In an unpublished Endorsement issued on April 13, 2024, Wayne Gardner [the “Respondent”], the estate trustee of the Estate of Tracy Gardner [the “Estate” or “Deceased”], was found in contempt of court for failing to commence an application to pass his accounts.[1] In the sentencing decision, Gardner v. Gardner, 2025 ONSC 5225 (CanLII) the court sentenced the Respondent to six days imprisonment.

The April 2024 Endorsement:

Facts:

Under the Deceased’s Will, the residue of the Estate was left to the Deceased’s three minor grandchildren, each entitled to a 1/3 distribution.[2] The Respondent was issued a certificate of appointment of estate trustee in March 2017 and provided the Office of the Children’s Lawyer [the “OCL”] with a list of the Estate’s assets and liabilities. Amongst the assets of the Estate were two condominiums.[3] The OCL later discovered that the two condo properties were sold in March 2017 and June 2017 respectively.[4] As such, the OCL brought an application for the Respondent to pass his accounts.[5]

In January 2022, an Order for the Respondent commence an application to pass his accounts was made [the “January Order”].  Shortly thereafter, the Respondent was served with the January Order. However, the Respondent did not bring the application in the required 60 days as contemplated by the January Order.[6] As a result, the OCL made numerous attempts to compel the Respondent’s compliance, which went entirely ignored. This necessitated the OCL to bring a motion to find the Respondent in contempt of court and for his imprisonment.[7]

Contempt of Court:

In finding the Respondent in contempt, the court followed the general principles outlined in Moncur v Plante, 2021 ONCA 462, and noted that findings of contempt are a discretionary power, exercisable with due caution and restraint.[8] The legal test to be found in contempt consists of three elements: [9]

1. The order alleged to have been breached must state clearly and unequivocally what should and should not be done;
2. The party alleged to have breached the order must have had actual knowledge of it
3. The party allegedly in breach must have intentionally done the act that the order; prohibits or intentionally failed to do the act that the order compels.

Application of the test:

1. Clearly states what should and should not be done.

The court found that the January Order clearly stated what the Respondent ought to have done – commence an application to pass his accounts withing 60 days.[10]

2. Actual knowledge.

The Respondent was served via email with the January Order on January 19, 2022 and served personally on January 26, 2024. Therefore, the court found that he had actual knowledge of the January Order.[11]

3. Intention.

The court took the view that in all of the circumstances (i.e. multiple attempts by the OCL to contact the Respondent for his compliance) that the Respondent’s failure to adhere to the January Order was intentional.[12]

Conclusion on the issue of contempt:

Citing the Respondent’s blatant disregard for his fiduciary role as estate trustee, the court exercised its discretion and concluded that a remedy other than contempt would not be appropriate on the facts.[13]

At sentencing:

At the September 2025 sentencing hearing, the OCL noted that it had yet to receive any accounting from the Respondent, nor did the beneficiary grandchildren receive anything from the Estate.[14] The Respondent stated that he believed that there were no longer any Estate funds remaining, sharing that the proceeds of sale from the Deceased’s two condo’s were used by the Respondent to purchase a property with his then wife, which upon their separation was transferred to her soley, and later sold. The Respondent further stated that a $100,000 bequest made to him, pursuant to the Will, was spent on the property purchased with his wife, furniture, tools, and trips to Europe.[15]

The Respondent and the OCL reached an agreement for the Respondent to pay $583,407.53 into court in installments and immediately begin administering the estate.[16] [16]

In sentencing the Respondent, the court recognized the objectives of general and specific deterrence and considered the factors ascribed in Law Society (British Columbia) v Hanson, 2004 BCSC 825 at para 108:[17]

(a) the gravity of the offence;

(b) the need to deter the contemnor;

(c) the past record and character of the respondents; in particular whether the alleged contemnor has committed previous contempts;

(d) the protection of the public;

(e) the successful party’s ability to realize on the judgment; and

(f) the extent to which the breach was intended

In doing so, the court highlighted the aggravating facts that the Respondent was acting in a fiduciary capacity as estate trustee, where the beneficiaries of the Estate were minors and vulnerable. The court sentenced the Respondent to six days imprisonment citing the need for general and specific deterrence.[18]

Takeaways:

This case serves as an important reminder of the fiduciary standards that estate trustees are held to – that is, regardless of their level of sophistication or knowledge of obligations when acting in such a role.[19]

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[1] Gardner v. Gardner, 2025 ONSC 5225 (CanLII) at para 1.

[2] ibid at para 1 subparagraph 1.

[3] ibid at para 1 subparagraph 2.

[4] ibid at para 1 subparagraph 3.

[5] ibid at para 1 subparagraph 4.

[6] ibid at para 1 subparagraph 5.

[7] ibid at para 1 subparagraphs 6 and 7.

[8] ibid at para 1 subparagraph 8.

[9] Moncur v Plante, 2021 ONCA 462 at para 10.

[10] note 1 at para 1 subparagraph 9.

[11] ibid.

[12] ibid.

[13] ibid at para 1 subparagraph 10.

[14] ibid at para 4.

[15] ibid at para 5.

[16] ibid at para 8.

[17] ibid at paras 9 and 10.

[18] ibid at paras 12 and 13.

[19] ibid at para 7.