ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
GARY WILLIAM CRAIB, personally and as Estate Trustee of the ESTATE OF WILLIAM STANLEY CRAIB, deceased and ESTATE OF ANNE ELIZABETH CRAIB, deceased
Applicant/Moving Party
- and -
JAMES ALEXANDER CRAIB and MICHAEL THOMAS CRAIB, each personally and as Estate Trustees of the ESTATE OF ANNE ELIZABETH CRAIB, deceased, the ESTATE OF WILLIAM STANLEY CRAIB, deceased and THE ESTATE OF ANNE ELIZABETH CRAIB, deceased
Respondents
M. Holervich, Counsel for the Applicant/Moving Party and C. Baillee for P. Portman, Counsel as agents for Application
C. Carr, Counsel for the Respondents James Alexander Craib and Michael Thomas Craib
HEARD: at Thunder Bay, Ontario, on May 14, 2026 by Videoconference
Madam Justice C.C.M. Siran
Reasons on Motion
OVERVIEW
1The Applicant, Gary William Craib ("Gary") brings this motion requesting as follows:
An Order declaring that all of any monies which are or previously were in the Scotiabank account identified in Schedule "A" to this Notice of Motion (the "Scotiabank Account"), are subject to a resulting trust in favour of the Estate of Anne Elizabeth Craib.
An Order that James Alexander Craib ("James") forthwith:
a. Produce any and all statements for the Scotiabank Account; and
b. Produce all documents evidencing any disposition of any monies which were in the Scotiabank Account at any time.
- An Order that James deliver to the Estate of Anne Elizabeth Craib ("Anne"), any trust monies in his possession or control.
2Gary brings this motion both personally, in addition to being an Estate Trustee of Anne's estate, and an Estate Trustee of William Stanley Craib's estate ("Stanley"), his father.
3The Respondents are Gary's brothers. They are joint trustees on the estates of their parents, Anne and Stanley, which are named as such in this proceeding. They resist the motion on three grounds: (1) that Gary does not have standing either personally or as an estate trustee for either Anne or Stanley's estate to bring this motion; (2) that the limitation period has expired with respect to discovery of the resulting trust claim over the Scotiabank Account; and (3) that in the alternative, a finding of a resulting trust is a triable issue.
4For the reasons that follow, I find that Gary has standing to bring this motion and order that James produce to the Applicant a statement of the joint Scotiabank Account at the date of death, May 22, 2022. I also find that the issues relating to limitation periods and the declaration of the resulting trust are triable issues that cannot be determined on this motion and dismiss these requests. I further order that no additional motions can be brought in this matter until an Estate Trustee During Litigation is appointed for the Estate of Stanley, with the exception of a motion for direction under r. 75.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
FACTS AND PROCEDURAL HISTORY
Factual History
5The facts are not complicated; however, the procedural history will require some explanation below.
6Anne and Stanley had three sons – Gary, James and Michael. In 2012, Anne and Stanley made mirror wills, leaving the entirety of their estates to the other. In the alternative, the residue would be shared equally by the three sons. Both named the other spouse as the primary Estate Trustee, and the alternate Trustees being the three sons jointly.
7Anne died May 22, 2022. It is not disputed that her Will appointed Stanley as her estate trustee and sole beneficiary.
8Prior to his passing, Stanley had Powers of Attorney dated June 16, 2020, naming Gary, James and Michael as joint attorneys. The instrument provides that they may act jointly or by majority. Stanley died September 20, 2025. It is not disputed that his Will named the three brothers as joint estate trustees given Anne's passing, and that the three would share equally in the residue of the estate.
9In June 2020, Anne added James to her Scotiabank bank account as a joint account holder. When she died in 2022, James took control of the accounts. It is this account that is at issue in this Motion. The disputes surround what has happened (or not happened) between Anne's passing and Stanley's passing. Little has been accomplished by the brothers in administering Stanley's estate. The parties have not obtained Certificates of Appointments for Anne or Stanley's estates, an issue that will be commented on further in these reasons.
Procedural History
10The procedural history of this matter is more complicated and arises from disagreement on many issues between the brothers since Anne's passing.
11In addition to this proceeding, the Court proceedings commenced by Gary are as follows:
a) Notice of Application CV-22-0436 – commenced personally, seeking directions with respect to the use of Stanley's power of attorney for property;
b) Notice of Application CV-23-0243 – commenced as attorney for property for Stanley, seeking interim orders relating to Anne's Estate.
12The parties were queried on the status of these matters, and advised the Court that both remain active, although no steps have been taken, except a motion argued under CV-22-0436 in 2022. In that motion, Gary sought an order restraining James from having access to the Scotiabank Account he held with Anne, the same account at issue here. He argued that the Scotiabank Account should form part of Anne's estate. On July 10, 2023, the motion was dismissed for reasons found at Craib v. Craib, 2023 ONSC 4102. In his reasons, Justice Newton noted the following at para. 18:
The mother's estate needs to be properly administered. As Stanley is the Estate Trustee that is his responsibility. Whether he lacks capacity to act is not known.
13Justice Newton went on to order that the Public Guardian and Trustee appoint a lawyer under s. 3 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, to determine Stanley's capacity to administer Anne's estate. As Stanley remained the Estate Trustee and beneficiary until capacity could be determined, Gary did not have standing, and the motion was therefore dismissed.
14The Public Guardian and Trustee appointed Jordan Lester as counsel to determine Stanley's capacity, and on December 20, 2023, he advised the parties that Stanley did not have the capacity to provide legal instructions. Since that time, the three brothers have apparently done nothing to advance the administration of Anne's estate, knowing that Stanley was incapable of doing so. As noted, Stanley died September 20, 2025.
15This Application was issued shortly thereafter on October 1, 2025.
16The parties had a case conference on January 8, 2026, relating to all three outstanding applications, presumably to avoid duplicitous proceedings. The procedural issues were discussed, and the matter was adjourned to permit further discussions between counsel. At the next appearance on January 15, 2026, the parties had still not finalized a procedural order and were warned that they could not continue to use up valuable motions court time on these issues. They were also given directions on next steps. A further case conference on the three matters was held March 10, 2026, in which Justice Wojciechowski detailed in his endorsement as follows:
While there were a number of issues raised in the materials, before any real progress can be made in these matters, an Estate Trustee During Litigation needs to be appointed.
Accordingly, within the next four weeks, the parties agreed to exchange possible alternate names and choices as potential ETDLs. All parties must agree to the person or institution which is to act as the ETDL for this matter, and if no agreement is made on or before 4:00pm on Tuesday, April 7, 2026 – which is four weeks from today – then on Wednesday, April 8, 2026 an order shall issue appointing BMO Trust Company as the Estate Trustee During Litigation for this matter.
Following the appointment of the ETDL, and after the ETDL has had time to get up to speed on this file, if the parties are unable to come up with an agreed upon litigation timetable and process for the adjudication of the outstanding issues raised in this litigation, the parties shall be free to continue this civil case conference before me on a date and time chosen in consultation with each other and the Trial Coordinator.
17No such order was issued on April 8, 2026. Instead, on April 10, 2026, the Applicant brought this motion both personally and as Estate Trustee for both estates.
POSITIONS OF THE PARTIES
The Moving Party – Gary
18As already stated, Gary is seeking three separate but related reliefs: (1) a declaration that all of funds in a former joint Scotiabank Account are subject to a resulting trust, (2) an order producing documentation on the account and, (3) that James deliver to either the Court or to a solicitor's trust account, any trust monies from this account in his possession and control.
19Gary argues that that presumption of a resulting trust applies with respect to the Scotiabank Account jointly held between Anne and James and wants the Court to make such a finding on this motion. The June 2020 statement shows $94,154.27 in the Scotiabank Account. He points to the fact that the statements provided in his material until March 2022 reveal that only money attributable to Anne was being deposited in the account, a fact not denied by James in his affidavit.
20Gary further argues that finding in this motion that the account is subject to a resulting trust does not prevent James from arguing that he was gifted the right of survivorship. He argues the declaration itself is all that is needed and requested in the relief.
21At the same time, Gary argues that if the Scotiabank Account is subject to a resulting trust, then James' limitation period expired to bring his own application declaring the account a gift. In essence, Gary's argument is that since a resulting trust applies as a function of law in gratuitous transfers, James was required to bring an application to the court to rebut the presumption, within two years of Anne's passing. As James did not, the limitation period expired on May 22, 2024.
22With respect to standing, Gary argues that as one of the three named Estate Trustees on both estates, he has standing to pursue this relief. He argues his position is equivalent to his brothers and as put by his counsel, "if not him, who does". When asked about why the Order of Justice Wojciechowski for appointing an Estate Trustee During Litigation ("ETDL") was not followed, Gary's position was that the parties discussed the ultimate costs and did not believe it was financially worth it to have the ETDL appointed. To that end, Gary's argument is that he remains the best person to advance a claim on Anne's estate, as James is the beneficiary of the account, and Michael sides with James.
23With respect to a limitation period applicable to his Application and this Motion, Gary concedes there is a limitations issue with respect to Stanley's ability to have raised an issue with respect to a resulting trust on the Scotiabank Account, which would in the normal course have elapsed on May 22, 2024. However, as Stanley was found to be not capable on December 20, 2023, he argues the limitation period is suspended under s. 7(1) of the Limitations Act, 2002, S.O. 2022, c. 24, and does not restart until Stanley's death on September 25, 2025. As Gary brought this Application on October 1, 2025, he argues that the limitation has not run out.
24Gary is less clear on his position with respect to the ability to bring this motion personally with respect to a limitation period. Admittedly, he knew the Scotiabank Account was joint with James at the time of his mother's passing. At that time he had no right to it, as his father was the Estate Trustee and beneficiary. His submission at the motion was that he cannot separate Gary personally, from Gary as the Estate Trustee for Stanley and Anne, which I take to mean as long as Stanely's limitation period is not expired, that he is appropriately advancing the claim on his own behalf, and on behalf of Stanley's estate.
25Ultimately, Gary argues that Stanley's estate cannot be addressed until Anne's estate has been administered, and that the issue of the Scotiabank Account is fundamental to determining her estate value.
The Responding Parties – James and Michael
26The Respondents' position is that this motion should be dismissed in its entirety. First, the Respondents submit it should be dismissed as Gary lacks standing, particularly in his personal capacity. They submit that as Stanley was the only beneficiary to Anne's estate, Gary does not have the appropriate interest in same. It is further argued that Gary lacks standing as an Estate Trustee of both estates because all three brothers are Estate Trustees and Gary cannot unilaterally authorize proceedings on behalf of the Estates on his own. They rely on the case of Cahill v. Cahill, 2016 ONCA 962, which says that trustees must act together in fulfilling their fiduciary duties.
27The second argument advanced against the motion is that a limitation period applies to raising the issue of a resulting trust. With respect to Gary personally, they argue that he knew at the time of his mother's death that the account was joint with James, and this started the limitation period. They raise a similar argument with respect to Stanley's ability to raise an issue as the Estate Trustee and beneficiary of Anne's estate, although conceded in argument that there is a capacity question with respect to whether Stanley could have raised such a claim after capacity issues were confirmed in December 2024.
28Finally, the Respondent submits that the request for the declaration of a resulting trust without a determination on the merits whether James can establish it was a gift is incorrect in law and cannot be decided at this stage. They argue that the presumption of a resulting trust only shifts the onus to the transferee to rebut the presumption. It is their position that the determination of whether the account is subject to a resulting trust requires a full record and credibility findings to be made to assess whether James can meet the onus of establishing a gift of the right of survivorship on the Scotiabank Account.
LAW AND ANALYSIS
A) Standing
29To have standing, an individual must demonstrate a valid legal or financial interest in the estate. The Rules provide that in Estate matters, those which can come to the Court include named Estate Trustees or beneficiaries, as well as anyone else who appears to have a financial interest in the Estate: see rr. 74.15 and 75.05.
30As such, I cannot agree with the Respondents' position that Gary lacks standing in this matter. Gary does have both a personal interest in matters involving the estates as a beneficiary and is a named an alternate Estate Trustee for both Anne and Stanley's estates. Prior to his father's death, he did not have a personal interest in the account, only as a Power of Attorney for Stanley. Whether it is the proper procedure to have brought this motion in light of the dispute between the parties as Estate Trustees and beneficiaries is a different question that is ultimately not before the Court at this time, except to the extent that the parties ignored the Court Order to appoint ETDL for the Estate of Stanley and proceeded to argue this motion in light of their competing interests.
31I also do not find the case of Cahill helpful to Respondents' position in relation to the standing issue in these circumstances. Cahill involves a case where one trustee abdicated in her duties to an Estate, then requested the Court to find her not responsible for actions of her co-trustee. To that end, it was found that trustees are taken to act unanimously in the exercise of their powers, and that a trustee will not be excused from passive acquiescence in the actions of a co-trustee. It does not deal with the situation where the trustees are at odds about the administration of an estate. For the purposes of this motion, I agree that if Gary does not raise the issue, then who would.
32As such, I find that Gary does have standing both personally and as an Estate Trustee of Stanley's estate to bring this motion.
B) Limitation Period
33The Limitations Act provides that parties have two years from the discovery of an issue to commence a claim. On its face, there are several relevant dates that give rise to an argument that a limitation period has passed. Anne added James on the account in June 2020. Anne died May 2022 and presumably, James acted on the right of survivorship on the account shortly thereafter. Stanley in his lifetime did not administer Anne's estate. There is an argument that the limitation period to pursue this relief expired in May 2024.
34However, it is not disputed that when Gary commenced CV-22-00000436, the Public Guardian and Trustee was ordered to become involved for Stanley, and counsel determined December 22, 2023, that he lacked the ability to instruct counsel and administer Anne's estate. It is unknown in this motion whether Stanley's capacity was impacted prior to this date, and neither party produced evidence on this motion related to same.
35The bigger limitation question is whether Gary, as Power of Attorney for Stanley, should or could have continued to pursue this relief under earlier applications, particularly CV-23-0243, or the application Gary commenced as attorney for property for Stanley, seeking interim orders relating to Anne's Estate. Very little in way of explanation or evidence was advanced by either party on this potential issue, and given the limited evidentiary record before me, this is properly left to be decided by the Court on a complete record at a later date.
36Gary personally had no right to benefit from Anne's estate prior to Stanley's passing. Now that Stanley is deceased, he shares equally in the estate of his father, which may have been entitled to benefit from the Scotiabank Account when his mother died. The lack of administration of these estates has muddied the waters, but Stanley's passing has provided some clarity, in my view.
37For the purposes of this motion only, I cannot find that the limitation period has expired given the December 22, 2023, capacity issue of Stanley. If he was incapable of administering the Anne's Estate as of that date, then pursuant to s. 7(1) of the Limitations Act, the limitation is suspended until the date of his death September 2025. Gary brought the underlying Application in this matter promptly, on October 1, 2025, having now acquired a potential personal interest as a beneficiary, and as an alternate Estate Trustee with his brothers for both estates.
C) Resulting Trusts
38I agree with Gary on the law – the presumption of resulting trust is the default presumption when one party transfers an interest to another gratuitously. This concept of a resulting trust is a legal principle, explained clearly by the Supreme Court of Canada in Pecore v. Pecore, 2007 SCC 17, among many other cases.
39It is worth noting that there does not appear to be any dispute on the facts at this stage that the presumption applies in this case. It is agreed this was a gratuitous transfer of an account in June 2020. Once the presumption applies, the onus shifts to the transferee to establish that the intention of the transferor was to gift the right of survivorship to them.
40Where I disagree with the argument made by Gary is what is required to happen in the circumstance where an interested party raises that the presumption applies. In arguing that the legal presumption of a resulting trust first requires an independent finding of a full assessment of the facts, Gary's argument reflects a misunderstanding of the proper process. I cannot conclude that the existence of the presumption requires the respondent to proactively move to rebut the presumption by way of commencing a court proceeding. In my view, until the issue is raised in the Court by an interested party, there is no positive obligation to do so. I have also not been provided with any case law or legislative basis to conclude that this would be the appropriate way to do so.
41The fact that the legal presumption of a resulting trust applies only means that the onus to prove otherwise has shifted to the transferee.
42A declaration of a resulting trust at this stage is premature. The question that ultimately needs to be resolved is whether (1) the transferor intended to give away the interest completely, (i.e. whether it was right to withdraw money during the joint lives versus the right to take the balance on survivorship); or (2) the transferor intended to give the interest to the transferee only for safekeeping. The transferor's intention at the time will be the determining fact.
43Bald and self-serving statements of a gift, untested by cross examination, are insufficient to make such a finding. A determination of the intentions of Anne at the time she added James to the Scotiabank Account will require credibility assessments and findings on a full record. I agree with the Respondent that it is not possible on this record to do so.
44My view is that this motion was brought out of frustration, and I am sympathetic to the reasons for that frustration. However, aspects of it were ill conceived in the result. The proper steps to take were already outlined by Justice Wojciechowski at the case conference, including a provision to move this matter forward with ETDL. The fact that the parties apparently did not want to follow that order, done on consent, just demonstrates that they are incapable of making decisions together.
45However, I agree with Gary that James' strategy of bare denial to disclose anything on the Scotiabank Account gives rise to a proper request for some disclosure. As indicated above, it does not appear disputed at this time that the legal presumption does apply. James should have, at some point, produced at the very least the statement from the time of the mother's death in May 2022.
46But Gary's requests lack specificity and do not particularize why any and all statements are necessary, or why all documents evidencing any disposition of monies in the account is required. Gary has provided statements from March 2014 to March 10, 2022, in his materials. When asked for the reason for such extensive (and for some periods, repetitive) disclosure, no satisfactory explanation was provided. In my view, the proper procedure would have been to request a specific range, commencing at Anne's death, as opposed to a blanket request that covers a period where Gary already appears to have access to the records.
47If the Scotiabank Account is found to be subject to a resulting trust, James will have to account for the funds as of May 22, 2022, when Anne died.
48I am of the view that the Scotiabank Account statements should be produced on the date of Anne's death for two reasons: (1) it has apparently been requested previously (although without standing at the time) and this request on its face was reasonable in light of the gratuitous transfer; and (2) practically speaking, without knowing the amount in that account, no party can assess what is at stake in the litigation. Parties cannot act reasonably in assessing the time, effort and cost of proceeding in a matter where they have no concept of what is at issue. At this stage, that number has relevance and should be disclosed.
49This leads to the outstanding issue of the ETDL and the ignored Order of Justice Wojciechowski. The parties cannot move forward on the Estates given the individual issues. They are joint trustees who are incapable of agreeing on anything and clearly cannot function either practically or rationally together. To meaningfully move this matter forward, and given the conflict, Stanley's estate needs to have its own representative to act.
50Without separate and independent counsel for the Estate of Stanley, no progress is likely to be made on these estates, given the high level of conflict and mistrust. The parties should be taking steps to implement the Order of Justice Wojciechowski to prevent further delay in these matters. Given the high conflict and competing interests, I am prepared to order that no further motions can be brought in this matter, with the exception of a Motion for Directions under r. 75.06 of the Rules, without ETDL being appointed or Court permission to do so.
51I further dismiss the request for any funds from the joint account to be deposited either in a lawyer's trust account or in Court. It is not known if this account remains open, where the funds from the date of Anne's passing have gone, or if there even are any remaining. There is simply no evidence in front of the Court at this stage to make such an order.
CONCLUSION
52I am satisfied that James should produce a bank statement of the Scotiabank Account ending in 6332 (as particularly in Schedule "A" of the Notice of Motion) that had been held jointly with himself and Anne, at the time of her death on May 22, 2022.
53I am further ordering that no further motions can be brought in this matter absent Court authorization, or until ETDL is appointed for Stanley's Estate and can advance a position on behalf of the Estate, except for a Motion for Directions under r. 75.06 of the Rules.
54The balance of the motion is dismissed.
55The parties have the direction from the March 2026 case conference on what to properly do as next steps in the matter.
COSTS
56Both parties filed Bill of Costs, however submissions were not provided. Should either party seek costs, and they cannot be resolved between the parties, written cost submissions not exceeding 3 pages can be served and filed on or before June 12, 2026. No further Bill of Costs is required, however any settlement offers can be attached to the submissions and will not count towards the page limit.
57If no submissions are received by 4:00 p.m. CST on June 12, 2026, costs of the motion will be deemed settled.
The Hon. Madam Justice C.C.M. Siran
Released: May 26, 2026