COURT FILE NO.: DC-95-00006969-000

DC-95-00006660-000

DATE: 20081021

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CUNNINGHAM A.C.J.S.C., FERRIER and CUMMING JJ.

IN THE ESTATE OF RUBY MAY REID, Deceased

B E T W E E N:

DONNA MARIE REID, ROBERT GEORGE REID, a minor by his litigation guardian John Doe No. 1., and RUBY MARIE REID, a minor by her litigation guardian John Doe No. 2

Applicants (Respondents on Appeal)

-and-

ROBERT JAMES REID

Respondent(Appellant)

-and-

STEWART MOFFATT, in his capacity as Estate Trustee of the Estate of RUBY MAY REID, Deceased

Respondents(Appellants)

-and-

DONNA MARIE REID, in her capacity as Estate Trustee of the Estate of RUBY MAY REID, Deceased

Respondent

) Julian W. Lipkowski, ) for the Respondent Donna Marie Reid ) Susan J. Stamm, Litigator Guardian for ) Robert George Reid ) Ronald Henry, ) for the Respondent Ruby Marie Reid ) William C. Kort, for the Respondent Robert James Reid ) Allan W. Kogon, ) for the Respondent Stewart Moffatt

FERRIER J:

ENDORSEMENT ON COSTS AND INCIDENTAL MATTERS

The parties made written submissions on costs and other matters.

Incidental Matters

[1] The Court has already indicated that the matters raised by Robert James Reid (Jimmy) in his counsel’s correspondence of February 29, 2008, Paragraphs (a) to (g), can, should the need arise, be dealt with in a motion for directions before Snowie J.

[2] Concerning the “preliminary issues” raised by counsel for Donna in his costs submissions dated February 29, 2008, we note as follows:

Issue No. 1 – There was no mathematical slip;

Issue No. 2 – It was intended that Donna’s Credit Card debts could be included as an item to be repaid from funds raised on the mortgage.

[3] Concerning the Legal Aid lien, this Court has no power to interfere with it. If Legal Aid pursues its lien in full at this time, rather than postponing it or part of it until 2018, the Court has not been apprised of any remedy to prevent enforcement of the lien.

Costs

[4] We note that the costs of the proceedings up to the conclusion of the hearing before Snowie J have not been determined. From the submissions of the parties, it is apparent that they all ask this Court to fix the costs throughout.

[5] The offer Jimmy made in March 2005 allowed Donna to remain in the home only until June 30, 2009, at which time Jimmy could force a sale and have the proceeds divided. This offer is far from the result on appeal.

[6] Furthermore, although the result on appeal on its face seems somewhat more advantageous to Jimmy than the trial judgment, (in that he shares the equity, on a sale in 2018), in reality the present value of that feature is of little value.

[7] In short, we are of the view that in the final analysis, Jimmy achieved only a modest advantage over the trial decision.

[8] Donna’s position in the appeal was that Snowie J’s order should be upheld. Donna was not entirely successful in that, but she maintained a major advantage in being permitted to remain in the home until 2018.

[9] Donna made an offer in March 2003. The essence of that offer was that she would take title to the home, pay all estate obligations, debts and fees, and pay Jimmy half of the net value of the estate, which would have meant a payment to Jimmy of about $38,000, in 2003 (and perhaps more depending upon the precise debt calculation).

[10] Donna had already qualified for a mortgage when this offer was made. Had Jimmy accepted that offer, he would have been much better off in the result.

[11] We note that the executor refused to accept the offer.

[12] The failure of the executor and Jimmy to act reasonably and responsibly, when presented with a reasonable offer involving a relatively very modest estate, is a significant circumstance touching on the question of costs.

[13] The actual costs incurred thus far by the parties (according to their counsel) represent about eighty (80) per cent of the net value of the estate, much of those costs being driven by Jimmy and the executor.

[14] Furthermore, the conduct of the executor, as found by Snowie J, has been most unhelpful, to say the least.

[15] The docket costs of the appellant, Jimmy, amount to approximately $58,000. Counsel for Jimmy does not submit a particular figure, but also does not argue for full indemnity.

[16] In all these circumstances, we decline to order any costs to Robert James Reid (Jimmy).

[17] In the circumstances described by counsel for Ruby May Reid, no order is made as to costs for Ruby.

[18] The children’s lawyer indicated that she would make no cost submissions. No order is made as to costs to the children’s Lawyer for Robert George Reid.

[19] The executor is not entitled to costs before Snowie J in view of his conduct up to the conclusion of the hearing before her. However, in this Court, it was not unreasonable for the executor to appeal the decision of Snowie J., and the executor is entitled to his costs out of the estate for the appeal, which we fix at $4,000 payable out of the estate.

[20] Concerning Donna, costs should follow the event, and in this Court she has been substantially successful. She is entitled to costs. None of the parties other than Jimmy should be exposed to Donna’s costs. This was a contest between Donna and Jimmy; Donna was successful. Jimmy should pay her costs.

[21] We fix those costs payable to Donna by Jimmy at $15,000 to be set-off against the $25,000 payable to Jimmy from the mortgage proceeds.

CUNNINGHAM J.

FERRIER J.

CUMMING J.

Released: October 21 , 2008