Court File and Parties
COURT FILE NO.: 905275-14 (Chatham) DATE: 20161012 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Janine Therese Morris and Julianne Phyllis Rivard Applicants – and – Steven Duane John Rivard Respondent
Counsel: Evert Van Woudenberg, for the Applicants Myron W. Shulgan, for the Respondent
HEARD: Written submissions
Reasons on Costs
Carey J.:
[1] This family estate dispute should have been resolved once the Rivard sisters had reviewed with counsel the statements of Mr. John Taylor, Q.C., and Mr. Jay Johnson, the lawyers for Alex Rivard. Those two attended upon him at his request prior to his surgery. Their thoroughness and complete professionalism resulted in an unassailable evidentiary base to reject the Rivard sisters’ theory of undue influence by their brother. None of the evidence called by them, including their own testimony, that of Fr. Louis Rivard or that of Dr. Kenneth Shulman, advanced their allegations. The attacks on the Stevens’ integrity and character, both through their testimony and through their counsel, was persistent, personal and unsupported. Janine Morris, a legal secretary, in particular, did not disguise her contempt for her brother. She essentially destroyed any likely chance that this sibling trio could ever be reconciled.
[2] Given my conclusions that the final Will represented Alex Rivard’s attempt to do the right thing by all three of his children, but especially in regards to Steven and the continuation of the family business, I am certain that the resulting internecine conflict could only have saddened Alex Rivard. I have no difficulty concluding that Janine Morris was motivated not only by her financial interests in supporting the earlier Will from August of 2013, but her dislike for her brother. Julianne Rivard seemed more balanced in her evidence regarding Steven and her father’s personality. In the end, however, it appeared that whatever willingness she might have had to compromise and resolve this issue with her brother was overcome by her sister’s dominant and controlling personality.
[3] Steven Rivard should not be saddled with the cost of the trial forced by his sisters. It was both unnecessary and unnecessarily bitter. There is no longer any doubt that “loser pays” is the general costs principle in estate litigation. [^1] There are no existing public policy considerations that would, in my view, operate to permit the costs to be paid out of the estate. Counsel for the applicants are correct that I made no finding on the trial that the application was frivolous or that the moving party had acted inappropriately. I did so because those findings were not necessary in the resolution of the issues for the trial. I had hoped the release of the judgment might lead to a degree of rapprochement between the siblings, given its neutrality on the credibility issues that had been urged so forcefully by the applicants and their counsel. Clearly, that was not to be the case.
[4] I also reject the submission that Alex Rivard contributed to this litigation in such a manner as to result in his estate paying the costs. I accept that Alex Rivard should have put more thought into what his first Will would do to his son’s future and Steven’s ability to keep the family business intact. That conclusion does not lead me to the applicants’ position that the estate bear the costs.
[5] Alex Rivard was not facing the possibility of death or diminishment at the beginning of August 2013. Contrary to the applicants’ costs submissions, Alex Rivard was neither threatened by nor in fear of his son Steven when he caused his lawyers to change certain aspects of his bequest. Rather, as succinctly stated by Fr. Louis Rivard when asked if Alex was afraid of Steven, “He was afraid of dying.” I am satisfied on the evidence that I heard that the very real prospect of not emerging alive from the pending surgery focussed Alex Rivard on doing “the right thing” by his son. Given the strong Catholic faith that Mr. Rivard evidently possessed, I have no hesitation in concluding that he was motivated by the moral consequences for his immortal soul if he failed in that regard.
[6] There is nothing in the evidence of Mr. Johnson or Mr. Taylor that evidenced any fear that Mr. Rivard possessed of his son. Their evidence was crystal clear that his Last Will and Testament at the end of August was his idea and his alone. I think it is most probable that Jay Johnson’s advice to Mr. Rivard against changing the Will was not reflective of the lawyer’s feelings but rather as Fr. Louis Rivard said, “a lawyer’s trick.” In other words, this was the lawyer testing to see how strong Alex Rivard’s feelings on the issue were. While Mr. Johnson may have been prescient about the prospects of a new embittered family feud erupting over the second Will, I am confident that concern would have taken a back seat to his professional commitment to see that his client got a Last Will and Testament that reflected his wishes.
[7] The striking similarity of the costs outlines of the competing parties simplifies enormously the task of assessing the appropriate quantum for partial indemnity costs. Costs are ordered paid by the applicants, Janine Therese Morris and Julianne Phyllis Rivard, to the respondent, Steven Duane John Rivard, on a partial indemnity basis in the amount of $64,964.36, inclusive of disbursements and HST.
Original signed by Justice Thomas J. Carey Thomas J. Carey Justice
Released: October 12, 2016
COURT FILE NO.: 905275-14 (Chatham) DATE: 20161012 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Janine Therese Morris and Julianne Phyllis Rivard Applicants – and – Steven Duane John Rivard Respondent REASONS on costs Carey J. Released: October 12, 2016
Footnotes
[^1]: See Salter v. Salter Estate, 2009 ONSC 28403, [2009] O.J. No. 2328: “Given the charged emotional dynamics of most pieces of estates litigation, an even greater need exists to impose the discipline of the general costs principle of “loser pays” in order to inject some modicum of reasonableness into decisions about whether to litigate estate-related disputes.”