“There is very little precedent in the case law addressing vesting orders being made against an estate. The Ontario Court of Appeal in Thibodeau v. Thibodeau, 2011 ONCA 110, 104 O.R. (3d) 161 at para. 42, however, has given direction as to the criteria that must be met prior to granting a vesting order:
The onus is on the party seeking such an order, and as a general rule the court’s discretion will only be exercised in favour of a s. 9(1) order where it is established – based on the targeted spouse’s previous actions and reasonably anticipated future behaviour – that the equalization payment order granted will not likely be complied with in the absence of additional, more intrusive provisions.
The remedy of a vesting order should not be imposed routinely or indiscriminately, and should be ordered only if there is a real need, after all relevant considerations have been taken into account. There must be a concern that payment of an ordered equalization payment will not be honoured before the court can order the transfer of property under s. 9(1): Thibodeau, at para. 40.
The Court of Appeal has also confirmed that a vesting order is essentially an equitable remedy designed to work as an enforcement mechanism (Lynch v. Segal, 2006 CanLII 42240 (ON CA), 82 O.R. (3d) 641 (Ont. C.A.), at para. 56).
As there are sufficient funds in the Estate to pay the equalization payment owed to Linda Leith once the properties are sold, there is no concern that at an equalization order will be ignored or not complied with that would require the transfer of property.
The wishes of the testator also cannot be overlooked. For his own reasons, Mr. Leith specifically chose not to bequeath the Home Farm, or any other property, to Linda Leith. Vesting the Home Farm is not the only way to provide Ms. Leith with the equalization payment owed to her. Her ability to receive a full equalization payment is not prejudiced by the Estate selling properties owned by the Estate to generate sufficient funds to pay the equalization payment. The fact that Mr. Leith specifically chose not to bequeath a property to Ms. Leith is a significant factor that I must consider when determining the manner in which Ms. Leith will receive her equalization payment from the Estate.
Although selling the Home Farm to Linda Leith may save the Estate $120,000 or more by avoiding a commission fee resulting from the sale of the property, this factor does not change the primary issue that I must consider, which is honouring the testator’s intentions while still providing Ms. Leith with the appropriate equalization payment owed to her by the Estate.
The properties owned by the Estate must be sold to provide Ms. Leith with the equalization payment that is owed to her. Once the properties are sold, the Estate will have sufficient assets to pay the full equalization payment without requiring the property to be vested to satisfy the amounted owed.”