Flowers v. Flowers, 2026 ONSC 3524
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Donna Louise Flowers
AND:
John David Flowers, Michael Robert Flowers and Daniel Franklin Flowers
BEFORE: J.T. Akbarali J.
COUNSEL: Tracy Rynard and Quinn Giorano, for the Applicant
Adin Wagner and Jason Thacker, for the Respondent John David Flowers
Colleen Peffers, the Estate Trustee During Litigation, in person
No one appearing for the Respondents Michael Robert Flowers and Daniel Franklin Flowers
HEARD: June 4, 2026
ENDORSEMENT
Overview
1The applicant, Donna Flowers, brings this court-ordered application to pass her accounts relating to the estate of her mother, Olga Flowers, who died on May 11, 2007. Olga was predeceased by her husband, Donna’s father, John, who died on April 17, 2001. The respondents, Michael Robert Flowers, Daniel Franklin Flowers, and John David Flowers are Olga’s and John’s other children. Neither Michael nor Daniel have participated in this application.
2Because the parties to this application share the same last name, for clarity, I respectfully use first names in these reasons. Because there are two John Flowers, I refer to the respondent John David Flowers as “David” which I understand to be the name he uses, and the deceased John Flowers as “John.”
Brief Background
3Under the terms of Olga’s will dated May 14, 2004, Donna is the named estate trustee. All four of Olga’s children are equal residuary beneficiaries.
4Donna was issued a Certificate of Appointment of Estate Trustee with a Will (“CAET”) on October 17, 2007. That application indicates that the total value of Olga’s estate was $413,000, consisting of $300,000 in real estate and $113,000 in personal property.
5The respondents were served with the application for the CAET and did not object to it.
6The assets of Olga’s estate included:
a. A condominium at 130 Besserer Street, Ottawa (the “Ottawa condo”);
b. A cottage on Raven Lake, Haliburton (the “Raven Lake property”);
c. A parcel of land in Collingwood (the “Collingwood property”);
d. Shares in four corporations;
e. A parcel of land in St. Kitts (the “St. Kitts property”); and
f. Funds held in an RBC savings account and chequing account.
7In terms of the status of these assets, the evidence reveals that:
a. The Ottawa condo was transferred from Donna in her capacity as Olga’s estate trustee to Donna and David as tenants in common for $115,000. The siblings had an arrangement that Donna and David would pay each pay one-quarter of the $115,000 to Daniel and Michael, respectively, thus effectively distributing the asset to the beneficiaries. Michael and Daniel consented to the transfer. No issues are raised on this application to pass accounts with respect to the Ottawa property.
b. Olga’s will appoints Michael to be the special trustee of the Raven Lake Property. The status of the property is unclear. The will provided that any Registered Retirement Income Funds (“RRIF”) that Olga owned at the time of her death would be payable to the special trustee to manage the cottage. There is evidence that there were two RRIFs and an RRSP in the years prior to Olga’s death, but no evidence as to what existed at the time of her death. No RRIF funds were paid to Michael. Donna alleges the Raven Lake property is in a state of disrepair, but David disputes this characterization. Taxes may be unpaid. The main issue relating to the Raven Lake property on this application relates to whether funds meant to fund the special trust should have been, but were not, turned over to Michael qua special trustee. In that sense, it really relates to what assets, if any, were retained in the estate from any RRIF accounts and whether they have been accounted for.
c. The Collingwood property was actually two separate parcels of land situated in two different townships, creating issues that had to be resolved. It was also subject to a boundary dispute with a neighbour. The parcels were sold on January 16, 2012 to a third party, Joseph Cutrara, in a private sale. Donna states that Mr. Cutrara was an arms-length buyer, while David alleges he is a friend of Donna’s. The Collingwood property was sold for $75,000 less fees due on closing, leaving net proceeds of $65,055.22. David alleges the sale price was low. The purchase was financed in large part with two vendor take back (“VTB”) mortgages, totalling $64,000. The mortgages were discharged in July 2023. On this application, I am asked to grapple with the sale price for the Collingwood property and whether the mortgages were paid back.
d. Donna claims the shares held by the estate were of nominal value. One of the companies in which the estate owns shares was Nortel. It is obvious there is no value in those shares any longer. There is next to no information in the evidentiary record about any of the shares, or their value at the date of Olga’s death or thereafter. Corporate profile reports uploaded to Case Center on the day of the hearing disclose that the three remaining corporations in which the estate holds shares are inactive. The shares continue to be held by the estate.
e. The estate still owns the St. Kitts property. Donna states it is of nominal value. She deposes that she travelled to St. Kitts to attempt to ready it for sale, but when she tried to get a survey completed, the surveyor absconded with her funds. She believes the property has negligible value, because it is beachfront property, and climate change puts it at risk.
f. There are numerous questions regarding the bank and investment accounts Olga owned. Donna has admitted borrowing funds from Olga’s bank account but she believes she repaid them. The documentation around the admitted self-dealing is scant, as is documentation regarding Olga’s accounts or the estate’s accounts.
8David raises claims regarding Olga’s pension income, the proceeds of sale from her home (which he agrees was sold when she was alive and competent), and income from the Ottawa condo. He argues that given the documentation that exists about the value of these assets prior to Olga’s death, I can draw an adverse inference from Donna’s failure to produce account statements that the estate held more liquid assets than Donna suggests, and Donna should be made to pay damages for the funds for which she cannot account.
9Almost twenty years later, the administration of the estate has yet to be completed. Significant questions remain.
10Donna admits that her efforts at administering the estate have been deficient, and that the administration has been delayed. She admits that her records, and therefore her accounts, are incomplete. She agrees that she has fallen short of her duty as Olga’s estate trustee.
11David seeks a declaration that Donna’s accounts as estate trustee are not passed in their current form; an order depriving Donna of compensation for her administration of the estate; an order that she repay the amounts that she caused to be depleted from the estate; and costs on a full indemnity scale.
12Donna seeks a “just and final resolution that is proportionate to the size of this modest estate and that considers [her] sincere efforts to bring the administration of the estate to a close with all the children obtaining their appropriate share of Olga’s estate to which they are entitled.”
Procedural History
13On January 18, 2023, David commenced an application seeking an order that Donna pass her accounts in her capacity as estate trustee of Olga’s estate. Donna’s lawyer consented to an order to that effect, although Donna disputes whether he was authorized to do so. Donna retained new counsel thereafter and commenced litigation against her former counsel.
14On February 12, 2024, Donna commenced this application to pass accounts.
15On September 18, 2024, David brought a contempt motion claiming that Donna was in breach of the consent order that she pass her accounts. He noted that the form of accounts did not comply with that required by the Rules of Civil Procedure and argued that they did not permit him to meaningfully review Donna’s administration of the estate. Her application was not supported by an affidavit verifying accounts and did not include a statement of accounts. Rather, Donna’s evidence is in the form of a narrative affidavit in which she attempts to describe her administration of the estate.
16Donna’s accounts are not complete. She recognizes that fact, and states that she did not swear an affidavit verifying accounts because she could not depose that they were complete.
17David learned from the accounting Donna delivered that she had transferred $272,538.78 to her counsel in trust (the “disputed funds”). David argues the funds were for distribution to the beneficiaries but that they have been “significantly depleted” from the trust account.
18After a failed mediation, David brought a motion for various relief which was heard by Gilmore J. on May 5, 2025. She ordered:
a. the appointment of Colleen P. Peffers as Estate Trustee During Litigation (“ETDL”);
b. that Donna’s lawyers transfer the remaining funds in trust to the ETDL;
c. that the ETDL require Donna’s lawyers to provide an unredacted trust reconciliation of the disputed funds and investigate and determine the estate’s original value and tax status as well as the details of the assets and transactions that are disputed.
19Gilmore J. subsequently ordered a timetable for the application to pass accounts. David filed a Notice of Objection to Accounts and Donna filed a Reply to Objections to Accounts. David filed a Supplementary Notice of Objection to Accounts.
20Cross-examinations have since occurred. The application came before me on May 28, 2026. For reasons dated May 28, 2026, I declined Donna’s request for a lengthy adjournment to enable a refusals motion to be heard and a report from the ETDL to be delivered. I did so having been persuaded by David’s counsel that there would be an adequate evidentiary record which, if coupled with adverse inferences that I could draw, would enable me to determine damages if such a determination was required. I thus adjourned the matter one week to enable Donna’s counsel to deliver a factum.
21Donna argues that no final determination of damages can be made at this stage without risking findings inconsistent with the final report of the ETDL.
22At the hearing, David asks me to fix damages, and to order that Donna provide the estate with an indemnity for tax liabilities that may arise once the estate’s tax status is made clear.
Issues
23This application raises the following issues:
a. Should Donna’s accounts be passed in their current form?
b. Should Donna in her capacity as estate trustee pay damages, and if so, in respect of what and in what amounts?
c. Is Donna entitled to trustee compensation?
d. Costs.
Passing of Accounts – General Principles
24Rules 74.16 to 74.18 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, prescribe the process for the passing of accounts.
25Rule 74.17(1) provides that “[e]state trustees shall keep accurate records of the assets and transactions in the estate.” It also sets out a list of items that shall be included in the accounts filed with the court, including, among other things: (i) a statement of the assets at the date of death; (ii) an account of all money received and disbursed; (iii) a statement of the assets that are unrealized at the closing date of the accounts; (iv) a statement of the money and investments, and liabilities, at the closing date of the accounts; and (v) a statement of the compensation claimed by the estate trustee.
26An estate trustee has a duty to keep proper books of account and to be ready at all times to account for the trust property that they are bound to administer: Wall v. Shaw, 2018 ONCA 929, at paras. 23; Zimmerman v. McMichael Estate, 2010 ONSC 2947, at para. 31.
27Under s. 49(2) of the Estates Act, R.S.O. 1990, c. E.21, a judge has jurisdiction to enter into and make full inquiry and accounting of and concerning the whole property that the deceased was possessed of or entitled to, and its administration and disbursement. Under s. 49(3) of the Estates Act, the court has authority to inquire into any complaint or claim by any person interested in the taking of the accounts of misconduct, neglect, or default on the part of the executor occasioning financial loss to the estate and, on proof of such a claim, the judge may order the executor to pay such sum by way of damages or otherwise as the judge considers proper and just to the estate or trust fund. To do so, the court may order the trial of any issue raised by the accounting: s. 49(4) Estates Act.
Should Donna’s accounts be passed in their current form?
28Even Donna recognizes that the accounts cannot be passed in their current form. As I have noted, she acknowledges that she is unable to sign an affidavit verifying accounts.
29There are many unanswered questions about the estate’s assets and Donna’s dealings with them.
30Donna has not met her duty to keep proper books of account. Her application does not establish the assets the estate held at the time of the deceased’s death. There is no accounting of funds received and disbursed.
31Even the undisbursed assets are not clear. It is apparent that the St. Kitts property and the shares are still held by the estate, and the Ottawa condo is not.
32But it is not clear who owns the Raven Lake property (although it ought to be). There is evidence in the record that, during the deceased’s lifetime and after John’s death, the property was held by the deceased, Donna, David, Michael, and Daniel. It was then transferred into the names of the deceased, Donna, David, and Michael. Daniel renounced his interest in it. The record shows instructions to counsel that the transferees would take title as joint tenants, but a Transfer/Deed of Land in the record (signed by some but not all owners) reveals that the words reflecting a joint tenancy were struck out and the words “as tenants in common” were added. No one placed the PIN in evidence, although at the hearing of the application, the ETDL advised me that she had searched the PIN that morning and confirmed the title to the property was held jointly by the deceased and all four of her children, in joint tenancy. If that is correct, the property passed outside of the estate. But it is inconsistent with documents in the record.
33Donna gave evidence that she included 20% of the value of the Raven Lake property in her estimate of the value of the estate in her application for a CAET. She also stated that she included the value of the St. Kitts property, although it should not have been included given that it was not located in Ontario.
34It is clear that the Collingwood property was sold and is no longer owned by the estate, but it is entirely unclear whether the estate received the mortgage payments owing under the VTBs entered into. Donna’s evidence is that the mortgage was renewed at least once, but she cannot remember any details including whether she used a lawyer to renew the mortgage, how many times the mortgage was renewed, whether she spoke to Mr. Cutrara after the sale closed, or whether the mortgage payments were received. She insists the principal was paid back in full but she cannot remember if Mr. Cutrara ever asked her to discharge the mortgages. The mortgages were finally discharged in 2023, after David’s application to compel an accounting, but on cross-examination, she could not remember if she had discharged them.
35There is no real accounting of the personal property the estate held at the time of the deceased’s death. The application for a CAET estimates $113,000 in personal property, which is a figure that none of the respondents objected to. At the same time, Donna states that she borrowed $185,000 from the estate to pay her legal bills in a family law dispute; it is not clear why the estate had that amount in liquid funds.
36Donna states she repaid the estate. We know she gave her lawyers the disputed funds ($272,538.78) to be held in trust and from which some legal fees were paid. However, her evidence about the repayment and the funds transferred to her lawyers in trust is unclear. At different points she has stated that the disputed funds were what she repaid, but that does not make sense because she only admits borrowing $185,000. She has also stated that the disputed funds are the repayment of the funds she borrowed plus the funds related to the Collingwood property. Subsequently she stated that the disputed funds were the funds she received in her family law proceedings, which suggests the amount is unconnected with the assets the estate actually should have held.
37Donna now pledges her willingness to assist the ETDL to the extent possible. I have some difficulty with her promise to cooperate. I have reviewed Donna’s cross-examination transcript in full, and find that her answers, which consisted mostly of “I don’t remember,” even in respect of significant or recent events, are not consistent with her professed willingness to cooperate. I also find she refused to answer questions that should have been answered. At every turn, Donna has failed to be transparent.
38Donna’s evidence overall is not credible and I do not accept it. Throughout she has been either unwilling or unable to disclose information about the estate’s assets or her dealings with them.
39I declare that Donna’s accounts are not passed in their current form.
Objections and Damages
40I turn to consider David’s objections to Donna’s accounting and assess whether any damages should flow from those objections, and if so, in what amount.
41In brief, David’s claim to damages owing to the estate can be described as follows:
a. The Collingwood property was sold for too little in suspicious circumstances, and the mortgage proceeds were not received by the estate. Donna should pay the difference between the sale price and the fair market value, and repay the estate for the mortgage payments, assessed on the basis that the mortgage was renewed the maximum number of times provided for in the mortgage, that is, four years.
b. There should be at least $320,000 in personal property held by the estate, having regard to (i) the funds the deceased obtained from selling her house shortly before her death; (ii) the OAS and CPP benefits the deceased was receiving; (iii) the survivor benefits the deceased was receiving from her late husband’s pension; (iv) the rental income the Ottawa condo was generating; and (v) the amounts that David has been able to establish were in the deceased’s bank and investment accounts in the years before her death.
c. There is no evidence about whether Donna filed any tax returns on behalf of the estate. It is likely that there are significant taxes, penalties, and interest owing. Donna should indemnify the estate for any amounts owing.
42At the outset of this analysis, I observe that David’s approach to damages has been to adopt assumptions that are as generous to him as possible, even where the principle underlying the assumption differs from the principle underlying a different assumption on which he relies. He seeks to fill the gaps in the evidence by resorting to adverse inferences.
43The goal of a passing of accounts is not to punish a delinquent trustee, but to hold the trustee to account, and where there has been delinquency or self-dealing, as is the case here, to ensure that the estate is made whole.
44Section 49(3) of the Estates Act gives me the power to order a trustee “on proof of such a claim,” “to pay such sum by way of damages or otherwise as the judge considers proper and just to the estate.” The key phrases are “proof” and “proper and just.”
45It was David who argued forcefully that the application should proceed without the report of the ETDL which might have shed light on his damages claim. He chose to gamble that the adverse inferences he asks me to draw will be enough to fill the gaps.
46Donna argues that I cannot make use of adverse inferences to fill in gaps in the evidence. She relies on Amtim Capital Inc. v. Appliance Recycling Centers of America, 2024 ONCA 225, where the Court of Appeal found that the trial judge had correctly instructed herself on the law of adverse inferences, and declined to employ adverse inferences where they would reverse the burden of proof. That case was decided in the context of civil litigation, where the trial judge rightly observed that the expansive scope of modern discovery serves to obviate the necessity or justification for adverse inferences: Antim Capital Inc. v. Appliance Recycling Centers of America, 2022 ONSC 6877, at para. 92.
47This is a passing of accounts. Donna bears the onus of proof. There are no discoveries. The decision in Antim is not applicable here. I am prepared to draw adverse inferences where they are warranted and principled.
48However, I am not prepared to draw adverse inferences in a speculative fashion. In Last v. Last, 2025 ONSC 1407, the court dealt with a passing of accounts where no formal accounting had been given, although one had been ordered. Charney J. reviewed an itemized list of withdrawals from the account of the deceased, when she was alive, and from the estate, which had been identified by the respondent. They revealed withdrawals unaccounted for that totaled almost $1.5 million. He noted the challenge the court faced:
In the absence of a formal accounting, it is impossible to calculate the precise amount that was misappropriated by Craig between 2015 and 2021. Given Craig’s failure to comply with the Order of Christie J. and provide an accounting, it is appropriate to draw an adverse inference against Craig with respect to most of these bank transfers and other charges.
49Charney J. went on to conclude that there was sufficient evidence in the record to support certain amounts, and he deducted those from the total advanced by the respondent.
50In my view, Charney J.’s approach is the correct one. To reach a proper and just conclusion of what, if any, damages ought to be awarded, I must consider all the evidence before me. In my view, I must also consider the expenses that would have been incurred related to the properties held by the deceased (and later the estate) and the other expenses that the deceased (and later the estate) would have incurred. I must consider what damages are proven on the record.
The Collingwood Property
51The claim for damages related to the Collingwood property has two aspects: (i) the sale price was below market value, and (ii) Donna cannot account for the mortgage payments that the estate should have received.
52David argues that the sale of the Collingwood property is suspicious. He argues that the purchaser is a good friend of Donna’s. Donna denies that allegation. The allegation is based on a conversation David had with Donna’s ex-husband, with whom she was embroiled in bitter divorce proceedings. It is hearsay. It is not admissible for proof of its contents.
53David argues that the sale price was below market value. There is a circularity to this part of David’s argument, because in alleging the sale is suspicious, he states the price was below market value. But in supporting his allegation that the sale was for an amount below market value, he relies on the suspicious circumstances around the sale.
54At the same time, I accept that some circumstances around the sale were questionable. Notably, the property was not listed for sale, but a private sale was arranged without the involvement of realtors, funded mostly by the VTBs. Donna refused to produce any communications between her and Mr. Cutrara regarding the property.
55David argues that the Collingwood property was worth $185,000 based on the following analysis:
a. The real property value estimated in the application for the CAET was $300,000;
b. The Ottawa condo was transferred for $115,000;
c. The St. Kitts property would not have been included in the estimate because it was not in Ontario. Donna’s evidence that she included it in the estimate should be disregarded;
d. The Raven Lake property should not have been included in the estimate because it was held jointly and passed outside of the estate. Donna’s evidence that it was included in the estimate should be disregarded;
e. The Collingwood property is thus worth $185,000.
56I find this analysis to be wholly unsatisfactory. As I will come to, David asks me to disregard the estimate of personal property of $113,000 but accept the estimate of real property at $300,000. David asks me to accept Donna’s estimate of real property at $300,000 but disregard her evidence that it was arrived at including the St. Kitts and Raven Lake properties.
57The estimate of $300,000 is unreliable. I do not know what went into it. There is absolutely no reason I ought to rely on it, except perhaps that none of the respondents objected to it until David commenced his application to compel a passing of accounts approximately 16 years after the deceased died. Given the confusion over the ownership of the Raven Lake property, I find David’s approach of subtracting the value of the Ottawa condo from the estimate to reach a valuation for the Collingwood property to be speculative. It is not an approach grounded in the evidence before me.
58The only independent evidence in the record of the value of the Collingwood property is David’s evidence of a conversation he had with the Collingwood Tax Department which advised him that the 2012 property tax valuation for the property (after its sale in January 2012 by which time title issues had been corrected and the boundary issue related to the property was resolved) was $94,000.
59While David suggests the Collingwood property is worth $185,000, he also stated that he is not asking for me to determine what the Collingwood property is actually worth. He seeks to be able to return to court if further evidence comes to light to ask that Donna be required to make further payments to the estate. This request is inconsistent with the position David took at the adjournment hearing that the matters in this application could be determined. It is inconsistent with a final adjudication of the application. I am not prepared to hear this application in stages.
60On this record, I am not prepared to find that the Collingwood property was worth more than the $75,000 for which it sold, and certainly not that it was materially so such that its sale would have amounted to a breach of duty. An estate trustee has the obligation to behave reasonably with the assets. I do not have evidence about the real estate market at the time of sale. Based on the only objective evidence I have – that the tax value of the property in 2012 was $94,000, I accept the value of $75,000 for the Collingwood property was reasonable.
61That brings me to the question of the mortgage payments. Given Donna’s evidence, I am prepared to assume that the Collingwood property was mortgaged for two years in accordance with the terms of the mortgage.
62The record indicates the mortgages bore interest at 4%, calculated semi-annually, not in advance. No one provided me with written calculations of what the mortgage payments would have been, although counsel gave me a number orally based on the assumption that the mortgage was renewed for four years. On my rough calculation, assuming the mortgage was renewed once on the same terms, and including payments made and interest accruing, by the end of the second year, assuming the balance was paid out at that time the estate should have received approximately $70,850, net of costs, and assuming about $1,000 in cash had been netted at the time the VTBs were entered into.
63At this point, I turn to consider what the evidence reveals about the liquid assets held by the estate.
Bank and Investment Accounts
64As I have noted, the application for the CAET estimated personal property of $113,000, but apart from the fact that none of the respondents objected to the estimate, there is nothing in the record to support that it is accurate.
65The evidence indicates the following regarding the deceased’s liquid assets:
a. As at December 31, 2005, the deceased held a RRIF account with AGF Funds containing $15,897.43;
b. As at April 30, 2003, the deceased held a RRIF account with RBC Dominion Securities containing $22,881.75;
c. As at November 30, 2004, the deceased held an RRSP account containing $35,607.57. I do not know why, because the deceased would have turned 71 in 1998 based on her date of birth contained in the application for a CAET, so her RRSP should have been converted to a RRIF by 1998;
d. As at September 9, 2005, the deceased held approximately $74,000 in an RBC account. By January 9, 2006, this account held only approximately $2,250, suggesting over $70,000 had been transferred out, though it is not clear to where;
e. There is some evidence that the deceased transferred out of another chequing account the sum of approximately $16,000 in approximately November 2005, though no evidence is available as to where those funds went;
f. Thus, in the fall of 2005, the deceased withdrew about $86,000 from her accounts but there is no evidence about what happened to those funds;
g. The deceased sold her home at 78 Four Oaks Gate, Toronto, in August 2006, about nine months before her death, for $480,000. Each beneficiary of her estate was gifted $80,290.00 from the proceeds of sale, leaving $158,840, presumably some of which went to closing costs including real estate commissions. At that point, the deceased moved into a care facility. She did not roll the remaining funds into a new property;
h. The deceased was entitled to “roughly” six years of survivor’s benefit funds from John’s pension according to David, totaling approximately $37,000 per year;
i. The deceased appears to have been receiving about $1,050 monthly in OAS and CPP benefits. Her estate would also have received the CPP death benefit of $2,500;
j. The Ottawa condo was rented for approximately $1,250 per month, which would have been income the deceased regularly received. Her estate would have received the same amount until the property was transferred to David and Donna in February 2008, that is, for approximately eight months;
66This evidence must be considered taking into account the following:
a. The balances available for the RRIF and RRSP accounts date from two to four years before the deceased’s death;
b. The deceased would have incurred costs during her lifetime, including rent at the care facility where she lived in the last months of her life, plus her regular expenses. I have no evidence as to what any of those expenses would be, though it appears the house at Four Oaks Gate was fully paid off, so she would not have had rental or mortgage payments while residing there. There would have been additional costs associated with the Raven Lake property, Ottawa condo, and St. Kitts property;
c. The estate would have incurred expenses addressing the title and boundary issues related to the Collingwood property and sale expenses, expenses related to the Ottawa condo, property tax expenses and other expenses related to the St. Kitts property (including Donna’s costs of travelling there to deal with the property, albeit unsuccessfully), funeral costs, and legal and accounting expenses;
d. On the sale of the Four Oaks Gate home, the deceased made generous gifts to each of her children;
e. Neither Michael nor Daniel have given evidence on this application, which could have shed light on the question of what, if anything, they know about the deceased’s assets at the time of her death.
67Although this evidence is far from complete, it is what I have. In the context of the evidence before me, I draw the following assumptions and conclusions:
a. Because the deceased’s RRSP was not converted to a RRIF by the time it was required to be, the Canada Revenue Agency automatically deregistered the RRSP, causing tax losses;
b. I do not rely on the 2003 statement of the deceased’s RRIF account. Those funds could have been rolled into her other RRIF account or depleted. That statement is from four years prior to death. To rely on it to support an assumption that the deceased held funds in that RRIF in the same amount at death would be highly speculative;
c. Towards the end of 2005, the deceased had approximately $115,000 in investments and cash on hand, including the $86,000 that was transferred out of her accounts in 2005, approximately $16,000 in a RRIF, and approximately $15,000 left from the RRSP deregistration;
d. In addition, in August 2006, the deceased would have added approximately $130,000 to her liquid savings from the sale proceeds of her house, after taking into account the gifts she made to her children, real estate commission, and closing costs of the house;
e. I conclude that the deceased’s costs of living, and the costs related to the properties she owned, were funded, in part, on an ongoing basis during her lifetime by her pension survivor benefits, her OAS and CPP payments, and the rental income from the Ottawa condo. Those income streams should have netted her something around $60,000 annually. I conclude that the costs of maintaining the properties and meeting her expenses, including the rent expense in the last nine months of her life, would have also required her to dip into her RRIF account or her savings. It is reasonable to assume that she was paying $3,500 monthly for rent and care in the mid-2000s, for a total of $31,500 over the nine month period between the sale of her home and her death, plus the ongoing expenses of the other properties;
f. I thus conclude that by the time of her death, she would have had used $10,000 of the then-approximately 245,000 in her savings, in addition to her ongoing stream of income. In the result, her personal property at the time of her death would have been $235,000;
g. The estate would have received a $2,500 death benefit;
h. Donna has not accounted for the expenses the estate incurred, but in my view, she would have incurred the following reasonable expenses:
i. Property taxes for the St. Kitts property, and expenses related to her trip to St. Kitts to deal with the property, including surveyor fees (which appear to have been stolen): given the lack of accounting from Donna on this point, I am only prepared to assume that she incurred $6,000 in respect of these costs;
ii. Funeral costs: I allot $8,000 for this category, which is approximately what Donna deposes she spent;
iii. Ottawa condo expenses: I assume the rent from the condo covered its expenses during the months that the estate owned the condo;
iv. Costs related to the Collingwood property: As noted, there were issues around this property, including boundary issues and the fact that the two parcels that comprise the property were situated in two different townships. Donna involved counsel to assist her and deposes counsel’s brief went on for three years. In addition, there would have been other expenses, like property tax, in the five years before the property was sold. Donna has not particularized the expenses associated with the Collingwood property in any way. In my view, $10,000 is a reasonable figure for the costs associated with the Collingwood property including property taxes, the cost of addressing the issues to ready the property for sale, and the remortgage of the property which I have found occurred for the purpose of assessing the funds to which the estate was entitled from its sale. I allot nothing for the costs of the sale itself, as these were deducted from the sale proceeds in my analysis above;
v. Other Legal and accounting fees relating to the estate, not including costs related to the litigation between Donna and David: Donna retained counsel at the outset to assist her in applying for the CAET. She retained an accountant. I conclude that costs of $5,000 total is a reasonable assumption.
vi. In total, I find that the estate has likely incurred costs of $29,000, excluding litigation costs.
Value of the Estate Unaccounted For
68Thus, at her death, the deceased held $235,000 in personal property her estate. The estate received the $2,500 death benefit and was entitled to $70,850 in relation to the Collingwood property.
69Deducting the estate expenses I have assumed, the current value of liquid assets in the estate ought to be $279,350.
70Donna transferred the disputed funds, totaling $272,538.78 to her counsel in trust (and from which some fees have since been paid.) The shortfall between what the estate should have had and what the estate had is thus $6,811.22.
71Given Donna’s admitted self-dealing, I conclude that the sum unaccounted for ought to be recoverable by the estate. Donna shall pay the sum of $6,811.22 to the estate in damages to reflect the sum which cannot be accounted for.
72Given that counsel was unable to point me to any authority to establish my jurisdiction to order that Donna furnish a tax indemnity to the estate, I decline to do so. First, it is not clear to me if David seeks an indemnity for only penalties and interest owing, if any, or also for tax owing, and if so, on what basis. But more to the point, I do not see such authority in s. 49(3) of the Estates Act to order an indemnity. Section 49(3), as I have noted, permits me to award payment of “sums,” “on proof of such a claim.” Here, there is no indication of what, if anything, the estate owes Canada Revenue Agency. Any “sum” I award would be made up, for a loss that I have no proof exists.
73This leaves the question of the amounts depleted from the disputed funds after they were transferred to Donna’s counsel in trust. I understand the amounts depleted were used to pay legal costs associated with this litigation.
74The question of what to do with the legal costs of this proceeding shall be addressed in my analysis of costs. In principle, however, the estate should have available to it $279,350, being the total amount of the disputed funds plus the $6,811.22 I have ordered in damages, subject to any amount I order payable to either party from the estate. To the extent there is a shortfall in the estate funds after taking into consideration any amounts I order that Donna may be entitled to from the estate, it will be for Donna to make the estate whole.
Is Donna entitled to compensation?
75Section 61(1) of the Trustee Act, R.S.O. 1990, c. T.23, 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 the estate, as may be allowed by a judge of the Superior Court of Justice. Under s. 23(2) of the Trustee Act, the amount of compensation may be fixed upon a passing of accounts.
76Donna argues that issues around her compensation ought to be deferred. She points to the steps she took to administer the estate, including obtaining the CAET, dealing with the Ottawa condo, selling the Collingwood property, and attempting (unsuccessfully) to address the St. Kitts property. For his part, David argues that Donna’s conduct disentitles her to trustee compensation, such that we do not reach the well-established two-stage approach to determining trustee compensation described in Antzon v. Rogovsky, 2025 ONSC 915, at paras. 59-62.
77In Zimmerman v. McMichael Estate, 2010 ONSC 2947, at para. 34, the court held:
[a] trustee must make a proper accounting as a condition precedent to being awarded compensation. Without a proper accounting, the court is unable to assess the conduct of the fiduciary and to determine the compensation to which he or she is entitled. Where a trustee is found to have failed to keep proper accounts and to have been grossly indifferent to his/her fiduciary obligations, he/she may be disentitled to compensation.
78In Assaf Estate (Re) (2009), 2009 CanLII 11210 (ON SC), the court cited with approval a passage from Rodney Hull and Ian Hull, Macdonell, Sheard and Hull on Probate practice, 4th ed. (Toronto: Carswell, 1996), at pp. 358-359:
The conduct of an executor or trustee in carrying out his or her duties may be such as to justify the Court in depriving him or her of the right to remuneration; and an executor must make a proper accounting as a condition precedent to being awarded compensation. But only exceptional misconduct should deprive him or her of the right to remuneration…In general, although an executor may be guilty of neglect and defaults, these, if not dishonest, and capable of being made good in money, do not deprive the executor of the right to compensation although they may influence the amount allowed.
79Donna relies on Laing Estate v. Hines, 1998 CanLII 6867 (ON CA) where the Court of Appeal reiterated the five factors that have been recognized as appropriate considerations in determining fair and reasonable compensation under s. 61 of the Trustee Act: (i) the magnitude of the trust; (ii) the care and responsibility springing therefrom; (iii) the time occupied in performing its duties; (iv) the skill and ability displayed; and (v) the success which has attended its administration. It rejected the notion that compensation should be reduced to punish a trustee who has not kept adequate records. I note, however, that the record-keeping referred in the passage Donna relies upon in Laing Estate refers to record-keeping of the time the estate trustee spent on administration, not record-keeping in respect of the estate’s accounts.
80In this case, Donna has done just about as poor a job as possible in keeping her accounts. She has made a proper accounting impossible. She has admitted to self-dealing. She co-mingled her funds with estate funds.
81Then, when called to account, Donna behaved in a manner that can only be described as puzzling. Contrary to her assertions of her willingness to cooperate, the record reveals she has refused to disclose that which she ought to be able to disclose. Her cross-examination transcript in particular reveals a trustee who is simply not willing to assist in recreating what has transpired in the management of this estate.
82It is Donna’s poor record-keeping and lack of cooperation that led to the necessity of this application. The fact that, in the end, I have found that the amount which she must repay to the estate is limited is in no way a vindication of her behaviour or conduct. It is a reflection of the lack of proof of a claim that is before me, which flows to some extent from Donna’s own disclosure failings.
83In these circumstances, I find it appropriate to deny Donna any entitlement to compensation.
Costs
84At the hearing of the application, I suggested to the parties that I could proceed to determine costs based on the costs outline and bill of costs uploaded to Case Center after I had written my reasons on the merits. Counsel agreed to my doing so.
85However, I have reconsidered the matter, and conclude that, given the results of this application, I would benefit from obtaining the parties’ written submissions on costs.
86I direct the following timetable:
a. David shall deliver costs submissions limited to five pages to me by June 23, 2026;
b. Donna shall deliver responding costs submissions limited to five pages to me by June 30, 2026;
c. David may deliver reply costs submissions, limited to two pages, to me by July 6, 2026.
87Costs submissions may be delivered to my attention by way of email to my assistant at Kristina.archer@ontario.ca.
J.T. Akbarali J.
Date: June 16, 2026