Jarvis Parker v. Jarvis, 2012 SKQB 147

• Judge: McMurtry, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: April 11, 2012
• Jurisdiction: Saskatchewan
• Citations: 2012 SKQB 147;(2012), 395 Sask.R. 309 (QB)

Jarvis Parker v. Jarvis (2012), 395 Sask.R. 309 (QB)

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. AP.061

Jonathan Alexander Jarvis Parker and Hannah Emma Jarvis Parker by her Litigation Guardian, Jonathan Alexander Jarvis Parker (applicants) v. Susan Jarvis (respondent)

(2010 Q.B.G. No. 1560; 2012 SKQB 147)

Indexed As: Jarvis Parker v. Jarvis

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

McMurtry, J.

April 11, 2012.

Summary:

Jarvis was named as a trustee under a testamentary trust created by her sister, who died in 2002, leaving two children. Jarvis resigned as trustee in accordance with a court order in 2010. The children commenced an action against her, alleging breach of fiduciary duty and breach of trust. Jarvis applied, inter alia, for remuneration in the amount of $43,365.09 for the nine years that she had acted as trustee. The children denied that she was entitled to remuneration.

The Saskatchewan Court of Queen's Bench held that reasonable remuneration for Jarvis was $3,000 per year as trustee, for a total of $27,000.

Executors and Administrators - Topic 6305

Accounts and passing of accounts - Practice - Procedure - [See Trusts - Topic 6101 ].

Trusts - Topic 6101

The trustee - Compensation - General - Jarvis was named as a trustee under a testamentary trust created by her sister, who died in 2002, leaving two children - Jarvis resigned as trustee in accordance with a court order in 2010 - The children commenced an action against her, alleging breach of fiduciary duty and breach of trust - Jarvis applied, inter alia, for remuneration for the nine years that she had acted as trustee and for an order passing her accounts - The children denied that she was entitled to remuneration, but submitted that, if Jarvis was entitled to remuneration, that question was properly dealt with at the same time as the breach of trust allegations - The Saskatchewan Court of Queen's Bench stated that "Jarvis' claim for remuneration is a separate process from the children's claim..." - Having reviewed the authorities, the court stated, "I am loathe to order that the matter of the trustee's remuneration be heard with the action on breach of trust." - See paragraphs 5 to 14.

Trusts - Topic 6106

The trustee - Compensation - Amount - Considerations - Jarvis was named as a trustee under a testamentary trust created by her sister, who died in 2002, leaving two children - Jarvis resigned as trustee in accordance with a court order in 2010 - The children commenced an action against her, alleging breach of fiduciary duty and breach of trust - Jarvis applied, inter alia, for remuneration in the amount of $43,365.09 for the nine years that she had acted as trustee and for an order passing her accounts - The children denied that she was entitled to remuneration - The Saskatchewan Court of Queen's Bench held that reasonable remuneration for Jarvis was $3,000 per year as trustee, for a total of $27,000 - The administration of the trust was made more difficult by the combative relationship between the children's father and Jarvis and, now, between Jarvis and the children - The bulk of the difficulty faced by Jarvis was unrelated to her role as trustee - While she had significant funds under her direction, she was not called upon to deal with those funds except for investment decisions and to pay out a regular allowance to the children's guardians - While, traditionally, trustees were awarded remuneration on the basis of a percentage of the funds in trust, this was not a meaningful measure of the efforts made by Jarvis - The size of the trust had no role to play in the complexity of her work as trustee - Jarvis' accounts were approved and passed - See paragraphs 15 to 32.

Trusts - Topic 6107

The trustee - Compensation - Amount - Based on percentage - [See Trusts - Topic 6106 ].

Cases Noticed:

Fales et al. v. Canada Permanent Trust Co., [1977] 2 S.C.R. 302; 11 N.R. 487, refd to. [para. 7].

Fales v. Wohlleben Estate - see Fales et al. v. Canada Permanent Trust Co.

Proctor et al. v. Bentley, [1930] 2 D.L.R. 6 (Sask. C.A.), refd to. [para. 8].

Avram v. Kerr Estate (1993), 110 Sask.R. 181 (Q.B.), refd to. [para. 9].

Simone v. Cheifetz (2000), 137 O.A.C. 351; 36 E.T.R.(2d) 297 (C.A.), affing. (1998), 74 O.T.C. 18; 24 E.T.R.(2d) 74 (Gen. Div.), refd to. [para. 11].

TD Canada Trust Co. et al. v. Cheifetz et al. (2005), 201 O.A.C. 120 (C.A.), refd to. [para. 12].

Simone Estate v. Cheifetz - see TD Canada Trust Co. et al. v. Cheifetz et al.

Disera Estate, Re, [2006] O.T.C. Uned. C48; 29 E.T.R.(3d) 1 (Sup. Ct.), refd to. [para. 13].

Hooke, Re (1969), 9 D.L.R.(3d) 525 (Sask. C.A.), refd to. [para. 30].

Authors and Works Noticed:

Waters, D.W.M., Gillen, Mark R. and Smith, Lionel D., Waters' Law of Trusts in Canada (3rd Ed. 2005), pp. 149, 150 [para. 26]; 1165 [para. 10].

Counsel:

Foster Weisgerber, for the applicants;

David Kowalishen, for the respondent.

This application was heard by McMurtry, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on April 11, 2012.