Getting a Court Order to Freeze Estate Assets in Ontario

When an estate is in dispute, a common fear is that the property will disappear before anyone decides who is entitled to it. A house might be listed for sale, an account might be emptied, or a distribution might be made to some beneficiaries while others are still arguing their case.

Ontario courts can make orders to preserve property while a dispute is sorted out. This article explains the general test, what the court can order, and the practical and cost risks. It is general information, and whether an order is realistic in your case is something a lawyer should assess.

What a preservation order is

People often say "freeze", but the legal language is interim preservation of property. It is a temporary order made while a dispute is ongoing, meant to keep the disputed assets in place until the court decides the issue.

Interim preservation of property pending a dispute is governed by Rules 45.01 and 45.02 of the Rules of Civil Procedure. Where a party's right to a specific fund is in question, the court may order it paid into court or otherwise secured on just terms. The court may also impose conditions on any order.

The test a court applies

The court considers whether the assets are the subject of the dispute, whether there is a serious issue to be tried, and the balance of convenience. In plain terms, you need to show that the property is what the fight is about, that your case is not frivolous, and that keeping the property in place is fairer than leaving it free to be dealt with.

An application can fail early. In one case, a daughter's application for an interim preservation order to stop distribution of her mother's estate failed at the threshold. That shows how much depends on evidence rather than on worry alone.

Costs and fees to weigh

Failing can be expensive. In that same case the daughter was ordered to pay $8,758.19 in costs of the application and $15,000 in partial indemnity costs of the appeal. These figures are examples from one case, not a guide to what your matter would cost. The court also noted that costs from the estate are exceptional.

Estate litigation is governed by the ordinary civil costs regime, and costs come out of the estate only where public policy considerations apply, such as ensuring estates are properly administered. Courts may make blended orders where the loser pays part of the other side's costs and the estate bears the balance.

Court filing fees also apply. The Ministry of the Attorney General lists $232.00 for an application for directions and $339.00 for a notice of motion served on another party. Fees can change, so check the current list.

Other pieces that often come with these disputes

• The Office of the Children's Lawyer must be served in estate matters affecting a child's interest, including will challenges, will interpretation, trustee removal and dependant support claims.
• Mandatory mediation under Rule 75.1 applies to specified estate proceedings, including contested passing of accounts and claims against an estate.
• An estate trustee has a duty to call in the estate's assets, which is a reminder that trustees have obligations about estate property.
• A notice of objection filed against a certificate application can stop the court registrar issuing probate, and a probate order from a judge may then be required.

What to do next

Start by identifying exactly which asset you are worried about and why. A specific concern backed by documents is far more persuasive than a general fear. A lawyer can also tell you whether other steps, such as asking the trustee for written confirmation that nothing will be sold or distributed, may resolve the concern without a court application.

• List the assets at risk, such as a property, an account or an investment, and how they are held.
• Collect proof of the risk, such as listing notices, messages about selling, or account statements showing withdrawals.
• Gather documents showing your connection to the dispute, such as the will, earlier wills or correspondence.
• Write to the estate trustee asking them to confirm in writing that the asset will not be sold or distributed.
• Ask a lawyer whether the test in Rules 45.01 and 45.02 is realistically met on your evidence.
• Ask what the costs risk is if the application does not succeed.

Frequently asked questions