Familial conflict has long embroiled matters concerning Eileen Childs (the “Deceased”), beginning with disputes regarding her guardianship that spanned nearly nine years, which following her death in March 2025, made there way to her Estate.[1]
In 2009, Eileen executed a will naming all four of her children as estate trustees (the “Will”). As a result of conflict plaguing the estate administration, Micheal (the “Applicant”), who is one of the Deceased’s children, is seeking to have all four estate trustees removed and for the appointment of a neutral estate trustee.[2] The Deceased’s children Peter and Caroline oppose the application, whereas Andrew is in support of it. (Collectively Micheal, Peter, Caroline and Andrew are referred to as the “Parties”).
Past Litigation
To provide context to the Parties’ longstanding legal disputes I have provided a succinct summary of events that took place from 2014 to 2025 during the Deceased’s lifetime to the current application.
In 2014, Michael and Andrew sought to be appointed as the Deceased’s guardians of property and personal care. Peter and Caroline brought a cross-application seeking their own appointment as guardians.[3]
In January 2015, by court order, section 3 counsel was appointed for the Deceased.[4] By June 2015, following an agreement of the Parties, BMO Trust was appointed as the Deceased’s guardian of property.[5] In June 2015, Caroline was appointed the Deceased’s guardian of personal care,[6] following which, she wanted to abandon[7]. In December 2015, by a subsequent order of the court, Michael was appointed as the Deceased’s co-guardian of personal care alongside Caroline.[8]
In February 2016, BMO trust paid section 3 counsel $43,470.89 for legal fees incurred from July 2015 to February 2016, the payment was not disclosed to the Parties until 20 months later, in September 2017 – and was made before any judicial review of section 3 counsel’s accounts took place. As a result of these circumstances, the $43,470.89 payment was the subject of various appeals and motions commenced by Peter and Caroline.[9]
Peter and Caroline sought to appeal the January 2015 and December 2015 decisions which were ultimately dismissed by the Ontario Court of Appeal in 2017 and denied by the Supreme Court of Canada in 2018.[10] This followed further motions brought by Peter to the Court of Appeal in 2019 resulting in the court ordering that ‘no further motions should be filed by Peter in an attempt to reopen or otherwise in respect of the Court’s previous order’.[11] Peter’s leave to appeal the 2019 Court of Appeal decision was rejected by the Supreme Court of Canada.[12]
In February 2018, BMO Trust commenced an application to pass its accounts as guardian for property. Peter and Caroline filed notices of objection citing prior allegations of conspiracy with regards to the $43k paid to section 3 counsel. The court ultimately found Peter to be a vexatious litigant and denied him standing in the application.[13] Appeals of this finding were denied by the Court of Appeal and Supreme Court of Canada.[14] In passing the accounts of BMO Trust for the period April 2015 to June 2017, the court barred further challenges relating to the $43k paid to section 3 counsel.[15]
In August 2025, following the Deceased’s passing and after Micheal commenced the within application, BMO Trust commenced an application to pass accounts for the period of June 2017 to March 2025. Peter and Caroline have filed notices of objection in that application which has been adjourned to a later date.[16]
Due to Peter and Caroline’s various unsuccessful motions and appeals, cost awards exceeding $200,000 have been made against them.[17]
Passing over the estate trustees
In the current application, the court relied on its inherent powers as articulated in Gonder v Gonder Estate, 2010 ONCA 172 to remove an estate trustee when circumstances require.[18] The court cites that this power must be balanced with the principle that the testator’s testamentary wishes (i.e. appointment of an estate trustee) should not be interfered with lightly.[19]
The Applicant argued that the past litigation involving the Deceased created a conflict between the Parties that is irreconcilable and which will hinder further steps required for the Estate administration.[20] The Applicant further argued that a majority decision making clause contained in the Will and linked to the Parties’ appointments as estate trustee was not sufficient to reconcile the conflicts that are present because the Parties are divided on substantive issues regarding the Estate administration.[21] In addition, as Peter and Caroline were ordered to pay costs awards in previous proceedings and have failed to do so, the Applicant argued that a conflict of interest exists between them (Peter and Caroline) and the beneficiaries of the Estate.[22]
Amongst Peter and Caroline’s arguments, were that the Applicant’s application was premature, given in some respects, the Parties had been able to cooperate with administering the Estate.[23] Caroline further argued that she was willing to act as estate trustee and that the appointment of a professional would be too costly and contrary to the Deceased’s express wishes.[24]
Analysis
The court found that while the Parties have been able to take preliminary steps in administering the Deceased’s Estate, this did not change the fact that animus and deep-seated mistrust of each other existed.[25]
Further, the court found that the majority rule clause contained in the Deceased’s Will does little to resolve the conflicts between the Parties – as they are often evenly divided into two camps: Peter and Caroline on one side and Michael and Andrew on the other.[26]
To add to this, the court agreed that there was a genuine concern regarding the accumulated cost awards against Peter and Caroline conflicting with their fiduciary duties to the beneficiaries.[27] As a result, the court held that the Parties shall be passed over as estate trustees and for a neutral party to be appointed.
In an effort to guard against further litigation, the court ordered that the estate trustee was not responsible for pursuing any issues identified at paragraph 1(d) of the notice of application (i.e. matters that have already been adjudicated by this court and appellate courts), nor was the estate trustee liable to the beneficiaries in connection with those issues. [28]
Takeaways
This case highlights that while the testator’s wishes regarding their appointment of an estate trustee will not to be disturbed lightly. However, where deep rooted conflict and past vexatious litigation have plagued estate administration, the court will exercise its inherent powers to pass over estate trustees.
—
[1] Childs v. Childs, 2026 ONSC 801 (CanLII) at paras 1 & 3.
[2] ibid at para 5.
[3] ibid at para 9.
[4] ibid at para 10.
[5] ibid at para 13.
[6] ibid.
[7] ibid at para 14.
[8]ibid at para 16.
[9] ibid at para 11.
[10]Ibid at para 18.
[11] ibid at para 19.
[12] ibid at para 20.
[13] ibid at paras 21& 23.
[14] ibid at para 24.
[15]ibid at para 26.
[16]ibid at paras 28 and 29.
[17] ibid at para 35.
[18] ibid at para 42.
[19] ibid at para 43.
[20] ibid at para 45.
[21] ibid at paras 46 ad 47.
[22] ibid at paras 48 and 49.
[23] ibid at para 51.
[24] ibid at para 53.
[25] ibid at para 61.
[26] ibid at para 63.
[27]ibid at para 65.
[28] ibid at para 71.
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Written by: Jessica Homer
Posted on: March 6, 2026
Categories: Commentary
Familial conflict has long embroiled matters concerning Eileen Childs (the “Deceased”), beginning with disputes regarding her guardianship that spanned nearly nine years, which following her death in March 2025, made there way to her Estate.[1]
In 2009, Eileen executed a will naming all four of her children as estate trustees (the “Will”). As a result of conflict plaguing the estate administration, Micheal (the “Applicant”), who is one of the Deceased’s children, is seeking to have all four estate trustees removed and for the appointment of a neutral estate trustee.[2] The Deceased’s children Peter and Caroline oppose the application, whereas Andrew is in support of it. (Collectively Micheal, Peter, Caroline and Andrew are referred to as the “Parties”).
Past Litigation
To provide context to the Parties’ longstanding legal disputes I have provided a succinct summary of events that took place from 2014 to 2025 during the Deceased’s lifetime to the current application.
In 2014, Michael and Andrew sought to be appointed as the Deceased’s guardians of property and personal care. Peter and Caroline brought a cross-application seeking their own appointment as guardians.[3]
In January 2015, by court order, section 3 counsel was appointed for the Deceased.[4] By June 2015, following an agreement of the Parties, BMO Trust was appointed as the Deceased’s guardian of property.[5] In June 2015, Caroline was appointed the Deceased’s guardian of personal care,[6] following which, she wanted to abandon[7]. In December 2015, by a subsequent order of the court, Michael was appointed as the Deceased’s co-guardian of personal care alongside Caroline.[8]
In February 2016, BMO trust paid section 3 counsel $43,470.89 for legal fees incurred from July 2015 to February 2016, the payment was not disclosed to the Parties until 20 months later, in September 2017 – and was made before any judicial review of section 3 counsel’s accounts took place. As a result of these circumstances, the $43,470.89 payment was the subject of various appeals and motions commenced by Peter and Caroline.[9]
Peter and Caroline sought to appeal the January 2015 and December 2015 decisions which were ultimately dismissed by the Ontario Court of Appeal in 2017 and denied by the Supreme Court of Canada in 2018.[10] This followed further motions brought by Peter to the Court of Appeal in 2019 resulting in the court ordering that ‘no further motions should be filed by Peter in an attempt to reopen or otherwise in respect of the Court’s previous order’.[11] Peter’s leave to appeal the 2019 Court of Appeal decision was rejected by the Supreme Court of Canada.[12]
In February 2018, BMO Trust commenced an application to pass its accounts as guardian for property. Peter and Caroline filed notices of objection citing prior allegations of conspiracy with regards to the $43k paid to section 3 counsel. The court ultimately found Peter to be a vexatious litigant and denied him standing in the application.[13] Appeals of this finding were denied by the Court of Appeal and Supreme Court of Canada.[14] In passing the accounts of BMO Trust for the period April 2015 to June 2017, the court barred further challenges relating to the $43k paid to section 3 counsel.[15]
In August 2025, following the Deceased’s passing and after Micheal commenced the within application, BMO Trust commenced an application to pass accounts for the period of June 2017 to March 2025. Peter and Caroline have filed notices of objection in that application which has been adjourned to a later date.[16]
Due to Peter and Caroline’s various unsuccessful motions and appeals, cost awards exceeding $200,000 have been made against them.[17]
Passing over the estate trustees
In the current application, the court relied on its inherent powers as articulated in Gonder v Gonder Estate, 2010 ONCA 172 to remove an estate trustee when circumstances require.[18] The court cites that this power must be balanced with the principle that the testator’s testamentary wishes (i.e. appointment of an estate trustee) should not be interfered with lightly.[19]
The Applicant argued that the past litigation involving the Deceased created a conflict between the Parties that is irreconcilable and which will hinder further steps required for the Estate administration.[20] The Applicant further argued that a majority decision making clause contained in the Will and linked to the Parties’ appointments as estate trustee was not sufficient to reconcile the conflicts that are present because the Parties are divided on substantive issues regarding the Estate administration.[21] In addition, as Peter and Caroline were ordered to pay costs awards in previous proceedings and have failed to do so, the Applicant argued that a conflict of interest exists between them (Peter and Caroline) and the beneficiaries of the Estate.[22]
Amongst Peter and Caroline’s arguments, were that the Applicant’s application was premature, given in some respects, the Parties had been able to cooperate with administering the Estate.[23] Caroline further argued that she was willing to act as estate trustee and that the appointment of a professional would be too costly and contrary to the Deceased’s express wishes.[24]
Analysis
The court found that while the Parties have been able to take preliminary steps in administering the Deceased’s Estate, this did not change the fact that animus and deep-seated mistrust of each other existed.[25]
Further, the court found that the majority rule clause contained in the Deceased’s Will does little to resolve the conflicts between the Parties – as they are often evenly divided into two camps: Peter and Caroline on one side and Michael and Andrew on the other.[26]
To add to this, the court agreed that there was a genuine concern regarding the accumulated cost awards against Peter and Caroline conflicting with their fiduciary duties to the beneficiaries.[27] As a result, the court held that the Parties shall be passed over as estate trustees and for a neutral party to be appointed.
In an effort to guard against further litigation, the court ordered that the estate trustee was not responsible for pursuing any issues identified at paragraph 1(d) of the notice of application (i.e. matters that have already been adjudicated by this court and appellate courts), nor was the estate trustee liable to the beneficiaries in connection with those issues. [28]
Takeaways
This case highlights that while the testator’s wishes regarding their appointment of an estate trustee will not to be disturbed lightly. However, where deep rooted conflict and past vexatious litigation have plagued estate administration, the court will exercise its inherent powers to pass over estate trustees.
—
[1] Childs v. Childs, 2026 ONSC 801 (CanLII) at paras 1 & 3.
[2] ibid at para 5.
[3] ibid at para 9.
[4] ibid at para 10.
[5] ibid at para 13.
[6] ibid.
[7] ibid at para 14.
[8]ibid at para 16.
[9] ibid at para 11.
[10]Ibid at para 18.
[11] ibid at para 19.
[12] ibid at para 20.
[13] ibid at paras 21& 23.
[14] ibid at para 24.
[15]ibid at para 26.
[16]ibid at paras 28 and 29.
[17] ibid at para 35.
[18] ibid at para 42.
[19] ibid at para 43.
[20] ibid at para 45.
[21] ibid at paras 46 ad 47.
[22] ibid at paras 48 and 49.
[23] ibid at para 51.
[24] ibid at para 53.
[25] ibid at para 61.
[26] ibid at para 63.
[27]ibid at para 65.
[28] ibid at para 71.
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