COURT FILE NO.: CV-25-00000220-00ES (Kingston)

DATE: 20260213

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE ESTATE OF EILEEN VERA CHILDS, deceased

BETWEEN:

MICHAEL CHILDS Applicant – and – PETER CHILDS, ANDREW CHILDS and CAROLINE CHILDS Respondents

Matthew Furrow and Daniel Welton-Boucher , for the Applicant

Self represented

HEARD in Kingston: 19 January 2026

REASONS FOR DECISION

MEW J.

[ 1 ] The parties to this application are siblings who have been engaged in a longstanding family dispute concerning the guardianship, and now, the estate of their late mother, Eileen Vera Childs, who passed away on 1 March 2025 at the age of 98.

[ 2 ] The dispute between the parties has engaged the attention of this court, the Divisional Court, the Court of Appeal and three failed applications for leave to appeal to the Supreme Court of Canada. Hundreds of thousands of dollars have been spent on legal fees. The assets of Eileen Childs, and now, her estate have been significantly diminished as a result.

[ 3 ] As early as 2017, the Court of Appeal commented, “[it] is past time for the litigation over Mrs. Childs to end”: Childs v. Childs , 2017 ONCA 516 , at para. 50 . It is therefore highly regrettable that the litigation between the parties continues, almost unabated, nearly nine years later.

[ 4 ] Eileen Childs’ will, made in 2009, named all four of her children as executors. The will provided that:

In the event of a disagreement among my Executors and Trustees, I direct that a decision of a majority shall govern. If any of the…appointed Executors…becomes at any time unable or unwilling to act or to continue to act as an Executor and Trustee of this Will, then I direct that the remaining Executors will continue to act as Executors and Trustees of this Will, and that in the event of a disagreement among the remaining Executors, I direct that a decision of a majority shall govern.

[ 5 ] In the application now before the court, Michael (this and subsequent references to the children of Eileen Childs by their first names is for the purposes of clarity, and without any sense or intent of disrespect) seeks to remove all four siblings as executors and to appoint in their place, a neutral estate trustee, citing irreconcilable conflict between the executors appointed under the will. The respondents, Peter and Caroline, oppose this application, while the other respondent, Andrew, supports the application.

[ 6 ] Michael also asks for a number of other directions and declaratory orders, including:

a. A declaration that the estate trustee shall not be responsible for pursuing further litigation in connection with

i. the appointment of BMO Trust Company as guardian of property for Eileen Childs, BMO Trust acts and omissions as such between 29 April 2015 and 25 June 2017 and professional fees paid from the property of Eileen Childs to BMO Trust during that period;

ii. the appointment of Wendy Griesdorf as section 3 counsel for Eileen Childs (including any steps taken or not taken by her as such, and the fees paid to her);

iii. the appointment of Michael as litigation guardian for Eileen Childs during her lifetime or as co-guardian of her person;

iv. all other issues that have been adjudicated to date by the Superior Court of Justice, the Court of Appeal for Ontario and the Supreme Court of Canada in subsequent appeals from each (collectively, the "Proceedings"); and

v. the cost awards arising out of the Proceedings;

b. a declaration that the estate trustee may and shall make payments from the residuary shares of the Peter and Caroline in accordance with the costs awards made in the Proceedings, inclusive of any accrued interest, without requiring a formal order or judgment to be issued for those costs awards, or, in the alternative, a direction that Michael may submit any outstanding formal orders and judgments to the court for issuance without the requirement of approval as to form and content of Peter or Caroline; and,

c. a declaration that the estate trustee shall be the only person with standing to participate as a respondent and to file objections on the passing of accounts proceedings brought by BMO Trust as guardian of Eileen Childs.

[ 7 ] A substantial record was placed before the court in support of the application. Responding materials were delivered by each of the respondents. In addition, I was referred to portions of a 110-page transcript of the cross-examination of Michael on his affidavits, as well as materials filed in connection with a notice of application to pass accounts for the period from 26 June 2017 to 2 March 2025 made by BMO Trust Company, in its capacity as guardian of property for Eileen Vera Childs (Court File No. CV-25-100687-00ES) (Ottawa).

[ 8 ] While I have carefully reviewed and considered all of the evidence presented, including those portions of the transcript of Michael’s cross-examination to which I was referred, I have not attempted in these reasons to address all of the evidence and arguments presented, or provide an overly detailed history of the litigation between the parties. Rather, I have attempted to offer an abbreviated history of the previous related litigation and have referred in these reasons only to the evidence and arguments that I consider necessary to explain my decision.

Litigation History to Date

[ 9 ] In 2014, the family divided along factional lines. Michael and Andrew applied to be appointed as guardians of property and personal care for their mother. Peter and Caroline opposed, and brought their own cross-application asking that they be appointed as guardians of property and personal care.

Section 3 Counsel and the $43,470.89 Payment

[ 10 ] On 22 January 2015, McLean J. appointed Wendy Griesdorf, a Kingston estates lawyer, as Section 3 counsel for Mrs. Childs pursuant to the Substitute Decisions Act , 1992, S.O. 1992, c. 30, with her fees to be paid from Mrs. Childs’ property. This appointment subsequently became the focus of allegations of fraud and conspiracy made by Peter.

[ 11 ] In February 2016, BMO Trust, which by then had been appointed (with the agreement of the parties) as guardian of property, paid Ms. Griesdorf $43,470.89 for legal fees incurred from July 2015 through February 2016. These fees related principally to responding to various appeals and motions instituted by Peter and Caroline (see below). The payment was made two days after Ms. Griesdorf had submitted her invoices, and before judicial review of her accounts. This payment was not disclosed to the parties until September 2017–some 20 months later–when BMO Trust provided financial reporting.

[ 12 ] From September 2017 onwards, Peter (supported by Caroline) has repeatedly alleged that this payment was fraudulent and part of a conspiracy involving Ms. Griesdorf, BMO Trust, Michael, and, eventually, the Public Guardian and Trustee (“PGT”) and court staff. These allegations have been pursued through multiple appeals as far as the Supreme Court of Canada, all of which have been dismissed.

June 2015 Decision of Justice Tranmer

[ 13 ] By June 2015 the parties had agreed to appoint BMO Trust as guardian of property, and Caroline as guardian for personal care of Eileen Childs. Tranmer J. decided the outstanding issue of Caroline’s compensation as caregiver, and appointed Michael as litigation guardian for the purpose of enabling BMO Trust to pass its accounts : Childs v. Childs , 2015 ONSC 2036 , at paras. 8-10 , 47 (the “June 2015 decision”).

December 2015 Decision of Justice Tranmer

[ 14 ] After the June 2015 decision, Caroline and Peter attempted to resile from their agreement and announced that Caroline would abandon the care plan which had been approved by Tranmer J. As a result, Section 3 counsel brought a motion to vary the June 2015 decision.

[ 15 ] In December 2015, Justice Tranmer revised his decision, finding: “The Motion to vary my original order was necessitated by the actions of Caroline and Peter Childs, who leveraged their mother’s health and best interests to manipulate a result more favourable to Caroline”: Childs v. Childs , 2016 ONSC 2092 , at para. 4 (the “December 2015 decision”).

[ 16 ] The December 2015 decision reaffirmed BMO Trust as guardian of property, appointed Michael as both litigation guardian and co-guardian of personal care with Caroline, and awarded costs, payable by Peter and Caroline from their eventual shares of Mrs. Childs’ estate. Importantly, Tranmer J. also ordered BMO Trust to pass accounts every two years, and required BMO Trust to file an amended management plan within 45 days, satisfactory to the parties and the PGT.

Repeated Appeals

[ 17 ] Peter and Caroline pursued appeals of Justice Tranmer’s June 2015 and December 2015 decisions, including four interim motions before the Court of Appeal. Of those motions, only one–to extend time for appeal–succeeded.

[ 18 ] On 20 June 2017, the Court of Appeal dismissed Peter and Caroline’s appeals in their entirety, upholding the December 2015 decision: Childs v. Childs , 2017 ONCA 516 . Peter then sought leave to appeal to the Supreme Court of Canada. He brought two motions to the Supreme Court, alleging that the payment to Ms. Griesdorf (which by then had been disclosed) was “new information” revealing the existence of a conspiracy. Both motions were rejected, with costs awarded against him. The application for leave to appeal was denied: Childs v. Childs .

[ 19 ] In September 2019, Peter brought another motion in the Court of Appeal, pursuant to Rule 59.06, seeking to vary or quash the Court’s previous order. The Court of Appeal dismissed this motion on its own initiative (after receiving written submissions), describing it as “a transparent attempt to continue to wage war against the former Section 3 counsel”, and an abuse of process that was “frivolous and vexatious”. The Court ordered that no further motions should be filed by Peter in an attempt to reopen or otherwise in respect of the Court’s previous orders: Childs v. Childs , 2019 ONCA 717 , at paras. 16-17 .

[ 20 ] In 2020, the Supreme Court of Canada rejected Peter’s application for leave to appeal the September 2019 Court of Appeal decision: Childs v. Childs .

Application to Pass Accounts (2015-2017)

[ 21 ] On 21 February 2018, BMO commenced an application to pass its accounts for the period 29 April 2015 to 25 June 2017. The December 2015 decision required accounts to be passed every two years: this first application was, therefore, already overdue. Peter and Caroline filed notices of objection, repeating their allegations about the $43,470.89 payment and seeking the removal of BMO Trust and Michael Childs.

[ 22 ] In April 2019, Hackland J. found the notices of objection were attempts to re-litigate the matters already decided by the Court of Appeal: BMO Trust Company v. Childs , 2019 ONSC 2637 . At para. 5 of his reasons, Hackland J. wrote:

In his Notice of Objection filed in the present passing of accounts, Peter Childs again seeks to have BMO Trust Company removed as guardian of property, with that responsibility transferred to himself and his sister Caroline and an order removing Michael Childs as litigation guardian for the passing of accounts, to be replaced by himself (Peter Childs). In support of his relief he raises allegations of collusion, conspiracy and an alleged secret agreement between the litigation guardian and BMO Trust Company as guardian of property. He has filed no affidavit evidence in support of these extremely serious allegations. His brief affidavit simply identifies and attaches a number of documents filed in prior proceedings.

[ 23 ] Hackland J. went on to find Peter to be a vexatious litigant and denied him further standing in the first passing of accounts application. Caroline was granted limited standing because of her status as co-guardian of the person, but those parts of her objections seeking to re-litigate the previously determined issues were struck ( 2019 ONSC 2637 , at paras. 12-18 ).

[ 24 ] In January 2020, the Court of Appeal dismissed Peter’s appeal from Justice Hackland’s decision, finding that there was “ample support” for Hackland J.’s conclusion that Peter was a vexatious litigant: BMO Trust Company v. Childs , 2020 ONCA 21 , at paras. 3-4 . Peter’s subsequent attempt to appeal to the Supreme Court of Canada was also rejected: Childs v. BMO (as Property Guardian of Eileen Childs) .

[ 25 ] On 13 February 2023, Caroline withdrew her objections to BMO Trust’s application. This enabled the application to proceed to judgment. On 13 February 2025, MacLeod R.S.J. issued a judgment on the passing of accounts, approving BMO Trust’s guardianship accounts for the period 29 April 2015 - 25 June 2017. No explanation has been provided for the delay between the withdrawal of Caroline’s objection and MacLeod R.S.J.’s order.

[ 26 ] By passing the accounts for 29 April 2015 - 25 June 2017, MacLeod R.S.J. conclusively disposed of all issues relating to transactions effected by BMO Trust during that period, including the $43,470.89 payment to Section 3 counsel in February 2016. The principle of res judicata prevents these matters from being litigated. Any further challenge to BMO Trust’s conduct or the Section 3 counsel payment during this period is now, to all intents and purposes, barred.

Subsequent Accounts (2017-2025)

[ 27 ] BMO Trust should have passed accounts for the periods 2017-2019, 2019-2021, and 2021-2023 pursuant to the December 2015 decision. These accounts were never filed during Mrs. Childs’ lifetime due, it has been said, to the hold-up in the passing of the 2015-2017 accounts until February 2025.

[ 28 ] On 12 August 2025, after Michael commenced this application, BMO Trust commenced an application to pass accounts for the period 26 June 2017 to 2 March 2025 (Mrs. Childs having passed away on 1 March 2025). That application, bearing Court File No. CV-25-00100687-00ES, is proceeding in Ottawa. Peter and Caroline have filed notices of objection, heavily focused on historical matters, including the 2015-2017 delays, management plan approval delays, and the $43,470.89 payment to Section 3 counsel.

[ 29 ] On 13 November 2025, Labrosse J. adjourned BMO Trust’s application sine die pending the outcome of this application.

Management Plan Issues

[ 30 ] The December 2015 decision required BMO Trust to file an amended management plan within 45 days, satisfactory to the parties and the PGT. If not approved, BMO Trust was to bring a motion for directions.

[ 31 ] BMO Trust submitted its first amended plan to the PGT in October 2017. It was not approved. BMO Trust did not seek court directions as required. In the meantime, however, Peter’s appeals challenging BMO Trust’s appointment remained ongoing until December 2020.

[ 32 ] BMO Trust eventually provided an updated management plan to the PGT on 22 September 2021. By then, Mrs. Childs’ assets had diminished significantly, seemingly as a result of litigation costs. After comments and minor corrections, a revised plan was submitted on 7 March 2022. The PGT did not finally approve the amended management plan until 26 July 2022.

[ 33 ] Caroline contends that Michael, as the litigation guardian, failed in his duty to accelerate PGT approval or to compel BMO Trust to seek court directions.

Costs Awards

[ 34 ] Peter and Caroline have been ordered to pay multiple costs awards arising from their unsuccessful motions and appeals. When they failed to pay awards from September 2015 and February 2016, a number of orders were made requiring the costs to be paid from Mrs. Childs’ property and offset against Peter and Caroline’s eventual shares of her estate.

[ 35 ] The estimated total of costs awards to be offset from Peter and Caroline’s shares exceeds $200,000. However, despite Michale’s efforts to do so, formal orders have not yet been taken out in respect of several of the decisions in which costs were awarded.

Current Status of the Estate

[ 36 ] According to Michael, the total estimated value of Eileen Childs’ estate is approximately $900,000, comprising:

a. Mrs. Childs’ home, last valued at $603,000 by the municipality in November 2020;

b. $266,197.13 in a BMO investment account;

c. RRIFs at HSBC Canada and Sun Life (value unknown); and

d. TFSA at BMO (value unknown).

[ 37 ] BMO Trust’s outstanding accounts for 26 June 2017 to 2 March 2025 include a claim for compensation of $220,564.56 (including HST) which will, presumably, further diminish the estate. Furthermore, the judgment of MacLeod R.S.J. on the passing of accounts for the period 29 April 2015 to 25 June 2017, deferred the issue of BMO Trust’s legal costs for the passing of those accounts, directing that they be heard or otherwise decided at a later date.

[ 38 ] Despite the conflict between the four parties to this application, the executors nominated by Eileen Childs have undertaken some preliminary steps in respect of the administration of the estate, including:

• Notification of financial institutions (banks, pensions, insurers) of Mrs. Childs’ death;

• Payment of time sensitive expenses (funeral costs, property taxes, household expenses, reimbursement to Caroline for pre-death caregiving costs);

• Completion of Mrs. Childs’ 2024 income tax return (prepared by Peter);

• Discontinuance of Bell Canada service; and

• Maintenance of Hydro One service and property insurance (payments have been made through BMO Trust on the basis of unanimous consent).

[ 39 ] That said, there are a number of outstanding estate administration tasks, including, but not limited to:

• Application for certificate of appointment of estate trustee with a will (probate). This has not occurred because Michael and Andrew have declined to proceed with probate;

• Banking of cheques received from the Canada Revenue Agency (tax refund) and Sun Life. An estate account at a different institution has been suggested but no consensus reached;

• Response to BMO Trust’s application to pass accounts for 2017-2025 (currently adjourned pending the outcome of this application);

• Reconciliation and payment of costs awards to be offset from Peter and Caroline’s shares; and

• Liquidation of property and contents, and distribution of the estate.

Relief Sought

[ 40 ] The applicant asks the court to make the following orders:

a. Passing over Peter, Andrew, Caroline and Michael as executors and estate trustees of the estate of Eileen Childs;

b. Appointing Kathleen Wright of Mann Lawyers LLP, Ottawa, as estate trustee of the estate of Eileen Childs without the necessity of posting a bond, to administer the estate of the deceased in accordance with the will, and to receive appropriate compensation for doing so;

c. Declaring that the estate trustee shall not be responsible for pursuing further litigation, and, specifically, shall not be liable to any of the beneficiaries of the estate for any actions or omissions, in connection with matters that are res judicata and/or irrelevant to the administration of the estate (those matters are listed in detail at para. 1(d) of the notice of application and are referred to collectively as the “Proceedings”);

d. Declaring that the estate trustee shall be the only person with standing to participate as a respondent and to file objections in the proceeding brought by BMO Trust Company in court file number CV-25-00100687-00ES (Ottawa) to pass its accounts as the guardian of property for Eileen Childs; and

e. Directing the estate trustee to make payments from the residuary shares of Peter and Caroline in accordance with the costs awards made in the Proceedings, inclusive of any accrued interest, without requiring a formal order or judgment to be issued for those costs awards, or, in the alternative, directing that Michael may submit any outstanding formal orders and judgments to the court for issuance without the requirement of approval as to form and content of Peter or Caroline.

[ 41 ] Michael also seeks reimbursement of his costs of this application from either the estate, or the respondents (or a combination thereof).

Appointment of a Replacement Estate Trustee

[ 42 ] It has long been recognised that courts have an inherent power to remove a trustee when circumstances require: Gonder v. Gonder Estate , 2010 ONCA 172 , at para. 26 , referring to Letterstedt v. Broers (1881), 9 A.C. 371 (P.C.), per Lord Blackburn at 386-87.

[ 43 ] This inherent power of the court must be balanced against the legal principle that courts should not lightly interfere with a testator’s choice of person to act as his or her estate trustee: Chambers Estate v. Chambers , 2013 ONCA 511 , at para. 95 , referring to Re Weil , [1961] O.R. 888 (C.A.), at 889.

[ 44 ] Accordingly, an executor should not be removed or passed over unless there is a clear necessity for doing so to ensure the proper administration of the estate. This could occur, for example, when an executor’s personal interests conflict with their fiduciary duties, or animosity or conflict between the executor and co-executors or beneficiaries risks compromising the administration of the estate.

Michael’s Arguments for Appointing a Professional Trustee

[ 45 ] Michael argues that over a decade of litigation has created irreconcilable conflict that will interfere with proper estate administration. He says that Peter has indicated his intention to use his authority as an estate trustee to pursue alleged conspirators, including Michael, BMO Trust and the Section 3 counsel. He points to Peter’s email references about ensuring that “everyone understands, and is prosecuted for, the mechanisms used to deceive and mislead courts” and expecting “the entire set of hearing [ sic ] being found to be a $600,000 obstruction and manipulation of Justice”.

[ 46 ] Anticipating Peter and Caroline’s reliance on the majority clause in their mother’s will, Michael refers to this court’s decision in Mailing v. Conrad , at para. 17 , where Dunn J. stated:

I agree with the applicants’ position that notwithstanding the “majority clause” the lack of co-operation by the respondent would continue to make the job of the other executors difficult if not impossible. The nature of the respondent’s behaviour, including threatening to take legal action against his co-executors, cannot be resolved by the “majority clause”. The applicants are right to be cautious in the face of the allegations by the respondent and apparent threats of litigation.

[ 47 ] While Michael concedes that what he describes as “minor preliminary steps” in the administration of the estate have been taken without rancour, he asserts that the siblings remain divided on substantive issues, such as BMO Trust’s accounts, the outstanding costs awards against Peter and Caroline, and their desire to re-litigate settled matters. Michael points to both the content and the tone of Peter and Caroline’s affidavits, submitting that there is very little that could be regarded as conciliatory, and much that is hostile to Michael (and, by extension, Andrew).

[ 48 ] According to Michael, Peter and Caroline are also in a conflict of interest as they owe over $200,000 to Michael, Andrew, and the estate, in unpaid costs awards. These costs awards are to be offset from their respective shares of the estate. A further feature of the costs awards is that–because of what Michael alleges to have been a lack of co-operation on the part of Peter and Caroline–formal orders have, in some cases, not been taken out.

[ 49 ] Michael argues that it is axiomatic that trustees have a duty to look at the interests of all of the beneficiaries, and not those of any particular beneficiary: Orenstein v. Feldman (1978), 2 E.T.R. 133, 1978 CarswellOnt 515 (H.C.J.), at para. 16 . Peter and Caroline’s failures to facilitate the taking out of court orders or to pay the costs awards made against them and, hence, their ongoing indebtedness, therefore render them unable to impartially prioritise the estate’s and other beneficiaries’ interests over their own.

Peter and Caroline’s Arguments Against Removal

[ 50 ] Caroline submits that the successful navigation of early steps in the administration of the estate demonstrates that the executors can, in fact, work together. Time-sensitive expenses have been paid, institutions notified, the income tax return completed, and a streamlined payment process established.

[ 51 ] While Caroline acknowledges that there will inevitably be differences of opinion and difficulties, the presence of the “majority rules” clause anticipated this, and provided the solution. Peter and Caroline argue that Michael’s application is premature, given the successful co-operation on substantive matters to date.

[ 52 ] Caroline also notes that probate–normally the first executive duty–has not commenced because Michael and Andrew will not agree. As a result, there is not an estate bank account yet, which has resulted in a refund cheque from Canada Revenue Agency and a cheque from Sun Life, not being deposited.

[ 53 ] Caroline states that she is willing and able to fulfill her duties as an executor and that appointing a professional trustee will be far too costly. She views honouring her mother’s will, and in particular her express wishes that all of her children would act as trustees, as her final duty of care towards her mother.

[ 54 ] Caroline suggests that it would be prudent for the estate to engage a forensic accountant to review BMO’s 2017-2025 accounts, given her belief, as stated in her notice of objection to BMO’s pending application, that BMO has “claimed more than they should have”.

[ 55 ] Peter and Caroline reject the characterisation of their objections to the accounts as re-litigation of issues that have already been dealt with.

[ 56 ] Caroline and Peter also argue that it is Michael who is in a conflict of interest position, given his failure to fulfill his duties as litigation guardian for the passing of accounts, and the approval of the amended management plan. Michael’s request to have all executors removed and to appoint a lawyer of his choosing would leave his past actions, and inactions, as litigation guardian unaddressed by a truly neutral party.

Analysis

[ 57 ] To an outside observer, it is difficult to understand how these four siblings, who all present as articulate, intelligent, mature, and educated individuals, who each profess a deep love and affection for their late mother, could have spent the last decade embroiled in expensive, and at times vicious, litigation concerning their mother’s well-being, and now, her estate. In particular, Peter and Caroline’s pursuit of BMO Trust, Wendy Griesdorf and Michael for their perceived failings, has continued unabated, undimmed by the repeated rejection of their grievances and the adverse costs awards made against them by all three levels of court that they have involved. Hundreds of thousands of dollars in legal costs have been spent. Reams of paper and voluminous electronic communications have been generated. The same complaints have been repeated over and over again.

[ 58 ] According to Michael’s counsel, when Michael was cross-examined on his affidavit in connection with this application, 39 out of the 62 pages of the transcript focused on Michael’s role as his mother’s litigation guardian and BMO’s passing of accounts.

[ 59 ] According to Peter:

Michael’s Application seeks to remove named executors, turning the administration of the deceased [ sic ] Will into an impersonal accounting uninformed by knowledge of 10 years of litigation history, except the formal decisions and Orders obtained through collusion and deception. It creates the appearance of equity by seeking to remove all executors, but because knowledge of events is removed, advantage accrues to those who manipulated the administration of justice.

[ 60 ] In his oral submissions on this application, Peter lamented the fact that Justice Hackland’s finding that his claims were vexatious has now made it impossible for him to obtain legal representation. He feels aggrieved that in one of the decisions, it was said that he had not filed an affidavit when, in fact, he had filed a substantial affidavit.

[ 61 ] The parties–all of them–should be commended on the steps that have been taken to date in relation to their mother’s estate. It is abundantly clear, however, both from the contents of the affidavits filed, and the submissions made at the hearing of the application, that the two sibling groups–Michael and Andrew on the one hand, and Caroline and Peter on the other–harbour an animus and a deep-seated mistrust of each other.

[ 62 ] Time has hardened, not healed, their differences.

[ 63 ] Their mother’s will, made before sibling rivalries erupted into litigation, did, indeed, contain a “majority rule” provision. This would work well if there were three on one side of an issue and one on the other. But time after time, the siblings have divided evenly. The “majority rule” provision does not contain a tie-break mechanism.

[ 64 ] It is beyond doubt that appointing a lawyer to act as a professional estate trustee will further reduce the amounts that are eventually distributed to the estate’s beneficiaries. That said, based upon the significant litigation costs that have been incurred by the parties, by Eileen Childs, and now, by her estate over the past decade, it seems to me highly likely that the parties, and their eventual legacies from the estate, will be better served by making the appointment which Michael seeks in this application.

[ 65 ] While the animosity and conflict between the parties is a sufficient basis for them being passed over as trustees to ensure the proper administration of the estate, there is also, in my view, a genuine concern that the accumulated costs awards against Peter and Caroline would compromise their ability to administer the estate in the interests of all of the beneficiaries.

[ 66 ] The proposal that the neutral estate trustee should be Kathleen Wright is, in my view, appropriate. Although Peter and Caroline complain that Ms. Wright is Michael’s nominee, and, thus, not neutral, the uncontradicted evidence is that Michael has had no prior relationship or dealings with Ms. Wright, nor have they ever personally communicated. In circumstances where there are sufficient assets in the estate to pay its liabilities, and where the proposed estate trustee is a member of a reputable and established law firm, having expertise in the administration of estates, it is appropriate for the court to exercise its discretion to dispense with the necessity of posting a bond.

[ 67 ] For the foregoing reasons, orders will go passing over Peter, Andrew, Caroline and Michael as executors and estate trustees of the estate of Eileen Childs, and appointing Kathleen Wright as estate trustee of the estate of Eileen Childs, without the necessity of posting a bond. Ms. Wright will be required to administer the estate of Ms. Childs in accordance with her will, and to receive appropriate compensation for doing so.

Administration of the Estate

[ 68 ] Given the history of the litigation between the parties, and the extent to which Peter and Caroline, in their evidence and in their submissions on this application, remain focused on matters that have already been litigated, Michael seeks directions which would support the estate trustee in the pursuit of her mandate.

[ 69 ] The court possesses broad powers to supervise and direct the management of an estate. This includes providing direction to ensure that the estate trustee’s powers are exercised appropriately and with regard to all proper interests: Assaf Estate (Re ) , at para. 32 (ON SC).

Pursuit of Further Litigation

[ 70 ] Paragraph 1(d) of the notice of application lists the matters that have already been adjudicated by this court and by appellate courts concerning the financial dealings with Eileen Childs’ property from 29 April 2015 to 25 June 2017, of Michael as litigation guardian and co-guardian of the person of Eileen Childs, of the appointment and role of Section 3 counsel, and all other issues, including costs adjudicated in the extensive litigation between the parties.

[ 71 ] I agree with Michael that, for the protection of the proposed neutral estate trustee, and for the efficient administration of the estate, it is appropriate for the court to declare and direct that the estate trustee shall not be responsible for pursuing any of the issues that were raised in the proceedings set out at para. 1(d) of the notice of application (regardless of whether Peter or Caroline feel that the resulting decisions fail to deal with all of the issues they had raised, or that the decisions were incomplete, wrong, misguided or otherwise flawed). Nor shall the estate trustee be liable to the beneficiaries of the estate in connection with any of those issues.

Standing in Passing of Accounts Proceeding (CV-25-00100687-00ES)

[ 72 ] Michael submits that only the professional estate trustee should be permitted to respond to BMO Trust’s application to pass accounts, because only the estate has a direct interest in how Eileen Childs’ property was managed during her lifetime. Michael also raises concerns that the objections raised by Peter and Caroline will interfere with the administration of the estate.

[ 73 ] I understand that Peter and Caroline have purported to file notices of objection to BMO Trust’s application.

[ 74 ] Mr. Furrow, counsel for Michael, advised the court that when the BMO Trust application was spoken to before Labrosse J. on 13 November 2025, the court was advised that the issue of Peter and Caroline’s standing to file objections would be raised at the hearing of this application.

[ 75 ] Appreciating that s. 42 of the Substitute Decisions Act prescribes a list of the people who can participate, with leave, in an application to pass accounts, I am of the view that such a determination should be made by the judge presiding over that application, rather than by me as a judge in a related proceeding. Furthermore, having now approved the appointment of a neutral estate trustee who, pursuant to s. 30 of the Estates Act , R.S.O. 1990, c. E.21, has exclusive power to act on the estate’s behalf in litigation, I would expect a court making a determination as to the standing of objectors might want to consider the estate trustee’s position on those objections.

[ 76 ] I therefore decline to make any determination of the standing of Peter or Caroline to raise objections to BMO Trust’s application, without prejudice to any determination of such standing being made by the judge who hears that application.

Previous Costs Awards

[ 77 ] The estate trustee will be responsible for implementing unpaid costs awards against Peter or Caroline which have been ordered to be made out of their shares in the estate distribution.

[ 78 ] In the absence of any apparent controversy over the form or content of the formal orders arising from decisions of this court, I order and direct that such orders may be taken out without the need to obtain approval as to form and content from either Peter or Caroline.

[ 79 ] To the extent that there are costs awards made by other courts (i.e., the Court of Appeal or the Supreme Court of Canada) which have not yet been memorialised in a formal order, it would be outwith my jurisdiction to give directions with respect to the taking out of such orders.

[ 80 ] Nevertheless, in the event that there are costs awards made by the appellate courts in respect of which no formal order has yet been taken out, I can and do direct that the estate trustee may, pending the taking out of such formal order or orders, hold back sufficient amounts from Peter and Caroline’s shares in the estate to satisfy such costs obligations.

Costs

[ 81 ] Michael asks that the costs of this application should be paid by Peter and Caroline in equal shares on a partial indemnity basis, to be satisfied by the estate trustee from their shares of the estate, and that Michael’s further costs of this application over and above the partial indemnity award against Peter and Caroline, should be payable by the estate trustee from Eileen Childs’ estate.

[ 82 ] Although I have rejected many of the arguments made by Peter and Caroline, their starting point was the well-established principle that, absent exceptional circumstances, the court should respect the wishes of the testator.

[ 83 ] That said, in Salter v. Salter Estate (2009), 50 E.T.R. (3d) 227 , D.M. Brown J., at para. 6, stated:

The “loser pays” principle brings needed discipline to civil litigation by requiring parties to assess their personal exposure to costs before launching down the road of a lawsuit or a motion. There is no reason why such discipline should be absent from estate litigation. Quite the contrary. Given the charged emotional dynamics of most pieces of estates litigation, an even greater need exists to impose the discipline of the general costs principle of “loser pays” in order to inject some modicum of reasonableness into decisions about whether to litigate estate-related disputes.

[ 84 ] This passage was cited with approval by the Court of Appeal in Sawdon Estate v. Sawdon (2014), 119 O.R. (3d) 81, 370 D.L.R. (4th) 686, 93 E.T.R. (3d) 247, 2014 ONCA 101 , at para. 96 , as supporting what the Court described as a “blended approach to costs”. In Sawdon Estate , reliance on this passage led to an order requiring a beneficiary to pay an estate trustee’s costs on a partial indemnity basis, with the estate indemnifying the estate trustee for the balance.

[ 85 ] I am provisionally of the view that a similar approach should be taken in the present case. The applicant has filed a costs outline in which the full indemnity costs claimed, inclusive of fees and applicable taxes, total $76,212.67. On a partial indemnity basis, Michael submits that fees would amount to $40,104.00 plus assessable disbursements of $632.70.

[ 86 ] No submissions were made at the hearing on the reasonableness (or otherwise) of the amounts claimed, or the appropriateness of the blended costs award sought by Michael.

[ 87 ] Given that I already have Michael’s costs outline, which includes brief submissions made in support of the amounts claimed, I would direct as follows:

a. Peter and Caroline may jointly or individually provide the court with a written submission on costs, not to exceed four pages in length, fourteen days after the release of these reasons.

b. Michael will then have seven days to provide a reply submission (if deemed necessary), not to exceed four pages in length.

[ 88 ] I will make my decision on costs after I have received and considered the written submissions of the parties. I reserve the right to depart from my expressed provisional view that there should be a blended award.

Mew J.

Released: 13 February 2026

COURT FILE NO.: CV-25-00000220-00ES (Kingston)

DATE: 20260213

ONTARIO SUPERIOR COURT OF JUSTICE IN THE MATTER OF THE ESTATE OF EILEEN VERA CHILDS, deceased BETWEEN: MICHAEL CHILDS Applicant – and – PETER CHILDS, ANDREW CHILDS and CAROLINE CHILDS Respondents REASONS FOR DECISION Mew J.

Released: 13 February 2026