustees seeking indemnification from a trust were also beneficiaries of the trust, I do not consider the co-existing interest of trustee and beneficiary a valid basis for denying costs. Similarly, the fact that the Geffen brothers were acting in the interests of their children, nephews and nieces does not, in my view, cast any doubt upon the propriety of their actions.

77 The only question, therefore, is whether the appellants should have their costs against Stacy Randall Goodman personally instead of having them charged to the trust property. It is noted in this connection that the trial judge ordered Stacy Randall Goodman to pay the appellants' costs in his personal capacity and not to charge them against Mrs. Goodman's estate or the trust property. In view of the respondents' success in the Court of Appeal it is clear that the respondents had a tenable case against the appellants and I think it appropriate that they simply bear their own costs but not have to bear the appellants' costs as well.

[25] Counsel argues that the legal fees were properly incurred and that there are no allegations that the legal fees were used for any personal benefit.

[26] Lastly, the Applicants argue that the legal accounts that were issued by Augustine Bater related to the defence of the family law litigation commenced by Mrs. Denofrio and that those accounts were properly incurred in the defence of that action. The monies spent with respect to the litigation were reasonable in the circumstances of the case and in light of the amount in issue.

Respondents’ Position

[27] The Respondents argue that the Estate Trustees have incurred excessive legal fees in the matrimonial litigation, which have reduced the amount payable to the beneficiaries. They also argue that the Estate Trustees’ conduct in the litigation has been unreasonable, which has increased the amount of legal fees.

Analysis

[28] As Soloway Wright was retained to deal with the Estate matters and as the Objecting Beneficiaries made no comments with respect to these accounts, the Court will limit its comments to the accounts of Augustine Bater. The Court finds that the Estate Trustees were acting reasonably when they retained Augustine Bater to defend the matrimonial litigation. Mrs. Denofrio had claimed approximately 7.2 million dollars against the Estate in addition to claiming $150,000.00 per month for spousal support.

[29] The legal fees, disbursements and taxes incurred by the Estate Trustees to Augustine Bater in relation to the matrimonial litigation between June 9, 2010, and June 30, 2011, are set out in the Capital Disbursements section in the passing of accounts. They are summed up as follows:

Items	Particulars	Amount
13	Augustine Bater	$20,000.00
23	Augustine Bater	$ 5,752.06
27	Augustine Bater	$ 1,370.33
31	Augustine Bater	$ 2,264.46
32	Augustine Bater	$ 5,175.00
37	Augustine Bater	$ 3,224.17
41	Augustine Bater	$ 6,335.35
42	Augustine Bater	$ 6,624.41
Total		$50,745.78

[30] The Court notes that Item 32 is an amount payable for probate for additional probate fees. Therefore, the net amount of fees, disbursements and taxes is $45,570.78. If the HST and some disbursements are deducted, the legal fees are approximately $38,000 to $40,000 for this period of time.

[31] At the same time, Mrs. Denofrio incurred legal fees of approximately $26,000 exclusive of disbursements and HST. These are set out in at Tab 24 of Book 1 of the Exhibits book. The Court acknowledges that this document was not made an Exhibit at the hearing; however, for the purposes of this judgment, the information contained therein will be used.

[32] The Court does not find that the fees incurred by the Estate Trustees with respect to the matrimonial litigation for this period were excessive. These were necessary to deal with the substantial claims put forward by Mrs. Denofrio.

[33] To a lay person, in terms of absolute dollars, the legal fees may appear high; however, in terms of this particular situation, considering the risks involved in the litigation, the size of the Estate, and the claims made by Mrs. Denofrio, this Court finds the monies incurred for legal fees were reasonable.

[34] The Objecting Beneficiaries did not argue that the legal work was done either poorly or inadequately.

[35] Mrs. Denofrio initiated the legal proceedings. In turn, the Estate Trustees were under an obligation to:

1. defend against the litigation;

2. preserve Mr. Denofrio’s Estate; and

3. administer the Estate in accordance with the terms of the Will and as prudent Estate Trustees.

[36] The Estate Trustees were dealing with a very difficult situation. The following are examples.

a) Evidence was given that the Estate Trustees needed to appraise the former matrimonial home. Mrs. Denofrio was and is still living in the property. It was difficult for the appraiser to gain entry to the property to conduct the appraisal. The appraisal was initially requested by Mr. Augustine in July 2010. Finally, on October 8, 2010, the appraiser was allowed to go into the property. No valid reason was provided by Mr. Cutler as to why Mrs. Denofrio delayed in allowing the inspection for the purpose of the appraisal.

b) Secondly, in accordance with sections 5 and 6 of the Family Law Act, Mrs. Denofrio had six months to make an election as to whether to accept her share under the provisions of the Family Law Act or under the provisions of the Will. According to arguments made, Mrs. Denofrio did not make the election within the six‑month period and the Estate Trustees extended the time as a courtesy to her to make her decision. Mrs. Denofrio did not make a decision as to her election until months after the six months had expired.

[37] In the Court’s view, the Estate Trustees satisfied these obligations and finds that the legal fees incurred in defending the family law litigation were reasonably incurred and were not excessive.

CONDITIONS COMPLAINED OF BY THE OBJECTING BENEFICIARIES

[38] The Objecting Beneficiaries complained that the Estate Trustees required that certain conditions be satisfied prior to the release of the bequests.

1. Full and Final Releases demanded by the Estate Trustees

[39] The Objecting Beneficiaries claim that full and final releases were demanded by the Estate Trustees when they were not entitled to the same, particularly given the fact that this was a ten‑year trust with respect to the Children and given that the payment of Mrs. Denofrio’s bequest would extend for a period of time.

[40] I have reviewed a letter dated August 30, 2010, from Mr. Augustine to Ms. Fleishman who acted for Mrs. Denofrio. Paragraph 9 states:

There can be no distribution of this Estate to any of the Beneficiaries until the Estate has been valued and it cannot be valued until their full and final releases as described above.

[41] Paragraph 8 of the same letter states:

As indicated above, there can be no distribution of the capital of the Estate until all claims against the Estate have been resolved. Please advise if Audrey Denofrio is now willing to accept her share of the Estate in satisfaction of all of her claims in the litigation. We will also require a full and final release and waiver of all claims and possible claim against the Estate, the Executors of the Estate and the Powers of Attorney. I require a full and final release from Audrey, Linda, Dino and Debbie. Earlier on in the letter, Mr. Augustine says, “Obviously, until we have resolved the claims against the Estate, there can be no distribution of any of the Estate assets. I would like to work towards a resolution of this matter and I will forward to hearing from you.”

[42] Mr. Augustine is seeking releases in relation to several matters:

1. Mrs. Denofrio accepting her share of the Estate in satisfaction of her claims in the matrimonial litigation;

2. Possible claims against the Estate by three of the Children;

3. Possible claims against the Powers of Attorney.

[43] Based on this letter, in the Court’s view, the Estate Trustees wanted a release and waiver of possible claims.

[44] In a letter from Mr. Augustine to Ms. Fleishman dated May 24, 2011, there was a threatened claim of litigation by three of the Children against the Estate.

[45] If Mrs. Denofrio was prepared to sign a release against the Estate Trustees and the Estate with respect to the matrimonial litigation, then why would she not have moved forward and had her lawyer prepare a draft release for circulation?

[46] The Court understands why the releases were requested in this case based on the outstanding matrimonial litigation and the threatened litigation by three of the Children. Therefore, in the Court’s view, the Estate Trustees were justified in requesting for the releases.

[47] Both the Estate Trustees and Mr. Augustine knew that this was a ten‑year Estate because as Mr. Augustine in the May 24, 2011, letter states:

As you know, the Estate calls for payments to the other beneficiaries over a 10‑year period. It won’t be possible to fully administer this Estate for about another nine years. The distribution to your client (Mrs. Denofrio) can obviously be made much sooner, but there will have to be some hold back to address expenses of the Estate relating to the residue.

[48] Ron Denofreo acknowledged in his cross‑examination that it did not make sense for the Estate Trustees to be seeking a release from potential liabilities several years down the road.

[49] This is a complex case which has to be put into context. The context is that the releases being requested dealt with the outstanding matrimonial litigation, which is still outstanding today, the threatened litigation by three of the Children, and the possibility of Mrs. Denofrio wanting to take her share under the Will as opposed to taking her share under the Family Law Act.

[50] Perhaps the words “full and final” as they relate to the word “release” was incorrect wording, but, as the Court understands it, no draft release was circulated by any counsel so that the parties could discuss it.

[51] In the letter dated September 20, 2010, from Mr. Augustine to Mr. Cutler, at para. 3 (Mr. Cutler is at this point in time acting for three of the Children), Mr. Augustine states the following:

If your clients are making any claims against Mr. Denofrio, his Estate, his Powers of Attorney or his Executors, please advise as to the nature of those claims. If your clients are prepared to sign releases as it regards to Mr. Denofrio, his Estate, his Powers of Attorney or his Executors please so advise. My clients would like to proceed with the administration of the Estate as soon as possible however there can be progress with this matter until all claims (and possible claims against the Estate have been addressed or released or have been delivered. In light of the size of the Estate I anticipate that it will be necessary to pass accounts in this Estate.)

[52] At this point in time, Mr. Augustine does not ask for a full and final release, although he does ask for releases because Mr. Cutler’s children clients have threatened litigation. The Estate Trustees did not wish to be involved in any further litigation. They were seeking releases and finality to these matters.

[53] At Exhibit # 32, which is a letter from Mr. Augustine to Ms. Fleishman dated October 22, 2010, at para. 8, Mr. Augustine says:

So we’re clear, there will be no distribution of the estate until all claims or possible claims have been settled or adjudicated and your clients and Mr. Cutler’s clients have signed a final release in respect of the Estate, the Executors and the Powers of Attorney.

[54] By October 2011, the battles between the two sides had been going on for approximately two years. The Estate Trustees were finding it difficult and frustrating. The matters were bitter, divisive and nasty. They were trying to reach a resolution in the matter.

[55] It would appear that opposing counsel were on different planes in this case as it relates to the issue of the releases and how they were to be labelled. Were they to be full and final releases, were they to be partial releases, or were they to be some other kind of releases?

[56] This Court is satisfied that the releases contemplated by Mr. Augustine on behalf of the Estate Trustees were proper, although they were possibly improperly labelled as full and final releases.

[57] In the Court’s view, the Estate Trustees wanted to achieve resolution to ensure that there were no surprises in the future.

[58] The Respondents argue that Mr. Augustine did not prepare releases even though he said he would in the June 7, 2011, letter. The Court agrees that he did not, however, in the Court’s view, Mr. Cutler could have prepared the releases and circulated it for comments; he did not do so.

[59] Based on the aforesaid, this Court finds that the request for the releases by the Estate Trustees was reasonable.

Matrimonial Litigation Condition

[60] The Respondents argue that the Estate Trustees wanted Mrs. Denofrio to drop her matrimonial litigation claim before she would receive part of her bequest. They argue that Mrs. Denofrio confirmed by letter dated April 20, 2011, that she was agreeable to accepting her 50% of the Estate pursuant to the terms of the Will.

[61] A close reading of the April 20, 2011 letter at para. 3 states:

Ms. Denofrio is not agreeable with your position that the monthly spousal support funds are an advance to her entitlement to her share of the Estate. This matter was argued before Justice de Sousa and her order declined to make such a finding. The support was payable by her client Mr. John Denofrio and ordered before his death. There is no presumption that this was advancement against Ms. Denofrio’s entitlement. The marriage contract clearly provided for a payment of support and Justice de Sousa found there was an entitlement and need for support. Ms. Denofrio will not agree to a settlement which presumes that the spousal support is an advance against her entitlement to her share of the Estate.

[62] While Mrs. Denofrio argues that the matrimonial litigation had been settled, in effect, only part of it had been settled and other parts were still outstanding.

[63] In the Courts’ view, as prudent counsel, the lawyer for the Estate Trustees would want to settle all of the matters relating to the litigation and not just some of them because to do otherwise would lead to potential problems down the road and the matter could continue on indefinitely. In the Court’s view, the Estate Trustees were looking for finality and, in doing so, were seeking to resolve all of the issues.

[64] Therefore, the Court finds that the matrimonial litigation condition was justified.

[65] While Ron Denofreo acknowledged that the only claim against the Estate existing as of May 6, 2011 was the matrimonial litigation, the Estate Trustees were still concerned and still had to contend with the threat of the contingent litigation by the three Children. While it may appear to be clear cut from Mrs. Denofrio’s perspective, from the Estate Trustees’ perspective, it was not. It had never been a clear cut case and they wanted to ensure that their future actions did not jeopardize the Estate, jeopardize their position as Estate Trustees, or jeopardize the assets in the Estate.

Passing of Accounts Condition

[66] The Objecting Beneficiaries argue that the Estate Trustees refused to make any payments to the beneficiaries under the Will until the accounts had been passed. They argued that nothing in the Will required the accounts to be passed prior to the bequests being paid to the Children.

[67] No authority for the proposition that Estate Trustee accounts must be passed before any payment made to the beneficiaries under the Will was provided.

[68] The Court has reviewed Mr. Denofrio’s Will and can find no authority set out in the Will for the delay in providing the monies to the Children beneficiaries. No authority was cited for the proposition that the bequests could be withheld pending the passing of the accounts.

[69] The Court is aware that three of the Children did threaten litigation against the Estate and the Estate Trustees.

[70] Based on this threat of litigation, the Court is satisfied that the Estate Trustees were justified in not paying the bequests pending the passing of the accounts.

Valuation Condition

[71] The Objecting Beneficiaries argue that there was no condition in the Will about obtaining a specific valuation of the Estate prior to making any distributions or partial distributions.

[72] Counsel for the Objecting Beneficiaries argue that the Estate Trustees advised by letter from Mr. Augustine to Ms. Fleishman dated August 30, 2010, that:

there can be no distribution of the Estate to any of the beneficiaries of the Estate until the Estate has been valued and it cannot be valued until there are full and final releases as described above.

They argue that the statement was made despite the fact that the Estate had already been valued at more than 11 million dollars at that time. They submit that the valuation condition was not a valid reason to withhold any of the distributions.

[73] This Court is satisfied that, while there may have been a condition on August 30, 2010, for valuation, it appears that by September 10, 2010, this is no longer an issue because there is a letter dated September 10, 2010, from Mr. Augustine to Mr. Cutler in which Mr. Augustine acknowledged that the Estate had been valued.

[74] While Mr. Augustine may have said that the Estate could not be valued until a full and final release was obtained, this Court finds that the Estate had been valued and the amount was set out in the Application for Certificate of Appointment of Estate Trustee with a Will sworn July 28, 2010.

[75] While the Objecting Beneficiaries feel that the three Children beneficiaries should have been entitled to receive their monthly bequests as set out in the Will, this Court finds that the Estate Trustees were justified in not releasing those monthly payments until such time as they were satisfied that the three Children beneficiaries would not be taking the previously threatened legal action against the Estate and the Estate Trustees. In the Court’s view, the Estate Trustees were acting prudently in not releasing these monies until they were satisfied that any potential litigation from these three Children had been resolved. Had they released the monies while litigation was still contemplated, this could potentially have lead to further problems and potentially jeopardized the Estate and the administration of it.

[76] For the aforesaid reasons, this Court finds that the conditions complained of by the Objecting Beneficiaries are not valid.

Issue # 2 – Is the Amount of Compensation claimed by the Estate Trustees of $253,623.79 for the period June 9, 2010, through to June 30, 2011, Excessive?

Applicants’ Position

[77] The Applicants claim that they are entitled to the normal Estate Trustee compensation based on guidelines developed by the courts for quantifying that compensation, being 5% of the Estate, broken down as follows:

a) 2.5% of the Capital Receipts.

b) 2.5% of the Capital Disbursements;

c) 2.5% of the Revenue Receipts;

d) 2.5% of the Revenue Disbursements.

[78] In addition, in theory, a management fee of two fifth of one percent of the average annual value of the gross assets under administration and a special fee could also be charged. The Estate Trustees state that they are only seeking the compensation as Estate Trustees and no compensation for a management fee or a special fee.

[79] The Applicants state that there are five factors to be considered in reference to Estate Trustees’ compensation on the passing of accounts, which derive from the case of Re Toronto General Trusts Corporation v. Central Ontario R.W. Co. (1905), 6 O.W.R. 350 (Ont. H.C.).

1. the size of the trust;

2. the care and responsibility involved;

3. the time occupied in performing its duties;

4. the skill and ability displayed; and

5. the success which has attended its administration.

[80] The Estate Trustees argue that this was a large, complex estate, with a value of approximately $11.5 million dollars. They say that they have acted in good faith and have taken all of the care and responsibility necessary to properly administer the affairs and that it has been a very time consuming process. They state that they have demonstrated skills and ability in attending to Mr. Denofrio’s affairs and they have successfully addressed the issues which they were faced with.

Respondents’ Position

[81] The Objecting Beneficiaries argue that the compensation claimed by the Estate Trustees will result in compensation that is unfair, unreasonable, and excessive for the following reasons:

1. The percentage formula would result in a gross overcompensation to the Estate Trustees given the size of the Estate, which is approximately 11.5 million dollars, and the courts do not grant compensation based on the formula for such large estates.

2. They originally argued that the appropriate amount of compensation should be based on a 0.5% formula on the Capital and Revenue Receipts and Capital and Revenue Disbursements and not the 2.5% as claimed by the Estate Trustees. At the submissions stage of the proceedings, they argued that the appropriate amount would be based on a 1% formula instead of 0.5%.

3. The Objecting Beneficiaries reject the compensation claim made by the Estate Trustees because it is likely to be the first of such compensation claims made by the Estate Trustees such that there would ultimately be an extremely high and unjustifiable level of compensation paid to them once the Estate is wound up, based on the formula claimed by the Estate Trustees. They argue that the Estate Trustees’ claim could be in the range of $800,000.00 if the 2.5% formula is applied for the whole estate.

4. The Objecting Beneficiaries argue that, in applying the five factors, the court should consider that the Trustees have not achieved any significant degree of success in administering the Estate to date. In particular, the Estate Trustees have failed to make any of the payments to the beneficiaries that they were directed to make pursuant to the Will, although the Respondents claim that they have made a number of unsupportable and unjustifiable conditions in withholding the payments to the beneficiaries that they are duty bound to make.

Analysis

[82] Section 61(1) and (3) of the Trustee Act, R.S.O. 1990, c. T.33, state:

Allowance to trustees, etc.

61. (1) A trustee, guardian or personal representative is entitled to such fair and reasonable allowance for the care, pains and trouble, and the time expended in and about the estate, as may be allowed by a judge of the Superior Court of Justice. R.S.O. 1990, c. T.23, s. 61 (1); 2000, c. 26, Sched. A, s. 15 (2).

Allowance to personal representative for services

(3) The judge, in passing the accounts of a trustee or of a personal representative or guardian, may from time to time allow a fair and reasonable allowance for care, pains and trouble, and time expended in or about the estate. R.S.O. 1990, c. T.23, s. 61 (3).

[83] The law concerning executors’ compensation is set out in the case of Jeffery Estate (Re) (1990), 39 E.T.R. 173 (Ont. Surr. Ct.), at paras. 13 and 16:

The jurisdictional starting-point for the assessment of an executor's compensation is found in s. 61(1) of the Trustee Act, R.S.O. 1980, c. 512, reading as follows:

61.-(1) A trustee, guardian or personal representative is entitled to such fair and reasonable allowance for his care, pains and trouble, and his time expended in and about the estate, as may be allowed by a judge of the Supreme Court or by any master or referee to whom the matter may be referred.

In the well-known case of Re Toronto General Trust and Central Ont. Railway (1905), 6 O.W.R. 350, Mr. Justice Teetzel suggested 5 central factors should be considered by the audit judge in arriving at the amount of an executor's compensation. Those factors are:

the size of the trust;

the care and responsibility involved;

the time occupied in performing the duties;

the skill and ability shown; and

the success resulting from the administration.

The later case of Re Atkinson, 1951 CanLII 101 (ON CA), [1952] O.R. 685 (C.A.) added some helpful clarifying comments on the s. 61(1) discretionary power, especially on the use of "percentages" to establish the level of compensation. The Court said at p. 698:

If these statutory provisions are properly borne in mind, then in many instances the proper compensation may well be reflected by the allowance of percentages, but the particular percentages applied, or any percentages, are not to be regarded as of paramount importance; they should be employed only as a rough guide to assist in the computation of what many be considered a fair and reasonable allowance; the words of the statute override everything else and that fair and reasonable allowance is for the actual "care, pains and trouble, and time expended". In some estates, indeed perhaps in many, no fairer method can be employed in estimating compensation than by the application of percentages. In others, while percentages may be of assistance, it would be manifestly unreasonable to apply them slavishly and to do so would violate the true principle upon which compensation is always to be estimated.

It can readily be recognized that, depending upon the idiosyncrasies of the particular estate, the care, pains and trouble and time expended may be disproportionate to the actual size of the estate. A small, complex estate may make more demands upon the trustee's care and time and skill than a much larger estate of a simpler nature; conversely, even in a large estate with many complex problems, assessment of the compensation by the adoption of what might be said to be "the usual" percentages would result in a grossly excessive allowance.

There are many later cases which show that, in Ontario at least, a practice has developed of awarding compensation on the basis of 2 1/2% percentages against the four categories of capital receipts, capital disbursements, revenue receipts and revenue disbursements along with, in appropriate cases, a management fee of 2/5 of 1% per annum on the gross value of the state: see Dickson & Wilson, Ontario Estate Practice, 2d ed. (1986) at pp. 474-5. However, cases such as Re Kennedy [1944] O.W.N. 734 and Re McPherson [1945] O.W.N. 533 make it clear that the award of a management fee requires special circumstances and will not be allowed automatically or routinely. Beyond this, of course, the cautionary words of the Re Atkinson case, supra, emphasize that the use of percentages must not become a ritual.

To me, the caselaw and common sense dictate that the audit judge should first test the compensation claims using the "percentages" approach and then, as it were, cross-check or confirm the mathematical result against the "five-factors" approach set out in Re Toronto General Trust and Central Ont. Railway, supra. Usually, counsel will, in argument, set out a factual background against which the five factors can be brought to bear on the case at hand. Additionally, the judge will consider whether an extra allowance should be made for management based on special circumstances. The result of this testing process should enable the judge to determine whether the claims are excessive or not and, in the result, will enable the judge to make adjustments as required. The process is not scientific but is not intended to be: in the estate context, it is a search for an award which reflects fairness to the executor; in a real sense, the search is for an appropriate quantum meruit award in a unique setting.

[84] The Court of Appeal confirmed the law in relation to the percentage formula in Laing Estate (1998), 1998 CanLII 6867 (ON CA), 41 O.R. (3d) 571 (C.A.), at p. 574: “We agree with and adopt the approach taken in Jeffery Estate. In our view, it best achieves the appropriate balance between the need to provide predictability while, at the same time, tailoring compensation to the circumstances of each case.”

[85] Gordon Estate (Re), [1998] O.J. No. 4170, is a decision of the Ontario Court of Appeal which was heard by Krever, Doherty, and O’Connor JJ.A. on October 2, 1998. The decision was released on October 20, 1998. This Court notes that the panel and dates in Laing Estate, supra, are identical.

[86] In the Gordon decision, the Court, at paras. 2 and 4, states the following:

2 In allowing the appeal from the decision of the audit judge, the Divisional Court acknowledged that the audit judge had referred to the relevant factors but went on to hold that he "failed to show how he applied these factors to the Gordon estate in reaching the conclusion he did that the rule-of-thumb percentages should apply." We cannot agree. The audit judge described in some detail the circumstances surrounding the administration of the estate before expressly referring to the approach set down in Re Jeffery Estate and the five factors to be considered in assessing compensation. Nothing in the reasons leads us to conclude that the audit judge did not follow that approach and apply those principles to the facts as he had described them earlier in his judgment. While, as a matter of style, it may have been preferable had he related the applicable circumstances to each of the relevant factors, we do not think that his failure to do so amounted to an error in principle. We also cannot characterize the amount awarded by the audit judge as grossly excessive.

4 As the audit judge did not err in principle and did not arrive at an amount which was grossly excessive, the Divisional Court should not have interfered with his order.

[87] In the Gordon case, the Court of Appeal allowed the fee of 2.5% for each of Capital Receipts, Capital Disbursements, Revenue Receipts and Revenue Disbursements.

[88] The following is a review of the five factors as set out in Re Toronto General Trusts Corporation, supra, as they apply to this case.

(1) Size of the Trust

[89] By the time that Mr. Denofrio had passed away, the Estate Trustees who, prior to that time, were the Powers of Attorney and who had agreed to accept no compensation in their capacities as Powers of Attorney, had entered into a transaction to sell the assets of Shamrock for approximately 18 million dollars and to wind up the company. The Court considers that this is a major, complicated transaction which would involve many meetings among the Powers of Attorney, their lawyers, and their accountants.

[90] The Court is fully aware that there was no compensation sought and/or payable during the time that the Estate Trustees were the Powers of Attorney.

[91] The purpose of the statement in para. 89 above, is to show that the Powers of Attorney had been working together as a team over a period of two years prior to Mr. Denofrio’s passing. They finalized a large complicated transaction. Furthermore, they were experienced administrators by the time they became Estate Trustees, having dealt with the estate as Powers of Attorney prior to Mr. Denofrio’s death. They had met with lawyers, accountants, and probably many other professionals as well in order to carry out their functions.

[92] At 11.5 million dollars, this Estate is sizable and had to be managed carefully. Accordingly, this Court finds that the estate is sizeable.

(2) Care and Responsibility Involved

[93] A great deal of care and responsibility were involved in this Estate because the Estate Trustees (1) had to deal with the estate assets; (2) had to deal with the ongoing matrimonial litigation; and (3) had to deal with threatened litigation from three of the Children.

[94] The matrimonial litigation has been high conflict litigation. At one point, Mrs. Denofrio was claiming $7,200,000.00 (approximately 63 percent of the Estate) pursuant to a marriage contract entered into in 1989. In addition, she was also claiming spousal support of $150,000.00 per month or $1,800,000.00 per year. The stakes were very high, and the Estate Trustees were concerned because, had the litigation not been properly dealt with, there would have been another potential lawsuit, this time from three of the Children. The Court notes that there was evidence of a threatened lawsuit by them.

[95] Between July 17, 2008, and August 5, 2009, there were at least seven court orders granted in the matrimonial litigation dealing with various matters from disclosure to spousal support.

[96] In this case, the scope of disclosure would have been far wider than in normal matrimonial litigation by virtue of the disclosure required from Shamrock and Denofrio Holdings Inc.

[97] This Court finds that the care and responsibility on the part of the Estate Trustees in this estate after June 9, 2010, was very high and that the Estate Trustees acted appropriately.

(3) Time Occupied in Performing the Duties

[98] The Objecting Beneficiaries argued that the Estate Trustees should have kept time dockets.

[99] In the Court’s view, there is no requirement for Estate Trustees to keep time dockets of the time spent on the estate, although it may be considered prudent. In this case, Ron Denofreo did, in fact, keep time dockets, and they were entered as an Exhibit at the hearing. These time dockets cover the period January 10, 2010, through April 27, 2012.

[100] A review of the time dockets shows that: (1) Ron Denofreo spent a significant amount of time working on this estate; and (2) his duties included meetings, phone calls, reviews of correspondence, signing cheques, and discussions with counsel and accountants.

[101] While objection was taken to the fact that there were no time dockets for Mr. Sharma and Mandy Denofrio, this Court finds that the time dockets kept by Ron Denofreo are satisfactory. Furthermore, the Estate Trustees are claiming one amount of compensation for all three Estate Trustees, not three times the amount of Estate Trustee compensation. How the money is divided amongst the Estate Trustees is up to them to determine. Whether there is one Estate Trustee or three Estate Trustees, the estate compensation would have been the same.

[102] This Court finds that the Estate Trustees have satisfied this factor.

(4) Skill and Ability Shown

[103] In the Court’s view, the Estate Trustees had to deal with the matrimonial litigation which in itself required a particular skill in addition to managing the estate. While a certain portion of the estate is cash, the Estate assets included a 13,000 square foot home occupied by Mrs. Denofrio as well as an adjacent lot and other assets.

[104] In the Court’s view, Mr. Denofrio, an experienced businessman, had chosen his Estate Trustees based on people who had the ability to manage a large and complex Estate.

[105] The Estate Trustees were dealing with at least two different law firms during this period of time including Soloway Wright and Augustine Bater.

[106] In addition, the Estate Trustees had to provide the necessary income tax information to prepare income tax returns for the estate and also for at least one company if not more.

[107] The Court finds that the Estate Trustees had exercised a high degree of skill and ability in dealing with a large and complex Estate and that they worked together in the processing of the Estate. All of this was being done while having to deal with the hostility of the matrimonial litigation.

[108] Section 61(1) of the Trustee Act states, in part, “A trustee, guardian or personal representative is entitled to such fair and reasonable allowance for the care, pains and trouble, and the time expended in and about the estate ... ”.

[109] Based on the hostility and bitter feelings involved between the personalities in this file, I am sure the Estate Trustees have experienced a great deal of “trouble” and “pains” in this matter.

[110] As an example of the hostility in this matter, the Objecting Beneficiaries were intent on having Mandy Denofrio testify at the passing of accounts hearing. A letter from Dr. Brown was produced, stating that Mandy Denofrio was not well enough to testify. The Court understands that the Objecting Beneficiaries went so far as to subpoena her doctors, Dr. John Kindle and Dr. Dan Brown, to testify that she was well enough to appear in court and answer questions at the passing of accounts. In the end, the Objecting Beneficiaries chose not to call the two doctors.

[111] That is only one example of the hostility in this matter. I am sure that there are many more that the Court is not aware of.

(5) The Success Resulting from the Administration

[112] There was no evidence that the estate lost any monies because of the actions of the Estate Trustees. No objections to the accounts were presented. In the Court’s view this means that the monies invested by the estate were properly invested. The Court finds that, despite the objections in this case, the Estate Trustees were successful in the administration of the Estate during the time in question.

[113] Therefore, the Estate Trustees have satisfied the court that, considering the five factors, they are entitled to Estate Trustee compensation.

Issue # 3 – If the Amount of Compensation is Excessive, What is the Proper Quantum of Compensation?

Applicants’ Position

[114] The Applicant argues that the Estate Trustees’ compensation should be based on the fee of 2.5% for each of the Capital Receipts, Capital Disbursements, Revenue Receipts and Revenue Disbursements as set out in the Ontario Court of Appeal decision of Gordon, supra.

Respondents’ Position

[115] The Respondents argue that, considering the five factors set out in the Re Toronto General Trusts Corporation, supra, the Estate Trustee compensation should be 1% of the Capital Receipts and Capital Disbursements, Revenue Receipts and Revenue Disbursements.

[116] In support of this position, they rely on the cases of Knight Estate (Re) (1999), 30 E.T.R. (2d) 225 (Ont. S.C.), Heron Estate (Re) (1996), 10 E.T.R. (2d) 281 (Ont. C.J.), Jeffery Estate (Re), supra, and Simone v. Cheifetz (1998), 24 E.T.R. (2d) 74 (Ont. C.J.). Having had a chance to review these cases, I wish to make the following comments.

Analysis

[117] The Knight case can be distinguished on its facts. In that case, the deceased died intestate after sustaining catastrophic injuries as a result of a motor vehicle accident eight years previously. As a result of the accident, he received a trial judgment shortly before his death of approximately 2.2 million dollars. The Children’s Lawyer on behalf of the deceased’s child objected to the Trustees’ claim for compensation based on the traditional percentage. Based on the five factors in the Re Toronto General Trusts Corporation, supra, the audit judge reduced the amounts payable to 1.5% on all of the receipts and disbursements.

[118] The Knight case was a single asset estate, and the Estate Trustee delegated much of the work to others.

[119] Browne J. states at para. 35:

35 I am satisfied that the majority of the day to day financial aspects of the estate were carried out by the solicitors which does not take away from the fiduciary responsibility of the estate trustee, but it is indicative of a conclusion that there was little skill and/or ability shown in the administration of the estate directly by the estate trustee. That is not meant as a derogatory comment. It is simply a recognition that Ms. Knight was inexperienced and without the skill absent assistance for the majority of the estate administration.

[120] In the present case, the amount of money is approximately five times as large. There are multiple assets themselves made up of various assets including cash, real estate and other assets. In addition, there is the matrimonial litigation.

[121] In the Heron case, the Court was asked to determine compensation with respect to the deceased’s estate having a value of approximately $2,372,000.00. In that case, the audit judge was of the view that the 2.5% compensation claim was too high. As the result, the audit judge allowed for 1% on Capital Receipts, 1.5% on Capital Disbursements, 2.5% on Revenue Receipts and 2.5% on Revenue Disbursements.

[122] Again, this case can be distinguished from the present case based on the same reasoning in distinguishing the Knight case above.

[123] In the Jeffery case, which is a 1990 decision of the Ontario Surrogate Court involving an estate of approximately 16 million dollars, included a Will and at least six codicils. The estate had three special trusts created by the Will that had to be set up, funded and administered. A number of business issues had to be resolved by the Estate Trustees including calling in and collecting settlement of personal loans, reviewing documentation pertaining to the sale of two radio stations in which the deceased had a partial interest, disposing of the deceased’s interest in a small publishing company and selling his interest in real estate holdings that were jointly owned.

[124] The Objecting Beneficiaries argue that Estate Trustees’ compensation was reduced for the second passing of accounts which was a contested one and was subject to the Court’s judgment involved a claim of $187,174.20 that was partially approved by the Court in the amount of $110,674.00.

[125] The Court disagrees with this interpretation. The $187,174.20 compensation claim included a care and management fee of $76,800.00. If the care and management fee of $76,800.00 is taken out, the compensation for the passing of accounts claimed was $110,674.20, which was the amount that the Court approved of, based on the five factors at the usual 2.5 percentage levels. The court is aware that in the Jeffery case the passing of accounts was for a two‑year period instead of one year.

[126] This Court is satisfied that, notwithstanding the fact that the passing of accounts in the Jeffery case was for a two‑year period and the claim in this case is a one‑year period, the Estate Trustees’ compensation was allowed at the usually percentages in that case.

[127] The Court is satisfied that in the Denofrio case, the Estate is similar although not identical in size, and, while it is only for a one‑year timeframe, overall it is similar enough to the Jeffery case to potentially allow a claim of 2.5% on the four categories.

[128] In Simone v. Cheifetz, supra, as executor of the estates of a husband and wife and trustee of a family trust, a solicitor sought compensation over an eight‑month period based upon the usual percentages as described in Re Jeffery Estate. In addition to an amount of $753,000, he claimed that he was entitled to retain a salary of $487,000 that he had been paid by corporations which he controlled and which were owned by the estates and trust. The trial judge took note of the fact that the lawyer had rendered valuable service and generally managed the estates and trust carefully and honestly, but also found that he had committed breaches of his fiduciary duties. The trial judge reduced the compensation to $490,000 and ordered that the lawyer re‑pay $512,000 that he had received as salary or bonus. On appeal, the Court of Appeal refused to interfere with the trial judge’s exercise of discretion or his award of costs against the lawyer on a solicitor‑and‑client basis.

[129] This Court is satisfied that the Simone case can be distinguished from the present one on the mismanagement alone. Furthermore, the claim of the Estate Trustee is one of a lawyer as opposed to a lay person. The rules governing solicitors acting as estate trustee are different that those governing lay people, as set out in s. 61(4) of the Trustee Act. Lastly, the size of the Estate was approximately four times as large as the Denofrio Estate.

[130] Having regard to the present case, this Court finds that at the level of 2.5% of Capital Receipts, Capital Disbursements, Revenue Receipts and Revenue Disbursements is a little high, but not by a large amount.

[131] Having regard to the five factors set out in Re Toronto General Trusts Corporation, supra, and the analysis set out above, this Court finds that the appropriate Estate Trustee compensation would be as follows:

• Capital Receipts – 2.25%

• Capital Disbursements – 2.25%

• Revenue Receipts – 2.25%

• Revenue Disbursements – 2.25%

[132] Accordingly, this Court orders that the compensation payable to the Estate Trustees in this matter for the period from June 9, 2010 to June 30, 2011 shall be fixed at the sum of $228,261.41 excluding HST, which is calculated as follows:

Accounts	Amounts	Tariff	Amount at Tariff	Amount Claimed
Capital Receipts	$9,436,862.30	2.25%	$212,329.40	$212,329.40
Capital Disbursements	$641,507.72	2.25%	$14,433.92	$14,433.92
Revenue Receipts	$66,457.28	2.25%	$1,495.29	$1,495.29
Revenue Disbursements	$124.24	2.25%	$2.80	$2.80
				$228,261.41
Management and Other Fees
Management Fee	$0.00
Other Fees	$0.00
Others Fees	$0.00			$228,261.41
Total Estate Trustees’ Compensation				$228,261.41

[133] The Estate is not complete and will go on for another eight years and will require future passing of accounts.

[134] The Court is of the view that the majority of the Estate work has been completed by now and that, while there will be some Estate Trustee work involved in the future, it should not be as much as it has been to date, assuming among other things that the matrimonial litigation is resolved.

[135] The Court notes that, while the percentage of the Capital Receipts, Capital Disbursements, Revenue Receipts and Revenue Disbursements is set at 2.25% in this passing of accounts, it is only set at that rate for the purpose of the passing of accounts for the period June 9, 2010, to June 30, 2011.

[136] It will not necessarily be the case that in future passing of accounts the Court will allow Estate Trustee compensation at the aforesaid level. The compensation granted in future passing of accounts in this Estate will depend on a consideration of the five factors as set out in Re Toronto General Trusts Corporation, supra, for subsequent periods of time.

HST

[137] The question arose as to whether HST was chargeable in addition to the amount claimed by the Estate Trustees. According to a letter received from Mr. Augustine dated May 9, 2012, the Estate Trustees and the Estate accountant do not want HST added to the amounts. Accordingly, it is ordered that HST not be added to the compensation assessed for the Estate Trustees.

PASSING OF ACCOUNTS FOR POWER OF ATTORNEY TIME FRAME

[138] On consent at the passing of accounts hearing, the parties through their counsel consented to the dispensing with the requirement for passing of accounts for the Power of Attorney from 2007 through to June 9, 2009. Accordingly, it is ordered that the passing of accounts for the Power of Attorney from 2007 until June 9, 2009, is dispensed with.

COSTS

[139] This has been a very acrimoniously and lengthy contested passing of accounts. The argument over this Estate has fractured the family – a very unfortunate state of affairs.

[140] The Applicants were more successful in the passing of accounts than were the Objecting Beneficiaries.

[141] Costs Outlines have been provided by both parties. The Estate Trustees are seeking costs of $69,720.22 on a partial indemnity basis, $104,580.33 on a substantial indemnity basis, and $116,200.38 on a full indemnity basis, inclusive of disbursements and HST. The Objecting Beneficiaries are seeking costs of $15,005.67 on a partial indemnity basis and $23,807.07 on a full indemnity basis, inclusive of disbursements and HST.

[142] The jurisdiction to award costs in contested applications to pass accounts is found generally in s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C43, and more specifically in rule 74.18(13) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

131.(1) Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid. R.S.O. 1990, c. C.43, s. 131 (1).

74.18 (13) At the hearing the court may assess, or refer to an assessment officer, any bill of costs, account or charge of lawyers employed by the estate trustee. O. Reg. 484/94, s. 12; O. Reg. 575/07, s. 2.

[143] The factors in awarding costs are set out in Rule 57.01(1) and in the case of Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).

[144] The Court was not advised of any Offers to Settle. Having considered the factors in rule 57.01 and the Boucher case, this Court orders that the counsel for the Estate Trustees shall be awarded costs on a substantial indemnity basis fixed at $104,580.33 inclusive of disbursements and HST, payable out of the Estate.

[145] These monies shall be paid out of the Capital Receipts of the Estate. These monies are not subject to any Estate Trustee compensation in any future passing of accounts.

[146] As to the Objecting Beneficiaries, their success was very minimal. As such, this Court orders that they should not be entitled to any costs.

CONCLUSION

[147] This Court orders that the compensation payable to the Estate Trustees for the period of June 9, 2010, to June 30, 2011, shall be fixed at the sum of $228,261.41 calculated as follows:

Accounts	Amounts	Tariff	Amount at Tariff	Amount Claimed
Capital Receipts	$9,436,862.30	2.25%	$212,329.40	$212,329.40
Capital Disbursements	$641,507.72	2.25%	$14,433.92	$14,433.92
Revenue Receipts	$66,457.28	2.25%	$1,495.29	$1,495.29
Revenue Disbursements	$124.24	2.25%	$2.80	$2.80
				$228,261.41
Management and Other Fees
Management Fee	$0.00
Other Fees	$0.00
Others Fees	$0.00			$228,261.41
Total Estate Trustees’ Compensation				$228,261.41

[148] This Court orders that the accounts are passed as submitted.

[149] This Court orders that the Estate Trustees are to make an interim distribution to Mrs. Denofrio of $3,500,000.00 within the next 15 days.

[150] This Court orders that the Estate Trustees are to make an interim distribution to each of Mandy Denofrio, Debbie Denofrio and Dino Denofreo at the rate of $2,500.00 per month commencing June 1, 2012. The Estate Trustees shall make an interim distribution to Linda Denofrio‑Milito at the rate of $1,000.00 per month and monthly thereafter commencing June 1, 2012, for the balance of the six years, after which she shall receive $2,500.00 per month.

[151] The Estate Trustees shall make a catch-up payment to each of the following children: Mandy Denofrio, Debbie Denofrio and Dino Denofrio, each in the amount of $57,500.00 representing the monthly payments which should have been made from July 2010 through to May 2012 inclusive ($2,500.00 x 23 months). The Estate Trustees shall make a catch-up payment to Linda Denofrio‑Milito in the amount of $23,000.00 for the period July 2010 through to May 2012 inclusive ($1,000.00 x 23 months).

[152] The Estate Trustees shall pay $900.00 to each of Philip Augustine and David Cutler to reimburse them for each of the one‑half share of the mediation cost that was paid by them.

[153] The Estate Trustees shall pass their accounts every two years within three months after June 30, with the next passing of accounts being for the period July 1, 2011, to June 30, 2013.

[154] As this has been a very complex file and as a large degree of control should be exercised over it, I will remain seized of this file for passing of accounts and any other matters until further order of the Court.

[155] In addition, I will remain seized of Family Court File Number FL‑08‑1488 until further order of the Court.

[156] The passing of accounts for the Power of Attorney from 2007 until June 9, 2009, is dispensed with based on the consent of the parties.

[157] The costs of the passing of accounts of the Estate Trustees’ counsel are fixed at $104,580.33 inclusive of disbursements and HST, payable out of the Estate.

[158] This Court orders that the aforesaid costs will not be subject to any Estate Trustee compensation in the future passing of accounts.

[159] In the event that there are any concerns as to the mechanics of this Order, counsel may write to me to set up an appointment to deal with them.

[160] Order accordingly.

Mr. Justice Stanley J. Kershman

Released: June 8, 2012

COURT FILE NO.: 24882/11

DATE: 2012/06/08

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE ESTATE OF JOHN A. DENOFRIO

between:

MANDY DENOFRIO, RON DENOFREO, and RAVI SHARMA

Applicants

– and –

AUDREY DENOFRIO, DEBBIE DENOFRIO, DINO DENOFRIO

and LINDA DENOFRIO-MILITO

Respondents

COUNSEL: Philip W. Augustine, for the Applicants

David Cutler, for the Respondents

REASONS FOR JUDGMENT

Kershman J.

Released: June 8, 2012