Van Der Hoef Jr. v. Van Der Hoef

Van Der Hoef Jr. v. Van Der Hoef

The sale order was set aside because the unanimous-sale provision and clear settlor intention to maintain the property precluded conversion absent compliance with the Variation of Trusts Act and evidence of benefit to beneficiaries; Richard was reinstated as trustee, Robert Jr. and Gigi were removed for misconduct, and the court ordered independent valuations to determine fair rent and the value of services with rent/accounting to commence September 1, 2002; costs were allocated as detailed by the court.

Citation
C43796, C44879, C44887
Parties
Applicant (respondent): ROBERT VAN DEN HOEF JR.; Applicant (respondent): GIGI MONIQUE VAN DEN HOEF LOUGH; Respondent (appellant): RICHARD VAN DEN HOEF; Plaintiff (respondent): ROBERT VAN DEN HOEF; Applicant (appellant): ROBERT R. L. VAN DEN HOEF; Intervener: Children's Lawyer
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
18 December 2006
Procedural Posture
Civil / Appeal to Court of Appeal From Superior Court of Justice Judgments and Costs Orders
Outcome
Appeal allowed in part and dismissed in part: trial judge's order for sale set aside; Richard remains trustee; Robert Jr. and Gigi removed as trustees; directions for valuations and accounting; costs awards allocated among parties.
Legal Topics
Variation of Trust, Removal of Trustees, Sale of Trust Property, Beneficiaries' Interests, Conflict of Interest, Costs Orders
Source Language
English
Trusts Equity Property Law Civil Procedure Variation of Trust Removal of Trustees Sale of Trust Property Beneficiaries' Interests +2 more

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Parties

ROBERT VAN DEN HOEF JR.

Applicant (respondent)

GIGI MONIQUE VAN DEN HOEF LOUGH

Applicant (respondent)

RICHARD VAN DEN HOEF

Respondent (appellant)

ROBERT VAN DEN HOEF

Plaintiff (respondent)

ROBERT R. L. VAN DEN HOEF

Applicant (appellant)

Children's Lawyer

Intervener

Procedural Posture

Civil / Appeal to Court of Appeal From Superior Court of Justice Judgments and Costs Orders

Legal Issues

  1. 1 Whether the court may order sale of trust property despite a unanimous consent clause in the trust instrument
  2. 2 Whether trustees should be removed for conflict of interest and whether removal will resolve the impasse
  3. 3 Whether the Variation of Trusts Act authorizes conversion of trust property to cash absent evidence of benefit to beneficiaries

Ratio Decidendi

The sale order was set aside because the unanimous-sale provision and clear settlor intention to maintain the property precluded conversion absent compliance with the Variation of Trusts Act and evidence of benefit to beneficiaries; Richard was reinstated as trustee, Robert Jr. and Gigi were removed for misconduct, and the court ordered independent valuations to determine fair rent and the value of services with rent/accounting to commence September 1, 2002; costs were allocated as detailed by the court.

Court Disposition

Appeal allowed in part and dismissed in part: trial judge's order for sale set aside; Richard remains trustee; Robert Jr. and Gigi removed as trustees; directions for valuations and accounting; costs awards allocated among parties.

Orders

  • Set aside the trial judge's order directing sale of the trust property and chattels
  • Enter judgment that Richard van den Hoef remains trustee; remove Robert van den Hoef Jr. and Gigi Monique van den Hoef Lough as trustees