2010 ONSC 6490, 2010 ONSC 6490

CITATION : Pretty v. Clute, 2010 ONSC 6490 BARRIE COURT FILE NO.: 10-0798 DATE: 20101124 SUPERIOR COURT OF JUSTICE - ONTARIO RE: MONIQUE PRETTY, Plaintiff AND: ELIZABETH PEARL MARIE CLUTE, Defendant COUNSEL: A. McInnis, for the Plaintiff D. Boswell, for the Defendant BARRIE COURT FILE NO.: 08-0567 SUPERIOR COURT OF JUSTICE - ONTARIO RE: MICHAEL JOHN PICAVET , Plaintiff AND: ELIZABETH PEARL MARIE CLUTE, Defendant COUNSEL: R. B. Cohen, for the Plaintiff J. Ralston, for the Defendant BEFORE: M.P.

EBERHARD HEARD: by written submissions ENDORSEMENT [ 1 ] The common Defendant is the mother of Plaintiffs in both actions. Picavet (son) v Clute (mother)(8-0567) is scheduled for trial during the November sittings which are, at the date of writing, half over. The case has not been called to trial. [ 2 ] For reasons endorsed on October 26, 2010 I denied the request of Monique Pretty, (daughter) to join the actions and adjourn the son’s trial.

I ordered $800,000 retained in trust to protect the daughter’s interest should the son’s trial proceed and fixed a motion date of January 15, 2011 to revisit the issues raised on the motion once it is known whether the son’s action is reached or resolved in the November sittings.

I mentioned in particular issues of injunction to retain the funds in trust; and, a renewed request for joinder on the circumstances as they then exist. [ 3 ] I indicated costs could be addressed in writing. [ 4 ] The son seeks $6,513.25 as against the daughter. [ 5 ] The mother seeks $9,535.93 for counsel in 10-0798 and $7170 substantial indemnity or $5,655.00 partial indemnity plus HST for counsel in 08-0567 as against the daughter. [ 6 ] The daughter seeks $7,829.32 partial or $9,128.96 substantial indemnity as against the parties opposed, divided between them. [ 7 ] It is difficult to show judicial restraint in this litigation arising from the sacrifice of familial decency for monetary gain.

No party to this proceeding attracts empathy. [ 8 ] I do make that comment because the award of costs for a particular step in this nasty litigation could be interpreted as approval and none is merited. [ 9 ] The urgency of the motion for joinder and adjournment to avoid potential prejudice to the daughter was relaxed by the mother’s offer, made by her counsel in the son’s action, to retain funds to protect the daughter’s potential interest. My endorsement averts to the son’s failure to offer any solution. My endorsement specifically states “this is not merely the responsibility of the common Defendant.

All who oppose joinder must address the potential prejudice to avoid the result and potential delay.”

[ 10 ] Each party had costs.

Each party proceeded, until an in-court offer by the mother to avoid delay in the son’s action, entirely in their own self-interest without considering that the court would be interested in fairness. [ 11 ] Only after resolution or trial will there be any basis for determining which party was justified in taking the inconsiderate positions they have because it was necessary to preserve their valid interest as it is then determined. [ 12 ] I therefore fix costs on the motion of the son, the daughter and the mother in the daughter’s action at $5,000. together with an additional 25% to cover interest and whatever additional legal costs might be wasted in achieving payout.

I order this retained in trust where the total funds now sit until both these actions are completed. Only then can it be truly determined which of these three individuals was justified in their intransigence. [ 13 ] I fix costs payable to the mother on the son’s action in the amount of $2,000 payable forthwith at $1,000 by the son and $1000 by the daughter. The mother was in an awkward position being forced on by one and delayed by another. The solution proposed by her counsel to clear the way for the son’s action to proceed to trial merits approval by way of costs but this is mitigated by its late genesis.

EBERHARD, J. Date: November 24, 2010