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A Monitor in Estates Proceedings? A case review of D’Angelo Estate

In D’Angelo Estate, Re,1the Court held that it had jurisdiction to appoint a monitor to supervise the actions of the co-executors and ensure that the Estate was properly administered. Justice Quinn relied on the court’s discretion to attach conditions to the grant of probate, as are necessary, to achieve the wishes of the testator. In the specific circumstances of this case, it was determined that the appointment of a Monitor would respect the testator’s choice of estate trustees.

What is a Monitor?

When considering the Applicant’s request, Justice Quinn observed that there was no definition of the term “Monitor” in either the case law or Black’s dictionary.  He did find definitions elsewhere, however. He referred to the following:

25      In Dukelow and Nuse, The Dictionary of Canadian Law (Scarborough: Carswell, 1991), “monitor” is defined (but only within the context of receiverships) as “a person appointed by a security holder to review and report on the cash flow, accounts payable and assets of a debtor’s business …”

26      In The New Shorter Oxford English Dictionary, the meaning of the verb “monitor” is “observe, supervise, keep under review …” and the noun is “a person who monitors something … a person who … gives advice or warning as to conduct.”

In what context have monitors been appointed in Ontario

In Ontario, Judges have appointed monitors in a variety of situations. Some examples include the appointment of a monitor to supervise a charity and report to the court about how the charity was administering a charitable trust.2 They have also appointed monitors to deal with the oppression of minority shareholders under the Ontario Business Corporation Act (“OBCA”).3

Interestingly, the governing statutes in issue in the above cases did not mention the term “monitor” or provide the court with discretion to appoint monitors.  Nonetheless, the courts exercised an inherent discretion to forge solutions to problems presented to them in these cases by appointing monitors.

The Appointment of a Monitor in the D’Angelo case

In this case, the Deceased appointed his son and granddaughter as his executors and trustees (“co-executors”). The co-executors lived in the State of New York, USA.

Pursuant to Sections 5 and 6 of the Estates Act,4 the co-executors were obliged to obtain a Foreign Executors’ Bond (“Bond”) before the court would issue a certificate of appointment.5

Initially, the insurer refused to issue the Bond unless a resident administrator was also appointed as co-executor. However, the insurer later advised that it would be satisfied if a monitor would be appointed to supervise the administration of the Estate. The co-executors therefore brought a motion seeking the appointment of a monitor.

Justice Quinn reviewed the legislation providing for, and cases involving, a court-appointed monitor and then proceeded to review the role, responsibilities, and duties a monitor would have in the Estate context. To that end, Justice Quinn arrived at the following conclusions:

  1. A monitor is an officer of the court;6
  2. As an officer of the court, the monitor’s primary responsibilities are:
    1. to act fairly, honestly, impartially, and as a fiduciary, on behalf of all persons having a financial interest in the subject matter of the appointment;
    2. to comply with the powers granted in the order of appointment; and
    3. to be accountable both to the Court that made the appointment and to those persons in (1); and
  3. The duties of the monitor were therefore:
    1. to monitor the co-executors;
    2. to ensure that dispositions made by the co-executors are consistent with the proper administration of the estate;
    3. to comply with the terms of the order of appointment; and
    4. to otherwise be faithful to the responsibilities of an officer of the court.

In D’Angelo, the court allowed the appointment of a monitor to supervise the administration of the estate when the co-executors were the ones requesting the appointment. Justice Quinn made this order notwithstanding that the relevant legislation does not provide for the appointment of a monitor to supervise executors. This leads to a number of interesting questions:

  • do beneficiaries have standing to apply for the appointment of a monitor to supervise the administration of an estate?
  • is this a less expensive alternative to the appointment of an estate trustee during litigation?
  • in this case the parties consented to a monitor being appointed. In cases where beneficiaries seek the removal of an executor could the appointment of a monitor be an interim measure or even permanent measure when the beneficiaries cannot meet the high threshold to remove the estate trustees appointed by the deceased?


  1.   D’Angelo Estate, Re 2010 CarswellOnt 9868, 2010 ONSC 7244, 199 A.C.W.S. (3d) 1382, 328 D.L.R. (4th) 359, 64 E.T.R. (3d) 304, 7 C.P.C. (7th) 174 (D’Angelo)
  2.   See paragraph 20 of the D’Angelo case and the description of In Ontario Society for the Prevention of Cruelty to Animals v. Toronto Humane Society, 2010 ONSC 608 (Ont. S.C.J.)
  3.   See paragraph 20 of the D’Angelo case
  4.   For a more detailed analysis of the sections, please see our blog Can a Non-Resident Apply for Probate?
  5.   See section 6 of the Estates Act RSO 1990, c E.21

    Probate or letters ancillary to persons not residing in Commonwealth

    6. Letters probate shall not be granted to a person not resident in Ontario or elsewhere in the Commonwealth unless the person has given the like security as is required from an administrator in case of intestacy or in the opinion of the judge such security should under special circumstances be dispensed with or be reduced in amount. R.S.O. 1990, c. E.21, s. 6.

  6.   Para. 33 of the D’Angelo case

The authors of this blog are Gregory Sidlofsky and David Wagner .

Gregory is a Certified Specialist in Litigation by The Law Society of Ontario and partner at Wagner Sidlofsky LLP. David is a member of the firm’s Estate and Commercial Litigation Groups. He received his TEP designation from STEP and he deals with will challenges, dependants support, guardianship and applications to compel an accounting.

This Toronto office is a boutique litigation law firm whose practice is focused on estate and commercial litigation.

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This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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