COURT FILE NO.: CV-21-00000368-00 DATE: 2024-11-12 ONTARIO SUPERIOR COURT OF JUSTICE IN THE ESTATE OF Arturo Perlini (also known as Arturo Emmanuelle Perlini), deceased

BETWEEN:

ANNE MARIE LOUISE PERLINI AND ARTHUR H. PERLINI Moving Parties – and – SANDRA MARTONE Respondent

Paul Skeggs, for the Moving Parties Robert Micheli, for the Respondent

HEARD: October 22, 2024

Gareau J.

Reasons for Decision

[1] The parties are siblings. Their father, Arturo Perlini, died on March 4, 2021. Their mother predeceased their father. Prior to his death, Arturo Perlini resided at the F.J. Davey Home, a 374-bed long-term care nursing home, from April 2017 to the date of his death.

[2] The applicants are the estate trustees for the estate of Arturo Perlini under the terms of his last will and testament. The applicant, Anne Marie Louise Perlini, managed the property of Arturo Perlini under the terms of a power of attorney.

[3] The estate trustees have applied to parse the accounts of the estate of Arturo Perlini so that his estate can be finalized. Sandra Martone objects to the amount claimed as compensation by the estate trustee and the amount claimed by Anne Marie Louise Perlini by way of a management fee in her capacity as attorney for Arturo Perlini while he was alive.

[4] The late Mr. Perlini left a sizeable estate totalling $1,733,405.82. This estate was composed essentially of two pieces of real property, bank accounts and investments.

[5] The estate trustees are claiming 5% of the value of the estate as executor fees for administrating the estate. This totals $86,670.30 or $43,335.15 for each estate trustee. In addition to this amount, Anne Marie Louise Perlini is claiming the sum of $52,754.75 as compensation for a management fee for managing the late Mr. Perlini’s property for a four-year period from April 2017 to his date of death on March 4, 2021. The applicants suggest that the amounts claimed are the prescribed amounts that are usually awarded calculated on a percentage of the value of the estate. Sandra Martone claims that the amounts sought are unreasonable given what was required and how the applicants carried out their functions as estate trustee and what Ms. Perlini was required to do to manage the property of the late Mr. Perlini under the power of attorney.

[6] Counsel for Ms. Martone referred the court to the case of Poitras v. Canadian Cancer Society, 2021 ONSC 406, a decision of Justice Gomery of the Superior Court of Justice. As noted in paragraph 11 of that decision, “Under section 61(1) of the Trustee Act, R.S.O. 1990, c. T.23, a trustee 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’”. As noted in paragraph 12 of that decision, standard compensation is the sum of 2.5% of each of capital receipts, capital disbursement, revenue receipts and revenue disbursements with an additional management fee, generally calculated as 2/5 of 1% of the gross value of the estate, with this additional management fee to be the exception rather than the rule.

[7] The Poitras decision confirms that these calculations based on the value of the estate are a guide only and the ultimate decision as to what is a fair and reasonable allowance in each case lies in the discretion of the court based on the circumstances and facts involved in the administration of the estate.

[8] In determining what compensation is “fair and reasonable” the court should consider five factors as outlined in the Re Toronto General Trusts and Central Ontario Railway (1905) 6 O.W.R. 350 (H.C.) as endorsed in Laing Estate v. Hines, 41 O.R. 571 (Ont. C.A.). These factors are as follows:

(a) The total value of the estate; (b) The care and responsibility in its administration; (c) The time spent by the trustees in administering the estate; (d) The skill and ability shown by the trustee; and (e) The success of the administration.

[9] I agree with the suggestion made by counsel for Ms. Martone that this was not a complicated estate to administer. It involved a home, a cottage, and some money in the bank. Both the cottage and the home were ultimately sold as part of the estate administration. The sale of the home was delayed as a result of soil contamination, which ultimately involved an engineer and some remedial work. This delayed the sale of the home, but in my view, not for an inordinate or unexplained amount of time. The cottage was sold in May 2022, so 14 months after the death of Mr. Perlini. This, in my view, is also not an inordinate delay given the fact that it is reasonable that the property had to be readied for sale and sold in the summer months given it is a recreational property. Although Ms. Martone took issue with respect to the sale of the properties, I can find no issue in when or how they were sold in the circumstances. I do find that Ms. Martone makes a valid point about how the cash on hand was handled by the estate trustees. A substantial sum was left in a bank account and not invested in a higher interest earning investment account while the estate was being administered. In my view, the estate trustees were derelict in their duties in this regard and the estate undoubtedly suffered a financial loss as a result of it.

[10] It is also fair to say that the estate trustees were not forthcoming in providing financial information to Ms. Martone, financial records or in passing the accounts in a timely manner to wind up this estate. Ms. Martone had to bring the matter before the court to obtain this information and numerous court attendances were required to have information forthcoming to Ms. Martone.

[11] When the court considers the factors to be assessed there is no skill displayed by the trustees or no unusual care or responsibility assumed by the estate trustees that would entitle them to the maximum compensation of 5% of the value of the estate. The estate trustees were at times uncooperative with the beneficiary Sandra Martone, the estate was unnecessarily delayed in its administration and finalization and bad decisions were made at times by the estate trustees, for example, leaving over $600,000.00 in a bank account rather than investing it at a higher yield while the estate was being administered. It is not reasonable for the estate trustees to charge a “Cadillac” executors’ fee when “Cadillac” performance as estate trustees were not exhibited.

[12] When the court exercises its discretion and examines what was done in the administration of this estate to determine what is a “fair and reasonable” allowance for the care, pains, trouble and time expended by the estate trustees, a conclusion is reached that 5% of the value of the estate is not an appropriate amount. Given what was required in the administration of this uncomplicated estate and considering the factors set out in Re Toronto General Trustees and Central Ontario Railway, I am of the view that a fair and reasonable amount for executors’ compensation is 3% of the value of the estate, or $52,000.00 in total. That amount would give each estates trustee the sum of $26,000.00 in compensation.

[13] As to the amount that should be received by Anne Marie Louise Perlini as a management fee for her capacity as attorney under the power of attorney of Arturo Perlini, I conclude that the amount claimed of $52,754.75 is excessive and unreasonable in the circumstances. The services that Ms. Perlini had to perform were not complicated or onerous. It involved seeing that Mr. Perlini’s personal bills and bills associated with the cottage and house were paid, ensuring that the cottage and house were being maintained, and ensuring that his income tax returns were completed and filed on time with the Canada Revenue Agency. Ms. Perlini did this for her father for a period of four years. In my view, a reasonable fee for performing these services would be $2,500.00 yearly, for a total of $10,000 for the four years that Ms. Perlini performed these services.

[14] In conclusion, the following order is made by the court:

(a) That the estate trustees are allowed the sum of $52,000.00 total as estate trustee fees, to be divided in the amount of $26,000.00 to Anne Marie Louise Perlini, and the amount of $26,000.00 to Arthur H. Perlini; (b) That Anne Marie Louise Perlini is allowed the sum of $10,000.00 as compensation as attorney under the power of attorney of Arturo Perlini.

[15] With respect to the issue of costs, success has been very much divided. The estate trustees received compensation not in the amount they requested, but more than that suggested by Ms. Martone. Similarly, Ms. Perlini received compensation for her services under the power of attorney in an amount that was lower than she claimed, but more than was suggested by Ms. Martone. Given this divided success, the costs of the parties will be payable out of the estate, fixed in the amount of $3,000.00 in favour of the applicants Anne Marie Louise Perlini and Arthur H. Perlini, and in the amount of $12,000.00 in favour of the respondent, Sandra Martone.

Gareau J. Released: November 12, 2024