Court File and Parties

Court File No.: CV-24-715480-00ES Date: 2024-04-23 Superior Court of Justice - Ontario

Re: IN THE ESTATE OF WEIRONG HUANG, deceased QIAO HUANG, a minor by his Litigation Guardian, THE CHILDREN’S LAWYER, Applicant

AND:

ZHIWEI NIE, Respondent

Before: M.D. Faieta J.

Counsel: Bridget McInnis, for the Applicant No one appearing for the Respondent

Heard: April 23, 2024

Endorsement

[1] The Applicant brings this motion to compel the Respondent to pass her accounts.

Background

[2] Weirong Huang died on September 23, 2019. The Applicant is the Deceased’s 17‑year‑old son, and the Respondent is the Deceased’s widow. In May 2020, the Respondent applied for a Certificate of Appointment of Estate Trustee without a Will. Her application states that the Estate had a value of $651,137.89 comprised of two bank accounts with a total value of $111,348.89 and real estate, net of encumbrances, of $539,753.00. In June 2020, the Respondent’s former counsel advised The Children’s Lawyer (“OCL”) that the Respondent wished to remain in the matrimonial home and hold the Respondent’s interest as guardian of property. The OCL responded that it had questions about the valuations and how the Applicant’s interests would be adequately protected under the proposed plan. No further response was received and in November 2020, the Respondent’s counsel advised that he had not heard from his client in some time.

[3] In February 2021, the OCL received correspondence from the Respondent’s agent who indicated that the Respondent would be applying for a Certificate of Appointment and sought the OCL’s consent to dispense with posting a bond. No such consent was granted, and a bond was filed with the court by the Respondent. The Respondent applied for, and on February 10, 2022, was granted a Certificate of Appointment of Estate Trustee without a Will.

[4] On December 20, 2022, the OCL sent the following letter to the Respondent:

The Office of the Children’s Lawyer represents the interests on minors (individuals under the age of 18) in certain estate matters in Ontario.

This office was contacted by Christopher Crisman-Cox, counsel, by letter dated June 23, 2020, to discuss your intention to bring the guardianship of property application to authorize you to manage your son’s inheritance from your husband’s estate. Attached is my email (with attachment) sent in reply to his letter.

Later, I was advised by Mr. Crisman-Cox that he had lost contact with you, but I was contacted by ETP Canada in respect of your application to be appointed estate trustee for your deceased husband’s estate (of which Notice of the Application had to be served on my office).

My understanding is that a Certificate of Appointment of Estate Trustee without a Will was issued to you on February 10, 2022.

As your son is a beneficiary of the estate, my office requires the following information in respect of the estate administration:

1. A copy of the Application for the Certificate of Appointment (this is distinct from the Notice of Application for the Certificate of Appointment, which we already have);
2. A list of the assets owned by the deceased on the date of death; and
3. A list of debts.

I note that we had been advised by Mr. Crisman-Cox in his initial letter that you wished to retain the property, and I can advise that an estate trustee without a will is required to administer the estate in a timely manner by selling assets, paying debts, and making a distribution to the beneficiaries, and any deviation from that would require my office’s consent and likely a court order.

I look forward to hearing from you.

[5] The Respondent did not respond to the above letter.

[6] The OCL sent a further letter, by courier, to the Respondent dated July 17, 2023. It states:

… I am writing further to the letter …of December 20, 2022 …

I understand that you were issued a Certificate of Appointment of Estate Trustee without a Will on February 10, 2022.

As your son is a minor and a beneficiary of his father’s estate, I require certain information regarding the estate administration:

• A copy of the Application for the Certificate of Appointment of Estate Trustee without a Will
• A list of assets owned by the deceased on date of death
• A list of debts owed by the deceased on date of death
• A list of all receipts (money received) and disbursements (money spent) since date of death, along with a list of any outstanding debts.

Please provide me with the above information as soon as possible.

[7] The Respondent did not respond to the above letter.

[8] The OCL sent a third letter to the Respondent dated February 9, 2024. It states:

… I understand that you were issued a Certificate of Appointment of Estate Trustee without a Will on February 10, 2022. My office has been seeking an accounting of the estate from you since December 2022. To date, we have not received any response from you.

As your son is a minor and a beneficiary of his father’s estate, I require certain information regarding the estate administration:

• A copy of the Application for the Certificate of Appointment of Estate Trustee without a Will
• A list of assets owned by the deceased on date of death
• A list of debts owed by the deceased on date of death
• A list of all receipts (money received) and disbursements (money spent) since date of death, along with a list of any outstanding debts.

Please provide me with the above information as soon as possible. …

If you do not provide the requested information by March 8, 2024, I will be commencing court proceedings against you, seeking an Order requiring you to pass your accounts. If this step is necessary, we will be seeking our costs against you personally.

[9] The Respondent did not respond to the above letter.

[10] On April 4, 2024, the Respondent was personally served with this Application Record.

[11] The Respondent did not file a Notice of Appearance or any other materials.

Analysis

[12] An estate trustee has a duty to keep proper books of account and to be always ready to account for the trust property that they administer: Wall v. Shaw, 2018 ONCA 929, para. 23.

[13] An application for an order requiring an estate trustee to pass accounts may be brought by any person “who appears to have a financial interest in an estate”: Rules of Civil Procedure, R.R.O. 1990, Reg. 194., Rule 74.15(1)(h).

[14] While there is no obligation on an estate trustee to file the accounts of the estate or to bring an application to pass their accounts, an estate trustee may be compelled to do so pursuant to s. 50(1) of the Estates Act, R.S.O. 1990, c. E.21 which states:

An executor or an administrator shall not be required by any court to render an account of the property of the deceased, otherwise than by an inventory thereof, unless at the instance or on behalf of some person interested in such property or of a creditor of the deceased, nor is an executor or administrator otherwise compellable to account before any judge.

[15] The passing of accounts initiates a judicial "inquiry" into the affairs of an estate: Wall v. Shaw, 2018 ONCA 929, para. 47.

[16] An order for the passing of accounts may be required when an applicant raises a significant concern in respect of the estate trustee’s management of the estate whether related to misfeasance, wrongdoing or a significant erosion of estate: Dzelme v. Dzelme, 2018 ONCA 1018, at para. 7; McEwen v Little, [1953] 4 DLR 287, at para. 6 (Sask.C.A.). While Dzelme involved an order for the passing of accounts in respect of a person exercising a power of attorney for property under s. 42 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 the principle is equally applicable to applications under s. 50(1) of the Estates Act. A passing of accounts may also be refused where the estate is of a modest size: Painter v. Painter Estate, 2008 ONCA 203, at para. 3.

[17] I grant the relief sought by the Applicant. Assuming the values provided by the Respondent, through her former counsel, are correct, the Applicant’s interest in his father’s Estate amounts to about $225,000.00. More than 4 ½ years have passed since his father’s death. More than two years have passed since the Respondent was appointed as Estate Trustee. The Respondent has ignored the OCL’s correspondence, this application, and most significantly, her son’s interests as a beneficiary of his father’s estate and in having the estate administered in a timely and transparent manner. The Children’s Lawyer has advised that it may seek an order of contempt of court if the Respondent fails to comply with this Order.

[18] Order to go as follows:

(a) The Respondent shall file accounts of the Estate of Weirong Huang and an Application to Pass Accounts, in accordance with rules 74.17 and 74.18 of the Rules of Civil Procedure, in the Court office within 45 days after this Order is served on the Respondent. (b) The Respondent shall forthwith provide her email address to The Children’s Lawyer and to the Court. (c) The Children’s Lawyers costs are fixed in the amount of $5,000.00, inclusive of HST and shall be paid forthwith by the Respondent, personally. (d) The parties shall attend before me on June 12, 2024, at 8:45 am by videoconference for a case conference.

Mr. Justice M.D. Faieta Date: April 23, 2024