COURT FILE NO.: CV-20-00646698-0000

DATE: 20221027

ONTARIO

SUPERIOR COURT OF JUSTICE

TORONTO ESTATES’ LIST

BETWEEN:

Peter Galea

Applicant

– and –

Teresa Trybel, Tyler Curry, The Public Guardian and Trustee, The Kin Foundation of Canada, John Curry and Ann Smith

Respondents

Sean M. Sullivan and Amber Bonnell, for the Applicant

Teresa Trybel appeared on her own behalf

HEARD: October 14, 2022

C. gilmore, J.

judgment on application

INTRODUCTION

[1] The Applicant (“The Trustee”) seeks direction from the Court with respect to the winding up and distribution of a Trust (“the Trust”) held for the benefit of the Respondent Tyler Curry (“Tyler”). The Applicant is the Trustee of the Trust. As Tyler and his mother live in Florida, U.S.A., the Trustee seeks a further Order to have the Trust pay the cost of a Guardianship Application in Florida to ensure the trust funds are used for Tyler’s benefit. The Trustee also seeks compensation, legal costs and a holdback to pay for the winding up of the Trust and associated legal fees, compensation and taxes.

[2] The Respondent Teresa Trybel (“Ms. Trybel”) is Tyler’s mother. She and Tyler have brought a separate Application seeking an Order that the Trustee holds funds which are impressed with a constructive trust for the benefit of Ms. Trybel in her personal capacity or otherwise for the benefit of Tyler. Ms. Trybel seeks an Order that the Trust funds be paid to her personally.

[3] Ms. Trybel refuses to take steps to become Tyler’s Guardian of Property. Her position is that such a step is unnecessary as she has always been Tyler’s caregiver and she cannot be forced to become his Guardian of Property. Ms. Trybel also seeks damages and repayment of funds already paid out of the Trust for legal fees. She does not agree that the Trustee should be paid compensation or any legal fees.

[4] In her Endorsement dated June 9, 2022 Justice Dietrich ordered that the two Applications be heard together.

[5] Ms. Trybel’s position is that this Court does not have jurisdiction to hear this matter. In his Trial Management Endorsement dated April 20, 2022, Justice Cavanaugh ordered that Ms. Trybel’s jurisdiction challenge was to be heard at the commencement of the hearing of the Applications. The motion proceeded as directed by Justice Cavanaugh. I gave an oral ruling after submissions and determined that this Court had jurisdiction. The balance of the Application was heard thereafter.

[6] As per my reasons below, I find that the Trustee should be entitled to his legal fees, costs and compensation all paid out of the Trust. Once the Trust is wound up, the net proceeds are to be paid to Tyler’s Guardian of Property in trust as directed in the Florida Guardianship Proceeding.

BACKGROUND FACTS

[7] The Trustee seeks directions from the Court with respect to a distribution of a Trust held for the benefit of Tyler. Tyler is 20 years old and is allegedly incapable. He lives with his mother Teresa Trybel in Florida, U.S.A. There has never been a capacity assessment or corresponding finding of incapacity in relation to Tyler. However, no party has ever challenged the fact that because Tyler has Cystic Fibrosis, he requires full time caregiving for all aspects of his life and is unable to manage his own property.

[8] This litigation was commenced by Ms. Trybel when she issued an Application in August 2020 seeking payment of the Trust funds to herself personally or alternatively to Tyler.

[9] The Trustee commenced his Application for Directions in order to confirm the validity of the Trust, wind up the Trust, have his accounts and compensation approved, dispense with requirement to pass accounts and pay the Trust proceeds to a Guardian of Property appointed in Florida on behalf of Tyler.

[10] Ms. Trybel was married to Tyler’s father, Paul Curry (“Mr. Curry”). Tyler was diagnosed with Cystic Fibrosis in 2003. Ms. Trybel has confirmed that Tyler is developmentally delayed. She says that Tyler is under a legal disability.

[11] Ms. Trybel and Mr. Curry divorced in 2008. There were family law proceedings in relation to their separation and divorce. An Order dated September 15, 2011 by Justice Templeton awarded sole custody of Tyler to Ms. Trybel. Mr. Curry was required to maintain two life insurance policies for Tyler’s benefit with Ms. Trybel as Trustee of the policies. Those policies were Manulife Policy 8115048 for $500,000 (“the Manulife Policy”) and the RBC Policy 10667573 (“the RBC Policy”) for $350,000. The Manulife policy was paid to Ms. Trybel after Mr. Curry’s death. The RBC Policy lapsed. It is not known what Ms. Trybel did with the proceeds of the Manulife Policy or whether they were used for Tyler’s benefit. The Trustee was not aware of the family law proceedings nor was initially he aware of the Manulife or RBC policies.

[12] In February 2012 Mr. Curry advised the Trustee of a key man life insurance policy owned by his business (“Policy 600”). Mr. Curry advised the Trustee that he wanted to name him the Trustee of Policy 600, the proceeds of which were to be held for Tyler’s benefit. The Trustee agreed as he and Mr. Curry had been close friends for 45 years. Mr. Curry gave specific written instructions that the proceeds of Policy 600 were to benefit Tyler and not to be paid to Ms. Trybel. Policy 600 was transferred to Mr. Curry’s name personally in March 2012 just before his business shut down.

[13] In December 2012 Mr. Curry provided handwritten directions with respect to his Estate. The directions included his wish that Ray Eisenbach be the executor of his Estate and Mr. Galea the Trustee. He directed that all of his assets be sold and invested in low-risk investments or a Henson Trust for Tyler’s benefit. He specifically directed that Ms. Trybel should not receive any money from his Estate and that funds from his Estate were intended to solely benefit Tyler. Mr. Eisenbach provided a copy of the handwritten instructions to the Trustee after Mr. Curry’s death.

[14] Mr. Curry also had a Will dated April 21, 2006 which named Mr. Eisenbach as the Estate Trustee. The Will left Mr. Curry’s entire Estate to his children (Tyler was his only child on the date of his death) to be held by the Trustee and distributed in incremental percentages until Tyler turned 30 when he would receive the remaining 40%.

[15] Mr. Eisenbach advised the Trustee that he had submitted a claim to Forester’s Financial, the insurance company under which Policy 600 was held. On November 7, 2013, the Trustee received the proceeds of the Policy 600 in the amount of $751,705.48 in trust for Tyler Curry ($750, 000 plus interest of $1,705.40). The cheque was directed as In Trust for Tyler Curry c/o Peter Galea. The Trustee has no personal or financial interest in the Trust proceeds. The Trustee deposited the insurance proceeds into an RBC Investment Account on December 23, 2013. He chose RBC for transparency reasons as he had no prior affiliation with RBC.

[16] After that, the Trustee went about setting up the required Trust for Tyler. He engaged legal counsel (Mr. Nelson Amaral) to draft the Trust Agreement and an investment advisor at the Bank of Montreal (“BMO”) for investment advice.

[17] The Trust Agreement dated November 28, 2013 sets out that Tyler is the income and capital beneficiary of the Trust and the Trustee is the Settlor. The Trustee has discretion with respect to the distribution of the proceeds of the Trust other than that the Trust must be distributed to Tyler at age 30. The Trust Agreement also provides that the Trustee has the right to receive compensation and reimbursement for expenses incurred in the administration of the Trust.

[18] If Tyler dies before he turns 30, any remaining capital and income in the Trust is to be distributed to the Respondent Kin Canada Foundation (20%) and the remainder to be vested in a trust for certain of Mr. Curry’s relatives and maintained by the Respondents John Curry and Ann Smith. The Respondents other than Ms. Trybel did not file material or attend at the hearing.

[19] Between November 2013 and September 2020, the Trust incurred expenses for professional accounting and tax preparation, tax remittances, and legal fees to set up the Trust. The total expenses incurred by the Trust during that time were approximately $18,358.

[20] In February 2020 the Trustee advised Ms. Trybel of the existence of the Trust and wanted to make certain distributions to Tyler for his expenses and care. The Trustee sought evidence of Ms. Trybel’s legal guardianship of Tyler as well as receipts for expenses. In March 2020 Ms. Trybel began to demand the transfer of the Trust proceeds to her personally or that the Trustee pay her $10,000 per month for expenses for Tyler.

[21] Ms. Trybel’s position has always been that the Trust document is null and void as it was not signed by Mr. Curry. Further, paragraph 10 of the Family Court Order of Justice Templeton from 2011 (“the Templeton Order”) specifies that Mr. Curry was to maintain “both insurance policies for the sole benefit of the child with the Respondent as Trustee.” Ms. Trybel’s position throughout was that the Policy 600 was intended to be included as one of the policies and as such, she is the rightful Trustee, not Mr. Galea. The Trustee’s position is that the Policy 600 was not carried by Mr. Curry personally at the time of the Templeton Order and therefore could not have been part of the policies referenced in paragraph 10 of the Templeton Order.

[22] The Trustee relies on an Offer to Settle made by Mr. Curry with respect to the family law proceedings. In that Offer, the parties referenced two insurance policies on Mr. Curry’s life, the RBC and Manulife policies as follows:

9.2 Paul and Teresa acknowledge that there are two policies of insurance on Paul's life the particulars of which are as follows, namely: (a) Manulife Policy, Term to 71, coverage $500,000.00, policy number 8115048, policy date April 8, 2000; (b) RBC Life, Term to 75, $350,000.00 coverage, policy number 10667573, policy date May 31, 2005.

[23] The Trustee’s evidence was that the Policy 600 did not form part of the policies mentioned in the Offer to Settle or the Templeton Order and that the Templeton Order referred only to the two policies mentioned in the Offer to Settle.

[24] In May 2020 the Trustee received a letter from a lawyer retained by Ms. Trybel at Mills & Mills in Toronto which warned of litigation if the Trust proceeds were not paid out to her. Shortly thereafter she commenced her August 2020 Application and the Trustee retained Gowlings to act on behalf of the Trust. The Trustee later commenced his cross-application seeking directions on the disposition of the Trust and the discharge of his duties as Trustee.

[25] Tyler does not have a Guardian of Property. Ms. Trybel purports to act under a Florida Power of Attorney dated March 11, 2020. There are questions with respect to the Florida POA and its validity is contested by the Trustee with respect to both execution and whether Tyler could have instructed legal counsel to prepare a POA for Property.

[26] The Trustee does not want to pay the Trust proceeds to Ms. Trybel personally given the litigation history between Ms. Trybel and Mr. Curry and Ms. Trybel’s conduct in this litigation. The Trustee is concerned about a misuse of the Trust funds. Ms. Trybel’s position is that this allegation is intended to defame her and that there is no evidence that such misuse would take place.

[27] The total value of the Trust had grown to $1,003,189 as of January 2022. The Trustee has never taken any compensation from the inception of the Trust. In June 2021 the Trustee began to make payments from the Trust to Ms. Trybel of $7,000 per month for Tyler’s benefit. There was also a further payment from the Trust of between $10,000 - $13,000 for hospital expenses for Tyler. The current value of the Trust is approximately $830,000.

[28] The Trustee engaged Florida counsel, namely Ms. Jennifer Grant to provide an expert opinion on the guardianship issue. Ms. Grant opined that without cooperation from Ms. Trybel with respect to the use of the Trust funds, a Florida Guardianship application appointing a neutral guardian would be the only alternative to ensure that the Trust funds would be used for Tyler’s benefit.

JURISDICTION ISSUE

[29] As indicated above, an oral ruling was given after hearing submissions at the commencement of the hearing. In summary, Ms. Trybel argued that this Court did not have jurisdiction. It was not always easy to follow her submissions but in essence I took from her submissions that because the 2011 Templeton Order did not specify which two insurance policies Mr. Curry was to maintain, she is the rightful Trustee of the Policy 600 and the funds should be paid to her immediately as per the wording of paragraph 10.

[30] Further, as the Trust Agreement was not signed by Mr. Curry but created by the Trustee after Mr. Curry’s death, the Trust Agreement is null and void. Ms. Trybel advised that if this Court found that it had jurisdiction, she would appeal the decision and file criminal charges.

[31] Ms. Bonnell on behalf of the Trustee made three arguments. First, Ms. Trybel has filed no proper material on the jurisdiction issue although directed to do so by Justice Cavanaugh with specific dates by which the material was to be filed. As such, it was difficult for Ms. Bonnell to properly respond when she was not made aware of the arguments or case law on which Ms. Trybel would rely.

[32] Second, Ms. Trybel has already attorned to this jurisdiction as she commenced this litigation with her August 20, 2020 Application. She also relies on previous Superior Court Orders made in Family Court with respect to her entitlement to receive the Trust proceeds. She has attended every court appearance in this matter without exception.

[33] With respect to the factors in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, the Trustee relies on the following as presumptive connecting factors between the claim and this jurisdiction:

a. The insurance policy from which the Trust funds originated was an Ontario policy;

b. The Trust is an Ontario Trust.

c. The funds are held in an Ontario bank account.

d. The Family Law Orders relied upon by Ms. Trybel were made in the Ontario Superior Court of Justice; and

e. The Applicant resides in Ontario.

[34] There is no reason to move to the next step in Van Breda. There are a significant number of factors which connect this case to Ontario. However, the most important in this Court’s view are the following:

a. Ms. Trybel was the one who initiated litigation in Ontario when she commenced her Application in March 2020. Her attempts to persuade this Court the Application should be dismissed because her counsel was negligent in issuing it in the first place rang hollow. If Ms. Trybel had issues with her former counsel, those issues may take the form of a negligence-based damages claim but have nothing to do with jurisdiction.

b. Ms. Trybel relies heavily on the Templeton Order as a reason why she should be the Trustee of the Trust and not Mr. Galea. That Order was made in Ontario. Ms. Trybel cannot have it both ways. That is, she cannot assert this Court does not have jurisdiction, when the basis of her claim lies in the wording of an Ontario court Order.

c. Ms. Trybel appeared at every Case Conference and hearing in this matter without imposing any restrictions or exceptions with respect to the issue of attorning to this jurisdiction. I find that there is therefore a consent-based attornment to this jurisdiction by Ms. Trybel.

d. Finally, the fact that the Trust funds originated in Ontario, now form part of an Ontario Trust and are administered by a Trustee who resides in Ontario simply reinforces the conclusion that the jurisdiction for this matter must unquestionably be Ontario.

THE ISSUES

Issue #1 – Validity of the Trust

[35] Ms. Trybel claims that the Trust is “null and void” because it was not signed by Mr. Curry. Further, the Trustee did not have the right to retain the Trust funds or create the Trust Agreement because Ms. Trybel is the rightful Trustee.

[36] Both arguments must fail. Ms. Trybel is not the rightful Trustee of Policy 600. Her own legal counsel made reference to the policies which Mr. Curry was obligated to maintain pursuant to the Family Court Orders and settlement. None of those policies were the Policy 600. In fact, the Policy 600 was not even in Mr. Curry’s name until March 2012 when his business closed, and the key man insurance policy was transferred from the business to Mr. Curry’s name personally. Ms. Trybel received $500,000 from the Manulife Policy, a policy which Mr. Curry was obligated to maintain under the Templeton Order.

[37] Mr. Curry gave handwritten testamentary instructions in the year prior to his death in which he named Mr. Galea as his “Trustee.” He also had a personal conversation with Mr. Galea in February 2012 informing him that he intended to make him the Trustee of the Policy 600 and to ensure that the proceeds were used solely for Tyler’s benefit.

[38] I find that it was not necessary for Mr. Curry to sign the Trust Agreement for it to be effective. In reality, he could not do so as the Trust Agreement was formed in furtherance of his testamentary wishes. That is, the Policy 600 could not be paid out until his death and the Trust Agreement could not have been created until that point.

[39] As for Ms. Trybel’s claim that she is the rightful Trustee of the Policy 600, that argument must also fail. I find that the policies mentioned in the Templeton Order refer to the RBC and Manulife policies as clarified by Ms. Trybel’s own counsel. The Policy 600 was separate and the object of specific written and verbal instructions to the Trustee by Mr. Curry.

Issue #2 – Is a Formal Passing of Accounts Required?

[40] The Trustee seeks an Order that he is not required to provide a formal Passing of Accounts. His position is that he has provided significant disclosure related to the Trust’s expenses such that a Passing of Accounts is not required. Specifically, the Trustee has provided annual statements, copies of tax filings and other expenses (such as legal fees).

[41] In his April 7, 2022 affidavit, the Trustee attaches as Exhibits the disclosure he has provided to Ms. Trybel including gain/loss reports between 2014 – 2020, business account statements from 2013-2021, 2022 bank statement for the Trust, tax returns for 2013-2020, CPA tax invoices from 2013-2020, an updated Trust performance statement as of January 2022, and summaries for the RBC account for November and December 2021. A recent Trust performance statement from September 2022 shows the balance of the Trust on September 30, 2022 at $829, 671.

[42] The Trust has decreased in value due to the $7,000 per month payments made to Ms. Trybel since June 2021 and a further payment for health-related services for Tyler. In total the Trust has been depleted by $97,000. These payments have been made by the Trustee on a without prejudice basis as he has been dissatisfied with the receipts and vouchers provided by Ms. Trybel for Tyler’s expenses. The Trustee remains concerned that payments made to Ms. Trybel may not be fully benefitting Tyler.

[43] A full Passing of Accounts is not required in every case. The Court may consider the disclosure previously provided and the increased costs associated with a formal Passing of Accounts. In McAllister Estate v. Hudgin , 42 E.T.R. (3d) 313, the Court held that the production of financial records was sufficient where responses to questions raised by interested parties was sufficiently given.

[44] Ms. Trybel submits that she was not given adequate information about the Trust. Respectfully, I do not agree. This is a Trust which had very little activity in its first seven years of existence other than preparing tax returns and submitting taxes. As Ms. Bonnell submitted, the Trust has been rather “static” and the involvement of the Trustee minimal in this particular case.

[45] After the Trust became known to Ms. Trybel, distributions intended to benefit Tyler were commenced. Ms. Trybel is well aware of what those were as she received them. What is mostly in contention in this case is the legal fees and compensation claimed by the Trustee. That will be dealt with elsewhere in these reasons.

[46] Ms. Trybel has received copies of all statements in relation to the Trust as well as copies of income tax returns and information related to the cost of tax preparation and preparation of the Trust Agreement. Her requests for documents have been ongoing and have been fully responded to by the Trustee or his counsel.

[47] A formal passing of accounts in this straightforward accounting matter would only increase costs and thereby reduce funds which would otherwise be available for Tyler. As such, and in accordance with the reasoning in McAllister Estate , a formal Passing of Accounts will not be required in this case.

Issue # 3 – Is the Trustee Entitled to Compensation and if so, in What Amount?

[48] Section 61(1) of the Trustee Act, R.S.O. 1990, c.T.23 sets out as follows:

Allowance to trustees, etc.

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

[49] Where the Trust instrument does not set out a specific amount of compensation, a judge may fix an amount of compensation. In Ontario a practice has developed of awarding compensation based on 2.5% percentages of capital receipts, capital disbursements, revenue receipts and revenue disbursements along with, in certain cases, a management fee of 2/5 of 1% per annum on the gross value of the estate.

[50] The Trustee submits that he has met the required standard of care for the Trust. He retained professionals as needed and the value of the Trust was increased significantly over the years.

[51] Initially, the amount of time the Trustee spent on the Trust was minimal. However, once Ms. Trybel learned of the Trust, the Trustee’s time increased due to Ms. Trybel’s ongoing demands and having to both respond to and commence litigation. The Trustee’s position is that he has sought to wind up the Trust in Ontario and pay out the funds to a Guardian of Property in Florida as he no longer wishes to deal with Ms. Trybel’s demands.

[52] Ms. Trybel referenced wanting a 2020 long form tax document. No such document exists. I accept the Trustee’s evidence that he has provided all tax documentation to Ms. Trybel.

[53] Ms. Trybel also raised concerns about the Trust having paid over $9,600 to the Receiver General for tax filings in 2018 and 2019. This information was all provided to Ms. Trybel in 2021. During the course of her submissions Ms. Trybel stated as follows: “I have consulted a CPA who said that if the money was not taken out for the beneficiary, then no taxes should be paid period.” When questioned about this statement, Ms. Trybel backtracked somewhat and denied saying that taxes should not be paid out of the Trust. Rather, she said that she needed proof that taxes were paid in 2018 and 2019 if Tyler did not start receiving funds until 2021.

[54] Ms. Trybel’s concerns about the tax payments are not shared by this Court. Clearly taxes must be paid on Trust income. This is simply responsible fiscal management by the Trust. I find that Ms. Trybel did receive proof of the tax payments as evidenced in the Record.

[55] The Trustee has been managing the Trust for nine years including two years of litigation. In October 2020 the Trustee estimated he had spent a total of 160 hours managing the Trust. However, once the litigation started, his involvement increased significantly and by May 2022 the number of hours spent had skyrocketed to 660.

[56] The Trustee claims compensation of $46,767.58 based on the 2.5% calculation set out above and the following calculation:

Receipts

$751,705.48 (being the original amount of the Trust at its inception)

X

2.5% (0.025, being the standard compensation in Ontario)

= $18,792.64

Care and Management Fees

$751,705.48 × 0.4% = $3,006.82

X

8.5 years

= $25,557.97

Disbursements

$62,523.62- (being Canadian legal fees paid to date in this matter)

• $ 27,003.67 (being taxes paid to CRA)

• $ 7,149.96 - (being accounting fees)

= $96,677.25

$96,677.25 (being all X 2.5% (0.025)

= $2,416.93

Total Claimed

$18,792.68 (receipts) + $2,416.93 (disbursements) + $25,557.97 (care and management fees

= $46,767,58

[57] Ms. Trybell’s view is that no compensation should be paid to the Trustee for two reasons; 1) the Trust Agreement is null and void and 2) the Trustee previously offered to accept no compensation.

[58] I have already addressed the first argument elsewhere in these Reasons where I found that the Trust Agreement was valid and rejected Ms. Trybel’s various arguments that it was not.

[59] With respect to the second argument raised, it is true that at some point early in the litigation the Trustee offered to accept no compensation in the context of without prejudice settlement discussions. Thereafter, when it became clear that the matter could not settle, the Trustee took the position that he was entitled to compensation.

[60] I do not see why the Trustee in this case should not receive compensation at the standard rates accepted in Ontario and pursuant to the relevant sections of the Trustee Act as set out above. His care and management of the Trust has been diligent. He has hired professionals as needed, paid taxes as required and maintained financial records. He has grown the Trust significantly as a result of investments made by the investment adviser that he hired.

[61] The Trustee’s request for compensation comes about mostly as a result of the time spent on the litigation and Ms. Trybel’s ongoing requests for information, all of which, on a review of the record, I find were satisfied. Further, although entitled to take compensation pursuant to the Trust Agreement, the Trustee has taken none to date.

[62] As such, the compensation sought by the Trustee at the standard rate should be paid from the Trust in the amount of $46,767.58.

Issue #4 – Winding up of the Trust and Appointment of a Florida Guardian

[63] It is not contested that Tyler is not able to manage his own Property. Ms. Trybel purports to act under a Power of Attorney dated March 11, 2020 executed by Tyler in Florida. As a starting point there is a concern about Tyler’s capacity to execute such a document. Further, the POA was notarized five days after it was signed by Tyler. Ms. Trybel submitted that this was simply a date error and that she was there when the POA was properly notarized. Be that as it may, the concern remains that Ms. Trybel is acting under an invalid POA given Tyler’s capacity issues. I note that Tyler’s capacity has never been assessed despite a request by the Trustee’s counsel that an assessment should be undertaken.

[64] Given the Trustee’s concerns about Ms. Trybel’s conduct in this litigation, he amended his original Application and sought to either have Ms. Trybel (with her consent) or a third- party individual or institutional Guardian appointed for Tyler. The Trustee then sought to wind up the Trust and pay the proceeds to the appointed Guardian for Property.

[65] In furtherance of such steps, the Trustee hired Florida counsel, Ms. Jennifer Grant to provide an expert opinion on the appointment of a Guardian of Property in the State of Florida. Given the Trustee’s obligations to ensure the Trust proceeds are used solely for Tyler’s benefit, the Trustee refused to pay the Trust funds to Ms. Trybel personally as she had insisted.

[66] The report provided by Ms. Grant indicates that a Guardianship in Florida is the best and only mechanism to ensure the Trust funds are used solely for Tyler’s benefit. As Ms. Trybel refuses to consent to act as Tyler’s Guardian in Florida, the Trustee proposes that the Trust be wound up and fund the cost of the Guardianship proceeding in Florida.

[67] Ms. Grant has been practicing in the area of estate, trust and guardianship litigation in Florida since 2006. She holds a Masters of Law in estate planning. She was retained by the Trustee’s counsel in October 2021 to provide a letter of opinion with respect to the process under which a guardianship may be commenced under Florida law. She signed a Form 53 Acknowledgement of Expert’s Duty.

[68] Absent Ms. Trybel’s consent to agree to a mechanism to ensure the funds are used solely for Tyler’s benefit, a professional Guardian appears to be the only alternative. This would ensure a Florida Court would monitor to ensure the funds are spent for Tyler’s benefit and in a manner that would last his anticipated life span. Ms. Grant described the Guardianship process in Florida which she explained was both efficient and inexpensive.

[69] Ms. Grant appeared at the hearing and the Court asked her certain questions. According to Ms. Grant, Florida does not have the equivalent of the Ontario Public Guardian and Trustee. As such, a private individual or institution must be appointed. Ms. Grant was aware of several private individuals who took on Guardianships professionally and were very experienced. She advised that the ones she was aware of charged in the range of $85 per hour.

[70] Ms. Trybel was outraged there would be ongoing fees charged for Tyler’s Guardianship. However, without Ms. Trybel’s consent to act as Tyler’s Guardian and the accompanying legal obligations, there is little choice but to resort to a third-party guardian.

[71] It is not reasonable or logical for Mr. Galea to continue as the Trustee. Inevitably, he would continue to be at a constant impasse with Ms. Trybel in terms of her ongoing demands and the Trustee’s concerns that funds were not being used solely for Tyler.

[72] Ms. Trybel advised the Court that she refused to be forced to undertake Tyler’s Guardianship. She has been his lifetime caregiver and there is no law that requires her to go further. She will continue to act under the POA which has been accepted by many governmental and health care institutions.

[73] Given Ms. Trybel’s position and the obligations and concerns of the Trustee, it is clear that the Court has no alternative. The Trust in Ontario must be wound up, liquidated and the proceeds paid to a properly appointed Guardian in Florida.

Issue #5 – Costs

[74] This was the most contentious matter in this hearing. Ms. Trybel does not agree that the Trustee should be paid any of his legal costs. She views the payment of the initial retainer to Gowlings from the Trust to defend her Application as theft. She insists that those funds be returned to the Trust along with any loss of investment income inclusive of interest.

[75] The costs issues can be broken down into three main categories; legal costs for the Trustee’s counsel including Ms. Grant’s fees, a holdback for the winding up of the Trust including further compensation, taxes and legal fees, and the irrevocable direction to Hull & Hull.

[76] Paragraph 64 of the Trustee Act, permits payment of costs incidental to a court application to be paid out of the Trust or as the Court directs. The Trustee seeks to be indemnified for his substantial indemnity costs in the amount of $143,417.01. This amount includes the initial retainer paid to Gowlings and the fees paid to Ms. Grant totaling $10,747.51.

[77] The Trustee relies on Goodman Estate v. Gefen, [1991] 2 S.C.R. for the proposition that the Courts have long held that Trustees are entitled to be indemnified for all costs which they have reasonably incurred, including the costs of an action reasonably defended: Para. 75.

[78] Further, in Wood v. Wood, 28 E.T.R. (3d) 293, the Court held that the costs of the winding up of corporation and an unnecessary passing of accounts was to be paid by one of beneficiaries personally as that beneficiary was found to have “unnecessarily prolonged the conclusion of the Estate”: para. 22.

[79] In this case, the Trustee is not seeking legal costs against Ms. Trybel personally but is seeking that he be fully reimbursed by the Trust. His position is that he had no choice but to defend Ms. Trybel’s initial application. He then had to take steps to issue an Application for Directions when it became clear that Ms. Trybel would not consent to be appointed Tyler’s Guardian of Property and continued to insist that the Trust proceeds should be paid to her personally.

[80] The Trustee submits that it was his reasonable expectation, as set out in the Trust Agreement, that he would be reimbursed for his reasonable expenses. He directed that Gowling’s initial retainer be paid from the Trust but given Ms. Trybel’s actions thereafter, he has shouldered all of the legal costs personally.

[81] The Trustee further submits he has acted reasonably in engaging Florida counsel to provide an expert letter of opinion related to the process of appointing a Guardian of Property for Tyler in Florida in keeping with his obligations to ensure that all Trust proceeds be used for Tyler’s benefit.

[82] Finally, the Trustee submits that it is reasonable for the Trust to be wound up and paid to the Guardian in Florida. The Trustee no longer wishes to personally shoulder fees and expenses for the Trust and deal with Ms. Trybel’s conduct and demands.

[83] The Trustee points to specific items which prolonged this proceeding. For example, Ms. Trybel refused to accept service on Tyler’s behalf and a court appearance was required. As well, no agreement could be reached on the monthly amounts to be paid to Tyler from the Trust. Ms. Trybel insisted on receiving over $10,000 per month. A court appearance was required, and an Order made for the payment of $7,000 per month.

[84] Ms. Trybel insisted that this hearing would take two days and not one. The scheduling of this hearing therefore required a further court appearance. I note that this matter actually took less than one day to be fully heard.

[85] Ms. Trybel’s refusal to consent to become Tyler’s Guardian of Property has necessitated this Application for Directions, the retention of an expert in Florida guardianship law and further delay and expense.

[86] I note the endorsement of Justice Conway on November 15, 2021 in which she states, “This cannot be resolved at a Case Conference. It must proceed to adjudication.”

[87] In summary, I find that the Trustee’s actions have been entirely reasonable. Those of Ms. Trybel have not been reasonable and necessitated both a full day hearing, more expense and significant delay. The Trustee should be paid his substantial indemnity costs to date.

[88] As $250,000 holdback is requested to pay for the cost of the winding up, the Florida Guardianship Proceeding and any associated taxes, compensation and legal fees. This is a significant amount given that the taxes for the 2018/2019 tax years were approximately $9,500. I am prepared to set aside $100,000 for this additional work, which in this Court’s view is still very generous. A full accounting of the costs of the winding up and related expenses must be provided to the appointed Guardian of Property and any excess amounts to be, of course, returned to the Guardian of Property in trust for Tyler.

[89] The final issue related to costs is an Irrevocable Direction signed by Ms. Trybel on June 26, 2020. The Direction is in favour of Hull & Hull, LLP in the amount of $40,000 and directs that this amount is to be paid to secure legal fees to recover funds held by the Trustee to which Ms. Trybel asserted entitlement. The Direction is directed to the Estate of Paul Curry, the Trustee and all persons acting on behalf of the Estate, Peter Galea or any person who may be required to make payment to Ms. Trybel or Tyler.

[90] Ms. Trybel was adamant that the Direction not be honoured as her former counsel did not follow her instructions and she was forced to terminate her retainer with them. Further, she had a contingency arrangement with Hull & Hull such that their fees would not be paid unless Ms. Trybel recovered any amounts under the Trust. She repeated several times that she was unaware that when she filed her initial Application that it may mean that she attorned to this jurisdiction. She also instructed her counsel at Hull & Hull to bring a motion to freeze the Trust funds which he failed to do. Ms. Trybel submitted that notwithstanding the terms of the Irrevocable Direction, the funds be withheld given her contingency arrangement with Hull & Hull and her allegations of negligence against her former counsel.

[91] I do not intend to wade into any arrangements that Ms. Trybel may have had with her former counsel. The document is evidence of her intention and as such, Gowlings is to retain $40,000 and pay out Hull & Hull up to that amount upon presentation of invoices.

Issue #6 – Other Arguments Raised by Ms. Trybel

[92] Ms. Trybel raised various other arguments during the hearing which, in this Court’s view were not relevant to the Application for Directions. However, those arguments should be addressed to ensure that Ms. Trybel fully understands why the relief sought by the Trustee is being granted.

[93] I summarize the arguments made by Ms. Trybel that have not already been addressed above as follows:

a. The Trustee and his lawyers have been complicit in hiding money from Ms. Trybel.

b. The Trustee had no authority to create the Trust Agreement or use Trust funds to pay a lawyer to draft the Agreement.

c. Mr. Curry’s 2006 Will stated that Tyler’s beneficial interest in his Estate was to be held by Ms. Trybel.

d. There is no law that requires her to become Tyler’s Guardian of Property. Forcing her to do so is a violation of her personal and constitutional rights.

e. Mr. Curry was in contempt when he changed the Trustee of Policy 600 to Mr. Galea in April 2012. Mr. Curry was bound to follow the Family Court Orders which required him to maintain life insurance policies with Ms. Trybel as the Trustee.

f. Ms. Trybel has been defamed by the Trustee and his counsel when they claim concerns about her potential misuse of Trust funds.

g. It was illegal for the Trustee to invest funds on behalf of a non-resident.

h. The Trustee and his counsel have been deceptive and used fraudulent business practices by misappropriating Trust fund property.

i. The Trustee has committed perjury and fraud. He has misled the Court and provided misinformation.

j. The Trustee’s Application is frivolous and vexatious and should be dismissed.

[94] I reject all of these submissions for the following reasons. First, many of them are quite shocking considering that they were made without proof or evidence. I find, on the contrary, that the Trustee and his counsel have acted with the utmost transparency and courtesy towards Ms. Trybel, and that at all times they were trying to do their best to benefit Tyler.

[95] The Trustee has not misappropriated any Trust funds. On the contrary, he has provided all relevant banking documents, proof of expenses and tax returns. He has gone without compensation and personally shouldered significant legal fees over many months. It cannot be left unsaid that the legal fees would have been far less significant if Ms. Trybel had not taken the position that the Trust funds were to be paid to her personally and without conditions.

[96] Mr. Curry’s 2006 Will relates to the distribution of his Estate. The Policy 600 passed outside of his Estate and therefore any references to Ms. Trybel in the Will are irrelevant to the Policy 600 beneficiary designation.

[97] I have already addressed the issue of Mr. Curry’s alleged contempt by finding that the life insurance policies referenced in the Templeton Order were the Manulife and RBC policies and the Policy 600 was both separate and not contemplated by either the Templeton Order or the parties’ attempts at settlement at that time.

[98] Neither the Trustee nor his counsel have misappropriated Trust funds, misled the Court or hidden Trust funds. The fund was grown considerably the Trustee’s efforts and stewardship. All questions raised by Ms. Trybel were adequately answered. As for her allegation that it was illegal for the Trustee to invest funds on behalf of a non-resident, that is simply factually wrong. Ms. Trybel provided a Fintrakk document which states that a Canadian investment account cannot be opened by a non-resident. The document does not address payments to a non-resident from a Canadian investment account opened by resident of Canada.

[99] In summary, while I appreciate that Ms. Trybel was both well prepared for the hearing of this matter and respectful to the Court, many of her arguments were misguided and not relevant to the issues at hand. Her hoped for future cooperation with a Florida-appointed Guardian would ensure minimal future depletion of Tyler’s Trust funds.

ORDERS

[100] Given all of the above, I make the following Orders:

a. The following amounts shall be paid from the Trust:

i. The Trustee shall be paid all inclusive compensation of $46,767.58 for the period commencing from the inception of the Trust to the date of release of this judgment.

ii. All-inclusive legal fees on a substantial indemnity scale in the amount of $143,417.01 net of the retainer previously paid and including Ms. Grant’s professional fees.

iii. A $100,000 holdback to be retained by Gowlings to cover the cost of taxes, legal fees and compensation for the winding up of the Trust and the Florida Guardianship Proceeding.

iv. $40,000 to be retained by Gowlings with respect to the Irrevocable Direction in favour of Hull & Hull and subject to invoices provided by Hull & Hull. Any remaining amounts after payment of the invoices to be returned to the Trust.

v. The Trust to continue to pay Ms. Trybel the sum of $7,000 per month for Tyler’s benefit pending the winding up of the Trust, such payments to be made on a without prejudice basis.

b. Ms. Trybel’s Application is hereby dismissed.

C. Gilmore, J.

Released: October 27, 2022

COURT FILE NO.: CV-20-00646698-0000

DATE: 20221027

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Peter Galea

Applicant

– and –

Teresa Trybel, Tyler Curry, The Public Guardian and Trustee, The Kin Foundation of Canada, John Curry and Ann Smith

Respondents

JUDGMENT ON APPLICATION

C. Gilmore, J.

Released: October 27, 2022