Pytka v. Pytka, 2010 ONSC 3638
Divisional Court File No.: 122/10
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
IN THE MATTER OF THE ESTATE OF RITA PYTKA, deceased
BETWEEN:
MARILYN PYTKA and MIRANDA PYTKA- Marilyn Pytka, acting in person
HUTA, by her Litigation Guardian, the
Children’s Lawyer, Applicant Marilyn Pytka
only (Appellant)
-AND-
SAUL PYTKA, Estate Trustee With a Will of Jonathan F. Lancaster, Counsel for the
Estate of Rita Pytka, deceased, Respondent Respondent
(Respondent in Appeal)
WRITTEN SUBMISSIONS ON COSTS
ENDORSEMENT: GREER J.
Background
On May 3, 2010, I delivered written Reasons on a Motion for Leave to Appeal brought on by the Applicant, Marilyn Pytka. I refused such Leave and dismissed all other relief requested by the Applicant on the Motion. In paragraph 18 of my Reasons, I said that if the parties cannot otherwise agree on the Costs of the Motion, I would receive brief written submissions no longer than three (3) pages from each of the Applicant and the Respondent. The Children’s Lawyer did not appear on the Motion and took no position with respect to it.
Submissions
The parties have given me their submissions. The Respondent was successful on the Motion and has submitted his Bill of Costs to me. He asks for the sum of $2,697.50 plus GST of $134.88, for total Costs of $2,832.38. Counsel for the Respondent has seventeen (17) years of experience at the bar. His solicitor-client billing rate is $685 per hour but he asks for his Costs on a partial indemnity rate of $325. He spent 8.3 hours in responding to and preparing for the Motion and attendance on the Motion.
The Respondent says he should be fully reimbursed for the Costs he is asking for on a partial indemnity scale. He says such Costs should be payable by the Applicant out of her share of the estate, when the estate litigation between the parties has been finally determined.
The Applicant has filed a five (5) page letter on the issue of Costs. She asks that the Costs of this Motion be left to the Judge who hears her Motion to set aside the terms of a Settlement the parties entered into on the eve of Trial several years ago. That Motion may very well become the trial of an issue in the future. She says that none of the estate’s legal fees are reasonable.
The Applicant points to the fact that she is no longer is represented by counsel and is now a self-represented litigant. She says she is on “Disability”. She is a single mother of one daughter (also an Applicant in the proceeding), who is a minor. That daughter’s legal representative took no part in the Motion.
The Applicant spends a great deal of time in her letter going over certain facts, which were before me on the Motion. She says that:
...out of fairness and justice, no costs should be awarded until all of my materials and evidence have been properly presented and addressed to the court, and that all decisions regarding costs be reserved to the Judge hearing my motion to set aside the settlement, once all of my evidence has been presented.
While the Applicant says that her brother, the Estate Trustee and Respondent on the Motion, is trying to deplete the estate so that she and her daughter are left “homeless and penniless”, I do not see this to be the case.
The Motion for Leave to Appeal was brought on by the Applicant since she did not accept the decision of Madam Justice Conway respecting discovery orders relating to the Motion brought by the Applicant to set aside the terms of a Settlement the parties agreed to in 1997. She tries to argue the merits of her case in these Costs submissions. This is neither the time nor the place to do that.
Analysis and Decision
Costs Orders are made at the end of a Motion. Successful parties are, in most cases, entitled to their Costs. While the Applicant says that she is “claiming protection under Section 15 of the Charter of Rights and Freedoms”, the issue of Costs on a Motion is not something to which the Charter applies.
I find that the quantum of Costs being asked for is reasonable in the circumstances of this case. The Applicant has an interest in her late mother’s estate, the quantum of which will be determined when all the litigation over the estate has been finalized and determined. I order the Costs of the Respondent be fixed at $2,832.38 payable out of the Applicant’s interest in the Estate of Rita Pytka when all the litigation has ceased and the estate is being distributed.
I have signed the Order presented to me by the Respondent and it shall issue and be entered accordingly.
Madam Justice Susan E. Greer
RELEASED: JUNE 23, 2010 CITATION: Pytka v. Pytka, 2010 ONSC 3638
Court File No.: 01-3546/04
Divisional Court File No.: 122/10
Date: 20100623
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
MARILYN PYTKA and MIRANDA PYTKA- HUTA, by her Litigation Guardian, the
Children’s Lawyer,
Applicant Marilyn Pytka
only (Appellant)
-AND-
SAUL PYTKA, Estate Trustee With a Will of
Estate of Rita Pytka, deceased,
Respondent
(Respondent in Appeal)
ENDORSEMENT
Greer J.
Released: June 23, 2010