Renata Ford, wife of the late Rob Ford, has filed a $16 million lawsuit against Doug Ford and Randy Ford, both personally and as estate trustees, as well as against various corporations owned by the Ford family.
Rob Ford’s children, Stephanie Ford and Douglas Ford, are co-plaintiffs in the proceeding. They are beneficiaries of both Rob Ford’s estate and the estate of their grandfather, Doug Ford Sr.
The claim alleges that Doug Ford and Randy Ford mismanaged a number of family-run companies and breached their fiduciary responsibilities as directors and officers of these companies. The claim also alleges that Doug Ford and Randy Ford are in breach of their fiduciary responsibilities as estate trustees of Doug Ford Sr.’s estate, and that Doug Ford is in breach of his fiduciary responsibilities as the estate trustee of Rob Ford’s estate.
On the Statement of Claim, Stephanie and Douglas are represented by Renata Ford as their litigation guardian. As minor children, Stephanie and Douglas are deemed to be under a legal disability and are not permitted to represent themselves in court proceedings. Renata, as the children’s legal guardian, is entitled to act as litigation guardian and to commence a proceeding in Stephanie and Douglas’ names.
To establish Renata as the children’s litigation guardian, her lawyers would have filed an affidavit with the Court, in which Renata confirmed, among other things, that she has no interest in the proceeding adverse to that of her minor children[1]. This requirement is in place to ensure the protection of the best interests of the minor children. Any adverse interest on the part of a litigation guardian would be considered a conflict of interest, and could result in his or her removal.
In many ways, Renata’s interests are aligned with those of her children. The Statement of Claim indicates that Rob Ford’s estate is to be divided into three equal shares, payable to Renata Ford, Stephanie Ford in trust and Douglas Ford in trust. As equal beneficiaries of the residue, there is no apparent conflict between Renata’s interest in the estate, and those of her children.
However, there exists the potential for conflict between Renata’s interest and those of her children. For example, as Rob’s married spouse, Renata is entitled to either take her share of the estate under Rob’s Will, or make an election under the Ontario Family Law Act to equalize her and Rob’s net family property[2]. If Renata were to make the election under the Family Law Act, she would, in effect be trying to claim more than a 1/3 share of the estate, thereby reducing the share to which her children would be entitled.
As well, there may be a conflict between Renata’s interests and those of her children with respect to Doug Ford Sr.’s estate, which is also involved in the litigation. Stephanie and Douglas are heirs of Doug Sr.’s estate, but Renata is not. As Renata has no interest in Doug Sr.’s estate, she would benefit most by having assets retained in Rob’s estate, of which she is a 1/3 beneficiary. In contrast, as beneficiaries of both Rob’s estate and Doug’s estate, there are scenarios in which Stephanie and Douglas could benefit by assets being retained by Doug Sr.’s estate, as opposed to Rob’s estate.
Without additional information, it is difficult to determine whether Renata’s interests are adverse to those of her children. However, the courts are very careful when dealing with the interests of minors and any conflict of interest on the part of the litigation guardian would be carefully scrutinized. The Office of the Children’s Lawyer has been served with the Statement of Claim and will review whether the interests of the minor children are sufficiently protected. In some cases, the Children’s Lawyer itself can be appointed litigation guardian to protect the best interests of the minors. We will have to wait and see how this complex litigation unfolds.
[1] Rule 7.02(2) of the Ontario Rules of Civil Procedure.
[2] Section 6 of the Ontario Family Law Act. The deadline for making this election is typically 6 months from date of death [ss. 6(10)], and there is a restriction on the distribution of the estate during this period [ss. 6(14)]. However, the interested parties can mutually agree to extend the time period in which to make this election.
Author: Krystyne Rusek, Lawyer