IN THE MATTER OF THE ESTATE OF FRANÇOISE POITRAS
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
YVES POITRAS, in his capacity as Trustee for the Estate of Françoise Poitras Applicant/Moving party
– and –
CANADIAN CANCER SOCIETY and other charitable beneficiaries Respondents/Responding parties
AND:
MARIE-ANDRÉE DESCOTEAUX and other individual beneficiaries, and OFFICE OF THE PUBLIC GUARDIAN AND TRUSTEE (OPGT)
COUNSEL:
Jolyane Boivin for the Estate Trustee
Nathalie Scott for the Canadian Cancer Society and other charitable beneficiaries
Marie-Andrée Descoteaux and other individual beneficiaries – self-represented
No one appearing for the OPGT
Heard: August 14, 2020
Endorsement of hearing on august 14, 2020
JUSTICE SALLY GOMERY
1The Estate Trustee asks the court to determine the wording of a release for an interim distribution of the assets of the Estate of Françoise Poitras.
Background
2Ms. Poitras died on March 10, 2016. In her will, she made no provision for the distribution of the residue of her Estate following payment of specific bequests and debts of the Estate. The Estate currently has a value of just over $600,000.
3The Trustee brought an application for directions in 2017. Further to a court order on July 7, 2017, the residue is to be distributed equally to eight family members (the “Individual Beneficiaries”) and the ten charities to whom Ms. Poitras made specific bequests in her will (the “Charitable Beneficiaries”). The court order also provided that the respondents were to execute a release in a form to be drafted by the lawyer for the Charitable Beneficiaries and approved by the lawyer for the Trustee.
4Unfortunately, in the three years since the court order, the lawyers for the Charitable Beneficiaries and the Trustee have repeatedly failed to reach an agreement on the wording of the release. As a result, no interim distribution has been made.
5On July 19, 2019, the Trustee applied to the court for a passing of accounts. The Charitable Beneficiaries submitted a notice of objection on October 22, 2019. In the notice, they took the position that the accounts presented did not conform to the required standards or provide sufficient information. They also took issue with the proposed compensation to the Trustee.
6In December 2019, pursuant to an order by the court, the Charitable Beneficiaries and the Trustee participated in mediation. Neither party takes the position that it resulted in a binding settlement agreement with respect to all of the issues raised in the notice of objection.
Position of the parties at the motion
7The Trustee contends that the Charitable Beneficiaries have unreasonably refused to accept a release in a form acceptable to the Trustee. He therefore seeks an order from the court setting the terms for a release, so that he may proceed to an interim distribution.
8The Charitable Beneficiaries argue that the Trustee cannot make an interim distribution until all of the objections raised in their notice of objection have been adjudicated or settled. As a result, they say that the Trustee’s motion is misguided and should be dismissed with costs personally against the Trustee.
9The Individual Beneficiaries are frustrated that, more than four years after Ms. Poitras’ death, no distribution of the Estate’s assets has been made to them. They are also upset that they were not given notice of this motion and learned of it only informally.
Disposition
10There is no concern that the proposed interim distribution will leave insufficient funds in the Estate to cover its existing and potential liabilities. Even assuming that the Trustee is entitled to the full compensation he claimed in his July 2019 account and that it would be appropriate for the Estate to indemnify him and the Charitable Beneficiaries for the full amount of their legal costs, there would still be a reserve of over $200,000 left in the Estate to satisfy any other claims against it, to pay any taxes owed, and to cover any remaining expenses.
11In these circumstances, I find that there is no principled basis on which the Charitable Beneficiaries can object to the proposed interim distribution or to the court’s approval of a form of release with respect to this interim distribution. The Trustee’s application to pass accounts, and the notice of objection to it, do not need to be litigated as a condition precedent to the proposed distribution.
12In making this finding, I am not enforcing any agreement made by the parties to the December 2019 mediation. The Trustee is not in fact taking the position that the discussions at mediation gave rise to an enforceable settlement. His submission is simply that the objections raised by the Charitable Beneficiaries to his interim accounts should not prevent him from proceeding to an interim distribution. I agree.
13I am not however satisfied that the court should limit itself to approving the form of release. Given the time that has already passed since Ms. Poitras’ death, it is in the interests of justice and of all parties concerned that all remaining disputes with respect to the Trustee’s administration be settled as quickly as reasonably possible. Everyone involved in the Estate appears to have been acting in good faith and with a desire to ensure that it is properly administered. Yet, as a result of the delays in this case to date, Ms. Poitras’ last wishes have not yet been fulfilled. Her residual beneficiaries have been deprived of the use of money that she wanted them to have. The Trustee has been unable to wind up his administration. The Trustee and the Charitable Beneficiaries continue to incur legal costs which may further deplete the money available for distribution to all beneficiaries. This cannot continue.
14With that in mind, and having heard submissions from counsel for the Trustee, the Charitable Beneficiaries and the Individual Beneficiaries, I direct as follows:
(1) The Individual Beneficiaries have an interest in these proceeding. Even if they did not file a request for further notice in passing of accounts (form 74.45.1), they are entitled to be advised of what is happening and to participate in discussions and make representations with respect to the disposition of the Estate. The Individual Beneficiaries shall therefore be copied, by way of an email to the Family Representatives, on all further proceedings, notices, correspondence and court filings in respect of the Estate. The Family Representatives shall have the right to attend all future court hearings, case conferences, settlement conferences and mediation in connection with the resolution of claims against the Estate and distribution of the residue of the Estate.
(2) By no later than August 31st, 2020, the lawyer for the Charitable Beneficiaries shall provide the lawyer for the Trustee and the Family Representatives with:
a summary of any remaining objections to the Trustee’s accounts;
a form of release for interim distribution of funds acceptable to her clients; and
a draft bill of costs for legal work she has done in this case to date and the amount which, in her submission, her clients should recover from either the Estate or the Trustee personally.
(3) By no later than September 14, 2020, the lawyer for the Trustee shall provide the lawyer for the Charitable Beneficiaries and the Family Representatives with:
her client’s position with respect to the remaining objections;
a form of release for interim distribution of funds acceptable to the Trustee or confirmation that her client consents to the form proposed by the lawyer for the Charitable Beneficiaries; and
a draft bill of costs for legal work she has done in this case and the amount which, in her submission, her client should recover from either the Estate or the Charitable Beneficiaries.
(4) The parties shall file a copy of these materials with the court when they serve them on the other parties. Filing shall be made by email to the Ottawa case management office at Mastersofficeottawa@ontario.ca. The accompanying email message shall indicate that I have directed that the materials be submitted to me for the purpose of a case conference on September 28, 2020.
(5) The parties shall attend a case conference before me on September 28, 2020 at 8:30 a.m. The case conference shall be conducted by Zoom videoconference, the details of which shall be provided to the parties in advance of the conference. The purpose of the conference will be to determine what issues, if any, remain in dispute as a result of the Charitable Beneficiaries’ notice of objection and to set a timetable for a hearing if necessary. At the case conference I shall also advise the parties of the form of release that must be signed by the parties in respect of the interim distribution by the Trustee, if they have not been able to agree on this issue in advance of the conference.
(6) No later than two days prior to the case conference, each party shall serve and file a memorandum setting out their position on the issues to be determined at the conference. Each memorandum shall be no longer than three pages in length. All materials shall be filed electronically by email to Mastersofficeottawa@ontario.ca.
15Costs of today’s motion shall be determined at a future date, depending on the outcome of the case conference and further hearing, if necessary.
Justice Sally Gomery
Released: August 17, 2020