Overview

Mary Bendastos and Ivan Stos are siblings of their late parents Janko Stos and Marija Stos (the “Parents”).

In or around April 2015, Janko and Marija separated, and Marija commenced family law proceedings for, inter alia, spousal support and an equalization of net family property.^[1] Marija passed away in November 2017 before the family law proceedings settled in November 2018.^[2] On November  22, 2018, the Honourable Justice De Sousa made an Order (the “Order”) that established an Alter Ego Trust, wherein the assets of the Parents were transferred to the trustee pursuant to the Trust’s terms.^[3] Upon Janko passing away, the Alter Ego Trust divided the assets equally as between Ivan and Mary.^[4]

Additionally, the Order outlined a procedure for Mary and Ivan to account for the respective periods they each received rental income and managed their Parents assets:^[5]

• Mary: March 1, 2011, to the appointment of the trustee
• Ivan: January 1, 1999, to the appointment of the trustee

The Alter Ego Trust was signed on March 31, 2021.^[6] Should either sibling take issue with each other’s accounts, the Order contemplated that the objector bring an application to pass those accounts.^[7]

As such, Mary brought the within motion for directions regarding her and her brother Ivan’s competing passing of accounts applications. She sought further disclosure from Ivan to be able to fully comply with the Order.^[8] Ivan opposed the motion for various reasons, including that he had already provided Mary with all the relevant documentation and contended that Mary herself had failed to provide necessary records.^[9] Meanwhile, Mary asserted that she required additional disclosure before she would be able to attend a mediation on the matter.^[10]

Analysis

The issue for the Court was whether the documents requested by Mary were “proportional and necessary before mediation or a passing of accounts could take place”.^[11]

The Court highlighted its broad authority to “review and compel accounting where appropriate”.^[12] However, at the same time, it drew attention to the role that proportionality has when requesting additional documentation. As such, further disclosure requests are limited to those that are probative.^[13]

Additionally, the Court stated that while attorneys for property “must keep proper accounts and be ready to provide an accounting whenever required”^[14], such attorneys are not held to a standard of perfection.

The court found Mary’s requests for information rather broad as they did not specify deficiencies that created a cause for concern with Ivan’s productions.^[15] Among her requests included:^[16]

• Full and complete accounting from January 1, 1999 to March 31, 2021 regarding bank accounts of Janko and Marija including those dealing with all the properties; this includes all receipts, withdrawal slips, ABM withdrawals, copies of cheques and cancelled cheques, bank drafts;
• A full and complete reconciliation of rents collected versus deposits made is required as it appears not all of the rents collected by Ivan Stos were properly accounted for or deposited into Janko Stos’ bank account. The current records do not indicate where these funds were deposited or cashed;
• Identify and produce the account numbers, banks, and produce statements and supporting proof of how those rental funds were used, applied and/or disposed of.

The Court stated that Mary did little to assist herself by failing to provide any information that she may have in her own possession to remedy such requests, especially as she was acting as her Parents’ Attorney for property for some period of time.^[17]

In applying the aforementioned as it relates to proportionality, the Court acknowledged that Ivan already provided significant documentation and noted that Mary had created unnecessary delays by refusing to attend mediation.^[18] The Court held that many of Mary’s requests were “overbroad, overreaching, and not proportional” and declined to order the additional accounting sought.^[19]

However, of major concern for the Court was a $300,000 line of credit on the Parents’ matrimonial home. The line of credit was opened by Ivan, then acting in his role as attorney for property of Marija. The $300,000 was later transferred to an account, and Ivan failed to provide documentation relating to this transaction.^[20] The Court held that further information and accounting for the line of credit must be provided.^[21]

Takeaway

In determining whether additional disclosure during contested passing of account proceedings ought to be ordered, the court will consider the proportionality and probative nature of the request. Importantly, “where one might expect or hope to find probative information”^[22], is often classified as a fishing expedition, one in which the courts will refuse to entertain.

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[1] Bendastos et al v. Stos, 2026 ONSC 2815 (CanLII) at para 5.

[2] Ibid at paras 6-7.

[3] Ibid at paras 8.

[4] Ibid at para 32.

[5] Ibid at para 33-35.

[6] Ibid at para 36.

[7] Ibid at para 35.

[8] Ibid at para 12.

[9] Ibid at para 15.

[10] Ibid at para 50.

[11] Ibid at para 53.

[12] Ibid at para 55.

[13] Ibid at para 54.

[14] Ibid at para 70 citing Zimmerman v. McMichael Estate, 2010 ONSC 2947 at para 31.

[15] Ibid at para 58 and 82.

[16] Ibid at para 74.

[17] Ibid at para 79

[18] Ibid at para 57 and 59.

[19] Ibid at para 84 and 87.

[20] Ibid at para 17, 60 and 90.

[21] Ibid at para 92.

[22] Ibid at para 54, citing Apotex Inc. v. Eli Lilly and Company, 2017 ONSC 7204 at para 13.