Whaley Estate Litigation
 Whaley Estate Litigation Newsletter Vol.4 No. 5 August 2014




Thank you for your continued feedback, comments, enquiries and contributions at: newsletter@whaleyestatelitigation.com


Whaley Estate Litigation provides litigation, mediation and dispute resolution services throughout Ontario to you, or your clients in the following practice areas:

  • Will, Estate, Trust Disputes
  • Advising Fiduciaries
  • Dependant Support Claims
  • Passing of Estate, Attorney, Guardian and Fiduciary Accounts
  • Capacity Proceedings
  • Guardianships
  • Power of Attorney Disputes
  • Consent and Capacity Board Proceedings 
  • End of Life Decisions
  • Treatment Decisions
  • Elder Law
  • Elder Financial Abuse
  • Solicitor's Negligence
  • Opinions*
  • Agency Services
  • Substitute Decisions Act, S.3 Counsel
  • Mediation 

* Albert Oosterhoff, Professor Emeritus Western University, Counsel at Whaley Estate Litigation, consults on matters within his areas of expertise, providing Opinions concerning Wills, Estates, Trusts and related Property matters. Albert provides legal opinion and litigation support services to lawyers and law firms. 


Please Enjoy, 


Kimberly A. Whaley
Whaley Estate Litigation



1. Thomson Reuters, Carswell Publishing


Albert Oosterhoff was asked by Thomson Reuters for permission to reproduce his "Indemnity of Estate Trustees" article in Armstrong's Estate Trustees, release expected shortly.


2. Oosterhoff on Trusts: Text, Commentary and Materials


The 8th edition of "Oosterhoff on Trusts: Text, Commentary and Materials" is now in press and will be published mid-August by Thomson Reuters.


3. Elder Abuse Prevention Advocate, F-K Council on Aging & Partner, Seniors Support Services Group


Mark Handelman and Heather Hogan/Kimberly Whaley will present at the Elder Abuse Education Day in Kingston, on October 1, 2014


4. WEL Mediation


We congratulate our associate Ameena who recently received her certificate from the ADR Institute of Ontario as well as certificates in Conflict Management and Mediation from Conrad Grebel University College.


Ameena Sultan, having recently completed recognized mediation certification training and having had extensive experience practicing exclusively in estate and related disputes, will now offer mediation and alternative dispute resolution with Kimberly Whaley through WHALEY ESTATE MEDIATION


5. Lawyers Weekly, July 25, 2014, Focus Family  Law, Disputing the Predatory Marriage


Kimberly Whaley's article: "Challenging the Predatory Marriage" was published in the Lawyers Weekly, July 25, 2014, pages 10-11.


Link to online copy of Lawyers Weekly


6. Ontario Bar Association, October 28, 2014


Ameena will be chairing a Section Program on the topic of "Capacity to Instruct Counsel" at the Ontario Bar Association on October 28, 2014


7. WEL Social Media


If you're not following us on LinkedIn or Twitter, please click the following links to connect:


Whaley Estate Litigation LinkedIn Company Page


Kimberly Whaley LinkedIn


Whaley Estate Litigation Twitter




1. McMaster re-visited on: Parens Patriae principles


(aMcMaster v McMaster: 2013 ONSC 1115 (CanLII)




Ameena Sultan from our office had previously blogged the McMaster Estate: http://whaleyestatelitigation.com/blog/?s=mcmaster


I wanted to revisit the McMaster Estate concerning  the 'parens patriae' jurisdiction afforded to the Court.


The court in this decision stated that the exercise of parens patriae is part of the inherent power of the Superior Court.


The existence of the parens patriae doctrine comes about from common law. In the decision of Rawluk v. Rawluk, [1990] 1 S.C.R. 70 at paragraph 36, "it is trite but true to state that as a general rule a legislature is presumed not to depart from the prevailing law without expressing its intentions to do so with irresistible clearness." This decision also speaks to the "presumption that exists that legislation is not meant to interfere with common law rights or to oust the jurisdiction of the common law courts nor generally to change the common law." [1]

The decision references Justice LaForest who clarified the nature of parens patriae jurisdiction in E. (Mrs.) v. Eve (1986)2 S.C.R. 388 (S.C.C.) at paragraphs 72 and 74 wherein LaForest J., wrote:


[72] In the foregoing discussion, I have attempted to set forth the legal background relevant to the question whether a court may, or in this case, ought to authorize consent to non-therapeutic sterilization. Before going on, it may be useful to summarize my views on the parens patriae jurisdiction. From the earliest time, the sovereign, as parens patriae, was vested with the care of the mentally incompetent. This right and duty, as Lord Eldon noted in Wellesley v. Duke of Beaufort, supra at 2 Russ., at p. 20, 38 E.R., at p. 243 is founded on the obvious necessity that the law should place somewhere the care of persons who are not able to take care of themselves. In early England, the parens patriae jurisdiction was confined to mental incompetents, but its rationale is obviously applicable to children and, following the transfer of that jurisdiction to the Lord Chancellor in the seventeenth century, he extended it to children under wardship, and it is in this context that the bulk of the modern cases on the subject arise. The parens patriae jurisdiction was later vested in the provincial superior courts of this country, and in particular, those of Prince Edward Island.


[73] The parens patriae jurisdiction is, as I have said, founded on necessity, namely the need to act for the protection of those who cannot care for themselves. The courts have frequently stated that it is to be exercised in the "best interest" of the protected person, or again, for his or her "benefit" or "welfare".


[74] The situations under which it can be exercised are legion; the jurisdiction cannot be defined in that sense. As Lord MacDermott put it in J. v. C., [1970] A.C. 668, at p. 703, the authorities are not consistent and there are many twists and turns, but they have inexorably "moved towards a broader discretion, under the impact of changing social conditions and the weight of opinion ...." In other words, the categories under which the jurisdiction can be exercised are never closed. Thus I agree with Latey J. in Re X, supra, at p. 699, that the jurisdiction is of a very broad nature, and that it can be invoked in such matters as custody, protection of property, health problems, religious upbringing and protection against harmful associations. This list, as he notes, is not exhaustive.


Whitten J., referenced the parens patriae jurisdiction of the Superior Court stating it has been exercised for the most part on behalf of children yet, the LaForest J., judgment demonstrates that the parens patriae jurisdiction originated with the concern for the interest of vulnerable persons who generally lacked the capacity to make decisions for themselves. Whitten J., therefore identifies that aspect of the parens patriae jurisdiction which exists today and references the case of Gray v. Ontario [2006] O.J. No. 266 (Ont. Div. Ct.).


Whitten J., flags the importance of the parens patriae jurisdiction as particularly necessary where there are legislative gaps. Whitten J., states: "Assume for a moment there is a gap between protecting the interests of a person incapable of managing their financial affairs, (i.e. fiscal capacity) versus general overall capacity as defined by medical evidence and precedent"[2].


In the court's analysis Whitten J., states:


[56]  Even if it were necessary in order to declare Mary fiscally incapable, more detailed medical evidence is necessary, what evidence exists is clearly that of an elderly vulnerable person who because of her memory deficits and her "dementia", would have absolutely no ability to "understand" or "appreciate", as referenced by Wilson, J. in McDougald Estate v. Gooderham, Opus (cited).  Mary is the embodiment of an individual who needs protection of the court, otherwise she is a pawn in the investment schemes of her son.  The concept of parens patriae can be relied upon by the court to critically assess pursuant to section 39(1) of the Statue to assess the stewardship of Malcolm.


2. Estate litigation costs


(aNicolou v McLennan & Associates, 2013 ONSC 1622 (CanLII)




This decision of the Divisional Court, per Skarica J., for the most part addressed a request to overturn the decision of the Small Claims Court on the basis of an error in law. It is however the analysis within this decision regarding the estate litigation fees and the determination of the reasonability obligation that is instructive[3].


Skarica J., referenced the case of Bott v. Macaulay[4], wherein Cullity J., held that it was the estate trustee, not the estate that was the solicitor's client: Clarifying, that an estate is not a juridical person and cannot retain anyone, nor incur liabilities.  An estate solicitor is one performing services to a personal representative acting as such.[5]


Per Cullity J., therefore it is the estate trustee, and not the estate, that is personally liable to the estate solicitor for fees. Though the estate trustee is entitled to be indemnified or reimbursed from the estate for the amounts owing to the solicitor. Per Cullity J., whether a right to indemnity or reimbursement exists, is a matter between the estate trustee and the beneficiaries of the estate and is to be determined either by agreement, or on a passing of account. Of particular importance, the existence - or non-existence - of such a right does not affect the liability of the estate trustee to the estate solicitor[6].


In this decision, Skarica J., found that the estate trustee was personally liable to the estate solicitor in respect of the legal fees and as such is entitled to challenge the amount of the fee by requesting an assessment. The court noted that the assessment is to proceed pending the completion of the appeal but in the interim found that the estate trustee is personally liable for the legal account fees for the estate litigation in the full amount of the invoice, subject to any reductions that may occur by the assessment. The distinction clarified here is that an estate trustee who wishes to challenge the fees or disbursements charged by the estate solicitor, appropriately should proceed by an assessment pursuant to the Solicitor's Act, unless on a passing of accounts the beneficiaries have challenge the reasonableness of the fees as an expense incurred by the estate trustee, or further unless the estate trustee wishes to have an order approving the right to an indemnity or reimbursement.  In either event, the court may order an assessment, or, in some cases, may review the reasonableness of the accounts at the passing.


Per Skarica J., the right of an estate trustee to proceed by way of an assessment under the Solicitor's Act, is implicit from the decisions in Re Freeburne[7], and Hardy v. Rubin[8].  These decisions also provide precedent for permitting beneficiaries to do so without, or previous to, a passing of accounts.  In each of the cases cited as authority by Skarica J., it was accepted that the beneficiaries could only tax a solicitor's bill "as the trustees could have done" citing Re Massey[9].  Particularly, Skarica J., notes in Re Freeburne, a defence available to a solicitor under section 11 of the Act, would also be available against the beneficiaries.  


3.1 Recent and notable Passing of Accounts Decisions


(a) Hooke Estate v. Johnson [10]


Pursuant to the Judgment by André J., the applicant estate trustee of the Estate brought an application to pass the accounts of the estate over the express objections of the respondent beneficiaries.


Notably, the applicant sought global compensation of in or about $30,000.00 for work performed both as estate trustee and as attorney. However on the morning of the hearing, the applicant reduced his claim for executor's compensation by in or about half but the respondents sought a further reduction. The court ultimately decided that the global compensation to be awarded was in or about $13,000.00 and as such, was asked to decide whether or not an award of cost was then appropriate and if so, the quantum.


In its analysis, the court cited its jurisdiction as section 131(1) of the Courts of Justice Act, its discretion, section 23(2) and 61 of the Trustee Act, and the case of Geffen v Goodman Estates.[11] The court also clearly stated that: "where there are insufficient funds to pay any costs awarded to a trustee, on account of distributions to beneficiaries, the court may make the beneficiaries personally liable for the assessed cost and cited the authority of Raeburn Estate (Re).[12]


The court decided that the respondents were largely successful in their objection to the passing of the accounts, noting that while the applicant significantly reduced his claim for global compensation before the hearing, he did not offer to settle at least seven days or earlier before the hearing as required by Rule 49.10. In the end the court ordered that the applicant would be entitled to costs of $1,000.00 inclusive and the respondents in the amount of $2,500.00 inclusive, both payable out of the estate after the payment of executor's compensation.


(b) Prubant v Society for Pastoral Counselling Research[13] 2014 ONSC 347 (CanLII) 




In this decision of Patrick Smith J., the issue raised relevant to the estate trustee's passing of account application concerned the question of solicitor-client privilege and whether it belongs to the client alone or whether in the passing of accounts forum, the "joint interest" principle applies permitting a beneficiary to access to the solicitor files. The court cited the decisions of Goodman Estate v Geffen[14], Ballard Estate (Re)[15] and Haydu v. Nagy[16] and its result which provided for the opinions received in the course of determining the proper distribution of the trust in this instance would be available to the beneficiaries of the estate. 


The court  drew a distinction between allowing production as between opinions procured by the trustee for its own protection in relation to claims made against it, and that of opinions received in the course of determining the proper distribution, citing that the beneficiary is entitled to the latter but not to the former.  In the Haydu v. Nagy decision which is a BC 2012 decision, the court was asked to address whether legal fees incurred by an executor were protected by solicitor-client privilege and the court did adopt the reasoning in the Ballard Estate noting that "privilege cannot be asserted by the executor respondent as against the beneficiary petitioner as the interest were common". The court referred to this principle as the joint interest principle which is considered to be the appropriate test by which to assess claims of privilege by an executor as against a beneficiary.


(c) Aber Esate [17]



The decision of Carole Brown J., concerned a trial of a contested passing of accounts by both an attorney for property and an estate trustee.


The major objections in these proceedings involved the compensation claimed both as attorney for property and as estate trustee, certain cash transactions in the nature of groceries and household expenses; the valuation of real property, the cost of repairs to real property and legal fees.


With respect to the compensation sought, the court found that in both capacities as attorney and as estate trustee the amount claimed for compensation was reasonable. Notably, the court commented that the estate was not complicated but that it was time-consuming, especially so when considering delays occasioned by the numerous demands of the objectors. The court moreover was satisfied as to the records and accounts presented, recorded and identified, the court ordered and adjusting with respect to the value of the real estate and was satisfied that the roof repairs were required.  As such, the court found that the objections raised were largely without merit.


In respect of legal fees, the court ordered that the outstanding orders of the court ordering the objector to pay costs be satisfied by deducting the amount from the distribution to the objector.  There is no known further costs order at the time of writing.


(d) Pirani v. Esmail [18]




This Court of Appeal decision was an appeal of the Judgments of Greer J., dated February 22, 2012, and May 31, 2012, and her cost order dated June 29, 2012, all of which all involved a dispute regarding the management and sale of rental property subject to a trust. 


The relevant outcome to the fiduciary accounting is in the consideration of the divided decision, the majority of the court finding that the reconstructed expert's accounts are not reliable evidence.


At the trial the appellants and the respondent called competing experts.  Stemming from a lack of proper accounting records, the experts attempted to reconstruct the accounts for certain rental property and the administration of same. The experts in the result had different conclusions regarding the accounts and the profitability of the trust property.  The appellants' expert concluded that the trust property comprising of a rental property, operated at a net loss, and as such the appellants were owed money. On the other hand, the respondent's expert concluded that the trust rental property earned a profit and that the respondent was owed money.


The trial judge accepted the calculations of the respondent's expert. Moreover, the court found the appellants liable for breach of trust, for breach of fiduciary duty, and as such, awarded damages, including aggravated damages and substantial indemnity costs to the respondent.


Accordingly, the appellants appealed the decision, challenging the respondent's expert's report that the trial judge relied on in particular to assess damages. Notably, this decision also speaks to the trial judge finding the solicitor who acted for the respondents on the sale and who was a cross-applicant, liable for breach of trust, breach of fiduciary duty and negligence.


The court allowed the appeal in part and the cross-appeal.


The decision of the trial judge is reiterated at paragraphs 29 through 43[19], and the issues set out on appeal at paragraph 45. Per Rouleau J., Weiler J., agreeing, the Appeal Court noted that the trial judge faced significant challenges in the case for reasons which included the appellants being a self-represented initially and during trial retaining counsel; the respondent changed lawyers twice and the judge was called upon to settle accounts of a trust in the almost total absence of records for over a 13-year period of the trust operation.


Notably too, many of the trial judges' findings are not challenged on the appeal, the primary submission being that the trial judge ought to have rejected the respondent/plaintiff's expert report and therefore as such the trial judge erred in relying upon it as a basis for calculating damages.


The Court of Appeal opined that the trial judge erred in accepting and relying on the expert report in that the factual findings were clearly wrong and did not withstand scrutiny when tested.


The Appeal Court did not interfere with the trial judge's determination on aggravated damages, the finding of joint and several liability, substantial indemnity costs, however as it did reject the expert's report, the court found it appropriate to revisit the quantum of such costs. In other words, not changing the substantial indemnity award, but simply reducing the amount. As to the cross-appeal, it was allowed, dismissing the claim against the solicitor.


As to the remedy, the Court of Appeal did not order a new trial, relying on the finding that the trial judge made all the necessary findings of credibility, there being no reason to interfere with same.  Moreover, the court noted that a new trial should not be ordered unless there exists some substantial wrong or miscarriage of justice has occurred.  The court finding that the only issue remaining was with respect to the quantum of damages.


In the end, no award was made to the respondent/plaintiff in respect of profits from rental property and the appellants/defendants were ordered to repay the respondent/plaintiff contributions made to cover losses, applying the assumptions that the property generated neither an overall gain nor an overall loss during the period at issue. In its decision, the Court of Appeal reduced the damage award, awarded by the trial judge to zero, and only changed the further damages award ever so slightly based on the mathematical error in respect of the in or about $45,000.00, the court set aside a smaller insurance payment award and adjusted some smaller amounts awarded by the trial judge, ultimately substituting the trial judge's award of $67,815.67 with an award of $49,527.07.


The costs of the appeal were also fixed. [20]


Pepall J. dissented, rejecting the disposition of the majority. Stating instead that Her Honour would have dismissed the appeal of the appellants/defendants and allow the cross-appeal.


The overriding result of this decision underscores the importance of fiduciaries in the keeping of full, accurate and detailed accounts, ready to account to the beneficiaries.  This decision is an example of a great deal of litigation costs and other professional costs, including accounting costs, being incurred as a result of the fiduciaries not keeping accounts at first instance. The exercise of reconstructing the accounts was both expensive and insufficient in the result to account to the beneficiaries. It is the essence of the office of a fiduciary to keep accounts and to be accountable and transparent.


(e) Helmuth Treugott Buxbaum Trust, Re [21]


This judgment by Gorman J., dealt with the application by a trustee to pass its accounts, with one of the beneficiaries filing an Objection. The Objector complained that the trustee did not exercise proper fiduciary duty to the beneficiaries, raised issues concerning overdraft charges and alleged conspiratorial behaviour.  The Objector provided no evidence to the court that the trustee acted in any manner but a proper and professional one. The Objector did not cross-examine the preparer of the accounts. As such the court passed the accounts of the trustee and importantly, ordered that the Objector personally pay costs in the fixed amount, payable forthwith, of $15,738.98. The costs order reflected the court's concern that to pay the costs out of the estate would encourage the Objector to continue estate litigation without any foundation or evidence. Notably, the court also stated that a payment of costs out of the estate would unduly penalize the remaining beneficiaries.[22] A Judgment followed thereafter[23].


(f) Kuzyk Estate v Blando [24]



This decision concerned a motion to determine the costs on an unreported passing of accounts decision which was pronounced on January 23, 2014. The court noting that even though costs in the passing of accounts in estate matters were traditionally paid out of the estate, in modern times such costs tend to be considered on the normal principles used in assessing costs in contested actions. Interestingly, in this case, the estate trustee retained a law firm to assist in the administration of the estate and in preparation of the accounts.  There was a disagreement with respect to those accounts and as such, the objector requested a formal passing of accounts in two related estates. The estate trustee then decided to retain a second law firm to prepare another set of accounts.


The court noted that there seemed to be very little difference in the final accounting as between the two sets of accounts. As such, the court did not see the justification for the estate trustee retaining a second firm to prepare a new set of accounts, rather than merely adjusting the old accounts and as such, ordered that the estate trustee's compensation be reduced by the approximate amount of the claim of the objector.


In determining how costs should be paid, the court was concerned over the estate trustee's personal accounts to the estates for professional engineering services and the merits of their objectives.  The court opined on the question as to whether such costs were fair and proper for the estate to pay, determining that such were incurred in advance of the estate trustee's own interests and not in the interest of the estate declined to order the costs payable by the estate trustee.


The court apportioned the costs of the combined estates and fixed the costs to be apportioned between the two estates and from the applicant and objector personally.


(g) Church v. Gerlach [25]




In this decision the appellant appealed to the Divisional Court in respect of an application to pass accounts wherein the estate trustee appointed under the Will objected to the amount of compensation requested by the applicant. The court had fixed the amount of compensation but gave no reasons to support the amount awarded. Curiously too, the application judge did not pass the accounts or make any order for costs. The former estate trustee submits that the application judge erred in law in failing to give reasons for reducing the compensation claimed, in not applying the proper principles, and in not dealing with the balance of the application. The estate trustee requests that the judgment be set aside, the accounts passed and compensation in the amount of $23, 203.54 plus costs be ordered.


The court opined that while the application judge gave no reason for reducing the amount of compensation requested, the transcript discloses the view that the estate trustee should be compensated based upon time spent and his hourly rate as a lawyer. The Divisional Court therefore was satisfied that the application judge erred in principle as the approach is inconsistent with the applicable legislation and the approach developed in the jurisprudence. The court referencing the applicable statutory authorities, both under the Estates Act and the Trustee Act, as well as the Court of Appeal case of Laing Estate v Hines[26] as well as the Flaska Estate (Re)[27] and having regard to similar principles applicable to an Estate Trustee During Litigation[28] ("ETDL") the court determined that the estate trustee ought to be compensated, but not fully compensated as if the ETDL was required to perform all of the functions of an estate trustee. As such, half the amount of the full percentage approach reflects the degree of complexity as well as the estate trustee's efforts required to maintain and preserve the estate, while the litigation was outstanding in light of the five factors identified, and therefore fixed compensation at $17,500 all inclusive. The Divisional Court also applied the Estates Act.



The estate trustee is entitled to his costs for the passing of accounts fixed and made payable out of the estate as it was reasonable that the estate trustee be entitled to have his accounts passed. The estate trustee was entitled to his cost of appeal but reduced the costs claimed from $15,000 to $5,000 without analysis.


As a matter of common practice, the ETDL normally has a fee schedule court implemented on consenting to such an appointment.


3.2 Contempt and the Duty to Account


(h) CNIB v Vincent [30]



In this decision the applicants sought an order for contempt of court in the failure of the estate trustee to comply with certain orders of court, including to file her accounts.


Notably, the estate trustee did not appear on the contempt hearing in person. Counsel for the CNIB and other charities attempted to reach the solicitor for the estate trustee by telephone but he was out of the office.


Greer J., found the estate trustee to be in contempt of court in respect of her failure to account, as well as in respect of other court orders.


With respect to the sanctions, having regard to Rule 60.1(4) the court iterated its jurisdiction to issue a warrant for the arrest of the estate trustee for her failure to appear, having found her in contempt.


The court stated that it could have sent the estate trustee to prison for a period of time, levied a fine and ordered her to comply. However, the court decided not to impose a prison sentence at the present time, given that there appeared to some evidence in support of the contention that estate funds may be sitting in the trust account of the estate trustee's counsel.


Counsel was unable to be reached and as such the court made orders removing the estate trustee, vesting the remaining assets of the estate in the new estate trustee once determined. The court notably was satisfied in the evidence before it that the criteria to make a finding of contempt as set out in the three-pronged test in Prescott-Russell Services [31] had been met. Greer J., emphasized that the prior orders of the court were clear and unequivocable and that the estate trustee deliberately disobeyed them. The court in its endorsement also cited as authority the Estate of Paul Penna [32] discussed herein.  In the end, the court also issued the following direction: "if the Court finds that the balance of the Estate assets is missing, counsel for the Applicants shall appear before me with Ms. Vincent, the estate trustee, and her counsel, to review the sanctions made"[33]


In the result, Greer J., also ordered the applicant's costs fixed on a substantial indemnity basis made payable forthwith by the estate trustee personally within 30 days.


(i) Broze v Toza [34]



This decision also one of Greer J., involved a motion for contempt of a prior court order for an accounting against the estate trustee, in that he did not comply with the terms of a court order, that he attend to be examined under oath, and  pay costs of the motion on a full indemnity basis.


Greer J., notably states that Motions for Contempt are serious in nature and must be strictly complied with by the alleged contemnor. Again, in this case, the estate trustee did not appear personally at the contempt hearing, but counsel to the estate trustee did appear. The court read the rule to counsel explaining the quasi-criminal nature of the proceeding and addressed the matter of the order of Mr. Justice Stinson which had not been complied with.  The court ordered counsel to call his client to seek his attendance in the court by 2:30 that day.


The estate trustee's position was that he complied with the order in a 14-page letter. However Greer J., found that the letter did not comply and did not provide a list of assets as at the date of death and the values of the estate. Notably, the circumstances that the applicants request for compliance were set out in the judgement, evidencing the extent that the applicants went to before bringing a Motion for Contempt.  As such, Greer J., was of the view that the delays in failing to comply with the order were "unconscionable". [35]


Moreover, Greer J., cited that there was no proper statement of assets and values ever produced to the beneficiaries.  The estate cottage appears to have been sold without evaluation as to its fair market value.  In this case, the court found that the order of the court which had been breached, and the estate trustee in contempt of, was clear and simple. The court found that the estate trustee deliberately ignored all of the requests of the applicants. Greer J., found contempt beyond a reasonable doubt and that the estate trustee's counsel failed to respond in providing the data required from the beginning after the deceased died, and therefore found the estate trustee in contempt of court. With respect to the purging of contempt, the court ordered that the estate trustee must comply with the following further orders:


(1) file with the court what was ordered by Mr. Justice Stinson - a statement of the nature and value at the date of death, of each of the assets of the Estate.  This must be done within 15 days of this Order.


(2) the Estate Trustee must put his Accounts in the form required by the Rules for a Passing of the Estate Accounts, being relief asked for by the Applicants when no data was forthcoming.  The 2 lists provided in Mr. Watson's August 2013 letter are insufficient and the NFP Statement is not acceptable.  This shall be done within 30 days of this Order.


(3) The Estate Trustee must provide copies of the Vouchers supporting the Estate Accounts, including valuation letters and appraisals of properties to all the Estate Beneficiaries when they are served with a copy of the accounts by the Estate Trustee.


(4) the Estate Trustee must provide, with the above materials, a copy of all legal bills presented by Mr. Watson and any other lawyer to the Estate.


(5) the Estate Trustee must provide in the Accounts, a Statement of all assets and values on hand now and supported by bank statements to show what assets remain as undistributed.


(6) a Statement of Compensation shall be included in the Accounts.

Finally, the court ordered that the estate trustee pay the applicant's cost personally in the amount of $4,234.55.

[1] Para 26

[2] Para 28

[3] 2013 CarswellOnt 3002, 2013 ONCS 1622, para 9-12

[4] Bott v. Macaulay, [2005] O.J. No. 34931 (S.C.J.)

[5] Bott v Macaulay, [2005] O.J. No. 34931 (S.C.J.)

[6] Bott v Macaulay, [2005] O.J. No. 34931 (S.C.J.)

[7] Re Freeburne, [1973] 1 O.R. 423 (H.C.J.)

[8] Hardy v. Rubin, [1998] O.J. No. 2312, 20 C.P.C. (4th) 372 (Gen. Div.)

[9] Re Massey (1865), 34 Beav. 470, 6 New Rep. 195 (M.R.)

[10] 2013 CarswellOnt 5119, 2013 ONSC 2556, additional reasons, 2013 CarswellOnt 3502, 2013 ONSC 1674 (Ont.S.C.J.)

[11] Geffen v Goodman Estate, [1991] 2 S.C.R. 353 (SCC).

[12] Raeburn Estate, (re), 2009, 52 E.T.R. (3d) 105 (S.C.J.)

[13] 2014 CarswellOnt 389, 2014 ONSC 347

[14] Goodman v Geffen Estate, [1991] 2 S.C.R. 353 at para 57

[15] Ballard Estate (Re) (1994), 20 O.R. (3d) 350 (Gen. Div.)

[16] Haydu v. NAgu, 2012 BCSC 1870, 42 B.C.L.R (5th) 107

[17] Aber Estate, 2013 ONSC 6363 (CanLII)

[18] Pirani v Esmail, 2014 ONCA 145, as appealing the Judgments of Greer J., dated February 22, 2012 and May 31, 2012

[19] Pirani v Esmail, 2014 ONCA 145, as appealing the Judgments of Greer J., dated February 22, 2012 and May 31, 2012, para 29-43

[20] Pirani v Esmail, 2014 ONCA 145, as appealing the Judgments of Greer J., dated February 22, 2012 and May 31, 2012, para 108-112

[21] Helmuth Treugot Buxbaum Trust, Re, 2009 CarswellOnt  14069, 182 A.C.W.S. (3d) 235

[22] Helmuth Treugot Buxbaum Trust, Re, 2009 CarswellOnt  14069, 182 A.C.W.S. (3d) 235, para 11

[23] Helmuth Treugot Buxbaum Trust, Re, 2009 CarswellOnt  14069, 182 A.C.W.S. (3d) 235, para 11

[24] 2014 CarswellOnt 3906, 2014 ONCS 1120

[25] Church v. Gerlach, 2008 CarswellOnt 11225, 174 A.C.W.S. (3d) 1238

[26] Laing Estate v. Hines (1999), 41 O.R. (3d) 571

[27] Flaska Estate (Re), [1998] O.J. No. 4171 (C.A.)

[28] Re McLennan Estate, [2002] O.J. No. 4716 at para 22 (S.C.J.)

[29] Estates Act, R.S.O. 1990, c. E. 21,  S. 28

[30] CNIB v Vincent, 2014 CarswellOnt 8423, 2014 ONSC 3421

[31] Prescott-Russell Services fr Children and Adults v. G. (N.) 2006, 82, O.R. (3d) 686 (C.A.) in para 27

[32] Estate of Paul Penna, 2010 ONSC 6993

[33] CNIB v Vincent, 2014 CarswellOnt 8423, 2014 ONSC 3421, para 15

[34] Broze v Toza, 2014 CarswellOnt 8422, 2014 ONSC 3302

[35] Broze v Toza, 2014 CarswellOnt 8422, 2014 ONSC 3302, para 14 



1. 2014 CBA National Conference

August 15-17, 2014

St. John's, Newfoundland

Until Death Do Us Part? Estate Claims Arising Out of Re-Partnerships:

A Cross-Provincial Perspective, 

Speakers: Kimberly Whaley and Heather Hogan



2.  MD All Advisor Conference, Ottawa

September 8, 2014

Decisional Capacity - Red Flags and Estate Planning

Speakers:  Kimberly Whaley, Ameena Sultan


3. STEP Canada - 2014 Budget - Estate Planning and Charitable Gifting

September 10, 2014

Co-Chairs:  Gillian Musk and Elena Hoffstein

Speakers: Paul F. Keul CPA, CA, TEP; Joe Marino, LLB, TEP; BMO Harris Private Banking; and M. Elena Hoffstein,  Fasken Martineau


4. Osgoode Professional Development, Webinar

September 11, 2014   

Fiduciary Accounts: Preparing, Passing, and Reviewing

Speakers: Saara Chetner, Heather Hogan, and Birute Lyons


5. The Osgoode Elder Law Webinar Series

September 18, 2014

Keeping a Lid on It: How to Draft Wills and Trusts for the High Conflict Family


6. Practice Gems: The Administration of Estates 2014

September 23, 2014

Chair: Kimberly Whaley

Speakers: Clare Burns; Archie Rabinowitz and David Lobl; Jordan Atin; Laura Tyrrell; Gwen Benjamin; The Honourable Lee Ferrier, The Honourable Justice McEwen, Michael Press


7. Ontario Securities Commission Seniors Roundtable Discussion

September 29, 2014

Speaker:  Kimberly Whaley


8. Elder Abuse Education Day, Kingston, Ontario

Elder Abuse through Powers of Attorney

October 1, 2014

Speakers: Mark Handelman and Heather Hogan/Kimberly Whaley


9. Women in Wealth Management

October 5-7, 2014

Issues relating to dealing with an aging client

Speaker:  Kimberly Whaley


10. The Osgoode Elder Law Webinar Series

October 7, 2014

Gifting and Charitable Donations in Advance Care and Estate Planning: There's No Such Thing as a "Free Gift"


11. STEP Canada   -  Family Business Transitions:  A Different Focus

October 15, 2014

Chair: Ted Polci

Speaker: Ian R. Campbell, FCPA FCA FCBV, Business Valuation Expert


12. STEP Winnipeg

October 23, 2014

Predatory Marriages

Speaker: Kimberly Whaley


13. OBA -Capacity to Instruct Counsel

October 28, 2014

Chair, Ameena Sultan


14. STEP Canada -  Estate Trustees: Do you really want the job?

November 12, 2014

Chair: David Stevens

Speakers: Archie Rabinowitz,  Dentons Canada LLP;  Barry Corbin, Corbin Estates Law; and Tim Youdan, Davies Ward Phillips Vineberg


15. LSUC Estate and Trust Summit  2014 - Intestacies, Partia Intestacies and Remedies

November 3, 2014

Speaker: Kimberly Whaley


16. STEP, Global Congress , Miami

November 6-7, 2014

Mandarin Oriental Miami



17. Barreau du Québec, Trust and Estate Law, Montreal

November 28, 2014                                                      


18. STEP Canada - December Seasonal Event

Seasonal Reception, First Canadian Place, Music by Oui B. Jamon, sponsored by Sick Kids Foundation, Honourary Guest Speaker, Malcolm Berry

RSVP event


19. STEP Canada - Guardianships: Dealing with Minors and Adults Under Disability

January 14, 2015

Speakers: Kimberly Whaley, Whaley Estate Litigation and Craig Vander Zee, Torkin Manes LLP; Kenneth  Goodman, The Public Guardian and Trustee;

Steve Adams, Comptroller and Accountant of the Supreme Court of Justice; and Linda Waxman, OCL


20. STEP Canada - Financial Abuse: Detection and Intervention

February 11, 2015

Chair: Kimberly Whaley 

Speakers:   Doug Melville, Ombudsman and CEO for Banking Services and Investments (OBSI); Fiona Crean, Ombudsman for the City of Toronto; and  Laura Tamblyn Watts LL.B., Elder Concepts


21. STEP Canada - The Transfer of Wealth including the Family Cottage       

April 15, 2015  Co-Chairs: Rachel Blumenfeld and Elaine Blades

Speakers: Gwen Benjamin, Wilson Vukelich LLP and Justin de Vries, de Vries Litigation


22. STEP Canada- Elder Care: A Practical Approach  

May 13, 2015  Co-Chairs: Chris Clarke and Greg McNally

Speakers: Mike Love, Account Executive , Legacy Private Trust; Dr. R. Rupert, Rupert Case Management; Audrey  Miller, Managing Director, Elder Caring Inc.,  and  Audrey Miller & Associates; and Trevor Parry M.A., LL.B, LL.M (Tax), TEP, Executive VP and National Sales Director at GBL Actuaries and Consultants

IV. In Case You Missed It - Last Month's Highlights from Our Blog 

V. Newsletter Archive

Past issues of our Newsletter can be viewed on-line by following this link to our Newsletter Archive:


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This newsletter is intended for the purposes of providing information only and is to be used only for the purposes of guidance.  This newsletter is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.


Newsletter Contents
I. WEL News
II. Law Review
III. Upcoming Programs
IV. Recent Blog Posts
V. Newsletter Archive

Quick Links



Contact Info

10 Alcorn Avenue, 

Suite 301
Toronto, ON, M4V 3A9
Tel: (416) 925-7400 
Fax: (416) 925-7464

Kimberly A. Whaley
C.S., TEP.
(416) 355-3250
Mark Handelman
Firm Counsel
(416) 355-3254

Albert H. Oosterhoff
Firm Counsel
(416) 355-3266
Ameena Sultan
(416) 355-3258


Benjamin D. Arkin
(416) 355-3264 

Heather B. Hogan
(416) 355-3262
Deborah Stade
Office Manager
(416) 355-3252
Bibi Minoo
Estates Clerk
(416) 355-3251

Marylin Tait 

Legal Assistant

(416) 355-3255


Francesca Latino

Legal Assistant

(416) 355-3257






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Whaley Estate Litigation