Court File and Parties

COURT FILE NO.: CV-20-83057 DATE: 2020-06-01 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ROGER MARION, Applicant AND ELIZABETH McRAE, Respondent

BEFORE: Madam Justice Heather J. Williams

COUNSEL: Jolyane Boivin for the Applicant J. Rae McMahon for the Respondent

HEARD: In Writing

Endorsement

H. J. Williams, J.

[1] The applicant wishes to proceed with an application for a certificate of appointment to act as the trustee of his brother’s estate. The brother, Earl Denis Marion, died without a will. In this application, the applicant seeks only an order compelling the respondent to consent or object to his appointment. The respondent was the common law spouse of the deceased.

[2] Earl Marion died in January, 2019.

[3] The applicant has asked the respondent to renounce her right to act as trustee of Earl Marion’s estate. The respondent did not return the renunciation document he asked her to sign. It is evident, however, from the respondent’s application materials that she objects to the applicant’s appointment. The respondent takes the position that she would be the better trustee.

[4] It is not clear from the filed materials why this application was necessary or, if it was necessary to force the respondent to commit to a position, why, after having received the application record, the respondent did not simply file a notice of objection.

[5] As this application was in writing, I did not have an opportunity to ask questions of counsel nor to make some observations that may or may not be helpful to counsel as this matter moves forward. I note that there may be issues that would prevent either of these parties from being appointed as trustee of Earl Marion’s estate. I will flag these issues without deciding them:

i. The applicant is a resident of Quebec. Section 5 of the Estates Act states that letters of administration shall not be granted to a person who does not reside in Ontario. In his materials, the applicant said that he is nonetheless entitled to apply for a certificate of appointment but did not submit any authorities in support of this position.

ii. The respondent said in her application materials that she had expected to be supported by Earl Marion in the event of his death. If the respondent has brought or is contemplating a claim for support under the dependants’ relief provisions of the Succession Law Reform Act, this may have a bearing on her ability to act as trustee.

[6] Those observations having been made, the application is granted. Within 10 days of the date of this endorsement, the respondent shall deliver (serve and file) a notice of objection in the form of Schedule A to the draft order in the applicant’s application record. In accordance with the April 14, 2020 directions on estate matters before the Superior Court of Justice in Ottawa, the notice of objection shall be filed by mail or courier rather than by personal attendance at the court house. If the respondent fails to file the notice within the 10-day period, she shall be deemed to have consented to the applicant’s appointment.

[7] I encourage the parties to settle the costs of the application. If they are unable to do so, the applicant may file brief costs submissions within 10 days of the date of this endorsement, the respondent may file brief responding submissions within 10 days of receipt of the applicant’s submissions and the applicant may then file brief reply submissions within five days of receipt of the respondent’s submissions. All submissions may be filed by sending them to my attention, by email, to the following email address: SCJ.assistants@ontario.ca.

Released: June 1, 2020