All About Estates

Anything New with Passing of Accounts?

Much has been written about the significant changes to the Ontario court probate forms and processes that came into effect on January 1, 2022, and more recently the July 1, 2022 amendments.  But, is there anything new with passing of accounts?

Surprisingly, there have been no changes to the court rules and forms regarding passing of accounts since January 1, 2016.[1]  You may recall some of the 2016 changes, which seemed like a lot at the time.  Among other things, there was a new form – Request for Further Notice, several of the time periods for the service and filing of certain documents changed, and new rules were added to set out the process on a contested passing of accounts.  These changes now seem insignificant in comparison to how much change there has been in the probate area in the last six years!

But, even though there have been no recent changes to the court rules or forms for a passing of accounts, you should be aware of a new court practice direction that has changes applicable to passings of accounts.  The changes were effective August 17, 2022.  Note that the practice direction is concerning the Estates List in the Toronto Region.  If your passing of accounts application is in another region, you will need to determine the practice for the applicable court.

What Do I Need to Know?

The relevant paragraphs of the practice direction are in Part V, B. Passing of Accounts Applications.  Paragraph 16 was amended to further clarify proceedings and new paragraphs 17, 18 and 19 were added.  Paragraphs 16 to 20, which deal with the initial stages of the passing of accounts application are copied below for your ease of reference.  You should also refer to paragraphs 21 to 25 of the practice direction itself for different scenarios in the later stages of the passing of accounts proceeding.

As an estate law clerk colleague shared in our group forum and as set out in the practice direction, you need to file your materials first and have an Estates File number assigned by the court before you can get a hearing date from the Trial Coordinator.  The notice of application to pass accounts can be issued with the hearing date filled in as “to be fixed by the Trial Coordinator”.  Once you have a copy of the issued notice of application to pass accounts, you must contact the Trial Coordination Office to obtain a date for the hearing.  You then serve the issued notice of application in accordance with RCP rule 74.18(3), which provides for service by regular lettermail.  This is one passing of accounts rule that I wish would change, and allow for service by email, similar to how notice of probate applications may now be served!

What is the “Civil Submissions Online” portal?

The practice direction refers to the Justice Services Online “Civil Submissions Online” portal.  If you have not used the portal before, I have set out information below that may answer questions you have.  The use of the portal is voluntary and you may still file documents by attending at the courthouse in person or by using a process server.

If you are using the Civil Submissions Online portal for the first time, you need to have an online Ontario One-key Account.  Setting up a One-key Account is an easy process of entering an ID (you can use your email address) and a password (with three security recovery questions).  Once you are in the One-key Portal, the service you should select is “Justice Services Online”, and the terms of use and registration are for the Civil Services Online Portal.

To register for the Civil Services Online Portal for the first time, you will see that the contact information choices are for a lawyer, a paralegal or an individual representing themself in a court proceeding/other.  If you do not fit into any of these categories, you may wish to register in the name of the lawyer for whom you will most frequently be filing documents, but use our own email address so you receive the notifications.  When you actually use the portal, there is a “Contact Information” drop down section that allows you to change the lawyer information in the future.

The Civil Services Online Portal will walk you through the process of (i) what you need to know, and (ii) what you will need, in order to submit your documents and to pay your fees, if applicable.  Once the documents have been submitted online, processing times for filings may vary.  The documents are not considered to be filed or issued unless you receive an email from the Registrar confirming same.  The date filed/issued will be the date indicated in the email.  The portal indicates that the email from the Registrar will be received within 5 business days.  It also indicates that you should not use the portal if you need to file or issue your documents for a court hearing that is 5 business days or less away or if you need to meet a timeline that is 5 business days or less away.

What Does the Practice Direction Actually Say?

As described above, see the excerpt below of the following paragraphs from the practice direction:

  1. When initiating an application for a passing of accounts, the Notice of Application to Pass Accounts (Form 74.44) is filed at the court office through the Justice Services Online “Civil Submissions Online” portal or in person. This notice can be issued with the hearing date “to be fixed by the Trial Coordinator”. When filing an application to pass accounts through the online portal, you must choose as the proceeding type – “new proceeding” or “existing proceeding”.
  • Select “existing proceeding” if you have a court file number for an estate litigation matter for the same estate (whether active or not) and there has been no passing of accounts application previously filed. You can enter the 14-digit court file number that was assigned to this estates litigation file when submitting the Notice of Application to Pass Accounts through the portal in the following format: CV-YY-0000XXXX-00ES. The court file number assigned to a probate application or certificate must not be used.
  • For all other applications to pass accounts, select “new proceeding”. Each new passing of accounts application will be assigned a unique 14-digit court file number, which will be sent to you by email.  Where you submit any documents through the Civil Submissions Online portal for filing or issuance, court staff will send you an email to advise whether the document has been accepted for filing or issuance (RCP rule 4.05.2(4)(8)).
  1. Once the applicant receives confirmation that the application for a passing of accounts has been issued and receives a copy of the issued notice of application, the applicant must contact the Trial Coordination Office to obtain a date for the hearing at toronto.estateslist@ontario.ca.
  2. The applicant must serve the issued Notice of Application in accordance with RCP rule 74.18(3) and advise those persons who must be served of the trial date once it has been scheduled.
  3. Responding materials can be filed through the Civil Submissions Online portal or in person. When using the online portal, respondents should select “existing proceeding” and then enter the 14-digit court file number that is set out on the application.
  4. After filing the Notice of Application to Pass Accounts, in all circumstances – whether the passing of accounts of estate trustees or of any other person acting in a fiduciary capacity, including guardianships and those acting under powers of attorney –the applicant should request a 9:30 a.m. scheduling appointment by emailing a completed hearing date Request Form to the Trial Coordination Office at Toronto.estateslist@ontario.ca and copying all other parties.

Thanks for reading.

[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) (“RCP”).

 

About Betty Laidlaw
Betty Laidlaw is a law clerk in the Trusts, Wills, Estates and Charities group at Fasken, with over 30 years’ experience. Betty has extensive experience assisting executors and trustees in managing complex, high-value estates and trusts. Betty specializes in the administration of estates and trusts and also focuses on estate accounting and estate litigation. Betty has received a Certificate in Estate and Trust Administration (CETA) from STEP Canada which denotes excellence in the industry. With this Certificate, Betty has received professional recognition as a specialist in estate and trust management. Betty is an affiliate member of STEP Canada and an associate member of the Institute of Law Clerks of Ontario. Email: blaidlaw@fasken.com.

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