Dewaele v. Roobroeck et al.
[Indexed as: Dewaele v. Roobroeck]
Ontario Reports
Ontario Superior Court of Justice
Sheard J.
December 4, 2020
153 O.R. (3d) 247 | 2020 ONSC 7534
Case Summary
Trusts and trustees — Trustees — Duties — Removal — Applicant and her two brothers were beneficiaries and co-estate trustees of their parents' estates — Applicant not agreeing with brothers regarding administration of estate and obtaining appraisal order — Brothers not complying with order — Applicant having brothers removed for failing to fulfill their obligation as co-estate trustees — Brothers ordered to provide to applicant information regarding disputed firearms and to sign cheque for estate administration tax.
Wills and estates — Estate administration — Applicant and her two brothers were beneficiaries and co-estate trustees of their parents' estates — Applicant not agreeing with brothers regarding administration of estate and obtaining appraisal order — Brothers not complying with order — Applicant having brothers removed for failing to fulfill their obligation as co-estate trustees — Brothers ordered to provide to applicant information regarding disputed firearms and to sign cheque for estate administration tax.
D and her two brothers were the sole beneficiaries of their parents' estates as well as co-estate trustees. They were unable to agree on what assets comprised the estate, what values should be given to the estate assets, and how and when to distribute the estate assets. D obtained an order in August 2019 regarding an appraisal of real property, farm equipment, personal property and vehicles. In October there was a further order regarding firearms. The one brother who claimed to own all the firearms did not provide a full ownership trail and record of the firearms, contrary to the October order, and refused to obtain an appraisal. D took the position that unless and until she had an informed idea of the value of the firearms, she could not assess whether the dispute concerning ownership merited any further investment of time and legal fees. The brothers disagreed with the appraiser's valuation of the other assets, and as such refused to sign the Application for a Certificate of Estate Trustee With a Will ("CAETW"). D applied for approval of the October order, further directions and information pertaining to contested estate assets, an order that the brothers sign the cheque to accompany the application for the CAETW, and an order removing the brothers as trustees and appointing D as sole estate trustee of both estates.
Held, the application should be allowed.
D's draft order that she submitted to her brothers for approval was entirely in keeping with the October order and was approved. The brothers had sought to include a paragraph ordering that there was an issue regarding firearm ownership to be decided at a later date, but that paragraph was unnecessary.
The brothers were ordered to provide to D any information or documentation in their possession relevant to the acquisition, value and condition of firearms in the list produced pursuant to the October order. If the parties were unable to resolve the ownership issue, the issue was to proceed to arbitration. It was unfair and unreasonable to ask D, without a complete list and valuation, to simply accept what she was being told either in her capacity as a co-trustee or as a beneficiary.
The brothers were ordered to sign the cheque for estate administration tax. With the exception of the farm the parties were largely in agreement regarding the sale of the assets and appeared to share a common goal of achieving the highest return on the realization of the estate assets. D was entitled to insist on the appraiser's valuations being used for the purposes of the CAETW and income taxes.
The brothers were removed as estate trustees and D was to remain as sole estate trustee. The brothers had refused to take any meaningful steps to facilitate the realization of the estate assets. They had not fulfilled their obligation as co-estate trustees, to the detriment of the beneficiaries of the estate. They had not complied with court orders. In the face of clear direction that decisions concerning administration be made unanimously, they held their position that such decision be made by majority rule. Their behaviour had brought the administration of the estate to a standstill and was likely to continue.
Cases referred to
Chambers Estate v. Chambers, [2013] O.J. No. 3659, 2013 ONCA 511, 230 A.C.W.S. (3d) 319, 367 D.L.R. (4th) 151, 90 E.T.R. (3d) 161, 309 O.A.C. 205; Consiglio Trusts (No. 1) (Re), [1973] 3 O.R. 326, 1973 CanLII 681 (C.A.); Evans v. Gonder, [2010] O.J. No. 884, 2010 ONCA 172, 259 O.A.C. 295, 54 E.T.R. (3d) 193, 186 A.C.W.S. (3d) 876; Kaptyn Estate (Re), [2009] O.J. No. 1685, 48 E.T.R. (3d) 278, 176 A.C.W.S. (3d) 1202, 2009 CanLII 19933 (S.C.J.); Kostiw Estate (Re), [2007] O.J. No. 2088, 33 E.T.R. (3d) 198, 157 A.C.W.S. (3d) 1066, 2007 CanLII 19423 (S.C.J.); Letterstedt v. Broers (1884), L.R. App. Cas. 371, [1884] UKPC 18; Spadafora v. Gabriele, [2015] O.J. No. 5035, 2015 ONSC 6035; St. Joseph's Health Centre v. Dzwiekowski, [2007] O.J. No. 4641, 162 A.C.W.S. (3d) 348, 2007 CanLII 51347 (S.C.J.); Venables (Litigation guardian of) v. Gordon Estate, [2012] O.J. No. 615, 2012 ONSC 956, 76 E.T.R. (3d) 172, 211 A.C.W.S. (3d) 1012
Statutes referred to
Trustee Act, R.S.O. 1990, c. T.23, s. 37 [as am.], (1) [as am.], (4)
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194, rules 14, 14.05(3), 75
APPLICATION by one co-estate trustee for relief against two other co-estate trustees.
Paul Morrissey, for applicant.
Richard Jules Hector Cyriel Roobroeck and Ronald Roland Robert Richard Roobroeck, self-represented.
SHEARD J.: —
Overview
[1] This application arises from the inability of the three children of the late Rose Marie Margaret Roobroeck ("Rose") and Eric Cyriel Roobroeck ("Eric") to agree on how their estates should be administered.
[2] The applicant is the daughter and the respondents are the two sons of Rose and Eric. They are the sole beneficiaries of the estates of Rose and Eric and co-estate trustees of the estates (also described as "Executors" in these reasons).
[3] Eric died on August 23, 2016. He was survived by his wife, Rose, who died on January 25, 2018. Both Eric and Rose had wills. In his will, Eric named Rose as his estate trustee, and after the payment of debts and funeral expenses etc., Eric's estate was to be held in trust for her during Rose's lifetime. Upon Rose's death, and subject to specific provisions with respect to the home farm property, described below, Eric's estate was to be divided equally amongst his three children: the applicant ("Rachel") and the respondents ("Richard" and "Ronald").
[4] The parties have been unable to reach an agreement on matters essential to the proper administration of an estate; namely, what assets comprise the estate, what values should be given to the estate assets, and how and when to distribute the estate assets.
[5] The estate assets consist of real property, investments, farm equipment, vehicles, cash and various personal items. For the purposes of the Application for a Certificate of Estate Trustee With a Will (the "CAETW"), the total estate assets[^1] are comprised of
(1) the "Eden Farm", 11306 R Line, Eden, valued at $1,467,000 (Eric 1/2 interest $733,500, Rose 1/2 interest $733,500);
(2) recreational lands in Timiskaming, Ontario valued at $44,000;
(3) the home farm, 650 3rd Concession Road, Middleton and 1485 Middleton North Walsingham Townline Road, Part Lot 28 & 29, Con. 4 STR, Part Lot 32 Con 3 STR, Township of Middleton (the "Home Farm"), valued at $861,000;
(4) farm equipment & machinery of $174,500;
(5) moneys on deposit at the CIBC Delhi Branch -- $392,922;
(6) jewellery, valued at $6,700; and
(7) firearms -- unknown value.
[6] Situated on the Home Farm is the home occupied by Eric and Rose, now vacant, and a second residential dwelling, which is rented.
[7] Without providing an exhaustive list, areas of dispute among the parties include whether
(a) decisions must be made by consensus or by majority rule;
(b) values assigned to estate assets by an appraiser retained by the estate should be used for the purposes of calculating the Estate Administration Tax that must be paid when submitting the Application for a CAETW and for the purposes of calculating capital gains taxes payable by the estate or, alternatively, whether the lower values put forth by Richard and Ronald should be used;
(c) a collection of firearms, that Richard and Ronald say were gifted to Richard by Eric and Rose, do or do not form part of either estate; and
(d) any or all of the real property in the estate, including the Home Farm, should be sold or whether real property may be retained by the estate until such time as the majority of the Executors determine.
[8] The disagreement among the parties concerning the valuation of the estate assets, ownership of the firearms, and how and when to distribute the estate assets, has led to an impasse in the administration of the estates. Richard and Ronald refuse to sign the cheque that must accompany the Application for the issuance of the CAETW on the basis that the values used in the Application are too high. For similar reasons, Ronald and Richard refuse to carry out what is required to complete the income tax filings and elections that have been recommended and requested by the accountant retained by the estates.
[9] As explained in greater detail below, the ongoing disagreement amongst the estate trustees concerning the valuation of the estate assets risks the loss of tax planning opportunities identified by the estates' accountant, including the rollover of farm properties and favourable income tax treatment. Those opportunities will be lost on the third anniversary of Rose's death: January 25, 2021.
Litigation history -- Orders Made Relating to the Identification and Valuation of Estate Assets
August 29, 2019 consent order to retain a certified appraiser
[10] Rachel brought this application in March 2019. Largely on consent, an order was made by me on August 29, 2019 (the "Sheard Order"). The Sheard Order directed that Brenda Cooper A.A.C.I. ("Cooper") be retained by the estate and at the expense of the estate to provide an appraisal, as at the date of Rose's death, of the real property owned by the estate as well as any and all farm equipment, personal property (excluding firearms) and vehicles located on the lands owned by the estate. In addition, Rachel was to be provided with access to all rooms and parts of the house located on the Middleton property and the Home Farm including the vault located on the property for the purpose of determining that the only items in the vault are guns, with any other items in the vault to be removed in order to allow Rachel to inspect and document the property.
October 24, 2019 order respecting the identity and ownership of the firearms
[11] Rachel sought further directions from this court respecting the firearms. On October 24, 2019, (then) R.S.J. Arrell made a Further Order Giving Directions (the "Arrell Order"). The Arrell Order directed Richard and Ronald to provide a detailed list of the make, model, present location and particulars of all firearms that are, or have at any time, been in their possession or control since the death of Eric, registered to, acquired by or at any time owned by either Rose or Eric. In addition, if Richard or Ronald assert that they or some other person or entity other than the estates own any of the listed firearms, that they disclose how and when they or that other individual or entity became the owner of the firearm and to provide proof of ownership and the date of transfer of the firearm.
[12] While there has been some compliance with the Arrell Order, Richard has not fully complied with it. Richard, who claims to own all the firearms, has not provided a full ownership trail and record of the firearms. On the Zoom hearing of this application, using a computer camera, Richard held up a book -- his "business book" that he told the court contains business records that would show ownership of a number of the firearms in issue. Although he was willing to show the business book to the court during the hearing, Richard asserts that due to privacy concerns, he cannot show the business book to Rachel.
[13] On the issue of valuation of the firearms, Richard indicated that it would be extremely burdensome to him to have the subject firearms valued. Having said that, Richard stated that he would gladly accept Rachel's "inflated" value of $75,000 for the firearms. Richard's submissions make clear that he would be willing to sell the firearms at Rachel's "inflated" price, but that he is unwilling to obtain an appraisal of the firearms.
[14] Richard's position is that the disputed firearms either originally belonged to him and were transferred to Eric, in name only, when Richard lost his licence to own restricted firearms, and/or were gifted to Richard by Eric and Rose to remedy any inequality between Richard, Rachel and Ronald. Unlike his siblings, Richard's parents did not pay for a wedding for him or buy him a bedroom suite. It is for this reason that Richard believes his parents intended to rectify this inequality by giving Richard whatever firearms they owned.
[15] It is Rachel's position that unless and until she has an informed idea of the value of the firearms that Richard claims he owns, she cannot assess whether the dispute concerning ownership of the firearms is one that merits any further investment of time and legal fees. Rachel's position is that if the firearms are not worth very much money, she may well let the matter drop. Richard does not agree to have an appraisal.
[16] Rachel does not wish to hold up the administration of the estate over the issue of the ownership of the firearms and, provided that an order is made that the firearms be appraised, Rachel is prepared to have the ownership of the firearms dealt with by way of mediation or other negotiated resolution.
[17] On the issue of the valuation of estate assets, Richard and Ronald refuse to accept Cooper's valuations, asserting that they are too high. Cooper was retained to conduct the valuations pursuant to the Sheard Order, which was made on consent. Because they disagree with the Cooper valuations, Richard and Ronald refuse to sign the Application for the CAETW, the cheque that must accompany the Application, and the amended estate tax returns. Instead, Richard and Ronald wish to use the values given by Julien DePlanke, a real estate agent, in his Letter of Opinion and values that Richard and Ronald "believe" to be reasonable, based on their own research on values.
[18] Richard and Ronald express concern that using the Cooper appraisals will result in Rose's estate paying an inflated amount of Estate Administration Tax and will also lead to an overpayment of income taxes by both estates.
[19] In submissions on this application, a third concern was raised that if Richard and Ronald wish to purchase any of the estate assets, they will be required to overpay for those assets if Rachel insists that the Cooper values be used for the purchase price.
Relief Sought on this Application
[20] On this application, Rachel applicant seeks the following relief pursuant to Rules 14 and 75 of the Rules of Civil Procedure[^2] and s. 37 of the Trustee Act:[^3]
(a) approval of the form of the Arrell Order, drafted by Rachel's lawyer, which Richard and Ronald will not approve;
(b) further directions and information pertaining to contested estate assets in possession of a co-Estate Trustee;
(c) an order that one of the respondents sign the cheque that must be accompany the Application for the CAETW; and
(d) an order removing the respondents as co-Estate Trustees and appointing Rachel as sole estate Trustee of both estates.
Eric and Rose's Wills
[21] Eric's and Rose's wills made the following special provision for the Home Farm:
(1) Richard was given the first option to purchase the Home Farm[^4] at the fair market value as determined by a Letter of Opinion from a real estate broker or at a purchase price that was agreed-upon among the three children. The purchase price was to form part of the residue of the estate, and Richard's share of the residue could be applied to the purchase price. Richard had 60 days from the date of Rose's death to exercise this option by notice in writing delivered to the executors.
(2) If Richard chose not to exercise the option to buy the Home Farm, then Rachel was given the option to do so on the same terms as offered to Richard except that Rachel was to have 90 days from the date of Rose's death to exercise the option.
(3) If neither Richard nor Rachel chose to purchase the Home Farm, then Ronald was given the option to do on the same terms as his siblings except that he had 120 days from the date of Rose's death in which to exercise this option.
(4) If none of the three children sought to purchase the Home Farm, then it was to fall into the residue of the estate. Rose's Will provided that the residue of the estate be divided equally amongst her three children: Rachel, Richard and Ronald.
[22] Based on the evidence before me, Richard and Ronald may have communicated by a text message to Rachel that they would like to keep the Home Farm, however, neither has complied with the requirements in Rose's and Eric's wills to exercise the option "by notice in writing delivered to the executors". The time for exercising that option expired long ago. As a result, based on the evidence before me, the Home Farm forms part of the residue of Rose's estate.
Positions of the parties
[23] On this application, it is Rachel's position that she does not wish to receive her share of the estate by way of a transfer of real property; she is, however, willing to entertain a distribution of the estate assets to include a transfer of real property to Richard and/or Ronald.
[24] However, a division of the estate assets in specie is unworkable unless an agreement can be reached on the value to be attributed to the transferred property.
[25] In Richard's submissions, made on behalf of himself and Ronald,[^5] he stated that he would have no objection to the sale of all of the real property except for the Home Farm, which he thought he and Richard might be interested in receiving as part of their distributive share of the estate. Again, the value to be attributed to the Home Farm is an issue on which there appears to be significant disagreement.
[26] In response to the submissions made by Richard and Ronald at this hearing, Rachel's position is that if Richard and/or Ronald wished to purchase the Home Farm, but no agreement could be reached as to its value, the Home Farm could be listed for sale, and Richard and/or Ronald given the right to match the purchase price offered by an arm's-length buyer.
[27] Respecting the firearms, in his oral submissions, Richard made it clear that he had no objection to selling the firearms to Rachel at her "inflated" value of $75,000. I understand the position taken by Richard is that, on the one hand, he should not be required to value the firearms, which he says belong to him because to do so would be unduly onerous. On the other hand, Richard asserts that he should not be required to sell the firearms -- which would be evidence of their fair market value -- because the amounts that would have to be paid to the auctioneer, would significantly reduce the net amount recovered on the sale.
Conduct of the Parties
[28] Rachel submits that Richard and Ronald have ignored the direction given to them by this court that estate trustees must operate by consensus and not by majority rule. My endorsement of August 29, 2019 reads, in part:
Without deciding the issues, I have made it clear that all three executors must act as one and if there is a dispute, directions may be sought, the executors are bound to administer the two estates as per the terms of both wills. In my view, if the three executors cannot administer the estate as required by law then it may be appropriate to remove one or more of them.
[29] Rachel submits that Richard and Ronald have not cooperated in the administration of the estates. They have not fully complied with the Arrell Order and, although the Sheard Order was made pursuant to Minutes of Settlement, Richard and Ronald refuse to accept Cooper's appraisals.
[30] In Ronald's affidavit of August 31, 2020, he also disputes the appraisal conducted by Philippe Hebert, Boreal Appraisal Services of the Timiskaming property, asserting that it is too high and that, in his view, a value of $28,000 (vs. the appraiser's $44,000) "is more than fair" (at para. 17).
[31] Rachel identified other actions that show Richard and Ronald's unwillingness to cooperate with her on the administration of the estates. For example, as of February 14, 2020, Richard had not deposited the monthly rents he had collected from the rental property, which then totalled $12,000. On this hearing, the court was told that Richard ultimately deposited $14,000 into the estate bank account, representing 19 months of rent, but only after this application was brought back on for hearing.
[32] Rachel also asks the court to consider Richard and Ronald's conduct in surreptitiously tape-recording ten to 15 hours of various meetings she has had with them, including meetings at which Rachel's lawyer was present. Richard and Ronald sought to refer to these recordings on this application and filed on USB sticks allegedly containing the recordings.
[33] Rachel also submits that Richard and Ronald have not responded to the issues that she has raised in the affidavits she has put forth on this Application. Instead, Richard and Ronald use their affidavits to recount events that occurred prior to the death of Eric and Rose, or shortly thereafter; they show that they ignore or disagree with the court's direction that co-executors must act by consensus and not by majority rule; they accuse Rachel, her husband, and her lawyers of being liars; and they attempt to put forward as evidence recordings they made of meetings with Rachel and meetings with Rachel and Rachel's lawyer.
[34] In support of her submissions, Rachel points to the affidavit sworn by Ronald on October 10, 2019, filed in advance of the hearing before R.S.J. Arrell. In this affidavit, Ronald
(a) references the hearing of August 29, 2019 and confirms that he heard from the court that the three executors must come to an agreement and that it was not majority rule;
(b) confirms that on August 31, 2019 the contents of the vault were inventoried as per the Sheard Order and that the entire nine hours spent doing so were tape-recorded;
(c) seeks to refer the court to portions of his tape recordings, which were filed on a USB drive. (The tape recordings themselves were not considered by me on this application. First, there were no transcripts of the recordings. Of greater concern was that the recordings were without the knowledge or consent of Rachel or her lawyer who could well have discussed compromises or options in the expectation that such discussions were without prejudice or settlement discussions.);
(d) refers to portions of the (taped) discussions that occurred during the nine hours at the vault. He states "Rachel cannot remember our parents saying 'majority rules"'; and "I talk about our parents always preached 'majority rules'" (at para. 9);
(e) notes Richard talking about the money spent on appraisals [as per the Sheard Order] as "not necessary"; and
(f) states that "[T]hroughout the recorded conversations . . . Rachel and her family have said multiple untruths and contradictions. Rachel has made multiple false identifications of assets, always in her favor . . .. I believe is in the best interest for Richard and myself not to trust Rachel. I also believe Rachel will not act in the best interest of all Beneficiaries of our parent's estate."
[35] Rachel submits that Richard and Ronald's mistrust and animosity toward between her is also demonstrated in the third affidavit sworn by Ronald on August 31, 2020. In that affidavit, Ronald states
(a) that it had been brought to his attention that presenting recorded conversations "is not normal" (at para. 3). In that same paragraph, Ronald recounted events that allegedly occurred after Eric's wake (2016) and Rachel's alleged argument with Rose that upset Rose to the point that Rose told Ronald and Richard that she wanted to change her will, but was convinced by them not do so;
(b) that the "Court does not require a 'Certified Appraiser'" but does confirm that the court requires "that the estate is properly managed, and the executors need to AGREE" (at para. 3);
(c) that he had recorded conversations that took place among Rachel, Richard, Ronald and Rachel's lawyer, and, among other things, criticizes Rachel for obtaining counsel (at para. 4);
(d) that both of Rachel's lawyers are "untruthful about the estate appraisal method" and claim that the estates need a "Certified Appraiser" to evaluate the estate assets . . . [that] Rachel's Lawyers have convinced her to pursue a LIE" (at para. 5);
(e) that he and Richard disagree that the estate assets have to be valued by a certified appraiser (the Sheard Order provides otherwise) and that when Rachel's lawyer tells her so, it is a lie (at para. 5, referring to a recorded conversation of September 24, 2019);
(f) that Rachel has taken Rose's ledgers that record money spent in income and that Rachel's husband, George, removed a farm tractor from the barn. Richard questions whether George can be charged with theft and George's parents charged with possession of stolen property, as the tractor is apparently stored on their property. Richard suspects that there is "damaging information to Rachel's credibility" in the Rose's ledgers;
(g) refers to texts between him and Rachel in February 2018 and questions whether there is any difference between Richard and Ronald purchasing the Home Farm from the estate or receiving it in kind; he also asserts that the text message shows that Rachel was notified in writing that Richard and Ronald intended to keep the Home Farm as required by the terms of Rose and Eric's wills;
(h) disputes the Cooper appraisal of the Home Farm and the appraisal of the machinery and suggests that if Rachel accepts these values, then she is free to purchase the assets at the previous (lower) values (with which Ronald and Richard to agree) and resell the assets at the new appraised values, and pocket the profit;
(i) that if Rachel does not agree to purchase those estate assets, Richard will assume that Rachel's intention is to force her brothers to buy her out at inflated values, which is a conspiracy to commit fraud (at para. 7d);
(j) accuses Rachel and her husband, George, of boasting about their "accomplishments" while they have changed the VIN numbers on vehicles to avoid safety checks or emission testing (at para. 9);
(k) states that although their parents "preached" majority rule, their estates are controlled by "minority rules, Rachel's rules". Richard makes specific reference to a discussion he states took place in December 2017 with Rose, Rachel and Richard at which Rose reminded them that "majority rules" (at para. 10);
(l) sets out, in point form, a "gathering of information" that he identifies as "lie", "misrepresentation", "contradiction", "accusations", and "unlawful act". He completes this multi-page, point-form list, by posing these two questions: At what point does a law firm cease represent dishonest client? Aren't we all morally bound by the truth?;
(m) at para. 16, that text messages exchanged in September 2018, show that Rachel and/or George were spying on Ronald and Richard;
(n) at paras. 17 and 18, that the Cooper property appraisals are inflated and, at para. 25, asks that the appraisal of the Home Farm completed by Julian Planck be accepted by the court;
(o) at para. 18, that when Richard and Ronald try to negotiate with Rachel, she is "dishonest, uncooperative" and makes demands, and that neither they, nor the estate, should have to pay for Rachel's lawyers;
(p) finally, at para. 25, Richard asks the court to remove Rachel as executor because of her disregard of Rose's will and Eric's will and "many examples of repetitious dishonesty".
[36] In contrast and contradiction to the evidence, highlighted above, submitted by Ronald and Richard, in oral submissions on this Application, Richard stated that he and Ronald have "no animosity" toward Rachel as she is their sister.
[37] With respect to Rachel's request to be appointed as sole estate trustee, Richard and Ronald submit that Rachel is "not the type to be a leader at anything" and that Rose did not even name Rachel in her power of attorney. Richard took the court through copies of invoices, and cheques signed by Rachel, which, he asserted, show that Rachel is not capable of acting as sole estate trustee as she is not even able to properly pay invoices, even after being shown the correct amount by Richard.
Appointment of an estate accountant
[38] Margaret Bauer was retained as the estates' accountant. In an email to the estate trustees dated December 9, 2019, Ms. Bauer advised that the returns to update the tax filings for both estates had been prepared in draft and were complete, save for the details related to the firearms. Ms. Bauer advised that when the values and cost base amounts for the firearms become available, an adjustment can be made to the tax filings.
[39] In her December 9, 2019 email, Ms. Bauer sets out the amounts she has calculated to be payable in respect of the updated returns. For the five adjusted returns, a total of $151,472.48 is payable in income taxes. Ms. Bauer advised that the amounts she had calculated were for taxes owing only and that interest and penalties would be also be due on the balances. Finally, she advises that next filing will be required for the year ending on January 25, 2020.
[40] Based on the evidence before me, I understand that because Richard and Ronald disagree with the appraised values, they refuse to authorize Ms. Bauer to complete and file these adjusted returns. As a consequence, income taxes remain due and are accruing penalties and interest.
[41] In an email dated September 30, 2020 from Ms. Bauer,[^6] she advises the parties that if an agreement is not reached by the estate trustees respecting the values of the estate assets, the deadline for enacting planning respecting the farm property rollovers that are available to the parties until the third anniversary of Rose's death -- January 25, 2021 -- will be lost.
[42] According to Ms. Bauer, the use of those rollovers requires an agreement amongst the three beneficiaries as to the value of the assets and a plan to distribute the assets from the estate and/or to dispose of the assets and distribute the proceeds to the beneficiaries. In addition, the third anniversary of Rose's death marks the end of the estate's status as a Graduated Rate Estate which means that the estate will thereafter be required to pay the highest personal tax rate on any income earned after this anniversary.
[43] Based on the record before me, I find that Richard and Ronald's refusal to move forward with the administration of the estates, including the filing of income tax returns for both estates, because they disagree with the Cooper valuations, has or is likely to result in serious negative financial consequences to the estate.
The Law
Procedure on a long application
[44] The local practice directions require all parties to file a factum on a long motion, such as this. However, a factum was filed only on behalf of Rachel.
[45] Richard defended his and Ronald's failure to file a factum and any other shortcomings in the manner in which their evidence was put before the court, including the nine plus hours of tape recordings submitted on USB sticks, on the basis that he and Ronald are self-represented.
[46] Courts do recognize that self-represented litigants may lack knowledge and skill in how best to present their case. In this case, that may explain any misunderstanding about the evidence that the court will entertain on an application and any shortcomings in the materials filed by the respondents.
[47] Because of the concerns expressed by Richard that he and Ronald may be at a disadvantage as self-represented parties, I wish to make clear that if I refer in these reasons to the statement of the law that is set out in the factum filed on behalf of Rachel, I do so because I have concluded that the factum properly states the law that is applicable to the issues on this Application.
Applicable regulation, statute and case law
[48] The jurisdiction of this court to consider the Application brought by Rachel is found in rule 14.05(3) of the Rules of Civil Procedure, which provides that a proceeding may be brought by application where the relief claimed is
(a) the opinion, advice or direction of the court on a question affecting the rights of a person in respect of the administration of the estate of a deceased person or the execution of a trust;
(b) an order directing executors, administrators or trustees to do or abstain from doing any particular act in respect of an estate or trust for which they are responsible; or
(c) the removal or replacement of one or more executors, administrators or trustees, or the fixing of their compensation.
[49] Section 37(1) of the Trustee Act, authorizes a judge of the Superior Court of Justice to remove an executor. Under s. 37(4) of that Act, where an executor is not the sole executor, the court need not appoint a person to act in the place of the person or persons removed.
[50] Courts have an inherent power to remove a trustee when circumstances require such as when the continuance of the trustee would be detrimental to the execution of the trusts under the will.[^7]
[51] Unless the will provides otherwise, executors appointed pursuant to a will are subject to the "general principle that if there are several executors of a will, their decisions must be unanimous. . . [W]here there is no provision for a majority vote, all executors must act in concert."[^8]
[52] Not every mistake or neglect of duty or inaccuracy of conduct of trustees would justify the removal of an executor. "[A]cts or omissions must be such as to endanger the trust property or to shew a want of honesty or a want of property capacity to execute the duties, or a want of reasonable fidelity."[^9]
[53] That past misconduct is likely to continue in the future will often be enough to justify removal and, in some cases, dissension and animosity amongst trustees has been held justify the removal without any finding of misconduct.[^10]
[54] Estate trustees must act jointly. If the animosity of an estate trustee or estate trustees is such that it rises above mere fiction and the application judge is satisfied that the "due administration" of the estate would be compromised, then the removal of the estate trustee is justified.[^11]
[55] Where the continued administration of the trust with due regard for the interests of its beneficiaries has by virtue of the situation between the trustees become impossible or improbable, the court is justified in removing a trustee.[^12]
[56] Conflict between a trustee and a beneficiary alone may be insufficient grounds on which for a court to interfere with a testator's choice of executor and there must be evidence that the trustee is unable to exercise their duties in an impartial and objective manner. The "courts will readily intervene however, if conflict is between co-Trustees".[^13]
[57] A court will remove a trustee when there is an obvious conflict between their personal interest in their duties as trustees.[^14]
Analysis
Issue 1: Should the applicant's form of the Arrell Order be approved?
[58] The draft order of R.S.J. Arrell made October 24, 2019 and submitted by Rachel's lawyer for approval by Richard and Ronald on numerous occasions is attached as Exhibit "A" to the affidavit of Jeannine Benincasa sworn November 10, 2020. It is entirely in keeping with the order made by R.S.J. Arrell.
[59] At Exhibit "P" to his affidavit sworn August 31, 2020, Ronald attaches Richard's letter to Rachel's lawyer dated February 21, 2020. At p. 3 of that letter, Richard suggests that the following additional paragraph be added to order as drafted by Rachel's lawyer:
- THIS COURT ORDERS there is an issue as to ownership of the firearms which will be decided at a later date.
[60] Counsel for Rachel was candid in his submissions on this application that had Richard and Ronald responded to his numerous requests to approve the form of order put forth on behalf of Rachel by asking for this additional paragraph to be included, that would likely have been acceptable. However, until this affidavit was received, Richard or Ronald did not respond at all.
[61] In my view, the paragraph that Richard and Ronald seek to include is unnecessary and ought not to be included in the Arrell Order.
Disposition of issue 1
[62] I order and direct the Registrar to sign the form of Order submitted by counsel for Rachel and found at Exhibit "A" to the affidavit of Jeannine Benincasa sworn November 10, 2020 and attached as Appendix "1" to this judgment.
Issue 2: What further directions should be made respecting contested estate assets in the possession of a co-trustee?
[63] I understand this ground of relief relates to firearms that are in the possession of Richard and over which he claims ownership. The firearms in issue include guns still registered in the name of Eric and/or Rose, as well as other unrestricted firearms which are not required to be registered.
[64] As noted above, in his submissions on this Application, Richard acknowledged that he had business records that would show ownership of, at least, some of the firearms in dispute. Those records were not put in evidence on this Application, nor, despite what I believe was intended by the Arrell Order, was that information shared with Rachel. As a result, there is insufficient evidence before me on which to determine who owns the disputed firearms.
[65] The value of the firearms has not been included in the calculation of the estate assets, and, for that reason, the Application for a CAETW may be submitted without a determination of the ownership and value. However, those issues ultimately must be resolved in order to complete the administration of the estates. If the parties agree or if a court determines that Richard owns the firearms, then that will be the end of it. If it is determined that the firearms or some of them belong to the estate, amended valuations of the estate assets may need to be prepared for the purposes of Estate Administration Tax and/or income tax.
[66] I find that the position taken by Richard concerning his ownership of the firearms, and his refusal to provide documentation he has that might assist in providing proof of ownership, has interfered with his ability to be impartial as estate trustee on the firearms issue. I similarly find that Ronald's decision to side with Richard on the firearm issue has also interfered with Ronald's obligation to impartially and fully investigate what assets form part of the estate, to the potential detriment of a beneficiary -- Rachel.
[67] Without a complete list and valuation of the subject firearms, it is unfair and unreasonable to ask Rachel, either in her capacity as a co-estate trustee, or as a beneficiary, to simply accept what she is being told by Richard, who is supported by Ronald.
Disposition of issue 2
[68] I order and direct that
(a) Richard and Ronald provide to Rachel any information or documentation in their possession relevant to the acquisition, value, and condition of firearms contained in the list produced to Rachel pursuant to the Arrell Order including all related ownership and registration information and documents.
(b) Rachel may share the information provided to her in accordance with the order set out in subpara. (a), above, with her counsel and, with a proviso that the information will be kept confidential by him and her, Rachel may also share the information with a duly qualified firearms appraiser (the "Firearms Appraiser") retained at the expense of the estate the purpose of providing the estate with an appraisal of the fair market value of the firearms.
(c) Within 14 days of a written request made by Rachel and/or her counsel, Richard and or Ronald, as the case may be, shall provide Rachel and/or the Firearms Appraiser with full and unrestricted access to the subject firearms for the purposes of allowing the Firearms Appraiser to inspect and appraise the firearms. The inspection and appraisal shall take place in the presence of Rachel, the Firearms Appraiser, one of Richard or Ronald, and, if requested by Rachel or the Firearms Appraiser, in the presence of Rachel's counsel. This appraisal shall be final and binding upon Rachel, Richard and Ronald and on the estates.
(d) Unless the parties agree otherwise, if, after completion and delivery to all the parties of the appraisal conducted by the Firearms Appraiser, the parties are unable to resolve the issue of ownership of the firearms, that issue shall proceed to mediation with a mediator chosen by the parties and at the expense of the estate.
(e) If the parties are unable to reach an agreement as to a mediator to conduct mediation, they may seek further directions from this court. If a motion for further directions from the court is required, each of Rachel, Richard and Ronald shall provide the other with the name of a proposed mediator, his or her resume or qualifications, hourly rates, and the mediator's availability. This information, together with any other relevant information to be put before the court on the motion for further directions related to the mediation of the firearms dispute.
Issue 3: Should the respondents be ordered to sign the cheque to be submitted with the Application for a CAETW?
Issue 4: Should the respondents be removed as co-Executors and Trustees and the applicant remain as sole Estate Trustee of both estates?
[69] For reasons that will become apparent, I find it appropriate to address issues 3 and 4 together.
[70] The request for an order that Ronald and Richard sign the cheque payable to the Minister of Finance for Estate Administration Tax was made, in part, due to the urgency in obtaining a CAETW. I understand that a CAETW is required in order for there to be dealing with the real property owned by the estate.
[71] Rachel's counsel explained that the cheque for the CAETW has been prepared and drawn on the estate bank account held in the name of the three named estate trustees. All three account-holders must sign any cheque drawn on this account. The amount of the cheque is $32,445, calculated by Dennis Odorjan, the lawyer retained to represent the estate, using the values provided by the professional appraisers.
[72] With the consent of all parties, Mr. Odorjan and Ms. Bauer were retained for the estates. This agreement allowed Mr. Odorjan to prepare the Application for a CAETW and Ms. Bauer to prepare the outstanding estate tax returns. On October 21, 2019 Rachel's lawyer advised Richard and Ronald that all three trustees needed to attend Mr. Odorjan's office to sign the Application for a CAETW.
[73] In his email of January 14, 2020, Mr. Odorjan echoed that request; he asked the three estate trustees to come in to sign the Application for the CAETW and advised them of the amount of the cheque payable to the Minister of Finance that had to accompany the Application.
[74] In his January 24, 2020 email to the parties, copied to Mr. Odorjan and Ms. Bauer, Rachel's counsel responded to questions raised by Richard and Ronald relating to the Application for a CAETW. That email makes it clear that the application is based on the values provided by the certified appraisers retained by the estate, whose opinions are likely to be accepted by the Canada Revenue Agency.
[75] Richard responded on January 24, 2020, also copying Mr. Odorjan and Ms. Bauer, stating that neither Richard nor Ronald would sign the Application or the cheque unless an agreement had been reached on values of the estate assets. Richard reiterated his and Ronald's view that decisions should be made by way of "majority rule" but, that despite their wishes, Ronald and Richard would be willing to sell the Eden farm, and to buy out Rachel's share of the estate and in order to retain the Home Farm.
[76] Attached as Exhibit "P" to Ronald's affidavit sworn August 31, 2020 is a letter addressed to Rachel's lawyer from Richard in which he states that neither he nor Ronald will sign the cheque for the Estate Administration Tax as they do not agree with many of Cooper's appraisal values and that Rachel has refused to "negotiate" values with them.
[77] I have read the materials filed by Richard and Ronald and I have listened to their oral submissions on this application. I understand that the concern of Richard and Ronald is that the Cooper appraisals are inflated and, as a result, if they use the Cooper values, the estate will overpay Estate Administration Tax.
[78] I have read the materials filed by Rachel and have listened to the submissions made by her counsel. I understand Rachel's concern is that the values used in the application for a CAETW be accurate and defensible. As the parties did not agree on values, Rachel included that issue in this application.
[79] At the hearing of August 29, 2019, minutes of settlement were entered into among the parties, and were incorporated into the Sheard Order. A key aspect of that settlement was the agreement to retain Cooper to appraise the estate assets. Implicit in that settlement was that the appraisals would be used by the estate. Richard and Ronald now assert that they will not accept the Cooper appraisals.
[80] By reason of the position taken by Richard and Ronald, they refuse to sign the Application for the CAETW, the cheque that must accompany it, or direct the accountant on how to complete the estate tax filing. As a result, almost three years after the death of Rose, the administration of the estate has come to a standstill.
[81] Rachel's reasons for relying on the Cooper appraisals include that Richard and Ronald agreed to use Cooper; that the Sheard Order requires it; that the estate trustees are personally liable for the truth of the valuations used on the Application for the CAETW; that following the submission of an Application for a CAETW, the estate trustees must sign an Estate Information Return certifying that the values used are true; and that it is an offence to make a false return.
[82] Despite their refusal to accept the Cooper valuations, Richard and Ronald have not put forth alternative appraisals conducted by qualified appraisers, preferring instead to rely less formal evidence of value, including their own anecdotal experience concerning comparable sales. In the result, the only expert appraisal evidence is that obtained by the estate pursuant to the Sheard Order.
[83] At all times, it was open to Richard and Ronald to agree to sell the assets. In submissions on the Application and in their Application materials, Richard and Ronald state that, except for the Home Farm, they are content to sell the balance of the estate assets. Had they done so, the fair market value of those assets would be known. Although a CAETW may be required to sell to real property owned by the estate, many of the other estate assets could have been sold without the need for a CAETW.
[84] In submissions on the application, Richard used certain irrigation pipes as an example of an asset that he believed had been overvalued. When asked why those pipes were not sold, which would have determined actual their fair market value, Richard explained that he did not have time to oversee the sale.
[85] The evidentiary record before me, as well as the submissions made on this application lead me to conclude that apart from the Home Farm, all parties are content that the assets of the estate be sold. Again, except for the Home Farm that Richard and Ronald have expressed an interest in keeping, the three estate trustees would appear to share a common goal of achieving the highest return on the realization of the estate assets.
[86] The court is not being asked to make a finding as to which of the Cooper appraisals or the values put forward by Richard and Ronald is most accurate. In any event, an appraisal simply an opinion albeit an educated opinion -- the true test of fair market value is the amount that item achieves on an open sale. However, I do find that Rachel was entitled to insist on the Cooper appraisals being used for the purposes of the CAETW and income taxes. Richard and Ronald not only agreed to that in Minutes of Settlement; they also agreed that the Minutes be incorporated into the Sheard Order.
Disposition of issue 3: Signing of cheque for estate administration tax
[87] With respect to the relief sought under issue 3, I am prepared to make an order that Richard and Ronald sign the cheque that has already been prepared in payment of the Estate Administration Tax, updating the date of the cheque to ensure that the cheque is not staled-dated.
Acts and Omissions
The Home Farm
[88] The evidentiary record before me does not support a finding that either of Richard or Ronald had complied with the requirements under Eric's and Rose's will to provide formal notice in writing to the estate trustees of their intention to purchase the Home Farm. Even in oral argument, Richard was somewhat equivocal about buying of the Home Farm.
[89] While it is hoped that the parties may succeed in reaching an agreement about how to value the Home Farm should Richard and Ronald decide to pursue its purchase, I find that it is not appropriate for me to make an order with respect to the disposition of this or any other estate asset.
[90] The evidence leads me to find that Richard and Ronald's refusal to take any meaningful steps to facilitate the realization of the assets of the estate, which would include completing the Application for the CAETW, has created an impasse that has left the estate assets unrealized, and the three-year deadline to make certain income tax-related elections looming less than two months away.
[91] I conclude that Richard and Ronald have not fulfilled their obligation as co-estate trustees, to the detriment of the beneficiaries of the estate. In the case of the firearms, they have put their own self-interest ahead of their obligations to the beneficiaries of the estates.
[92] The evidentiary record before me supports a finding that Richard and Ronald have not complied with prior court orders and, in the face of the clear direction of the court that decisions must be made unanimously, they continue to hold on to their position that decisions concerning the administration of the estate should be made by way of majority rule.
[93] The evidentiary record before me also supports a finding that there is a significant amount of animosity between Richard and Ronald, and Rachel. That animosity also appears to extend to Rachel's husband, George, as well as to the legal counsel retained by Rachel.
[94] The evidentiary record leads me to find that the conduct of Richard and Ronald that has brought the administration of the estate to a standstill. I also conclude that their behaviour is likely to continue in the future, to the detriment of the estate and its beneficiaries.
[95] In concluding that their behaviour is likely to continue in the future, I am taking into account the conduct of Richard and Ronald set out above as well as the fact that they have refused to allow the estate's lawyer and accountant to use the Cooper appraisals, despite their agreement with Rachel to do so, which was implicit in the agreement reached on August 29, 2019.
[96] Although Richard and Ronald had agreed to jointly retain Mr. Odorjan and Ms. Bauer as estate solicitor and accountant, respectively, they have disregarded the repeated requests of those professionals to take the steps that are required to move forward with the administration of the estate. Richard and Ronald ignore those requests, knowing that the delay in making the tax filings and elections may expose the estates to the payment of interest and penalties owing on unpaid income taxes and the loss of potentially valuable elections available to the estate, which expire on January 25, 2021.
Disposition of issue 4
Removal of Richard and Ronald
[97] Based on the evidence before me and, in particular, the conduct of Richard and Ronald outlined above, I find sufficient grounds to warrant this court's interference with Eric and Rose's choice of Ronald and Richard as their estate trustees. Specifically, I find that Richard and Ronald are unable to exercise their duties in an impartial and objective manner and that the due administration of the estate will be compromised if they are not removed.
[98] I therefore order that Richard and Ronald be removed as estate trustees of Eric's and Rose's estates and that Rachel remain as sole estate trustee of the Eric and Rose's estates.
[99] While a CAETW has not been issued, the evidence shows that each of the three named estate trustees has undertaken some executor's work. For that reason, I conclude that the order to be made is to remove Ronald and Richard as estate trustees rather than to "pass them over" as estate trustees.
Orders made under issues 3 and 4
[100] In accordance with my findings set out above, I make the following orders with respect to issues 3 and 4:
(1) Richard Roobroeck and Ronald Roobroeck shall attend at the offices of Dennis Odorjan within seven days of the date of this Order to initial a change in the date on the cheque, if required, and sign the cheque for the payment for Estate Administration Tax that must accompany the Application for a Certificate of Appointment of Estate Trustee;
(2) Richard Roobroeck and Ronald Roobroeck shall be and are hereby removed as estate trustees of the estates of Rose Roobroeck and Eric Roobroeck and that the applicant, Rachel Dewaele, shall remain as sole estate trustee of the estates;
(3) upon filing an Application for a certificate of appointment and any other required documents with the court, the processing of the Application shall be expedited and a certificate shall issue appointing the applicant, Rachel Dewaele, as sole estate trustee of the estate of Rose Roobroeck;
(4) within 14 days of the date of the release of this judgment, Richard and Ronald shall sign whatever documents might be required by the bank to have their names removed from the estate bank account, so as to leave Rachel's name as sole estate trustee;
(5) any requirement that the applicant, Rachel Dewaele, post a bond before issuance of said certificate shall be and is hereby dispensed with; and
(6) Rachel Dewaele shall, as estate trustee, make reasonable efforts, through her counsel, to keep the respondents, Richard Roobroeck and Ronald Roobroeck, informed with respect to the administration of the estates of Eric Roobroeck and Rose Roobroeck and shall make reasonable efforts through her counsel to consult with the respondents respecting decisions to be made related to the administration of said estates.
Costs
[101] As the successful party on this application, Rachel is presumptively entitled to her costs of this application. Included in her materials on this application with the Bill of Costs which identify full indemnity costs of $78,802.63, substantial indemnity costs of $71,335.13 and partial indemnity costs of $48,496.77.
[102] At the conclusion of the hearing of this application, I heard very brief submissions with respect to costs. It was clear from Rachael's brief submissions that she wishes to be made whole that is, she seeks full indemnity costs of this litigation. However, the brief submissions were less clear on whether Rachel seeks those costs from the estate, or from the respondents. If costs are paid from the estate, as Rachel is a beneficiary of one-third of the residue, costs paid from the estate would reduce Rachel's residuary share by one-third of the amount paid. If the costs are paid by the respondents or from their residuary share of the estate, it would have no impact on Rachel's residuary share.
[103] So that the parties have an opportunity to attempt to reach an agreement with respect and costs or, alternatively, to make costs submissions, I reserve my decision on costs.
[104] If the parties are unable to reach an agreement on costs, then costs submissions shall be made as follows:
(1) Within 21 days of the date of the release of this decision Rachel shall serve and file her written costs submissions, not to exceed three pages, double-spaced, together with her draft bill of costs and copies of any pertinent offers to settle.
(2) Within 14 days of the service on Richard and Ronald of Rachel's costs submissions, they shall serve and file their responding submissions of no more than three pages, double-spaced, together with copies of any pertinent offers to settle.
[105] If no submissions are received within 35 days of the date of the release of this decision, the parties will be deemed to have resolved the issue of the costs and costs will not be determined by me.
Application allowed.
Appendix "A"
ORDER
THIS APPLICATION FOR DIRECTIONS, made by the Applicant for, inter alia, directions with respect to the administration of the Estate of Eric Cyriel Roobroeck and the Estate of Rose Marie Margaret Roobroeck, was heard this day, at the Simcoe Courthouse, 50 Frederick Hobson VC Drive, Simcoe, Ontario.
ON READING the Notice of Application for Directions, dated March 15, 2019, the Affidavit of Rachel Rosita Paula Marie Louise Dewaele, sworn March 11, 2019, the Supplemental Affidavit of Rachel Rosita Paula Marie Louise Dewaele, sworn August 22, 2019, the Affidavit of Richard Jules Hector Cyriel Roobroeck, sworn August 26, 2019, the Affidavit of Ronald Roland Robert Richard Roobroeck, sworn May 21, 2019, the Affidavit of Ronald Roland Robert Richard Roobroeck, sworn October 15, 2019, and the Affidavit of Jeannine Benincasa, sworn October 17, 2019, and on hearing the submissions of the lawyers for the Applicant and the submissions of the Respondents, being self-represented:
THIS COURT ORDERS that the Respondents will provide a list of all firearms in their possession or had been in their possession since the death of their father, and the list will indicate make, model, and location of the respective firearms and the list provided will be kept confidential by Applicant's counsel and shared only with the Applicant who likewise will keep the list confidential.
THIS COURT ORDERS that the Respondents will indicate which firearms they claim to own and the approximate date they acquired ownership.
THIS COURT ORDERS that the Respondents will provide any documentation they have as to the value of the firearms.
THIS COURT ORDERS that the information referenced in paragraphs (1), (2), and (3) of this Order shall be provided in 30 days.
THIS COURT ORDERS that the costs of this motion are reserved to the trial judge.
THIS COURT ORDERS that the balance of this application for directions shall be heard on December 19, 2019, at 10:00 a.m.
Notes
[^1]: These include the Timiskaming property passed to Rose as the surviving joint tenant upon the death of Eric, the total value of the Eden farm, owned by Rose and Eric as 50/50 tenants in common; the Home Farm; and the CIBC bank account owned by Rose as at her death on January 25, 2018.
[^2]: R.R.O. 1990, Reg. 194.
[^3]: R.S.O. 1990, c. T.23, as amended.
[^4]: Described as part of Lots 28 and 29, Concession 4, South Talbot Road, Geographic Township of Middleton, Norfolk County.
[^5]: At the hearing of the application, it was apparent that Ronald was present in the same room with Richard and, from time to time, did audibly express his views, supportive of those made by Richard, even though Ronald was off camera.
[^6]: Exhibit "H" to the Affidavit of Jeannine Benincasa sworn November 10, 2020, Applicant's Fourth Supplementary Application Record.
[^7]: Evans v. Gonder, [2010] O.J. No. 884, 2010 ONCA 172, at para. 26, quoting from Lord Blackburn in Letterstedt v. Broers (1884), L.R. App. Cas. 371, [1884] UKPC 18. See, also, St. Joseph's Health Centre v. Dzwiekowski, [2007] O.J. No. 4641, 2007 CanLII 51347 (S.C.J.), at paras. 25-27 ("Dzwiekowski").
[^8]: Kaptyn Estate (Re), [2009] O.J. No. 1685, 2009 CanLII 19933 (S.C.J.), at para. 16.
[^9]: Dzwiekowski, at para 25.
[^10]: Dzwiekowski, at paras. 29, 30.
[^11]: Chambers Estate v. Chambers, [2013] O.J. No. 3659, 2013 ONCA 511, at para. 98, 99.
[^12]: Venables (Litigation guardian of v. Gordon Estate, [2012] O.J. No. 615, 2012 ONSC 956, at para. 30, quoting Consiglio Trusts (No. 1) (Re), [1973] 3 O.R. 326, 1973 CanLII 681 (C.A.).
[^13]: Venables, at para. 31.
[^14]: Spadafora v. Gabriele, [2015] O.J. No. 5035, 2015 ONSC 6035, at para. 24; see, also, Kostiw Estate (Re), [2007] O.J. No. 2088, 2007 CanLII 19423 (S.C.J.).