Michael v. Thomas, 2018 ONSC 3129

COURT FILE NO.: 11523/17

DATE: 2018-05-18

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Estate of Douglas Culver Chambers

BETWEEN: Connie Reta Michael, Applicant

AND: Douglas Thomas, Trustee and Linda Kun, Respondents

BEFORE: Mr Justice Ramsay

COUNSEL: Joseph E. Sloniowski for the Applicant Steven L. Nagy for the Respondent Linda Kun

HEARD: May 17, 2018 at Welland

ENDORSEMENT

[1] The Applicant brought a successful application under s. 52 of the Succession Law Reform Act for an order for support from her late spouse's estate: 2018 ONSC 3125. She seeks costs from the Respondent Linda Kun. The Respondent Linda Kun seeks costs from the estate.

[2] The Applicant was the long-time spouse of the deceased, who died without a will, with the result that his legal estate went to his two surviving siblings and the sons of his predeceased sister. Only the surviving sister contested the Application. The trustee took no position.

[3] The legal estate (as opposed to the more largely defined estate that I had to consider for support purposes as provided by s.72 of the Act) consisted of about $100,000 in money, some ancient motor vehicles and some household contents of uncertain value. The Applicant offered to give the Respondent sister some items that may have had sentimental value. She did better than her offer. She got everything.

[4] The Respondent made unfounded allegations of misappropriation and failure to account for such silly things as hockey memorabilia and an ancient Jaguar that is sitting under a tarpaulin somewhere.

[5] Shortly after the death of the intestate, the Applicant managed to get about $18,500 from the intestate's bank accounts for his funeral, which was the estate's responsibility in any event and some mortgage payments and legal fees. I find it astonishing that the sister of the deceased would make an issue of this small amount taken by a surviving spouse in transition from the sudden death of her long-time domestic partner.

[6] This was a small estate, scarcely enough to meet the Applicant's needs for the rest of her life. The Respondent inherited $314,000 from her mother. I gather she wanted whatever had been left to her brother as well. She had no need for more found money and no moral claim on her brother's assets. Her other brother and her nephews recognized this. She should have as well.

[7] I do not think that the considerations that govern costs in estate matters, which are set out by Henderson J. in Perilli v. Foley, 2006 9608 (ONSC) can be easily applied in the present case. The litigation arose partly because of the fault of the intestate, who did not make adequate provision for proper support of his spouse, but given the small estate and the award of the entire residue to the Applicant, an award of costs from the estate would have the same effect as an award against the successful Applicant.

[8] This was a simple and obvious case for support in which one party was successful and the other party was unsuccessful. The successful party should have partial indemnity from the unsuccessful party. The outstanding portion of Mr Sloniowski's bill will be in the neighbourhood of $18,000. That strikes me as reasonable. I note that he cross-examined the Respondent on her affidavit. If he had not done so, an important inaccuracy in the affidavit would have remained undiscovered.

[9] Given the offer to settle and the unfounded allegations I award partial indemnity somewhat generously. I fix the Applicant's costs at $13,500 and order the Respondent Linda Kun to pay them forthwith.

J.A. Ramsay J.

Date: 2018-05-18