2017 ONSC 2707, 2017 ONSC 2707

CITATION : Cahill v.

Cahill , 2017 ONSC 2707 COURT FILE NO.: 15-63812 DATE: 2017/05/03 SUPERIOR COURT OF JUSTICE – ONTARIO IN THE ESTATE OF THOMAS MICHAEL EDWARD CAHILL, Deceased RE: PATRICK CAHILL Applicant AND KEVIN CAHILL, in his personal capacity and as Estate Trustee of The ESTATE OF THOMAS MICHAEL EDWARD CAHILL, SHEILA KEHOE in her personal capacity and as Estate Trustee of the ESTATE OF THOMAS MICHAEL EDWARD CAHILL, TOM CAHILL MEMORIAL FUND, ALCOHOLICS ANONYMOUS, JESSICA KEHOE, CRAIG KEHOE, CALVIN CAHILL, KEVIN DOUGLAS OLOSN and CORY ROBERT OLSON Respondents BEFORE: Madam Justice Sylvia Corthorn COUNSEL: Miriam Vale Peters, Counsel for the Applicant William R.

Hunter, Counsel for the Respondent, Sheila Kehoe HEARD: April 28, 2017 ENDORSEMENT [ 1 ] This application relates to the entitlement of the applicant (“Patrick”) under the will of Thomas Cahill (the “Deceased” and the “Will”) and the administration of the Estate of Thomas Cahill (the “Estate”).

The only respondents who delivered materials in response to the application were Sheila Kehoe (“Sheila”), her daughter Jessica Kehoe, and her son Craig Kehoe. [ 2 ] In February 2016, I granted a portion of the relief requested by Patrick and adjourned the balance of the relief to be determined after a number of steps are complete. Those steps include that Sheila and the co-executor of the Estate, Kevin Cahill (“Kevin”) were to (

a) fund the trust created pursuant to the Will and in favour of Patrick (the “Fund”) and (

b) deliver an Accounting with respect to the Estate. Issues Remaining to be Resolved [ 3 ] Patrick and Sheila returned before me on April 28, 2017 on what was intended to be a case conference. The purpose of the case conference was to determine the next steps in the proceeding in light of what has transpired in the administration of the Estate, in particular with respect to the Fund, since February 2016. [ 4 ] Unfortunately, counsel were, for reasons beyond their control and mine, precluded from filing case conference materials at the Civil Counter in advance of April 28, 2017.

Counsel provided me with their respective case conference briefs on that date. [ 5 ] Based on the submissions made by counsel on April 28, 2017 and on the contents of the case conference briefs, the matters to be addressed at this time are:

a) Relief sought by Sheila in response to:

i) A notice of garnishment issued and served upon her employer; and ii) A writ of seizure and sale;

b) Costs sought by Patrick in addition to the costs awarded with respect to the application to date and with respect to Sheila’s appeal, the latter from my order dated February 2016. I note that the appeal was dismissed. The additional costs are said to include the difference between costs awarded to date and costs actually incurred with respect to the application and the appeal. Patrick seeks the additional costs payable by Sheila and Kevin personally or, in the alternative, from the Fund. In total, Patrick seeks approximately $23,000 in additional costs;

c) The Accounting with respect to the Estate required pursuant to my Reasons for Decision dated February 2016 (the “Reasons”); and

d) The removal of Sheila and Kevin as Estate Trustees, the removal of Kevin as the sole trustee of the Fund, and the appointment of Ernest McCurdy to fulfil the roles of Estate Trustee and of sole trustee of the Fund. [ 6 ] When the parties were before me on April 28, 2017, counsel advised that their respective clients consent to an order removing Sheila and Kevin as Estate Trustees, removing Kevin as the sole trustee of the Fund, and appointing Ernest McCurdy to fulfil

each of those roles. I reminded counsel of my concerns with respect to the proposed appointment of Ernest McCurdy as the Estate Trustee and as the sole trustee of the Fund. In that regard, I refer the parties to paragraphs 78 to 80 of the Reasons: [78] I find that the request for the removal of Sheila and Kevin as executors and trustees of the Estate is reasonable. However, there is no evidence as to what, if any, real or personal property remains in the Estate. The primary concern is the oversight and management of the Fund.

It appears that the other assets of the Estate, if any, are of a modest value. [79] The successor executor, when appointed, may be required to post security in accordance with s. 37(2) of the Trustee Act . As a result, before an order is made removing each of Sheila and Kevin as executors and trustees of the Estate, it would be of assistance to the Court and to anyone proposed as the successor executor and trustee to know the value of the Estate. [80] Based on the record before me, I have no information about the individual proposed by Patrick other than that he is a former neighbor of the Deceased.

Given what has transpired to date, with respect to the Fund in particular, it would be of assistance to have an affidavit from the individual proposed by Patrick as the successor executor (and as the sole trustee of the Fund, once established).

Evidence from that individual as to his age, his ability to post security, if required to do so, his experience in terms of financial management, and his ability to fulfil the role of executor and trustee of the Estate would be of assistance. [ 7 ] I remain of the view that affidavit evidence is required in support of the request for an order appointing Ernest McCurdy as Estate Trustee and as sole trustee of the Fund. [ 8 ] It is my understanding that with the Fund now set up in accordance with the terms of the Will, it is intended that Patrick receive monthly payments from the Fund.

In my view, it is appropriate for Kevin to pass the accounts of the Fund prior to or at the same time as the Court considers a request for an order removing Kevin as the sole trustee of the Fund and appointing another individual in his place. The parties will want to consider whether the passing of accounts with respect to the Fund can and/or must be completed prior to the June 2017 return date discussed below. [ 9 ] On April 28, 2017 a document titled “Accounting Respecting the Estate of Thomas Michael Edward Cahill” was filed with the Court.

That document was filed in follow-up to paragraph 4 of the order made in paragraph 85 of the Reasons. That paragraph states as follows: 4. Sheila Kehoe and Kevin Cahill shall, no later than March 31, 2016, serve on Patrick Cahill and deliver to the Court an accounting for the Estate (“the Accounting”). In the event the parties are unable to agree upon the form of the Accounting, they may return before me for directions in that regard. [ 10 ] In hindsight, the use of the term “Accounting” was a poor choice on my part.

I intended that the Estate Trustees pass their accounts in accordance with Rule 74 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. The document filed on April 28, 2017 does not satisfy the requirements of that Rule. [ 11 ] In the context of the passing of the Estate accounts pursuant to Rule 74, the application would be served on all of the beneficiaries of the Estate. The individuals served with the application would be given an opportunity to respond to it.

There is no evidence before me as to whether the Accounting, prepared by counsel for Sheila, was served on any parties to this matter other than Patrick. [ 12 ] In addition to the concerns expressed above in paragraphs 8 to 11, consideration must be given to Patrick’s request for an award of additional costs payable by Sheila and Kevin personally or, in the alternative, from the Fund. I am unable to tell from the Accounting the extent to which, if any at all, either of the Estate Trustees received compensation.

Whether or not the Estate Trustees have received or are entitled to compensation may be relevant to Patrick’s request for an award of additional costs. [ 13 ] I also note that one of the alternatives proposed by Patrick with respect to the payment of costs is that the entire additional award, if any, be paid from the Fund in a single lump sum. In my view, that request overlooks paragraph 3(

g) of the Will. That paragraph provides that upon Patrick’s death, the amount, if any, remaining in the Fund is to be divided equally between the grandchildren of the Deceased then alive. Assuming that Patrick is survived by at least one niece or nephew, then one or more of the Deceased’s grandchildren shall be entitled to the balance remaining in the Fund as of the date of Patrick’s death. [ 14 ] I find that the individuals who may, upon Patrick’s death, be entitled to a share of the balance then remaining in the Fund are to be served with any record which relates to the Fund, including:

a) Patrick’s motion for an order that he be awarded additional costs payable by Sheila and/or Kevin personally or, in the alternative, from the Fund;

b) The motion, regardless of by whom it is brought, for an order removing Kevin as the sole trustee of the Fund and appointing another individual (Ernest McCurdy or otherwise) in his place; and

c) Kevin’s application with respect to passing the accounts of the Fund. [ 15 ] The end result of the case conference is that the parties are continuing their discussions in an effort to resolve the outstanding matters.

It was agreed that to the extent that any of these matters remain unresolved, the parties shall return before me as follows: • On June 21, 2017 at 2:00 p.m., with two hours of time reserved on that date; and • If necessary, on September 7, 2017 at 10:00 a.m., with the full day reserved on that date. [ 16 ] The parties shall deliver materials in accordance with the Rules of Civil Procedure , as may be required in support of the relief that they are each seeking. With respect to the passing of accounts by the Estate Trustees and the passing of accounts by Kevin in

relation to the Fund, in the event a hearing is required I remain seized of the matters. [ 17 ] The dates listed in paragraph 15 for the continuation of this application and related matters were selected prior to my review of the case conference briefs and to me having an opportunity to consider the practical implications of the relief sought by the parties.

In the event it is not possible for the parties to complete the exchange of materials in this application and the related matters in time for any of the matters to proceed on June 21, 2017 then the parties are to advise the Court in a timely manner so that the date may be vacated. [ 18 ] It is open to the parties and to other individuals upon whom materials are served in advance of June 21, 2017 to attend on that date and make submissions as to whether any the matters may be dealt with on that date while other matters remain pending.

Summary [ 19 ] In

summary, I order as follows: 1. Kevin Cahill shall bring an application for the passing of accounts with respect to the Fund in accordance with Rule 74 of the Rules of Civil Procedure . 2. Sheila Kehoe and Kevin Cahill shall bring an application for the passing of accounts with respect to the Estate in accordance with Rule 74 of the Rules of Civil Procedure . 3. In the event a hearing is required with respect to the passing of accounts of one or both of the Estate and the Fund, the hearing shall be before me. 4.

The motion record with respect to Patrick Cahill’s motion for an award of additional costs shall be served on the parties to this application and on any potential residual beneficiary of the Fund not already a party to this application. 5. The motion, if any required, with respect to the notice of garnishment and writ of seizure and sale, shall be brought in accordance with Rule 60 of the Rules of Civil Procedure . 6.

Any motion or application referred to in this Endorsement shall be returnable on June 21, 2017 at 2:00 p.m. or, in the event the exchange of the requisite materials cannot be completed in time to proceed on that date, on September 15, 2017 at 10:00 a.m. 6. In the event none of the motions or applications referred to herein is ready to proceed on June 21, 2017 at 2:00 p.m., the parties shall take the steps necessary to advise the Court in a timely manner so that the date may be vacated. ____________________________________ Madam Justice Sylvia Corthorn Date: May 3, 2017 CITATION : Cahill v.

Cahill , 2017 ONSC 2707 COURT FILE NO.: 15-63812 DATE: 2017/05/03

ONTARIO SUPERIOR COURT OF JUSTICE RE: PATRICK CAHILL Applicant AND KEVIN CAHILL, in his personal capacity and as Estate Trustee of the ESTATE OF THOMAS MICHAEL EDWARD CAHILL, SHEILA KEHOE in her personal capacity and as Estate Trustee of the ESTATE OF THOMAS MICHAEL EDWARD CAHILL, TOM CAHILL MEMORIAL FUND, ALCOHOLICS ANONYMOUS, JESSICA KEHOE, CRAIG KEHOE, CALVIN CAHILL, KEVIN DOUGLAS OLSON and CORY ROBERT OLSON Respondents BEFORE: Madam Justice Sylvia Corthorn COUNSEL: Miriam Vale Peters, Counsel for the Applicant William R. Hunter, Counsel for the Respondents Sheila Kehoe, Jessica Kehoe, and Craig Kehoe ENDORSEMENT Madam Justice Sylvia Corthorn Released: May 3, 2017