Effective July 1, 2022, rule 74.11 of the Rules of Civil Procedure was amended to set out how to proceed with a request to dispense with a bond, or reduce the amount payable.  

A bond is a type of security that must be paid on estates in Ontario, as per section 35 of the Estates Act. The purpose of a bond is to protect the estate’s creditors and ensure that the debts of the estate will be paid.  

Judges may exercise their discretion and dispense with the bond requirement or reduce the amount payable under section 37 of the Act if there are “special circumstances”. For example, a bond may not be required if the court is satisfied that the protection afforded by a bond is not required, or can be met some other way: see Henderson (Re), 2008 CanLII 69136 (ON SC) at para 10.  

Rule 74.11, as amended by O. Reg. 435/22, now directs that an applicant seeking to be appointed estate trustee may bring a motion to dispense with a bond under subsection 37(2) of the Act. If, however, the request to dispense with the bond or reduce the amount is submitted with an application for a certificate of appointment (or confirmation of appointment), a different procedure may be used. Under these circumstances, a motion will not be necessary as long as two conditions are met: 

• the request is made on consent of the persons who are entitled to share in the distribution of the estate; and 

• none of the persons entitled to share in the distribution of the estate is either a minor, or mentally incapable within the meaning of section 6 of the Substitute Decisions Act, 1992. 

When submitting the request to dispense with a bond with an application for a certificate of appointment, documents that must be filed include:  

• a draft order (Form 74I); 
•  consents from everyone entitled to share in the distribution of the estate (Form 74H); and 

• an affidavit in Form 4D, which includes the following information: 

• the deceased’s last occupation;  
• each person entitled to share in the distribution of the estate;  
• the deceased’s debts at the time of death; 
• whether the deceased operated a business and whether any debts owed by the business could be claimed against the estate; 

• the value of the assets in the estate; 
• particulars of each debt owed by the estate, including the debt amount and the name of each creditor, if applicable;  
• whether arrangements have been made with any of the creditors to pay the debt owed, and what security can be put in place to protect each creditor; and  
• whether anyone entitled to share in the estate is either a minor or mentally incapable.  

Before rule 74.11 was amended, applicants seeking to dispense with a bond had to comply with a process created by the courts, as noted in Henderson. It appears that the changes to rule 74.11 are largely consistent with the previous court-prescribed procedures, meaning that the amendments to rule 74.11 essentially formalize the process that was already in place. 

Thank you for reading, and have a great day! 

Suzana Popovic-Montag