Estates matters don’t often end with litigants serving a prison term, but the case of Estate of Nordby, 2023 ONSC 821 (CanLII) shows that it’s possible.
In Nordby, the Respondent obtained a Certificate of Appointment of Estate Trustee in October 2013.
Over the next few years, the Respondent failed to provide an accounting of the Estate assets to the OCL despite numerous requests.
The OCL obtained a court order in April 2017 requiring the Respondent to pass accounts within 60 days of the order being served on him. The Respondent was personally served with a copy of the order in July 2017.
The Respondent failed to pass Estate accounts thereafter.
In August 2022, the OCL sought a contempt order against the Respondent for his repeated failures to pass accounts. Justice Newton issued an order permitting substitution service by ordinary mail, with a return date motion in September 2022.
The Respondent was served shortly thereafter, yet failed to appear at the contempt motion. Newton J found the Respondent in contempt, and ruled that the Respondent may purge his contempt by passing accounts within 60 days of service of the order.
In December 2022, the OCL moved for a penalty of 30 days imprisonment, as the Respondent had still failed to provide accounts.
Rule 60.11(5) of the Rules of Civil Procedure provides that where a finding of contempt is made, the court may order that the person in contempt:
a) be imprisoned for such period and on such terms as are just;
b) be imprisoned if the person fails to comply with a term of the order;
c) pay a fine;
d) do or refrain from doing an act;
e) pay such costs as are just; and
f) comply with any other order that the judge considers necessary,
and may grant leave to issue a writ of sequestration under rule 60.09 against the person’s property.
In January 2023, Newton J considered the appropriate penalty against the Respondent. His Honour found that a fine was not appropriate, as the funds at issue were to benefit the grandchildren of the Respondent.
His Honour concluded that the paramount principle to be applied was deterrence and fostering respect for compliance with court orders, and found that imprisonment would make the Respondent and the public “sit up and take notice”.
Newton J punished the Respondent with five days imprisonment.
His Honour, however, allowed the Respondent an additional 60 days to purge his contempt.
It is unclear whether the Respondent ever purged his contempt.
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