How to Ask a Trustee for an Accounting in Ontario

Being a beneficiary and hearing nothing from the trustee is stressful. You may not know what the trust owns, what has been spent or when you will be paid. An accounting is the trustee's record of what came in, what went out and what remains.

This article explains the usual steps in Ontario, from a polite written request to a court-supervised passing of accounts. It also covers the deadlines that can limit a claim and what to consider if the trustee is not doing the job.

Start with a clear written request

Most disputes are best tested first with a written request. Say who you are, which trust or estate you are asking about, and what you want to see, such as statements, receipts, investment records and a summary of income and expenses. Set a reasonable date for a reply and keep a copy.

A trustee may pay a trust expense personally and recover it from the trust property, but the court may later disallow the expense. That is one reason records matter: they show what was spent and why.

Asking the court to require a passing of accounts

If the trustee will not respond, the court can be asked to step in. A person who appears to have a financial interest in an estate may bring a motion for an order requiring the estate trustee to pass accounts.

A trustee who wants to pass the accounts of dealings with the trust may file them in the office of the Superior Court of Justice. Rules 74.17 and 74.18 of the Rules of Civil Procedure govern the passing of estate trustees' accounts, and with necessary modifications they also apply to other trustees, attorneys under a power of attorney and guardians of property.

How a passing of accounts works

• The trustee files the accounts verified by affidavit (Form 74.43), a copy of the certificate of appointment, and any earlier judgment on passing of accounts. The court then issues a notice of application to pass accounts (Form 74.44).
• The notice and a draft judgment must be served on everyone with a contingent or vested interest.
• Service must be made at least 60 days before the hearing in Ontario, or at least 75 days before if outside Ontario.
• The Children's Lawyer and the Public Guardian and Trustee are served where minors or persons under disability are involved.
• A beneficiary who objects must serve and file a notice of objection to accounts (Form 74.45) at least 35 days before the hearing date.

Form numbers can change over time, so check that you are using the current versions of the forms before you file anything, including the affidavit verifying the accounts (Form 74.43), the notice of application to pass accounts (Form 74.44) and the notice of objection to accounts (Form 74.45). Where a minor or unborn person has an interest, the Office of the Children's Lawyer must be served. It represents the child and does not take instructions from the parents.

Deadlines that can limit your claim

Do not wait too long. The general limitation period in Ontario is two years from the day a claim was discovered, and a claim is discovered when the claimant knew, or reasonably ought to have known, of it. No proceeding may be started more than 15 years after the act or omission.

There are exceptions. The 15-year period does not run while the defendant wilfully conceals the loss, and the claimant must prove the concealment. The two-year period does not run while the claimant is a minor, or is incapable of starting a proceeding, and is not represented by a litigation guardian. Tort actions by or against a deceased person's executor or administrator must be brought within two years of the death. Because these rules interact, get advice early.

If the trustee is not doing the job, and next steps

The Superior Court of Justice may appoint a new trustee or trustees, either replacing or adding to existing trustees. For estate trustees, the court may remove them on any ground on which it could remove any other trustee and appoint someone else in their place.

A trustee, guardian or personal representative is entitled to a fair and reasonable allowance for their care, pains and trouble and the time spent on the estate, and a judge of the Superior Court of Justice fixes it. Compensation may be settled even if the estate is not before the court in an action, and a judge may allow it on a passing of accounts. Section 61 does not apply where the trust document fixes the allowance. Where a lawyer is the trustee and has provided necessary professional services to the estate, s. 61(4) deals separately with an allowance for those services.

• Collect the will or trust document and any letters you have received.
• Send a dated written request for records and keep a copy.
• Note the date you first learned of any concern, because limitation periods can run from discovery.
• Ask a lawyer whether to bring a motion to compel a passing of accounts.
• If you object once accounts are filed, diarize the notice of objection deadline.

Frequently asked questions