Court of Appeal for Ontario
Date: 2017-07-20
Docket: C61581 & C62716
Judges: Gillese, Huscroft and Trotter JJ.A.
Between
Michael Childs and Andrew Childs Applicants (Respondents)
and
Peter Childs, Caroline Childs and the Public Guardian and Trustee Respondents (Appellants)
And Between
Peter Childs and Caroline Childs Applicants (Appellant)
-and-
Michael Childs, Andrew Childs, Eileen Vera Childs and the Ontario Public Guardian and Trustee Respondents (Respondents)
Counsel
Peter Childs and Caroline Childs – in person
Michael Childs and Andrew Childs – in person
Alexandra V. Mayeski – for BMO Trust Company
Debra Stephens and Kaylie Handler – for the intervener Wendy Griesdorf
Richard Coutinho – for the Public Guardian and Trustee
Heard: May 4, 2017
On appeal from: the decision of Justice Gary W. Tranmer of the Superior Court of Justice, dated June 25, 2015, and the judgment dated December 16, 2015, with reasons reported at 2015 ONSC 4036 and at 2015 ONSC 6616.
Costs Endorsement
[1] By reasons dated June 20, 2017, this court dismissed the review motion and within appeals heard on May 4, 2017. The parties were invited to make written submissions on costs of the appeals and the review motion, if they were unable to agree on those matters.
[2] The court was advised that the parties agreed on the costs in respect of the following:
The Public Guardian and Trustee sought no costs and there shall be no costs ordered payable to it.
The costs of the Intervenor, Ms. Griesdorf, related to the review motion and appeals heard May 4, 2017, in the amount of $28,057.35, inclusive of fees, disbursements and HST shall be paid by BMO Trust Company, as guardian of property of Eileen Childs, from Eileen Childs' current assets, to WELPartners LLP, counsel for the Intervenor from the current assets of Eileen Childs. This includes the $5,000 amount ordered to be paid to the Intervenor pursuant to the Order of Justice McLeod dated November 10, 2016. The amount of $28,057.35 shall be offset against any inheritance that Peter Childs and Caroline Childs are to receive on the death of Eileen Childs, equally, or as Peter Childs and Caroline Childs otherwise agree in writing.
The costs of BMO Trust Company, related to the review motion and appeals heard May 4, 2017, in the amount of $18,996.93 inclusive of fees, disbursements and HST, shall be paid by BMO Trust Company, as guardian of the property of Eileen Childs, to Mayeski Mathers LLP, counsel for BMO Trust Company, from the current assets of Eileen Childs. The amount of $18,996.93 shall be offset against any inheritance that Peter Childs and Caroline Childs are to receive on the death of Eileen Childs, equally or as Peter Childs and Caroline Childs otherwise agree in writing.
[3] The court was asked to include the agreed on terms, set out in para. 2 above, in this endorsement and we are content that such an order should go.
[4] Andrew Childs advised the court that he sought no costs but supported the position of Michael Childs on the matter of costs.
[5] Michael Childs sought costs of approximately $50,000, on a full indemnity basis, for the appeals and review motion. He also asked that other outstanding costs orders be paid from Eileen Childs' assets conditional on BMO Trust Company advising that such a payment was compatible with Eileen Childs' ability to finance it from her guardianship plan of care. He asked that any amounts not immediately paid from Eileen Childs' assets should be paid from her estate, on her death. He further asked that any costs payments made from Eileen Childs' assets should be set off against any inheritance that Peter Childs and Caroline Childs are to receive on Eileen Childs' death.
[6] Peter Childs and Caroline Childs say that Michael Childs' claim for costs is unreasonable. They ask that the court take into consideration the fact that Caroline Childs had the role of a full time live-in caregiver of an incapable person with dementia for over five years and that their actions truly benefitted Eileen Childs. They ask that all appeal costs be paid by the estate of Eileen Childs.
[7] We see no reason to depart from this court's normal practice of awarding costs on a partial indemnity basis to the successful party. Accordingly, we order costs of the review motion and appeals in favour of Michael Childs in the amount of $24,400, inclusive of fees, disbursements and HST. Such costs shall be paid by BMO Trust Company, as guardian of property for Eileen Childs, from the current assets of Eileen Childs and that amount shall be offset against any inheritance that Peter Childs and Caroline Childs are to receive on the death of Eileen Childs, equally.
[8] Further, we order that any unpaid costs orders in these proceedings in favour of Michael Childs, payable by Peter Childs and/or Caroline Childs, shall also be paid by BMO Trust Company, as guardian of property for Eileen Childs, from the current assets of Eileen Childs and those amounts shall be offset against any inheritance that Peter Childs and Caroline Childs are to receive on the death of Eileen Childs, equally.
[9] We appreciate the concern that Michael Childs expressed about depleting Eileen Childs' estate and possibly compromising her ability to finance her guardianship of care plan. However, we decline to make a conditional costs order of the sort sought by Michael Childs as it is not workable.
[10] Order to go in accordance with these reasons.
"Eileen E. Gillese J.A."
"Grant Huscroft J.A."
"Gary T. Trotter J.A."