Overview

[1] The parties attended before me on an appointment to settle an order. On September 16, 2014, my revised endorsement on the application in this matter was released. See Lau, as Estate Trustee of Estate of Colin Mathieson v. Mathieson, as Beneficiary in Estate of Colin Mathieson, 2014, ONSC 4633. In that endorsement, I ordered the respondent Karen Mathieson to pay the costs of the application in the amount of $16,120.89 to the applicant forthwith.

The Issue

[2] Should the costs be paid to the applicant in her personal capacity or in her capacity as estate trustee?

Applicable Law

[3] In McDougald Estate v. Gooderham, (2005), 2005 21091 (ON CA), 255 D.L.R. (4th) 435, the court stated in paras 79 and 80,

[79] Traditionally, Canadian courts of first instance have followed the approach of the English courts. While the principle was that costs of all parties were ordered payable out of the estate if the dispute arose from an ambiguity or omission in the testator’s will or other conduct of the testator, or there were reasonable grounds upon which to question the will’s validity, such cost awards became virtually automatic.

[80] However, the traditional approach has been – in my view, correctly – displaced. The modern approach to fixing costs in estate litigation is to carefully scrutinize the litigation and, unless the court finds that one or more of the public policy considerations set out above applies, to follow the costs rules that apply in civil litigation.

[4] These principles were followed in Liebel v. Leibel, 2014 ONSC 6482. The court stated in paras 28 and 30,

[28] In my view, this is not a case where there was a drafting error in the testator’s Will that needed correcting. In that case, the Costs would properly be paid out of the Estate. I adopt the reasoning in McDougald Estate, supra, that Costs in estate litigation are subject to the general civil regime that the losing party should bear the Costs if there are no public policy considerations otherwise present….

[30] I find that Blake, as the losing party on the Motion, should bear and pay the Costs of both sets of Respondents, as the moving parties…

[5] In par 39 of my endorsement, I stated, “This is not an appropriate case for costs to be paid from the estate. Instead, costs should be paid by the losing party.” The respondent, Ms. Mathieson, was the losing party.

Conclusion

[6] I conclude that Karen shall pay $16,120.89 to the applicant, in her personal capacity, forthwith.

Costs

[7] No costs are ordered for the attendance to settle the order.

VALLEE J.

Date: September 4, 2015