Reasons for Judgment
Court File No.: CV-23-00698004-00ES
Date: 2025-06-20
Ontario Superior Court of Justice
Between:
Lisa Elizabeth Helsdon, Applicant
– and –
Michael Wilson, Jessica Wilson, and The Office of the Children’s Lawyer, Respondents
Appearances:
- Natalia R. Angelini, for the Applicant
- Michael Wilson, Self-Represented
- Jillian Evans, for the Children’s Lawyer
Heard: April 22, 2025
Released: June 20, 2025
Judge: B. Dietrich
Introduction
1This application is brought by Lisa Elizabeth Helsdon (“Lisa” or the “Trustee”), in her capacity as the sole remaining Trustee of a testamentary trust (the “Trust”) for the benefit of the respondent, Michael Gordon Wilson (“Michael”).1
[2] Lisa, qua Trustee, seeks:
a) an order passing her accounts for the period from January 1, 2020 to December 31, 2022;
b) an order dispensing with any obligation on her to formally pass her accounts for the period from January 1, 2023 to the date of the judgment granted, in respect of which she has produced an informal accounting to December 31, 2024;
c) an order removing her as Trustee and appointing CIBC Trust Corporation (“CIBC Trust”) as successor trustee in her place and stead; and
d) an order for costs.
3For the reasons that follow, I find that the relief sought should be granted.
Background Facts
4The Trust was established on March 8, 2001 pursuant to the last will and testament (the “Will”) of Michael’s father, Lawrence James Wilson (“Mr. Wilson”). Mr. Wilson died on September 4, 2000.
5In the Will, Mr. Wilson appointed his spouse, Geraldine Eleanor Wilson (“Mrs. Wilson”) and his daughter, Lisa, as the trustees of the Trust (the “Trustees”).
6The Will directs that the Trust be established with a value of $1.5 million for Michael’s benefit, during his lifetime. On Michael’s death, the Trust remaining is to be divided among Michael’s surviving issue. Presently, Michael has an adult daughter, the respondent, Jessica Wilson (“Jessica”), and no other issue.
7The terms of the Trust direct the Trustees to pay to Michael quarterly income installments in their discretion, including up to the whole of the income earned. Following the death of Mrs. Wilson, the Trustees are permitted to encroach on capital for Michael’s benefit, provided that such capital payments do not exceed ten per cent (10%) in any year of the principal amount of the Trust existing at the time of death of the survivor of Mr. Wilson and Mrs. Wilson.
8In or around 2017, Mrs. Wilson resigned as a Trustee of the Trust owing to cognitive decline. Lisa continued to act as the sole Trustee. Mrs. Wilson died in November 2022.
9On December 17, 2021, Gilmore J. granted judgment on a passing of accounts for the Trust for the period from March 8, 2011 to December 31, 2019.
10Lisa delivered for approval by the beneficiaries of the Trust a formal accounting of the Trustees’ administration of the Trust for the period from January 1, 2020 to December 31, 2022 (the “Formal Accounting”). She also delivered an informal accounting of her administration of the Trust for the period from January 1, 2023 to December 31, 2024 (the “Informal Accounting”).
11Jessica has made no objection to the Formal Accounting, including the compensation and costs sought, and no objection to the Informal Accounting. Jessica does not oppose the appointment of CIBC Trust as succeeding trustee. In a letter dated January 10, 2024, Jessica stated that she has no objection to how her aunt, Lisa, administers the Trust. In her letter, Jessica expressed concern about the costs involved in contested passings of accounts and the impact of those costs on her and any children she may have, all of whom are contingent beneficiaries of the Trust.
12The Children’s Lawyer raised objections to the Formal Accounting, to which Lisa, as Trustee, replied. The objections were resolved through negotiation between these parties by January 30, 2024. The Children’s Lawyer withdrew her objections, and she does not oppose the appointment of CIBC Trust as succeeding trustee.
13Michael also raised objections to the Formal Accounting, which have not been resolved. Michael opposes the appointment of CIBC Trust as succeeding trustee.
Positions of the Parties
Lisa, as Trustee
14Lisa submits that she is entitled to a judgment on the Formal Accounting, which would approve her compensation and a care and management fee, approve her request for increased costs (above those permitted by Tariff C), waive any obligation for her to formally pass accounts in respect of the Informal Accounting, order her removal as Trustee of the Trust, and order the appointment of CIBC Trust as successor trustee.
15Lisa submits that Michael’s objections to her Formal Accounting overlapped with the objections raised by the Children’s Lawyer and have been fully answered. Lisa submits that Michael ought to have withdrawn his objections once the Children’s Lawyer had withdrawn her objections. Lisa contends that Michael’s refusal to withdraw his objections is motivated by animosity towards her. Further, Lisa submits that Michael has made patently false and scurrilous allegations towards her, which intersect with other court applications regarding Mr. Wilson’s estate and Mrs. Wilson’s estate, and that this conduct has resulted in elevated costs, for which he, personally, should be held responsible.
Michael
16On September 28, 2023, Michael filed a notice of objection to accounts and objected to the Formal Accounting, the Trustee’s claim for compensation, and the appointment of CIBC Trust as Trustee. Michael was represented by counsel, Robert G. Hiseler (“Mr. Hiseler”), at that time.
17On December 19, 2023, Mr. Hiseler filed a further notice of objection to accounts, essentially confirming the objections in his earlier objection, and making additional assertions regarding Lisa’s administration of the Trust.
18Mr. Hiseler was removed from the record on September 10, 2024. Since that time, Michael has been self-representing. Michael did not deliver any material apart from his notices of objection, on which he relied at the hearing. Opposing counsel did not object to Michael making submissions based on his notices of objection.
19Michael submits that he has been treated unfairly by Lisa and that she has reduced his income from the Trust, and at times, she has denied him any income from the Trust. He submits that this conduct resulted in him having to sell his home and move to Bobcaygeon, Ontario.
20Michael further submits that the Trust should be collapsed, and that the capital should be paid out to him and Jessica. He asserts that he will never have any more children and that Jessica has no intention of having any children. Therefore, only he and Jessica are beneficiaries of the Trust, and they can jointly call for it to be collapsed.
The Children’s Lawyer
21In her notice of objection, dated September 28, 2023, the Children’s Lawyer, on behalf of Michael’s unborn issue, objected to Lisa’s claim for compensation and made various objections to the Formal Accounting.
[22] Subsequently, on January 9, 2024, Lisa and the Children’s Lawyer agreed to:
a) a reduction in the Trustee’s all-inclusive claim for compensation (from $54,234.75 to $25,000);
b) Lisa’s removal as Trustee and the appointment of CIBC Trust as succeeding trustee; and
c) a withdrawal of the Children’s Lawyer’s objections subject to her approval of the Informal Accounting, in respect of which Lisa would not be entitled to compensation.
Issues
23The issues in this application are as follows:
Should a judgment issue passing the accounts represented by the Formal Accounting after consideration of the following:
a) Should Lisa be entitled to compensation in the all-inclusive amount of $25,000?
b) Have Michael’s objections to accounts been satisfactorily addressed?
c) Should Lisa be granted a waiver of a formal passing of accounts for the Informal Accounting updated to the date of the judgment?Should Lisa be removed as Trustee and CIBC Trust be appointed as succeeding trustee in her place and stead?
How should costs be addressed?
Analysis
Formal Accounting
Should Lisa be entitled to compensation in the all-inclusive amount of $25,000?
24Subsection 60(1) of the Trustee Act, RSO 1990, c T.23 (the “Trustee Act”) provides that a trustee is entitled to such fair and reasonable allowance for the care, pains and trouble, and the time expended in and about a trust as may be allowed by a judge of this court. The Trustee Act further enables a judge in passing a trustee’s accounts to “allow a fair and reasonable allowance for care, pains and trouble, and time expended in or about the trust.”
25Lisa applied the “percentages approach”2 to the calculation of her compensation and arrived at $37,682. She also calculated a care and management fee, using the rule-of-thumb calculation of 2/5ths of 1 per cent of the average market value of the assets under administration to arrive at a fee of $16,552.06.
26Lisa submits that these amounts were fair and reasonable considering the five factors3, namely, the size of the Trust; the care, responsibility, and risks involved; the time spent; the skill and ability required; and the results obtained.
27In applying the factors, Lisa submits that the Trust, valued at over $1.2 million, is sizeable.
28Regarding care, responsibility, and risk, Lisa submits that the Trust was more complex than an average trust because the Children’s Lawyer’s involvement was necessary to protect the interests of unborn children, and Michael’s behaviour towards her became so difficult to manage that she had to hire CIBC Trust as her agent to assist in the Trust administration and to deal with Michael’s complaints and rants against her personally, including accusations of murder. Lisa submits that, after hiring CIBC Trust, she continued to arrange for cheques to be issued by CIBC Trust, and she maintained a supervisory role regarding asset investment, bookkeeping, tax collection and filing, and reviewing all transactions. Following Mrs. Wilson’s death, Michael became entitled to capital from the Trust, which led to additional accounting work for Lisa, as Trustee. During the period covered by the Formal Accounting, the Trust experienced a 21-year deemed disposition of its capital property, which added to the complexity of the administration and tax filing, and it generated additional work for Lisa.
29Though the Will permits Lisa to hire an agent, Lisa submits that she did not hire CIBC Trust as an agent to offload her fiduciary duties. She submits that hiring CIBC Trust was necessary for her own safety and security because Michael had become abusive and threatening in his demands for payments from the Trust. Lisa further submits that the risk associated with the performance of her fiduciary duties did not change with the hiring of CIBC Trust.
30Regarding time spent, Lisa submits that Michael’s dilatory conduct increased the time that she would normally have needed to spend on Trust administration. Lisa submits that when Michael had a lawyer, the lawyer was slow to respond, and Michael routinely failed to respond to letters and to provide pertinent tax information.
31Regarding skill and ability, Lisa submits that she was a “hands-on” manager of the Trust, and she managed all bookkeeping, accounting, tax, banking/budgeting and cashflow, and legal matters.
32Regarding results, Lisa contends that despite the challenges she faced in managing and administering the Trust, the result was positive. The assets had a value of $1,237,983.74 as of December 31, 2022 net of investment fees, despite the effect of the 21-year deemed disposition. Lisa submits that the investment portfolio yielded a 3-year return of approximately 9.92 per cent after deducting the portfolio manager’s fees, and that the Trust investments outperformed the market.
33Lisa contends that the application of the five factors to her administration of the Trust supports her claim for compensation, which she asserts is fair and reasonable compensation. Notwithstanding, she agreed to a 55-per cent reduction to her claim for compensation to resolve the Children’s Lawyer’s objections and to advance the passing of accounts.
34Michael submits that reduced compensation of $25,000 is still too high. He points to a provision in the Will that he says prohibits Lisa from claiming any compensation. It is correct that the Will includes a provision at clause 3(g)(iv)(A), which references the fact that Lisa is entitled to a 60-per cent share of the residue as compared to the 40-per cent share of the residue allocated for the benefit of Michael and his issue. The Will states that Lisa’s share is larger “on my understanding and belief that LISA … will carry out her … responsibilities without requesting compensation in addition to the increased share for so acting and, in a manner that demonstrate [sic] a genuine ongoing responsibility to the best interest of my son MICHAEL.” Lisa’s counsel submits that this provision is precatory and not binding. Therefore, it would not preclude Lisa from claiming compensation.
35Without determining the effect of the language used in the Will, in my view, the clause likely relates to the administration of the residue of Mr. Wilson’s estate, as opposed to the Trust because the same language is not included in the provision establishing the Trust. Based on the evidentiary record, it appears that the Trustees of the Trust have claimed compensation on the previous passings of accounts.
36I am satisfied that the reduced compensation, in the amount of $25,000 is fair and reasonable in the circumstances of this passing of accounts. I accept that the Trust is significant in size, and that Lisa had significant responsibility for the administration of the Trust, even after she engaged CIBC Trust. I also accept that she managed the Trust assets prudently and generated a better than average return. It is plain from the evidentiary record that Michael’s conduct made her role more difficult to fulfill. The reduction in compensation is appropriate considering that CIBC Trust, as agent, was also receiving compensation for the services it was providing to the Trust during the period covered by the Formal Accounting. Lisa’s claim for compensation in the all-inclusive amount of the $25,000 should be approved.
Have Michael’s objections been satisfactorily addressed?
37Michael’s objections to the Formal Accounting generally are similar to his objections to Lisa’s compensation. He objects to the fees paid to CIBC Trust and to the fees paid to Lisa’s counsel. I am satisfied that the time expended by CIBC Trust and Lisa’s counsel was greater than it otherwise would have been but for Michael’s troubling conduct. That conduct made it virtually impossible for Lisa to communicate with Michael directly. Lisa relied on CIBC Trust and her counsel to interface with Michael when she did not feel safe in doing so. Lisa felt the need to have security available for her protection in her dealings with Michael.
38Lisa was aware of the increased cost to the Trust by hiring CIBC Trust. To address this concern, Lisa negotiated a discount for the services to be provided by CIBC Trust, as agent.
39To the extent that Michael’s objections related to prior passings of accounts, they were properly rejected.
40Though Michael alleged in his objections that Lisa did not act in good faith and therefore should not be entitled to the indemnity provided in the Will, he did not provide any particulars of the alleged bad faith in Lisa’s administration of the Trust even when specifically asked to do so.
41Michael’s objections to the appointment of CIBC Trust have been addressed in the context of Lisa’s claim for compensation.
42Having reviewed Lisa’s replies to Michael’s notice of objection to accounts and having heard the submissions of both Michael and Lisa, I am satisfied that Michael’s objections to the Formal Accounting have been properly addressed.
Should Lisa be granted a waiver of a formal passing of accounts for the Informal Accounting updated to the date of the judgment?
43Lisa delivered copies of the CIBC Trust bank account statements and the CIBC Wood Gundy investment account statements to the Children’s Lawyer and to Michael. These statements covered the period from January 1, 2023 to December 31, 2024, being the Informal Accounting.
44Neither the Children’s Lawyer nor Michael has raised any objection or expressed any disapproval of the Informal Accounting. Lisa is not seeking compensation for her administration of the Trust during this period.
45Regarding the period covered by the Informal Accounting, Lisa seeks an order dispensing with any obligation on her to pass her accounts for this period, and an order that no Trustee compensation be paid for the administration of the Trust during this period.
46The Children’s Lawyer consents to the relief sought. Michael takes no position on this relief.
47I am satisfied that this relief should be granted, provided that Lisa delivers the CIBC Trust bank account statements for the Trust and the CIBC Wood Gundy investment account statements for the period from January 1, 2025 to the date of this judgment to all persons with a financial interest in the Trust. No beneficiary of the Trust shall be precluded from raising any objection in respect of Lisa’s administration of the Trust for this latter period, provided such objection is raised, in writing, within 60 days of receiving the said statements for this latter period, and Lisa shall respond to that objection, in writing, within 14 days.
48The waiver of a formal passing of the Informal Accounting, on these terms, is appropriate. The beneficiaries of the Trust have been parties to litigation in three intersecting court applications involving the Wilson family estates and have been found responsible for considerable costs. A formal passing of the Informal Accounting would add to these costs, which is not in the best interests of any of those beneficiaries. Jessica has already expressed concern about the impact of the costs of the ongoing litigation relating to passings of accounts on her and any children she may have. She has also expressed her confidence in Lisa’s administration of the Trust. Though it is regrettable, Michael admits that he has a lot of animosity towards and distrust of Lisa. A further passing of accounts would more likely than not provide him with another forum in which to animate those feelings at the expense of the Trust and all its beneficiaries.
Removal and Replacement of Lisa as Trustee with CIBC Trust
49The Children’s Lawyer supports the appointment of CIBC Trust in the place and stead of Lisa. Jessica does not oppose the appointment of CIBC Trust.
50Michael opposes the appointment of CIBC Trust as succeeding trustee. He submits that this appointment demonstrates “a reasonable apprehension of bias” because of Lisa’s “long employment” with CIBC Trust. Lisa submits that Michael’s assertion is unsupported and incorrect. Lisa submits that she was never employed by CIBC Trust. Lisa did work for CIBC in the lending department many years ago. Michael has not substantiated any bias or any benefit to Lisa should CIBC Trust be appointed as succeeding trustee. On the contrary, Lisa could see the benefits to the beneficiaries of the Trust in selecting CIBC Trust as a potential succeeding trustee in her place. Its appointment would eliminate the conflict between Lisa and Michael and the need for her to retain an agent, counsel, and security to address Michael’s concerns regarding her administration of the Trust.
51Section 5(1) of the Trustee Act permits the court to remove and replace trustees.
52Lisa no longer wishes to serve as Trustee of the Trust. I agree with Lisa’s approach regarding the appointment of CIBC Trust as a replacement and successor Trustee. Lisa successfully negotiated a discount of 15 per cent on annual fees for CIBC Trust’s trustee services. CIBC Trust has been assisting with the administration of the Trust, is familiar with its administration, and has experience in dealing with Michael. The overall cost structure of the Trust should be reduced as Lisa will no longer be involved in its ongoing administration. The appointment of CIBC Trust will avoid the time and costs associated with identifying and negotiating another corporate trustee that would be willing to take on the Trust and the costs associated with negotiating an agreement with that potential trustee. Lisa has already negotiated a draft order with CIBC Trust regarding its appointment, which is acceptable to it.
53Michael has not offered an alternative to the appointment of CIBC Trust. Michael’s preference would be to wind up the Trust. This is not a viable option. All the beneficiaries of the Trust cannot be ascertained. Michael cannot speak for Jessica and her intentions regarding children. In Jessica’s letter to the Trustees, she refers to the possibility of children she may have in the future. Further, a winding up of the Trust would be inconsistent with Mr. Wilson’s intention and the direction provided in the Will. The Will caps Michael’s annual entitlement to capital of the Trust. I agree with the Children’s Lawyer, that Michael’s argument in support of collapsing the Trust is speculative and not persuasive.
Costs
54Each of Lisa and the Children’s Lawyer has served a Request for Increased Costs. They seek costs above the amount prescribed by Tariff C.
55All persons affected by the Requests for Increased Costs have been served with them and the corresponding bills of costs. Only Michael opposes the increased costs, as requested by Lisa.
56Michael submits that Lisa has not been acting in good faith and is, therefore, not entitled to indemnification for her costs as provided for in the Will.
57Lisa submits that Michael’s objection in this regard does not contain sufficient particulars, and despite her request for those particulars, Michael has not provided them. Lisa submits that the Will specifically provides that Lisa is entitled to engage and pay professionals from the assets of the Trust.
58It is also settled law that a trustee is entitled to indemnification for all costs and expenses properly incurred in its due administration of a trust: Thompson v. Lamport, [1945] SCR 343, at p. 356; Goodman Estate v. Geffen, [1991] 2 SCR 353, at para. 75; Woodsworth v. Bliedung Estate, 2017 ONSC 6082, at para. 43.
59Section 23.1 of the Trustee Act permits trustees to be indemnified for all costs, including legal fees, so long as their costs were incurred reasonably.
60The court will only revoke a trustee’s entitlement to indemnification for legal costs associated with defending a claim, including a passing of accounts, where the trustee’s conduct has risen to the level of unreasonableness or self-interest that would justify a denial of such indemnification.
61I do not find that Lisa, in her administration of the Trust, was acting to advance her own self interest or to the prejudice of the Trust. As long as Michael leaves issue who survive him, Lisa will not be a beneficiary of the Trust. Lisa incurred significant costs relating to this passing of accounts. Those costs were incurred in responding to 90 inquiries advanced by Michael and the Children’s Lawyer. In defending the Formal Accounting, Lisa was required to respond to all of Michael’s allegations, some of which were spurious. The fees she incurred in this exercise were not for her benefit but for the benefit of the Trust and its beneficiaries, Michael and his issue. Lisa submits that she, with the assistance of her counsel, delivered 34 pages of text and 1,400 pages of supporting vouchers. Accordingly, she submits that she should be indemnified for the legal costs she incurred in this process on a full indemnity basis.
62Lisa submits that her costs up to and including January 30, 2024, being shortly after the settlement with the Children’s Lawyer, be paid from the assets of the Trust. She further submits that her costs incurred from January 31, 2024 onwards should be borne by Michael or the Trust, on a full indemnity basis.
63It would have been prudent for Michael to agree to the settlement that Lisa made with the Children’s Lawyer, which was reasonable. Michael’s conduct following the settlement did not advance the passing of accounts or improve his position as a beneficiary of the Trust. I agree with Lisa that most of the costs following the settlement with the Children’s Lawyer could have been avoided but for Michael’s conduct in this application, which included attacks on Lisa and the administration of justice, and spurious allegations of dishonesty, illegality, conspiracy, and murder of Mrs. Wilson. Michael does not deny that these allegations were made. He submits that they are true. But he has not proven any of them.
64I am satisfied that an award of increased costs to each of Lisa, as Trustee, and the Children’s Lawyer is warranted in this case.
65Regarding the scale of costs, it is reasonable that all parties be indemnified from the Trust for the period that the passing of accounts was proceeding normally and was being reasonably litigated. In my view, that period ended when the settlement was reached with the Children’s Lawyer.
66For the period following the settlement, Lisa submits that there is no public policy ground that would support the ongoing payment of all parties’ costs from the Trust. Lisa submits that following the settlement with the Children’s Lawyer, the ongoing fees were incurred largely because of Michael’s conduct. Lisa contends that Michael had no reasonable grounds to force a contested application for the passing of accounts. Accordingly, she submits that following the settlement with the Children’s Lawyer, the usual civil litigation rules ought to apply. I agree. Michael was unsuccessful in his challenges to the Trustee’s accounts, and as the unsuccessful party, he should be responsible for the costs incurred following the settlement with the Children’s Lawyer.
67Section 131 of the Courts of Justice Act, RSO 1990, c C.43 gives the court discretion to award costs in a proceeding, and the overarching consideration is whether those costs are reasonable, fair, and proportionate in the circumstances of the case: Boucher v. Public Accountants Council for the Province of Ontario, 71 O.R. (3d) 291 (C.A.), at paras. 37-38. The court must also regard the factors set out in r. 57.01 of the Rules.
[68] With reference to the factors, Lisa submits that the court should consider that:
a) Michael’s conduct unnecessarily lengthened the duration of the proceeding through his failure to participate, which resulted in unnecessary and longer than necessary court attendances;
b) Michael refused or failed to cooperate to proceed to mandatory mediation;
c) Michael unreasonably objected to presumptive hearing modes, and he insisted on in-person hearings without good reason, which added to the overall costs; and
d) Michael made baseless allegations of dishonesty, illegality, and conspiracy against Lisa and CIBC Trust through his objections and correspondence, including an admission that his main goal was to see Lisa behind bars for all of her criminal activities, which, in his mind, include the murder of their mother and the claiming of Michael’s share of the family fortune.
69Lisa acknowledges that costs awards are made on a partial indemnity basis in the ordinary course. But she submits that the Court of Appeal for Ontario has stated that full indemnity costs may be awarded where the losing party has engaged in behaviour worthy of sanction: Davies v. Clarington (Municipality), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.), at para. 28. The Supreme Court of Canada has stated that an award of elevated costs is warranted only where there has been reprehensible, scandalous, or outrageous conduct on the part of one of the parties: Young v. Young, [1993] 4 SCR 3, at p. 134.
70Lisa submits that an award of elevated costs is warranted where allegations of illegality and conspiracy are advanced without merit. Lisa submits that such allegations fall within the ambit of an award of elevated costs because they are “reprehensible, scandalous or outrageous”, as was found in Baryluk v. Campbell, [2009] O.J. No. 2772, at paras. 9 and 10, where the court made an award of elevated costs.
71I agree that some of Michael’s conduct in this case rises to the level of reprehensible conduct. This conduct includes baseless attacks on Lisa’s character and falsely accusing her of murdering Mrs. Wilson. This conduct should be sanctioned. Accordingly, the award of costs against Michael should be made at the level of full indemnity.
72I find that it would not be reasonable or proportionate for Jessica and Michael’s other issue, if any, to be prejudiced by having additional costs associated with Michael’s unfounded allegations payable from the Trust. Jessica’s letter, sent to Lisa regarding this passing of accounts, sets out her discontent with Michael’s refusal to withdraw his objections and the impact that his refusal could have on the eventual entitlement to the Trust that she and any of her issue may have.
73I find that the Children’s Lawyer acted efficiently to resolve the matter of the passing of accounts, and it is appropriate that her increased costs for the period following the settlement between Lisa, as Trustee, and the Children’s Lawyer should be paid by Michael in the same manner as Lisa’s costs.
[74] Accordingly, for the period up to January 30, 2024:
a) I fix Lisa’s costs, on a full indemnity basis, in the amount of $70,705, plus HST and disbursements, payable out of the capital of the Trust;
b) I fix the Children’s Lawyer’s costs, on a full indemnity basis, in the amount of $9,660, plus HST and disbursements, payable out of the capital of the Trust; and
c) I fix Michael’s costs, on a partial indemnity basis, in the amount of $7,000, plus HST and disbursements, payable out of the capital of the Trust.
For the period from January 31, 2024 onwards:
a) I fix Lisa’s costs, on a full, indemnity basis, in the amount of $44,371, plus HST and disbursements, payable from Michael, personally, or alternatively, from his entitlements from the Trust; and
b) I fix the Children’s Lawyer’s costs, on a full indemnity basis, in the amount of $2,090, plus HST and disbursements, payable from Michael, personally, or alternatively, from his entitlements from the Trust.
Orders
75The following Orders shall issue:
- Judgment on passing of accounts for the period from January 1, 2020 to December 31, 2022 (referred to herein as the Formal Accounting)
- An Order dispensing with any obligation on Lisa to formally pass her accounts for the period from January 1, 2023 to the date of the Judgment granted, in respect of which she has produced the Informal Accounting, provided that she delivers to her successor trustee and all of the beneficiaries of the Trust all CIBC Trust bank statements for the Trust and Wood Gundy investment account statements for the Trust for the period January 1, 2025 to the date of the Judgment. Lisa shall not be paid any compensation for Trustee services and disbursements expended in administering the Trust during the Informal Accounting period. Any beneficiary of the Trust who has any objection to the accounting evidenced in these statements for the period January 1, 2025 to the date of the Judgment shall raise that objection, in writing, to Lisa within 60 days of receiving the statements, and Lisa shall respond to the objection, in writing, within 14 days.
- Lisa, as Trustee, shall be paid $25,000 as executor’s compensation, including a care and management fee, paid out of the capital of the Trust, as fair and reasonable compensation for her services as Trustee of the Trust, and for disbursements during the period of the Formal Accounting.
- Lisa is removed as the Trustee of the Trust, and CIBC Trust is appointed as successor trustee of the Trust in her place and stead, with the powers set out in the draft Judgment submitted by the Trustee and uploaded to Case Center for this hearing.
76For the foregoing reasons, a Judgment shall issue in the form of the said draft Judgment, revised to include the terms set out in subparagraph 75(2) above and the costs herein awarded. The Judgment is effective as of the date of these Reasons, and it does not need to be entered.
Endnotes
Footnotes
- Because several parties bear the same surname, for clarity, I will refer to some parties using their first names. In doing so, I intend no disrespect.
- This approach was acknowledged in Re Jeffrey Estate, [1990] O.J. No. 1852 (Sup. Ct.). It permits a trustee to claim compensation of 2.5 per cent on each capital receipt and disbursement, and 2.5 per cent on each income receipt and disbursement.
- The percentages approach is commonly applied in combination with the principles set out by the Court of Appeal of Ontario in Laing Estate v. Laing Estate, [1998] O.J. No. 4169, which requires that the total compensation calculated based on the percentages be considered with reference to five factors enumerated in Toronto General Trusts Corp. v. Central Ontario Railway, [1905] O.J. No. 536 (Sup. Ct.). The result is fair and reasonable compensation. In appropriate cases, a care and management fee of 2/5 of 1 per cent per annum on the gross value under administration may be added.