BARRIE COURT FILE NO.: CV-13-0218-ES

DATE: 20130815

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KIRK BRADLEY POLLITT, Estate Trustee for the Estate of George Henry Pollitt, Deceased, Applicant

AND:

HELEN IRENE POLLITT, also known as HELEN IRENE ROBSON, in her own capacity and as Estate Trustee for the Estate of George Henry Pollitt, Respondent

BEFORE: THE HON. MR. JUSTICE G.M. MULLIGAN

COUNSEL:
B. Hayes, for the Applicant

C. McClelland, for the Respondent

HEARD: August 13, 2013

COSTS ENDORSEMENT

[1] The applicant Kirk Bradley Pollitt (“the applicant”) brought an application dated the 25th of February 2013 seeking an order removing the respondent Helen Irene Pollitt (“the respondent”) as estate trustee to the Estate of George Henry Pollitt together with other heads of relief. The application was returnable on April 16, 2013. Some issues were resolved on consent. Remaining issues were adjourned to June 11, 2013. On June 11, 2013 the matter was further adjourned to July 9, 2013 providing the respondent with further opportunity to file material. The matter was again returned on July 30, 2013 and the matter was further adjourned at the request of counsel for the respondent. Costs were fixed against the respondent for that attendance in the amount of $1,680. The matter returned on August 13, 2013.

[2] On the hearing date, before the motion was heard, the parties entered into minutes of settlement covering substantially all of the issues outstanding between the parties. The respondent, who had previously resigned as executor, released any and all claims against the estate that she may have had as the spouse of the late George Henry Pollitt. The estate released any claim that it may have had with respect to a life insurance policy payable to the respondent as beneficiary on the life of her spouse, the late George Henry Pollitt. The agreement confirmed that the proceeds of the sale of the residence of the estate were to be released to the estate. A peripheral and minor issue with respect to the deceased’s income tax refund remains to be resolved. In addition the parties were not able to resolve the issue of costs and both parties made representations as to costs.

[3] The applicant submitted that the application brought was both important and necessary to the proper administration of the estate of George Henry Pollitt. The applicant seeks costs on a partial recovery basis for fees and disbursements and HST of $14,482.28 covering all aspects of the application save and except for a previous attendance for which costs were ordered at that event.

[4] The respondent submits that she is entitled to her reasonable costs in the amount of $5,000 or on the alternative she submits that each party should bear their own costs. Her submission is that the application was unnecessary, was overreaching and cost her undue anxiety. She felt that she was forced to leave the matrimonial residence and felt that the life insurance policy that she received after her late husband’s death was under attack. The applicant submits that although she left the residence after three months they had previously extended to her the option to stay there for six months. Although she left the residence and resigned as trustee, they were unable to deal with its listing and sale because she had not acknowledged her consent to the sale of the matrimonial residence. Further, the applicant submits that the life insurance policy was never at issue in the application brought before the court.

[5] At the end of the day both parties achieved a measure of success with respect to this matter through their settlement. The applicant obtained the resignation of the respondent on consent, and by minutes of settlement obtained the respondent’s release of any claim against the estate. The respondent was able to retain the proceeds of the life insurance policy paid to her as a result of her late husband’s death notwithstanding the wording of the will which appeared to have imposed a form of trust on these proceeds paid to her as the named beneficiary.

[6] I have reviewed the material filed for this Application and I have considered the cost submissions by counsel. In my view both parties achieved a measure of success negotiated through minutes of settlement. A full hearing was not required. This is an appropriate case where each party should bear its own costs.

[7] No order as to costs.

MULLIGAN J.

Date: August 15, 2013