Appellant prohibited from participating in passing of mother's accounts amid abuse of process

Estates and Trusts – Trustees – Practice and procedures

Passing of accounts. Woman incapacitated by Alzheimer's disease had four adult children. Her daughter C was appointed her personal guardian and cared for her in mother's home. One of her sons, respondent M, was appointed joint personal guardian and litigation guardian. Respondent trust company was appointed as mother's property guardian. C and another son, appellant P, brought appeal from order appointing M as litigation guardian and trust company as property guardian. Appeal was dismissed, as was P's subsequent application for leave to appeal from order to Supreme Court of Canada. In original trial of this application, P and C unsuccessfully contended that they should have been appointed guardians of mother's property. P and C's appeal to Court of Appeal was rejected. Motion for directions was brought to determine issues of standing and whether appointments of guardian for property and litigation guardian were proper issues to address in passing of accounts. In his Notice of Objection filed in present passing of accounts, P again sought to have trust company removed as guardian of property, with that responsibility transferred to himself and C and order removing M as litigation guardian for passing of accounts, to be replaced by himself. Motion judge refused to allow P to participate in passing of mother's accounts. P appealed. Appeal dismissed. Motion judge reviewed P’s Notice of Objection and was satisfied P sought to relitigate issues already decided by original motion judge and by this court and that this was abuse of process. Record provided ample support for motion judge’s findings. P was prohibited from filing any further motions in this court in respect of passing of accounts proceeding without leave.

BMO Trust Company v. Childs (2020), 2020 CarswellOnt 264, 2020 ONCA 21, Robert J. Sharpe J.A., R.G. Juriansz J.A., and I.V.B. Nordheimer J.A. (Ont. C.A.); affirmed (2019), 2019 CarswellOnt 6360, 2019 ONSC 2637, C.T. Hackland J. (Ont. S.C.J.).

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