2017 ONSC 1468, 2017 ONSC 1468

CITATION: Nicholson v. Allen, 2017 ONSC 1468 COURT FILE NO.: 7221/13 DATE: 2017/03/02 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Michael John Nicholson, Applicant AND: Eric Bruce Allen, Jr., Estate Trustee of the Estate of Haddie Faye Claire Nicholson, Respondent BEFORE: The Honourable Mr. Justice J. George COUNSEL: Ronald Bildfell Counsel, for the Applicant Janet Whitehead Counsel, for the Respondent HEARD: March 2, 2017 ENDORSEMENT [1] The applicant and deceased (Haddie Faye Claire Nicholson) were married. They divorced in 2007. Ms. Nicholson passed awayon February 23, 2013.

There are two children of the marriage – Kyler Nicholson (dob Nov. 7. 2002) and Tavarie Nicholson (dob April15, 2005). At the time of her death she had custody of the children. The applicant was required to pay child support. [2] This application is essentially a dependant’s claim pursuant to the provisions of the Succession Law Reform Act (SLRA). Whilethere were other heads of relief (i.e. custody, termination of his obligation to pay support, arrears), this was its main focus, and lastremaining issue. [3] Quinn J. had previously addressed the custody issue by his order of January 23, 2014.

The issue of his arrears has also beendisposed of. [4] The matter has now resolved. I have approved partial minutes of settlement which sets out the Estate’s obligation to pay supportfor the benefit of the two children. It provides for a $250/month payment to the applicant, for each child, so long as they are dependantsand in his care. This is to be facilitated through the ACSJ. This is basically the continuation of a temporary order made by JusticeHebner in May, 2014. [5] The issue of costs remains. [6] The applicant seeks his full indemnity costs, plus disbursements.

The Estate opposes an award. [7] The applicant submits that he is entitled to costs, as he achieved success. He obtained the relief sought. He argues the applicationwas necessary, as this result would not have ensued otherwise. [8] The Estate submits the applicant, as the children’s father, would had to have in any event sought the court’s direction respectingcustody, and that he, through no fault of the Estate, had an arrears issue to clean up.

The former was simply his obligation as the father;the latter a problem of his own doing. [9] It argues that, contrary to what applicant counsel seemed to suggest, there is no presumption of costs from an estate. It referencedthe Court of Appeal decision of Canada Trust Company v. Gooderham et al. where, at paras. 78 – 80, the panelwrites this: The practice of the English courts, in estate litigation, is to order the costs of all parties to be paid out of the estate where the litigation

arose as a result of the actions of the testator, or those with an interest in the residue of the estate, or where the litigation was reasonably necessary to ensure the proper administration of the estate. See Mitchell v. Gard (1863), 3 Sw & Tr. 275, 164 E.R. 1280 and Spiers v. English [1907] P. 122. Public policy considerations underlie this approach; it is important that courts give effect to valid wills that reflect the intention of competent testators.

Where the difficulties or ambiguities that give rise to the litigation are caused, in whole or in part, by the testator, it seems appropriate that the testator, through his or her estate, bear the costs of their resolution. If there are reasonable grounds upon which to question the execution of the will or the testator’s capacity in making the will, it is again in the public interest that such questions be resolved without cost to those questioning the will’s validity. Traditionally, Canadian courts of first instance have followed the approach of the English courts.

While the principle was that costs of all parties were ordered payable out of the estate if the dispute arose from an ambiguity or omission in the testator’s will or other conduct of the testator, or there were reasonable grounds upon which to question the will’s validity, such cost awards became virtually automatic. However, the traditional approach has been – in my view, correctly – displaced.

The modern approach to fixing costs in estate litigation is to carefully scrutinize the litigation and, unless the court finds that one or more of the public policy considerations set out above applies, to follow the costs rules that apply in civil litigation…. [ 10 ] There is no presumption. In this case, as with any other, my authority derives from the Courts of Justice Act (CJA) and is guided by the factors set out in the Rules of Civil Procedure (RCP). Rule 57.01(1) provides that: 57.01(1). In exercising its discretion under

section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and an offer to settle or to contribute made in writing, -the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer; -the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the next step in the proceeding for which costs are being fixed; -the amount claimed and the amount recovered in the proceeding; -the apportionment of liability; -the complexity of the proceeding; -the importance of the issues; -the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding; -whether any step in the proceeding was, -improper, vexatious or unnecessary, or -taken through negligence, mistake or excessive caution; -a party’s denial of or refusal to admit anything that should have been admitted;

-any other matter relevant to the question of costs. [ 11 ] I have considered each of these factors, recognizing that some are more relevant than others. Key amongst those which are relevant is the principle of indemnity, which, in this case, arguably means there should be some reimbursement to the applicant, as he had no choice but to commence this proceeding. If he hadn’t no funds would have ever flowed to him directly for the children’s maintenance. This application was his protection against the financial burden of raising the children without the immediate assistance of and contribution from the estate.

It would not have happened otherwise. [ 12 ] In other words, to not have brought this application would have meant the applicant would never have received child support payments. Once finalized, the estate’s proceeds would have simply remained in trust to eventually be distributed to the children themselves upon attaining the age of majority. It would have created an immediate and ongoing hardship for the family. [ 13 ] I place some importance in the fact the applicant achieved some success, in the sense that, respecting support, the end result is similar to that which he claimed.

Granted, success is difficult to gauge without a trial, but the RCP do not singularly focus on success. This distinguishes a costs analysis from a matter which is governed by the Family Law Rules (FLR) which places heightened importance on the concept of success, going so far as to presumptively entitle a successful party to their costs. That is not the case here.

All does not turn on my assessment of success. [ 14 ] It is a factor though, and the bottom line is, the applicant claimed child support, initially in the amount of $400 per child, per month; with the ultimate resolution providing to him a payment of $250 per child, per month. [ 15 ] I note also that the applicant did nothing to prolong this matter. It appears he was diligent in bringing the matter forward and in prosecuting the claim.

To the extent there was delay - and this is in no way the Estate’s fault – it was due simply to the fact there was a process to follow before the estate could be finalized and distributed. [ 16 ] While there is no basis to award full indemnity costs. I conclude that the applicant is entitled to some portion of the claimed fees and disbursements. Having said that, to the extent I can apportion it, his recovery should be limited to only the issue of support.

Instead of engaging in a precise calculation and parsing of applicant counsel’s costs outline, I will simply determine what I consider to be a fair result, inclusive of disbursements and HST, accounting for the required reductions for arrears and custody (for which the Estate is not responsible). [ 17 ] In the result I order the Estate to pay to the applicant his costs, fixed at $7000.00, inclusive of HST and disbursements. “Justice J. C. George” Justice J. C. George Date: March 2, 2017