The recent decision in Sullivan v. Sullivan, 2023 ONSC 7172, provides an interesting read. The Endorsement of Justice Myers starts off: “This is an unusual matter”.

The applicant sister was one of two estate trustees; the respondent brother was the other. The estate belonged to the parties’ father. The applicant claimed her brother had pledged the estate’s assets as margin for his personal trading debts.

Justice Dietrich, throughout the matter’s litigation history, had ordered and/or declared the following:

• The respondent was ordered to apply to pass his accounts. He did not.
• The respondent was declared in breach of his fiduciary duty. As such, the respondent was ordered to pay the applicant’s costs and the applicant’s damages were to be assessed as part of the respondent’s passing of accounts. The respondent satisfied neither. 
• The respondent was declared in contempt for failing to pass his accounts; however, was given 28 days to “purge his contempt”. Concurrently, the applicant sought leave to proceed with an uncontested trial to fix her damages flowing from the respondent’s breach, under Rule 57.03(2) of the Rules of Civil Procedure, given the respondent had failed to comply with the costs order. This relief was refused, however, without prejudice to the applicant seeking this relief at a later date should the respondent fail to purge his contempt. The respondent did not purge his contempt.

On August 7, 2023, the respondent passed away, intestate, and relevantly before the applicant could schedule a hearing regarding the respondent’s contempt sentencing. The respondent’s only asset was his share of his father’s estate.

The respondent’s children, his sole beneficiaries, understood their father’s share in the estate was subject to the applicant’s entitlement to damages. The Court reminds us: “Whether subject to a constructive trust or not, creditor claims will take ahead of beneficiaries in the ordinary course.” Given such, his children were not willing to invest their money to administer his estate just to inherit debt.

Meanwhile, the applicant renewed her request to assess damages at an uncontested trial.

At the motion heard by Justice Myers, the applicant’s counsel advised that he could find no authority for dealing with a contempt of court proceeding where the contemnor dies having failed to purge his

contempt but not yet having been sentenced. Justice Myers was satisfied that this was a matter of first impression.

In response to the respondent’s children’s decision to not pursue their father’s share of the estate, Justice Myers held:

[23]        The court will not second-guess the business judgment or cost-benefit analysis made by [the respondent’s] children. … that is their choice to make. It appears to be both sensible and economically. But it is a decision for them and not for the court.

In response to the applicant’s renewed request, Justice Myers found there was no point in forcing the applicant to appoint someone to administer the respondent’s estate, on behalf of his children who “for all intents and purposes, renounced their entitlement to share in an insolvency”. Forcing the applicant to spend any more money than absolutely necessary would not be just, in light of the respondent’s failure to pay her costs, as ordered. Therefore, the applicant was granted the leave sought. Further, given there was no one to pay the outstanding costs order or to contest the claim, Justice Myers dispensed with the requirement for an order to continue under Rule 11 of the Rules of Civil Procedure.

Although a determination on whether civil contempt of court survives death, or dies with the contemnor, would have been interesting, Justice Myers determined the question was not actually before him. As a result, the answer to this question remains open.

Thanks for reading!

Megan Zanette