Klatt v Klatt, 2015 ONSC 3110
COURT FILE NO.: CV-14-1153
DATE: May 14, 2015
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: David Klatt, Applicant
AND
Victor Klatt, in his Capacity as Estate Trustee of the Estate of Carl J.H. Klatt, Respondent
BEFORE: The Honourable Mr. Justice Martin James
COUNSEL: Joseph P. Hamon, Counsel for the Applicant
M. Peter Sammon, Counsel for the Respondent
HEARD: Written Submissions
COSTS ENDORSEMENT
James J.
[1] This is a costs endorsement following a contested motion involving the administration of an estate. The moving party was successful in obtaining an order directing the respondent to provide him with accounting records in relation to a trust fund but was unsuccessful in relation to several other grounds of relief.
[2] The endorsement following the motion included a request that both parties comment on a suggestion that some amount of their costs be paid out of the trust fund.
[3] The moving party’s bill of costs claims $21,565.55 on a full indemnity basis and $13,473.13 on a partial indemnity basis at 60% of the full indemnity rate.
[4] The moving party says that the respondent ought to be personally liable for costs of $10,000 for “high-handed and arrogant refusal to provide disclosure” with a further $3,500 being paid from the trust fund to each party and thereafter each party would bear his own costs.
[5] The respondent claims $8,753.44 on a full indemnity basis and $5,353.44 on a partial indemnity basis at 60%.
[6] The respondent says that all of the applicant’s claims were “essentially dismissed”. The respondent also says that the applicant made the case more complex than necessary by raising numerous unmeritorious issues.
[7] Costs are determined by considering the factors listed in Rule 57.01 and involve a large measure of judicial discretion.
[8] Usually costs follow the event which means that if a party is successful or substantially successful, he or she should be awarded some amount for legal costs unless there is good reason not to make an award. In estate matters, legal costs are often ordered to be paid out of estate funds.
[9] Costs awarded to one party and payable by another are usually awarded on a partial indemnity basis rather than requiring that someone’s full legal bill be paid by the other side.
[10] The moving party’s request that the respondent pay $10,000 personally is not reasonable because the request for access to accounting records was only one aspect of what the moving party was seeking and most of the time was spent on other issues where the moving party was not successful.
[11] The respondent did not respond to my request that he comment on whether some amount of the costs should be paid out of the trust fund.
[12] I have determined that both parties shall be entitled to recover the sum of $5,000 from the trust fund and thereafter each side shall bear his own costs. In making this order, I am aware that to the extent that the trust fund is not depleted by expenses, a portion of it may eventually become payable to the moving party, along with his siblings and the children of the respondent. From one perspective, an order of payment from the fund means the moving party is spending his own money, at least in part. The most reasonable alternative, however, would be to consider the extent to which success was divided which could operate to the detriment of the moving party, given the number of issues raised and where the most amount of time was spent in argument, or possibly result in no costs order being made, which I think would be unfair to the respondent.
Mr. Justice Martin James
DATE RELEASED: May 14, 2015
COURT FILE NO.: CV-14-1153
DATE: May 14, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: David Klatt, Applicant
AND
Victor Klatt, in his Capacity as Estate Trustee of the Estate of Carl J.H. Klatt, Respondent
BEFORE: The Honourable Mr. Justice Martin James
COUNSEL: Joseph P. Hamon, Counsel for the Applicant
M. Peter Sammon, Counsel for the Respondent
COSTS ENDORSEMENT
James, J.
Released: May 14, 2015