COURT FILE NO.: CV-21-86921-ES
DATE: 2022/01/28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KAREN GORDON, KRISTOPHER GORDON and JEFFRY BRACKEN, in their capacity as Estate Trustees of the Estate of Kenneth Ormond Gordon
Applicants
– and –
MONICA GORDON, BENJAMIN KENNETH GORDON BANGS, NATALIE ELIZABETH GORDON BANGS, a minor, ANABELLE NANCY JOAN GORDON, a minor, and AMY MARIA GWENDOLYN GORDON, a minor
Respondents
Jordan D. Oelbaum and Mitchell J. Rattner, for the Applicants
No one appearing for the Respondents
HEARD: October 21, 2021 (by videoconference)
RULING on APPLICATION
Introduction
[1] Kenneth Ormond Gordon[^1], the patriarch of the Gordon family, died in September 2018. He is survived by his three children, Karen Gordon, Kristopher Gordon, and Kevin Gordon; his four grandchildren; his former spouse; and his girlfriend.[^2]
[2] The assets in the estate total in excess of $34,000,000 (“the Estate”). The assets are to be distributed pursuant to the terms of a Primary Will and a Limited Will, both of which were executed on the same day in December 2014. The applicants are the estate trustees under both wills. The estate trustees are the Deceased’s children, Karen and Kristopher, and their cousin Jeffry Bracken.[^3]
[3] In 2018, the estate trustees applied for a certificate of appointment limited to the assets referred to in the Primary Will (“the 2018 application”). The Primary Will purports to deal with assets other than those addressed in the Limited Will. I say “purports” because the language used in the Primary Will suggests that it deals only with limited assets; yet paragraph 3 of the Primary Will refers to “all property”.
[4] This court twice declined to grant the certificate of appointment requested.[^4] The applicants were directed to seek a determination, from someone other than the judge presiding over the 2018 application, as to whether it is possible for the court to grant a certificate of appointment limited to the assets referred to in the Primary Will.[^5]
[5] In the application now before the court (“the 2021 application”), the applicants request a determination of two issues:
• First, the applicants seek an order directing the Estate Registrar of this court to issue a certificate of appointment with a will limited to the assets referred to in the Primary Will. In the alternative, the applicants request an order rectifying the Primary Will such that it excludes “Property” as defined in the Limited Will.
• Second, the applicants request that what appears to be a typographical error in the Limited Will be rectified.
[6] The record for the 2021 application includes an affidavit from each of the three estate trustees and an affidavit from the lawyer who prepared both the Primary Will and the Limited Will. Before addressing the substantive issues, I deal with evidentiary issues arising from the affidavits.
The Evidence
[7] The affidavits from the estate trustees were sworn in 2021, specifically for the purpose of the 2021 application. The substantive evidence upon which the applicants rely is set out in Karen’s affidavit. In addition to setting out the substantive evidence, Karen provides her consent to the disclosure by the Deceased’s lawyer, for the purpose of the 2021 application, of information that would otherwise be subject to solicitor-client privilege.
[8] In their respective affidavits, Kristopher and Jeffry each state that they (a) reviewed Karen’s affidavit, (b) believe the contents of Karen’s affidavit to be true, and (c) consent to the disclosure by the Deceased’s lawyer, for the purpose of the 2021 application, of information that would otherwise be subject to solicitor-client privilege.
a) Karen’s Affidavit
[9] In paragraph 1 of her affidavit, Karen says that she is providing evidence in her capacity as an estate trustee. In addition, she says, “[t]o the extent that I do not have personal knowledge or information, I state the source of such information and believe it to be true.” In paragraphs 20, 30, and 33 of her affidavit (“the subject paragraphs”), Karen attempts to provide evidence based on information and belief.
[10] Evidence on motions and applications is governed by r. 39 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The contents of affidavit evidence on an application is addressed in r. 39.01(5). It provides that an affidavit filed in support of an application “may contain statements of the deponent’s information and belief with respect to facts that are not contentious, if the source of the information and the fact of the belief are specified in the affidavit.”
[11] In the subject paragraphs, Karen relies on information said to have been provided to her by others. The subject paragraphs read as follows:
I am advised by my lawyers that it is a common estate planning practice to prepare multiple wills as a means of addressing the disposition of assets that do not require a testamentary grant of probate, which most typically consist of interests in private corporations.
I am advised by my lawyers that this is a typographical error capable of rectification. [The typographical error is the reference in paragraph 4(c) of the Limited Property Will to paragraph 8(d)(ii), which the applicants submit should have been to paragraph 4(d)(ii).]
I am advised by my lawyers that the estate administration tax payable on the Limited Property Estate would amount to $471,075, if such property is found to be captured by the Primary Will.
[12] The subject paragraphs comply with r. 39.01(5) to the extent that, in paragraph 1 of the affidavit, Karen states that she believes information provided to her by others to be true. I find, however, that because Karen fails to identify the source of the information upon which she relies, the subject paragraphs do not comply with r. 39.01(5).
[13] “My lawyers” is not sufficient to satisfy the requirement to specify the source of the information in the affidavit. An affiant must provide the name of the individual who is the source of the information: see City Buick Pontiac Cadillac Ltd. v. Allan (1977), 6 C.P.C. 182 (Ont. H.C.), at p. 184; and Cameron v. Taylor (1992), 1992 CanLII 7575 (ON SC), 10 O.R. (3d) 277 (Gen. Div.), at p. 283.
[14] As a result of Karen’s failure to identify, by name, the source of the information upon which she relies, the subject paragraphs are struck from Karen’s affidavit.
[15] There is another reason why paragraphs 20 and 33 do not comply with r. 39.01(5). Karen does not provide any evidence as to the basis for the knowledge on the part of the source of the information in either paragraph. For example, the court would expect that, in both paragraphs, Karen would include evidence as to the experience in estate law of the individual who is the source of the information. For paragraph 33, the court would expect that Karen would include the source’s knowledge of the basis for the calculation of the estate administration tax said to be payable.
[16] There is a third reason why paragraph 30 is not admissible as evidence. Even if Karen had therein identified, by name, the source of the information and that individual’s experience, the paragraph would be struck because it is conclusory – it is not evidence.
[17] In summary, paragraphs 20, 30, and 33 of Karen’s affidavit are struck.
b) The Lawyer’s Affidavit
[18] The lawyer’s affidavit was sworn in 2019 and bears the court file number for and title of proceeding of the 2018 application. For two reasons, the lawyer’s affidavit does not comply with r. 4.02(1):
• Every document in a proceeding must include the court file number – meaning the court file number for the 2021 application; and
• Every document in a proceeding must include the title of proceeding – meaning the title of proceeding for the 2021 application.
[19] Non-compliance with the Rules is addressed in r. 2. Pursuant to r. 2.01(1), “[a] failure to comply with these rules is an irregularity and does not render a … document … in a proceeding a nullity”. In response to an irregularity, the court has the discretion to grant relief, on such terms as are just, so as to secure the just determination of the real matters in dispute: r. 2.01(1)(a). In addition, “only where and as necessary in the interest of justice, [the court may] dispense with compliance with any rule at any time”: r. 2.03.
[20] I find that relief is available to the applicants with respect to the lawyer’s affidavit. To comply with the Rules, the applicants should have included in the record an affidavit sworn by the lawyer which bears the court file number for and title of proceeding of the 2021 application. Including such an affidavit in the record would have involved additional expense for the applicants – both in terms of their lawyers’ time and perhaps for the time taken by the Deceased’s lawyer to review and swear another affidavit.
[21] This application is at least the third time that the applicants have been before the court on a matter related to the administration of the Estate. As will be seen from the discussion below regarding the use of multiple wills, it is clear that one of the Deceased’s goals was to minimize expenses incurred by the Estate – at least in terms of estate taxes.
[22] So as not to cause the estate trustees to incur additional expenses in the administration of the Estate, I dispense with the requirement for an affidavit from the lawyer bearing the court file number for and title of proceeding of the 2021 application. I grant the applicants leave to rely on the lawyer’s affidavit from the 2018 application.
c) Procedure on Evidentiary Rulings
[23] The applicants were not given an opportunity to make submissions with respect to either of the evidentiary issues addressed in this section of the ruling. It was not necessary to give them that opportunity because (a) they are granted leave to rely on the lawyer’s affidavit, and (b) the outcome on the application is not affected by the subject paragraphs being struck from Karen’s affidavit.
[24] If the outcome on the evidentiary rulings might otherwise have impacted the substantive outcome, I would have given the applicants an opportunity to make submissions and, if necessary, seek relief to address the concerns raised.
Background
[25] In his career, the Deceased ran a large excavation company in the Ottawa Valley. The assets in the Estate include four properties, in the Manotick area, with an estimated value of $3,450,000; personal property with an estimated value of $50,000; approximately $18,900,050 of shareholdings in two private corporations; and a note receivable, valued at approximately $12,505,000, from one of the two private corporations.
[26] In December 2014, the Deceased retained a lawyer, Kenneth H. Cramer, to draft testamentary documents. In accordance with instructions received from his client, Mr. Cramer prepared the Primary Will and the Limited Will. Both wills were (a) executed on December 10, 2014, and (b) signed by the Deceased in the presence of two subscribing witnesses – Mr. Cramer and his assistant at the time. Mr. Cramer’s evidence is that the Primary Will was executed first and the Limited Will was executed second.
[27] Subsequent to December 2014, Mr. Cramer did not receive any instructions from the Deceased to prepare other testamentary documents. The estate trustees have not identified any other testamentary documents. There is no evidence to suggest that either of the wills executed in December 2014 was ever revoked.
The Primary Will and Limited Will
a) The Primary Will
[28] The Primary Will is seven pages and 24 paragraphs long. The Limited Will is five pages and 14 paragraphs long. Only those paragraphs relevant to the determination of the 2021 application are discussed in this ruling.
[29] The numbered paragraphs in the Primary Will begin with a paragraph addressing revocation. Paragraph 1 says, “I revoke all Wills and Codicils previously made by me, save for my Limited Will that I have also executed this day.”
[30] The paragraph giving rise to Justice MacEachern’s endorsements in the 2018 application and now to the 2021 application is paragraph 3, titled “Transfers to Estate Trustee”. It simply states, “I give all my property to my Estate Trustee upon the following trusts” (emphasis added). That paragraph is followed by numbered paragraphs which deal with personal property, debts and death taxes, conversion of assets, and specific bequests.
b) The Limited Will
[31] Like the Primary Will, the Limited Will begins with a revocation clause. Paragraph 1 of the Limited Will says, “I revoke all Wills and Codicils previously made by me, save for my Primary Will that I have also executed this day.”
[32] Paragraph 2 deals with limited property as follows:
I declare this to be my Limited Property Will. I refer to this Will as my “Limited Property Will” because I am making another will on this date referred to as my “Primary Will”, which Primary Will is not to be revoked by this my Limited Property Will (nor is my Limited Property Will to be revoked by my Primary Will); rather my Limited Property and Primary Wills are intended by me to be complementary to one another. Subject to the terms set out hereafter, this my Limited Property Will addresses the disposition of only the assets described herein. In this Limited Property Will, the term “Will” shall mean Limited Property Will and the term Property[^6] shall mean:
(a) any interest whatsoever that I own or enjoy at the time of my death in any closely-held private corporation, including but not necessarily limited to ownership of indebtedness of, or shares in the capital stock of any such corporation, including without limitation, RIDEAU FOREST DEVELOPMENT LTD., KEN GORDON HOLDINGS INC., AND KEN GORDON INVESTMENTS INC. (“my corporations”), and any and all other private shares, and any assets held in trust (or otherwise) for me by any such corporation, including my corporations, and any shares or securities received in exchange or substitution for such shares or indebtedness.
Notwithstanding the foregoing, and notwithstanding anything else in this or any other valid Will I may leave at the time of my death, if any other asset or assets owned by me at the time of my death may, in the absolute and unfettered discretion of my Trustees be dealt with, transferred and disposed of to my beneficiaries, without requiring a testamentary grant (“probate”) or formal appointment of my Estate Trustees for such purpose, other than assets which I have specifically designated to persons who survive me in accordance with relevant legislation authorizing same, then I direct that all such other assets shall comprise part of my Limited Property Estate (and not my Primary Estate) the disposition of which shall be addressed and governed by this my Limited Property Will as part of the property disposed of thereunder as if it was specifically identified in this Will even if it is not specifically identified herein.
[33] It is unclear why the second of the two wills executed on December 10, 2014 is, on its title page, called “The Limited Will” but is (a) called the “Limited Property Will” in the unnumbered introductory paragraph of the document, and (b) declared, in paragraph 2 of the document, to be the testator’s “Limited Property Will”. Regardless of that slight difference in nomenclature, I refer to the second of the two wills as the “Limited Will” throughout this ruling.
[34] The only other paragraph from the Limited Will that requires specific consideration is paragraph 4(c). It falls within paragraph 4, titled, “Transfers to Estate Trustee”. Paragraph 4(c) deals with the division of corporate assets and provides as follows:
(c) One-third (1/3) of the rest and residue of my Estate shall be transferred to my daughter KAREN GORDON for her own use absolutely, and should she fail to survive me for a period of thirty (30) days such share shall be divided amongst her surviving issue in equal shares per capita, subject to the identical Trust provisions as contained in the preceding provision. Should no issue survive such share shall be transferred to KRISTOPHER GORDON’S Trust as set out in paragraph 8(d)ii.
[35] There is no paragraph 8(d)ii in the Limited Will.
The Law
a) Rectification
[36] As a court of equity, this court has the jurisdiction to rectify a will, specifically to prevent the defeat of the testator’s intentions due to errors or omissions by the will drafter: Re Estate of Blanca Esther Robinson, 2010 ONSC 3483 (“Robinson (ONSC)”), at para. 25, aff’d Rondel v. Robinson Estate, 2011 ONCA 493, 106 O.R. (3d) 321 (“Robinson (ONCA)”). Listed at para. 24 of the decision in Robinson (ONSC), are three situations in which the court has the jurisdiction to rectify a will and thereby correct unintended errors:
a) Where there is an accidental slip or omission because of a typographical or clerical error;
b) Where the testator’s intentions have been misunderstood; or
c) Where the testator’s intentions have not been carried out.
[37] On the 2021 application, rectification is requested on the basis of a typographical error made in paragraph 4(c) of the Limited Will - specifically to change “8(d)ii” to “4(d)ii”.
b) Evidence from the Drafter of the Will
[38] There is ambiguity in the language of both the Primary Will and the Limited Will because of (a) the use of the phrase “all my property” in paragraph 3 of the Primary Will, (b) the execution on the same day of the Primary Will and the Limited Will, and (c) the intention of the testator, set out in paragraph 2 of the Limited Will, that the two wills are intended to be “complementary to one another”.
[39] In support of the relief requested, the applicants rely on Mr. Cramer’s evidence. In his affidavit, Mr. Cramer provides evidence with respect to (a) the substantive content of the two wills, (b) the order in which the two wills were executed, and (c) the Deceased’s intentions as to how the “Property” as defined in the Limited Will was intended to be distributed.
[40] Mr. Cramer’s affidavit falls into the category of “extrinsic evidence” with respect to the Deceased’s circumstances and those surrounding the making of the will. Such evidence is admissible to aid in the construction of a will: Robinson (ONCA), at paras. 24, 29.
c) The Use of Multiple Wills in Estate Planning
[41] In Granovsky Estate v. Ontario (1998), 1998 CanLII 14913 (ON SC), 156 D.L.R. (4th) 557, at p. 567, Greer. J. highlighted that (a) the Estates Act, R.S.O. 1990, c. E.21, is an administrative statute, not a taxing statute, and (b) testators have the right to organize their affairs in such a way as to result in their estates paying as little as possible in both estate fees and taxes.
[42] The use of multiple wills is recognized by the courts in Ontario as a valid method to reduce the tax payable pursuant to the Estates Administration Tax Act, 1998, S.O. 1998, c. 34 (“EATA”): Re Milne Estate, 2019 ONSC 579, 431 D.L.R. (4th) 375, at para. 21. Testators often execute their testamentary document(s) years in advance of their death. As a result, it is not practical for a testator to set out a definitive list of the assets which fall within the portion of the estate to be probated and those which do not: Milne, at para. 22. For that reason, an allocation clause is frequently used and gives the estate trustee(s) the power to determine which assets require a certificate of appointment upon administering a will: Milne, at para. 22.
[43] Section 1 of the EATA defines the “value of the estate” as “the value which is required to be disclosed under section 32 of the Estates Act”. The latter statutory provision addresses the evaluation of an estate and provides as follows:
Evaluation
32 (1) The person applying for a grant of probate or administration shall before it is granted make or cause to be made and delivered to the registrar a true statement of the total value, verified by the oath or affirmation of the applicant, of all the property that belonged to the deceased at the time of his or her death.
Evaluation of subsequently discovered property
(2) When after the grant of probate or letters of administration any property belonging to the deceased at the time of his or her death and not included in such statement of total value is discovered by the executor or administrator, they shall, within six months thereafter, deliver to the registrar a true statement of the total value, duly verified by oath or affirmation, of such newly discovered property.
Evaluation of limited grant
(3) Where the application or grant is limited to part only of the property of the deceased, it is sufficient to set forth in the statement of value only the property and value thereof intended to be affected by such application or grant.
[44] For the purpose of the 2021 application, it is important that, pursuant to s. 32(3) of the Estates Act, probate may be granted with respect to only certain assets of an estate.
Analysis
a) The Operation of the Primary Will and the Limited Will
[45] The Primary Will and Limited Will are well-crafted and well-drafted; they reflect careful planning on the Deceased’s part as to how his estate would be administered.
[46] In his affidavit, Mr. Cramer refers to the Primary Will and “the Limited Property Will”. I assume that, by the latter, he means the Limited Will. Based on Mr. Cramer’s evidence, I make the following findings of fact:
• The Deceased executed the Primary Will and immediately thereafter executed the Limited Will;
• It was the Deceased’s intention that the Primary Will and Limited Will be read harmoniously or, as set out in paragraph 2 of the Limited Will, “complementary to one another”; and
• It was the Deceased’s intention that the Primary Will govern the distribution of all property other than that which falls within the definition of “Property” within the Limited Will.
[47] Can that intention be carried out without rectification of the Primary Will? The applicants submit that the answer to that question is, “yes”. I agree. It is not necessary to rectify paragraph 3 of the Primary Will for the Deceased’s intentions to be carried out.
[48] I find that, because of the order in which the two wills were signed by the Deceased on December 10, 2014, to the extent that there is any inconsistency in terms of the subject-matter of the Primary Will and the Limited Will, the latter revokes the former only as to those parts in which they are inconsistent: Niziol v. Allen, 2011 ONSC 7457, 76 E.T.R. (3d) 46, at para. 19, citing Re Fitzsimmons, 1939 CanLII 292 (NS CA), [1939] 2 D.L.R. 50 (N.S. S.C.), at p. 52.
[49] As the applicants submit, it would have been “better” if paragraph 3 of the Primary Will had referred to “all my property except the property disposed of by my Limited Will, executed on December 10, 2014”, rather than to “all my property”. Regardless, it is not necessary to rectify paragraph 3 of the Primary Will for it to operate as it would if the “better” language had been used.
b) The Request for a Certificate of Appointment
[50] At paras. 15-17 in Re Panda Estate, 2018 ONSC 6734, 42 E.T.R. (4th) 139, Penny J. concluded that there are several reasons for maintaining an analytical distinction between matters of probate and matters of construction. Those reasons include that,
• there is a difference in the type of evidence that is admissible with respect to matters of probate versus matters of construction. With respect to probate and proving a will, the court may admit direct evidence of the testator’s intention. Such evidence is only admissible in limited circumstances with respect to the construction of a will; and
• questions of interpretation, such as ascertaining the meaning of the testamentary documents, are not necessary to the grant of probate authorizing an estate trustee to act in accordance with the terms of a will.
[51] In Milne, the Divisional Court stated that they were inclined to agree with Penny J. in that regard, but that they did not have to decide the issue for the purpose of the matter before them.
[52] I note that in Panda Estate, the estate trustees brought a motion (not an application) for directions: para. 1. Based on the title of proceeding for that decision, it appears that the estate trustees brought their motion within the application commenced for the purpose of obtaining a certificate of appointment. The motions judge did not address matters of construction but did grant an application for certificate of appointment of the estate trustees.
[53] No doubt MacEachern J., who is presiding over the probate application, was mindful of the aforementioned analytical distinction when, in her July 2019 endorsement, she directed the applicants to bring before another judge the matter of construction addressed in this ruling.
[54] The 2018 application over which MacEachern J. is presiding is distinct from the 2021 application now before the court. From Mr. Cramer’s affidavit, and the two endorsements of MacEachern J., it appears that the title of proceeding in the 2018 application is as follows:
IN THE ESTATE OF
KENNETH ORMOND GORDON, deceased
[55] Applications for certificates of appointment are governed by rr. 74 and 75. Although a copy of the notice of application in the 2018 proceeding is not before the court, I assume that it and the other documents filed in support of a request for a certificate of appointment comply with either r. 74 (non-contentious proceedings) or r. 75 (contentious proceedings).
[56] In their 2021 notice of application, the applicants rely on rr. 74.04, 74.15(1)(i), and 75.06. It is not clear how those rules are relevant to the matter of construction before the court on the 2021 application.
[57] Rule 74.04 is titled, “Certificate of Appointment of Estate Trustee with a Will”. Rule 74.04(1) prescribes the materials to be “accompanied” with an application of that kind. The materials include items such as the original of the will and of every codicil (r. 74.04(1)(a)), proof of death (r. 74.04(1)(a.1)), and affidavit evidence attesting that the notice of application has been served as required under the rule (r. 74.04(1)(b)). None of those materials are before the court on the 2021 application.
[58] Rule 74.15 sets out the types of “Orders for Assistance” that may be sought on a motion within an application for probate under r. 74. As I have already noted, the applicants now before the court did not proceed by way of a motion within the 2018 proceeding, but rather by way of a separate application.
[59] Last, r. 75.06 deals with an application or motion for directions. Like r. 74.15, it sets out the types of orders that may be obtained; those orders are procedural in nature and not matters of construction such as that addressed in the 2021 application.
[60] There is no evidence before this court as to whether, in the 2018 proceeding, the estate trustees applied under r. 74 or r. 75 for a certificate of appointment.
[61] For all of the reasons set out above, I dismiss the application for a certificate of appointment under the Primary Will. That dismissal is without prejudice to the applicants pursuing, in the 2018 proceeding and before Justice MacEachern, their request for relief in the form of a certificate of appointment limited to the assets referred to in the Primary Will. With this ruling, the applicants have the substantive determination required for the 2018 proceeding to continue.
c) Rectification
[62] There is no evidence from Mr. Cramer as to the existence of a typographical error in paragraph 4(c) of the Limited Will (i.e., to the effect that “paragraph 8(d)ii” should read as “paragraph 4(d)ii”).
[63] In her affidavit, Karen reviews the manner in which the two wills are drafted. She sets out her belief as to why paragraph 4(c) in the Limited Will should have referred to “paragraph 4(d)ii” and not “paragraph 8(d)ii”. As I have already noted, she makes a conclusory statement that the error made in that regard “is a typographical error capable of rectification”. I have already found that statement to be inadmissible.
[64] Regardless, I find that paragraph 4(c) of the Limited Will includes a typographical error and that rectification of that error is required. The relief requested in that regard is granted.
Disposition
[65] For the reasons set out above, I make the following order:
THIS COURT ORDERS that paragraphs 20, 30, and 33 of the affidavit of Karen Gordon sworn on April 16, 2021 are struck.
THIS COURT ORDERS that, with respect to the affidavit of Kenneth Cramer sworn on May 10, 2019 (“the Cramer affidavit”), the requirement to comply with r. 4.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, is dispensed with.
THIS COURT ORDERS that the applicants are granted leave to rely on the Cramer affidavit.
THIS COURT ORDERS that the Limited Will executed by Kenneth Ormond Gordon, Deceased, on December 10, 2014 (“the Limited Will”), shall be and the same is hereby rectified, nunc pro tunc, in accordance with the instructions of Kenneth Ormond Gordon, Deceased, such that the reference to “paragraph 8(b)ii” in paragraph 4(c) of the Limited Will shall be deleted and replaced with a reference to “paragraph 4(d)ii”.
THIS COURT DECLARES that the Primary Will of Kenneth Gordon, executed December 10, 2014, governs the administration and distribution of all property of the Estate of Kenneth Ormond Gordon, Deceased, save and except for property disposed of pursuant to the Limited Will.
THIS COURT ORDERS that the request for a certificate of appointment under the Primary Will is dismissed, without prejudice to the applicants seeking that relief on the continuation of their application in Court file no. 38008/18.
[66] The relief requested in the notice of application does not include a request for the applicants to be paid their costs either from the Estate or by any one or more of the respondents. As a result, there shall be no order with respect to costs.
[67] It is incumbent on the applicants to continue their application in Court file no. 38008/18 before Justice MacEachern. They shall do so in the ordinary course, filing the requisite documents and communicating, as may be necessary, with either the office of the Trial Co-ordinator or with the Motions Co-ordinator to make the arrangements for that application to be continued.
Madam Justice Sylvia Corthorn
Released: January 28, 2022
COURT FILE NO.: CV-21-86921-ES
DATE: 2022/01/28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KAREN GORDON, KRISTOPHER GORDON and JEFFRY BRACKEN, in their capacity as Estate Trustees of the Estate of Kenneth Ormond Gordon
Applicants
– and –
MONICA GORDON, BENJAMIN KENNETH GORDON BANGS, NATALIE ELIZABETH GORDON BANGS, a minor, ANABELLE NANCY JOAN GORDON, a minor, and AMY MARIA GWENDOLYN GORDON, a minor
Respondents
RULING on application
Madam Justice Sylvia Corthorn
Released: January 28, 2022
[^1]: In this ruling, Kenneth Ormond Gordon is referred to as “the Deceased”. [^2]: For ease of reference, the Deceased’s children and, where necessary, grandchildren are referred to by their respective first names. [^3]: Also, for ease of reference, the cousin is referred to by his first name. [^4]: See the endorsements of Justice P. MacEachern, dated March 26, 2019 and July 15, 2019 in Court file no. 38008/18. The title of proceeding for that matter is, “In the Estate of Kenneth Ormond Gordon, deceased”. [^5]: See the endorsement of Justice P. MacEachern, dated July 15, 2019 in Court file no. 38008/18. [^6]: It appears that there should have been quotation marks around the word, Property given the use of quotation marks around the word, Will earlier in the same sentence.