In my blog Tips on Bringing a Passing of Accounts Application of March 5, 2021, I provided suggestions on preparing the accounts and drafting the court required documents when bringing an application to pass accounts (the “Passing Application”).[1]  In  today’s blog, I will share some tips on the next steps in the process.

Initiating the Passing Application

The Passing Application is initiated by (i) obtaining a hearing date for the passing of accounts from the applicable court office; (ii) filing the requisite materials with the court; and (iii) giving notice of the passing of accounts to each person having a financial interest in the estate or trust.  These are all steps in which an estates law clerk may be involved.

Hearing Date

It is very important when obtaining the hearing date from the court that you allow sufficient time for service on the beneficiaries.  The timelines are set out in rules 74.18(4) and 74.18(5) of the Ontario Rules.  If the person is served in Ontario, the documents must be served at least 60 days before the hearing date.  If the person is served outside of Ontario, the time period is at least 75 days before the hearing date.  Rule 74.18(3) requires service by regular lettermail.  This means that you must allow an additional five days in your time period to effect service.[2]  Note that this rule has not changed and service by regular lettermail is still required.  This is unlike the rules for service of probate applications, which were recently updated to allow for service by email and other methods.

Before contacting the court to obtain a hearing date, I calculate the minimum time period that I need to serve the beneficiaries and add in extra time for communicating with the court to obtain the date, having the notice of application to pass accounts issued by the court, finalizing the letters serving the beneficiaries and getting them in the mail.  As the hearing date is also subject to the court’s availability, the minimum time period may not be an issue, but it is nonetheless crucial to know.

The Consolidated Practice Direction Concerning the Estates List in the Toronto Region Consolidated Practice Direction Concerning the Estates List in the Toronto Region | Superior Court of Justice (ontariocourts.ca) provides that you should book a 10:00 a.m. time slot for 10 minutes for the initial return date for a Passing Application.

Where is the Applicable Court?

Rule 13.1.01 sets out the applicable court for commencing the Passing Application.  For an estate trustee, it may be at the Superior Court of Justice location where the certificate of appointment of estate trustee was issued.  A guardian of property may pass accounts at the Superior Court of Justice location where the guardian was appointed.  However, unless a judge has directed otherwise, an estate trustee or guardian may pass accounts at any location of the court.  This would also apply to trustees of inter-vivos trusts, i.e. any convenient location of the court may be selected.  It may be desirable, particularly for a contested passing of accounts, to select a court location convenient for counsel rather than the location where the certificate of appointment was issued.  It is also possible to pass accounts for an estate without having obtained a certificate of appointment.  This is set out in the decision of Justice Haley in Re Silver Estate, 1999 CarswellOnt 4217.

Next Step – Filing the Materials with the Court

My fellow estates law clerks will recall that for years the practice was to file a loose copy of the notice of application to pass accounts, together with the application record containing the notice of application to pass accounts, the affidavit verifying accounts, the accounts themselves and the other required documents.  The court would then issue the notice of application to pass accounts and we would proceed to serve the beneficiaries.  In approximately June 2019, a notice was issued by the Toronto Estates Office advising that they had changed their process and requiring the application record to include proof of service prior to filing it with the estates office.  This means that notwithstanding the Ontario Rules, we now initially file only the notice of application to pass accounts.  The application record is filed with the court after the beneficiaries are served.  In the more modern world of filing materials through the Civil Submissions Online portal, a similar process is followed of having the notice of application to pass accounts issued by the court first.  The application record and the affidavit of service is then uploaded to the storage space on sync.com after the beneficiaries have been served.

Thanks for reading and stay tuned for serving the beneficiaries, notice of objection to accounts and more.

[1] The court rules regarding passing of accounts are set out in rules 74.16, 74.17 and 74.18 of the Rules of Civil Procedure (Ontario) (the “Ontario Rules”).

[2] Rule 16.06(2) of the Ontario Rules.