Das Gupta V. Das Gupta, 2026 ONSC 3310 – When Fiduciaries Obstruct: Moot Guardianship Costs, Trustee Removal, And Full-Indemnity Cost Consequences
Background
Gerlinde died on or about February 16, 2023 (the “Deceased” or “Estate”). The Deceased was survived by her two children, Sonya and Amit.[1]
Amit was appointed the Deceased’s then Attorney for Property and subsequently as Estate Trustee pursuant to the Deceased’s Last Will and Testament (the “Will”).[2]
Sonya initially commenced a guardianship application where she sought a guardianship order for the Deceased. Following the Deceased’s passing, Sonya commenced a further application against Amit in his capacity as Estate Trustee (the “Consolidated Applications”).[3]
On or about November 5, 2026, due to Amit’s unreasonable conduct, failure to adhere to court orders and cause undue delay and costs in the proceedings, the Honourable Justice Gilmore ordered that Amit’s pleadings and Notice of Appearance be struck from the record prohibiting him from participating any further.[4]
Issues
The court was tasked with determining a host of issues in the Consolidated Applications. However, this blog will focus on three. Particularly, (1) who ought to pay costs in the guardianship application, (2) Amit’s removal as Estate Trustee, and (3) the determination of costs in the Consolidated Applications.
Application
#1: The Costs of the Guardianship Application
In arriving at a determination of who was responsible for costs, the court considered Lacaria v. Lacaria, 2026 ONSC 591, which dealt with a similar set of facts wherein an incapable mother died seven months following the commencement of a guardianship application.[5]
Where a guardianship application is rendered moot by the death of the alleged incapable, the court will consider the following in determining costs:
- Whether the incapable person benefitted from the proceeding;
- Whether the proceeding was conducted reasonably; and
- That the only actual costs incurred before the death of the incapable person should be awarded.”
Sonya argued that the Deceased did benefit from the application considering Amit’s refusal to produce information respecting his appointment as the Deceased’s then attorney and his refusal to have counsel appointed for the Deceased pursuant to section 3 of the Substitute Decisions Act.[6]
The Court agreed and found that Sonya had little choice but to commence the guardianship application, and that costs sought were reasonable in the circumstances.[7] Sonya sought $13,224.01 in costs from the Estate of the Deceased, representing 50% of her full indemnity costs.
#2: Removal of Amit as Estate Trustee
On or about January 9, 2025, an Estate Trustee During Litigation (“ETDL”) was appointed. However, because an ETDL does not have the authority to distribute an estate in order to wind up the estate administration, the ETDL exhausted its authority. As such, Sonya sought to have Amit passed over as Estate Trustee and have the ETDL formally appointed as in his place.[8]
When removing an estate trustee, the court will consider the factors as set out in Radford v. Radford Estate (2008), 2008 CanLII 45548 (ON SC):
(1) the court will not lightly interfere with the testator’s choice of estate trustee;
(2) clear evidence is required that removal of the trustee is necessary;
(3) the court’s main consideration is the welfare of the beneficiaries; and
(4) the estate trustee’s acts, or omissions must be of such a nature as to endanger the administration of the trust.[9]
In considering the forgoing, the court drew significant attention to Amit’s past conduct:
- As outlined in the Honourable Justice Gilmore’s Order dated November 5, 2025, Amit has acted in a conflict of interest as between himself and the beneficiaries;[10]
- Amit’s failure to comply with various court orders;[11] and
- Amit’s misappropriation of the Deceased’s funds and related breach of fiduciary duties.[12]
Accordingly, the Court found that it was necessary for the ETDL to be appointed in Amit’s place to ensure that the beneficiaries’ interests were protected.[13]
#3 Costs in the Consolidated Applications:
Sonya sought her costs of $166,040.47, on a full indemnity basis payable from Amit’s share of the Deceased’s Estate. [14]
The Court considered various well-established cost principles in coming to a determination on costs, including but not limited to:
- The Court’s discretion to award costs pursuant to section 131 of the Courts of Justice Act;
- The “loser pays” principle, held applicable to estate litigation by the decision in Bilek v. Salter Estate, [2009] O.J. No. 2328, 2009 CanLII 28403 (S.C.J.);
- The factors as outlined in Rule 57 of the Rules of Civil Procedure; and
- The reservation of full indemnity costs to exceptional circumstances.[15]
Sonya requested full indemnity costs on the basis that; the proceedings were made more complex by Amit’s conduct and refusal to cooperate which caused undue delay; and the proceedings were important to Sonya in terms of having the Estate administered.[16]
Considering the above, the Court characterized Amit’s conduct as “egregious” and awarded Sonya’s full indemnity costs against Amit’s share of the Estate. Should that share not satisfy the $166,040.47 awarded, any remaining balance owing was ordered to be paid by Amit, personally.[17]
Takeaways
The Court reinforced core estate‑litigation principles: costs in guardianship matters turned moot by death focus on benefit, reasonableness, and pre‑death expense; removal of a trustee hinges on beneficiary welfare and conduct that endangers administration; and full indemnity costs are exceptional but warranted for egregious, obstructive behaviour. For fiduciaries, transparency and compliance are not optional—they are essential to avoid personal cost exposure and replacement.
—
[1] Das Gupta v. Das Gupta, 2026 ONSC 3310 (CanLII) at para 2 & 5.
[2] Ibid at para 2.
[3] Ibid at para 8.
[4] Ibid at para 4 & 9.
[5] Ibid at para 15.
[6] Ibid at para 17.
[7] Ibid at para 18.
[8] Ibid at para 74.
[9] Ibid at para 75.
[10] Ibid at para 76.
[11] Ibid at para 76.
[12] Ibid at para 78.
[13] Ibid at para 78.
[14] Ibid at para 86.
[15] Ibid at para 88.
[16] Ibid at para 86.
[17] Ibid at para 91.
Written by: Jessica Homer
Posted on: August 27, 2026
Categories: Commentary, WEL Newsletter
Background
Gerlinde died on or about February 16, 2023 (the “Deceased” or “Estate”). The Deceased was survived by her two children, Sonya and Amit.[1]
Amit was appointed the Deceased’s then Attorney for Property and subsequently as Estate Trustee pursuant to the Deceased’s Last Will and Testament (the “Will”).[2]
Sonya initially commenced a guardianship application where she sought a guardianship order for the Deceased. Following the Deceased’s passing, Sonya commenced a further application against Amit in his capacity as Estate Trustee (the “Consolidated Applications”).[3]
On or about November 5, 2026, due to Amit’s unreasonable conduct, failure to adhere to court orders and cause undue delay and costs in the proceedings, the Honourable Justice Gilmore ordered that Amit’s pleadings and Notice of Appearance be struck from the record prohibiting him from participating any further.[4]
Issues
The court was tasked with determining a host of issues in the Consolidated Applications. However, this blog will focus on three. Particularly, (1) who ought to pay costs in the guardianship application, (2) Amit’s removal as Estate Trustee, and (3) the determination of costs in the Consolidated Applications.
Application
#1: The Costs of the Guardianship Application
In arriving at a determination of who was responsible for costs, the court considered Lacaria v. Lacaria, 2026 ONSC 591, which dealt with a similar set of facts wherein an incapable mother died seven months following the commencement of a guardianship application.[5]
Where a guardianship application is rendered moot by the death of the alleged incapable, the court will consider the following in determining costs:
Sonya argued that the Deceased did benefit from the application considering Amit’s refusal to produce information respecting his appointment as the Deceased’s then attorney and his refusal to have counsel appointed for the Deceased pursuant to section 3 of the Substitute Decisions Act.[6]
The Court agreed and found that Sonya had little choice but to commence the guardianship application, and that costs sought were reasonable in the circumstances.[7] Sonya sought $13,224.01 in costs from the Estate of the Deceased, representing 50% of her full indemnity costs.
#2: Removal of Amit as Estate Trustee
On or about January 9, 2025, an Estate Trustee During Litigation (“ETDL”) was appointed. However, because an ETDL does not have the authority to distribute an estate in order to wind up the estate administration, the ETDL exhausted its authority. As such, Sonya sought to have Amit passed over as Estate Trustee and have the ETDL formally appointed as in his place.[8]
When removing an estate trustee, the court will consider the factors as set out in Radford v. Radford Estate (2008), 2008 CanLII 45548 (ON SC):
(1) the court will not lightly interfere with the testator’s choice of estate trustee;
(2) clear evidence is required that removal of the trustee is necessary;
(3) the court’s main consideration is the welfare of the beneficiaries; and
(4) the estate trustee’s acts, or omissions must be of such a nature as to endanger the administration of the trust.[9]
In considering the forgoing, the court drew significant attention to Amit’s past conduct:
Accordingly, the Court found that it was necessary for the ETDL to be appointed in Amit’s place to ensure that the beneficiaries’ interests were protected.[13]
#3 Costs in the Consolidated Applications:
Sonya sought her costs of $166,040.47, on a full indemnity basis payable from Amit’s share of the Deceased’s Estate. [14]
The Court considered various well-established cost principles in coming to a determination on costs, including but not limited to:
Sonya requested full indemnity costs on the basis that; the proceedings were made more complex by Amit’s conduct and refusal to cooperate which caused undue delay; and the proceedings were important to Sonya in terms of having the Estate administered.[16]
Considering the above, the Court characterized Amit’s conduct as “egregious” and awarded Sonya’s full indemnity costs against Amit’s share of the Estate. Should that share not satisfy the $166,040.47 awarded, any remaining balance owing was ordered to be paid by Amit, personally.[17]
Takeaways
The Court reinforced core estate‑litigation principles: costs in guardianship matters turned moot by death focus on benefit, reasonableness, and pre‑death expense; removal of a trustee hinges on beneficiary welfare and conduct that endangers administration; and full indemnity costs are exceptional but warranted for egregious, obstructive behaviour. For fiduciaries, transparency and compliance are not optional—they are essential to avoid personal cost exposure and replacement.
—
[1] Das Gupta v. Das Gupta, 2026 ONSC 3310 (CanLII) at para 2 & 5.
[2] Ibid at para 2.
[3] Ibid at para 8.
[4] Ibid at para 4 & 9.
[5] Ibid at para 15.
[6] Ibid at para 17.
[7] Ibid at para 18.
[8] Ibid at para 74.
[9] Ibid at para 75.
[10] Ibid at para 76.
[11] Ibid at para 76.
[12] Ibid at para 78.
[13] Ibid at para 78.
[14] Ibid at para 86.
[15] Ibid at para 88.
[16] Ibid at para 86.
[17] Ibid at para 91.
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