Zavet v. Herzog Estate

COURT FILE NO.: 05-159/17

DATE: 20180615

SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER OF the Estate of Shalom Herzog, also known as Sam Herzog, deceased

RE: Alona Zavet, Applicant

AND:

Dianne Herzog in her capacity as Estate Trustee of the Estate of Shalom Herzog, also known as Sam Herzog, deceased, Respondent

BEFORE: L. A. Pattillo J.

COUNSEL: Harold Niman, Ian M. Hull, Chloe van Wirdum and Nick Esterbauer, for the Applicant Kelly Charlebois and Lisa Filgiano, for the Respondent, Dianne Herzog in her capacity as Estate Trustee Alexander Turner, for Tammy Herzog, Shari Majerovic and Dianne Herzog in her personal capacity

HEARD: May 30, 2018

ENDORSEMENT

Introduction

[1] This is a motion by the Applicant, Alona Zavet (“Alona”), for interim support pending return of her application seeking, among other things, adequate provision for her support pursuant to Part V of the Succession Law Reform Act, R.S.O. 1990, c. C-43 (“SLRA”) from the Estate of Shalom Herzog (the “Application”) along with a number of ancillary orders. In addition, Alona seeks orders requiring the Estate to indemnify her for certain tax obligations and payment of her past and future legal fees. Finally, she seeks production of solicitors’ records, notes and files concerning the deceased’s will planning and testamentary documents.

[2] The Respondent, Dianne Herzog (“Dianne”) in her capacity as Estate Trustee of the Estate opposes Alona’s motion and brings a motion on behalf of the Estate for an order concerning Alona’s use of the Estate’s condominium.

Background

[3] Shalom Herzog (“Sam”) died on May 19, 2017 at the age of 69. He is survived by Dianne, his wife of almost 50 years, (from whom he had been separated since 1995), his two adult daughters, Tammy Herzog and Shari Majerovic, and six grandchildren.

[4] Sam was a very successful real estate developer who amassed a significant net worth over the course of his life. His business affairs were extremely complex and involved many different interests apart from real estate development.

[5] Sam executed both primary and secondary wills dated November 5, 2005 (the “2005 Wills”) which both appointed Dianne and his long time accountant, Morris Krandel, to be his Estate Trustees. Mr. Krandel resigned as Estate Trustee effective October 30, 2017, leaving Dianne as the sole Estate Trustee. The Wills divide the residue of his estate equally between Dianne and their two daughters.

[6] At the time of his death, Sam had been living with Alona for a lengthy period of time (she says 19 years, the Estate says 12). They lived in a 5,000 square foot luxury condominium at the Four Seasons in Toronto (the “Condo”) which they moved into in late 2014. Title to the Condo was in Sam’s name. It is not disputed that they lived a lavish lifestyle. The 2005 Wills contain no provision for Alona.

[7] Alona says she stopped working as a real estate agent 12 years ago at Sam’s insistence and has been entirely dependent on him for financial support during their relationship. In that regard, in addition to paying for her when they went out or travelled, Sam also provided her with credit cards and cash amount. She also received, through her company 1108570 Ontario Ltd. (“1108570”), the sum of $4,485.23 a week from Rockstone Investments, one of Sam’s companies, made up of $3,969.23 plus HST of $516.00.

[8] The Application is in the early stages. The Estate is very complex and Dianne and her advisors are still coming to grips with determining the assets and liabilities given the many companies through which Sam conducted both his personal and business affairs.

[9] Regardless, even without a final determination of value, it is not disputed that the value of the Estate is substantial. Sam’s terminal tax return for 2017 up to the date of his death was filed by the Estate based on the best information available, acknowledging that once additional information was available, an amended return would have to be filed. The return lists taxable income of $86,499,862.10 with total taxes payable of $46,266,196.64. Alona submits that the value is likely north of $200 million. The Estate does not dispute that number but cautions that there are potential significant tax liabilities which will affect the final value.

[10] Following Sam’s death, the Estate permitted her to continue to reside in the Condo, which was owned by Sam, and paid the Condo expenses including, the property taxes, monthly condominium fees and insurance (including for Alona’s jewelry and furs), repairs and maintenance, utilities, telephone, cable and internet. The Estate also paid Alona’s cell phone charges, her health insurance, car insurance, and gasoline.

[11] In addition, on August 3, 2017, the Estate paid Alona $200,000.

[12] On October 30, 2017, Conway J. issued an order for directions in this matter which provided, among other things, that Alona shall have sole and vacant possession of the Condo until the issues in the Application have been finally disposed of or until further order of the court on terms; the Estate shall continue to pay the taxes, insurance, condominium fees, repair and maintenance fees, utilities (including heat, telephone, cellphone, cable and Internet) and any other amounts necessary for the general upkeep of the Condo until the issues in the Application have been finally disposed of or until further order of the court; the Estate shall pay Alona an advance toward her claim for support of $700,000 and an advance of $150,000 payable to Hull & Hull LLP, in trust, towards her professional fees on a without prejudice basis.

[13] Although the order for directions makes no mention of it, Conway J.’s endorsement dealing with the issuance of the order makes it clear that it was on the consent of the parties.

[14] The Estate paid both the $700,000 and the $150,000 on November 4, 2017.

[15] Prior to Sam’s death and while he was in the hospital, Alona’s eldest son, Michael and his girlfriend Tillie, along with their dog moved into the Condo to provide companionship and support to Alona. Alona’s evidence is that Sam was aware of Michael moving in and was agreeable to it. They have continued to reside at the Condo.

The Law

[16] An application for dependant’s support is governed by Part V, section 58 (1) of the SLRA which provides, in part, that where a deceased has not made adequate provision for the proper support of his or her dependant, the court, on application may make such provision as it considers adequate to be paid from the deceased’s estate for the proper support of the dependant. Sections 62 and 63 of the SLRA set out the factors the court shall consider and the nature of the order which can be made.

[17] A motion for interim support is governed by section 64 of the SLRA which provides:

Where an application is made under this part and the applicant is in need of and entitled to support but any or all of the matters referred to in sections 62 and 63 have not been ascertained by the court, the court may make such interim order under section 63 as it considers appropriate.

[18] As set out in Perkovic v. Marion Estate, 2008 CanLII 52315 (ON SC), [2008] O.J. No. 3976 (S.C.J.) at para. 6 and Romero v. Naglic Estate, [2009] O.J. No. 2299 (S.C.J.) at para. 7, in order to obtain interim support, Alona must establish that she is “in need of and entitled to support” as provided by section 64 which requires that she establish:

i. That she falls within one of the qualifying relationships set out in s. 57 of the SLRA, in this case within the extended definition of “spouse”;

ii. That she is a dependant of Sam’s in that he was providing support to her, or was under a legal obligation to provide support to her, immediately before his death; and

iii. Sam did not make adequate provision for Alona’s support in the sense that she is in need of support.

The Issues

[19] Alona seeks an order requiring the Estate to pay her interim support pending the return of the Application. She states that, apart from small amounts in cash or investments, she has no money and significant liabilities, primarily for tax and legal fees. In support of her motion, she has filed affidavits sworn August 21, 2017, November 13, 2017, December 11, 2017, February 27, 2018 and March 9, 2018.

[20] The Estate does not contest that Alona meets the above requirements and is therefore entitled to interim support. The issue is the amount of such interim support.

[21] While the Estate is prepared to continue to allow her to reside in the Condo and pay the expenses, including the taxes, monthly condominium fees, maintenance and repair, until the Application is concluded or further court order, it submits that her request for the monthly amount is not appropriate and overreaching. In that regard, it submits that Alona’s budget is both unrealistic and unreliable. It points to the scope and extent of the expenses and submits that many of them are unsubstantiated and/or overreaching.

1. Interim Support

[22] What is important on a motion such as this, where the court is concerned only with interim support, is to determine what amount is necessary to ensure that Alona’s needs are met pending the return of the Application. In that regard, the factors in section 62 and 63 of the SLRA are important. As Brown J., as he then was, stated, in part, at paragraph 7 in Perkovic:

… Moreover, in my view it is implied by the language of section 64 that a court will also take into account those matters enumerated in sections 62 and 63 of the Act which the court is able to ascertain from the materials filed on the interim motion. Finally, in Cummings v. Cummings (2004), 2004 CanLII 9339 (ON CA), 69 O.R. (3d) 398 (C.A.), the Court of Appeal held, at para. 27, that when judging whether a deceased has made adequate provision for the proper support of her dependants, a court must examine "the claims of all dependants, whether based on need or on legal or moral or ethical obligations." To the extent that moral obligations to the applicant and other dependants can be ascertained from the materials filed on an interim motion, a court may consider them as part of its analysis: see the cases discussed in C. Weigl and J. Lancaster, "Dependants' Support Claims", in B. Croll and M. Yach, Key Developments in Estates and Trusts Law in Ontario, 2008 Edition, at pp. 122 - 126.

[23] In support of her claim for interim relief, Alona relies on a number of family law cases. As Brown J. also pointed out in Perkovic at the start of paragraph 7, while motions for interim support under the Divorce Act or the Family Law Act engage similar considerations as those under Part V of the SLRA, the considerations are not identical.

[24] In support of her motion for interim support, Alona has submitted a Form 13 Financial Statement showing preliminary monthly expenses in the amount of $93,773.56, which excludes the expenses for the Condo. In her answers to undertakings on her cross-examination, she advised that she was seeking $120,000 a month, the additional amount in excess of her budget for vacations. Before me, she seeks $122,000 a month. All amounts are net of taxes.

[25] In my view, Alona’s motion for interim support is premised on the basis that the Estate has lots of money and she is entitled to continue to live the lifestyle that she says she and Sam were living before his illness. Effectively she seeks a final determination of the Application rather than an interim amount to meet her needs pending the return of the Application.

[26] As a result, I consider Alona’s budget to be of no assistance. In addition, I do not consider it to be an accurate reflection of her actual monthly expenses. Alona has little to no experience in managing money or preparing budgets. She stated in cross-examination that she kept no personal or financial records. The budget was composed by her without any reference to any specific documentation. She initially produced very few records. Although requested, she brought no documentation to her cross-examination. At one point during the cross-examination, counsel objected to producing records on the grounds that it was minutiae. While that may be an appropriate objection if the budget had a semblance of accuracy that is not the case here.

[27] Following her cross-examination and in answer to undertakings, Alona has produced further documentation including credit card statements and some invoices. Those records, however, are not organized to enable the court to confirm they support the budget. A cursory review indicates, however, that they don’t come close to substantiating the budget numbers.

[28] I am also in agreement with the Estate’s submission that Alona’s budget is grossly overstated. I attribute that, in part, to the way in which it was prepared. Although there are many items that fall into this category, the following few examples will illustrate the point:

• $5,000 per month for groceries; $13,200 per month for meals outside the home; $2,500 a month for a private chef; and $4,000 a month for her Four Seasons account which includes mainly in room dining (in excess of $20,000 a month for food);

• $1,700 per month for pet care. The only pet living at the Condo is Michael’s dog which Alona says is really the family dog. It been living with Michael since 2011;

• $700 a month for public transit and taxis and $4,000 a month for a driver although she owns a 2014 California Ferrari and a 2017 Bentley Bentayga;

• $31,250 per month for clothing, purses and shoes;

• $2,500 a month for eye care (contact lenses, sunglasses and reading glasses);

• $3,000 a month for charities.

[29] Alona admitted on cross-examination that her estimates in her budget for groceries and meals outside the home were based on her estimate of the quantum of those expenses while Sam was alive. Some of those occasions were business related. She did not purport to discount the amounts now that Sam has died. Similarly, the charitable expenses seem to be based on events they attended when Sam was alive and his company purchased the tickets or table.

[30] Further, many of the expenses claimed include amounts which include her family and specifically her two sons, Michael and Maxim. Maxim is 38 and married and self-sufficient and Michael is 29, owns his own home and is in the process of establishing his own business. While Alona is certainly entitled to entertain her family, they are not dependants.

[31] Apart from the fact that Alona has produced very little in the way of records to substantiate her budget, I am also troubled by the fact that since Sam’s death, she has received $900,000 for the Estate but has not produced any records to show how that money has been spent. On her cross-examination she undertook to try her best to provide bank statements, bills and expenses. The answer to the undertaking was that she has not been able to obtain a complete set of her bank statements because she has been forced by the bank to switch banks. I don’t accept that answer. Prior bank statements are available online.

[32] While the budget deals with many items it does not set out a specific amount for vacations. Alona says that she and Sam used to take a number of luxury vacations each year. The evidence establishes that since Sam’s death she has taken a number of vacations or trips with her family to Europe, the United Kingdom (London) and the United States (New York and Florida).

[33] Based on the above, I reject Alona’s budget entirely. Besides being inaccurate and overstated, it is unsubstantiated. It is not an accurate estimation of her needs pending return of the Application, many of which, in my view, have already been provided for. Notwithstanding that Alona has provided no record of how she spent the $900,000 she has already received, I am, however, satisfied that she is entitled to a further monthly amount to meet her “needs” pending the return of the Application.

[34] Based on the evidence, I have concluded the sum of $30,000 a month, net of taxes, is more than adequate to meet Alona’s needs pending return of the Application, particularly given that her accommodation is otherwise paid for. Although I admit that $30,000 is somewhat arbitrary, it is based on the evidence that she received $4,500 a week ($18,000 a month) from Rockstone Investments; her credit card statements produced average around $5,000 a month in expenses and her evidence is she also received cash amounts from Sam. I have also allowed some monies towards vacations.

1. Indemnity for HST Payments

[35] As noted, 1108570, Alona’s company, received a total of $4,485.23 a week from Rockstone Investments which sum included $516.00 for HST. The invoices produced by the Estate indicated that the amounts were noted to be for consultation fees.

[36] In her affidavit dated November 13, 2017, Alona states that she is advised by her accountant that 1108570 has HST arrears for 2013 to 2017 in the amount of $125,000 (inclusive of late filing fees and interest) which need to be paid to Canada Revenue Agency (“CRA”). She further states that throughout her relationship with Sam, he was responsible for any taxes owing by 1108570 as well as any taxes owing on her personal income tax return.

[37] The Estate submits that Alona has produced no documentation to support that amount claimed. It has asked for the CRA notices which have not been produced. It submits that the obligation to pay HST was 1108570’s and it is not liable for the corporation.

[38] Alona has produced documentation from 1108570 concerning her involvement as a shareholder and director beginning in 2007 as well as corporate tax returns and GST tax returns for 2014, 2016 and 2017. There are no notices of assessment in respect of HST arrears. I find that troubling given that she has deposed she has been told by her accountant that the money is owing and the accountant clearly prepared the GST/HST returns. The accountant must be in possession of documentation verifying the amount owing and the basis for the calculation.

[39] The issue of who is responsible for the payment of the amount owing to CRA on account of 1108570’s HST liability is not one I should resolve on this motion. At its basic, there is no documentation to even support Alona’s claim that $125,000 is owing to CRA. Nor is there any evidence as to how long the HST arrears have been outstanding or the urgency in payment. In the circumstances, therefore, I consider the resolution of the payment of 1108570’s HST liability is not a matter to be decided on this interim motion.

1. Payment of Professional Fees

[40] Alona seeks an order providing for the payment of her outstanding legal accounts from Niman Gelgoot and Associates and Hull & Hull LLP and/or $750,000 on account of professional fees. I say “and/or” because it is not clear to me whether the $750,000 includes the outstanding accounts or is in addition to them.

[41] It is impossible to discern from the evidence what Alona owes in total to the two firms for services previously rendered. She has not set out any amounts owing in her affidavits. In her cross-examination she stated that she recently paid $72,000 to Niman Gelgoot. In her answers to undertakings, Alona has listed four accounts from Hull & Hull; the last one dated March 12, 2018, which total $232,530.38. She states she has paid Hull & Hull only $65,000.

[42] The court has the jurisdiction to award interim professional fees and disbursements both generally and pursuant to the discretion granted to the court by section 64 of the SLRA in circumstances where the applicant cannot afford to fund the application through to completion. See: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371 at para. 36; Kraus v. Valentini Estate, [1993] O.J. No. 3276 (Ont. Gen. Div.).

[43] The exercise of such jurisdiction is an extraordinary exercise of power and is limited to very exceptional cases and narrowly applied: Kalman v. Pick, 2013 ONSC 304 at para. 5.

[44] In Perkovic, Brown J., as he then was, referring to Kraus, noted that in order to support a claim for legal costs and disbursements not only incurred but for future costs too, it is necessary to provide evidence from a solicitor specifying the legal costs incurred and the estimated costs to be incurred.

[45] I am not prepared to order a payment for interim legal fees and disbursements based on the evidence or, more specifically, the lack of evidence in that regard. No affidavit has been filed by Alona’s counsel. All that has been provided are the dates and total amounts of some but not all of the accounts that have been rendered. Alona has refused to produce redacted copies of the accounts. There is no accounting for the $150,000 advance previously paid by the Estate.

[46] With regard to the request for payment of $750,000, regardless of whether it is meant to cover fees owing, just future fees or both, there has been no attempt to provide an estimate to support the claim for future estimated fees or to show how the $750,000 figure was arrived at. A request to provide a breakdown of the total amount being sought was refused.

[47] I would also not order the amounts claimed given that I consider the amounts to be excessive having regard to the issues in the Application. Alona has retained two senior well regarded lawyers experienced in family law and estates respectively, along with their firms to represent her in the Application. While she is entitled to hire as many lawyers as she wishes to assist her cause, she cannot expect the Estate to foot the bill for both sets of counsel.

[48] Finally, I do not consider that Alona will be precluded from prosecuting her case in the absence of an interim order for funding of legal costs. She has already received a payment of $150,000 towards her professional fees. She also has assets in the form of her cars (the Ferrari and the Bentley), a one quarter interest in an apartment building, an RRSP and a Tax Free Savings Account, together with the monthly interim amount which I have awarded which can all be utilized to fund her ongoing litigation costs.

2. Production of Solicitors’ Files Concerning Testamentary Documents and Estate Planning

[49] Alona seeks an order that her counsel be entitled to the release and production of any and all solicitor’s records, notes and files relating to Sam’s testamentary documents and estate planning from any solicitor or law firm in possession, power or control of such legal records, including but not limited to any predecessors or successors in interest, in the same manner and to the same extent as Sam would have been if he were alive, together with an order waiving any claim of solicitor and client privilege and/or duty of confidentiality relating to Sam in respect of the aforesaid documentation.

[50] In support of her request, Alona points to what she describes as “concerns” surrounding the discovery and execution of the 2005 Wills. Her concerns arise from the fact that after Sam’s death, she was advised by Mr. Krandel that Sam’s Last Will and Testament was dated February 11, 1998. After she commenced the Application, she was advised that Sam had executed the 2005 Wills. In explaining the error, Mr. Krandel advised, through his counsel, that he came across the 1998 will in his files after Sam’s death and while he turned his mind to whether Sam had executed any further wills, he did not recall the 2005 Wills. As the sole surviving executor, he proceeded to administer the Estate in accordance with the 1998 will. It was not until early August 2017 that he was advised by Dianne that she had located the 2005 Wills.

[51] Alona says that she seeks Sam’s testamentary documents to determine his true intentions at the time of drafting the 2005 Wills. She states that she is entitled to know about Sam’s estate planning and the reasoning for her exclusion from the 2005 Wills.

[52] The Estate has produced the legal file of the solicitor who drafted the 2005 Wills. Further, as the solicitor who drafted the 1998 will is dead, it has been unable to locate any testamentary files concerning Sam.

[53] I understand that Alona is upset that Sam did not include her in his 2005 Wills. The Estate has already produced the 2005 Wills file and has been unable to locate the file for the 1998 will. There is no evidence that Sam sought estate planning advice from any other lawyers. Nor is there any will challenge.

[54] In the circumstances, I am not prepared to grant the production order Alona requests.

3. The Estate’s Motion Concerning Alona’s Use of the Condo

[55] As noted at the outset, the Estate has brought a motion concerning Alona’s use of the Condo. The Estate seeks an order that Alona be prohibited from hosting, or permitting any of the other occupants to host any further public or semi-public events at the Condo and ensure that, as a condition of occupancy, the other residents of the Condo shall not make any social media posts (including but not limited to Instagram, Facebook, and Twitter) in which the interior of the Condo or its contents are featured or otherwise recognizable, and shall not allow any such posts to be made by others.

[56] The Estate’s motion arises as a result of Alona and her family’s use of the Condo and specifically a public fundraising wine tasting event that was hosted by Michael on October 28, 2017 at the Condo. The event, which normally costs $5,000 a couple, was reduced to $500 per person to attract a younger crowd. There is no evidence of how many people attended the event but photographs of it showing a number of different people in attendance were posted on social media. The photos contain images of the interior of the Condo, including valuable art work, furnishings, sculptures, antiques, fixtures and crystal. In addition, Tillie, who is an aspiring model, has posted professional pictures on social media taken of her in the Condo to promote her career.

[57] Alona submits that no limits should be placed on her occupancy of the Condo. She submits that she and Sam hosted charity events. The event in question was very prestigious and raised a significant amount for the Toronto General & Western Hospital Foundation. She submits that the Conway J.’s Order grants her sole possession of the Condo without restriction.

[58] In my view, the answer to this issue lies in a balancing of the interests of both Alona and the Estate in the interim period. On the one hand, Alona is entitled to sole possession of the Condo. On the other hand, given the valuable nature of the Condo and its contents, the Estate has an interest in not having it opened to the public or pictures of the interior displayed on social media.

[59] At the start of the argument on the Applicant’s motion, I urged the parties to see if they could resolve the issues on this motion. At the conclusion of the argument, I was advised that while the parties had agreed that Alona could continue to occupy the Condo with her son Michael, his girlfriend Tillie and their dog until the final determination of the issues on the Application, they were unable to agree with respect to the number of people who could attend at the Condo at any one time and whether there should be any restriction on posting pictures of the interior of the Condo on social media.

[60] While I do not think it is appropriate during this interim period for Alona or her son to host public fund raising events at the Condo, it is reasonable for her to be able to host family events and dinner parties for her friends. Alona submits that the number of people should be 25 and the Estate submits 15. I prefer the Estate’s number. It is large enough to permit family and friends without being excessive. Accordingly, Alona shall be permitted to entertain a maximum of 15 people at any one time at the Condo.

[61] Further, I do not accept Alona’s submission that a restriction in connection with posting on social media of pictures of the Condo interior is simply unenforceable in respect of today’s young people. There is no reason or need for the occupants of the Condo or their families to post pictures of the interior of the Condo on social media. To the extent they do, they run the risk that they will no longer be entitled to occupy or attend at the Condo.

[62] I agree that guests are a different matter in that they are more difficult to supervise. That said, there is no reason that they would not respect their host’s wishes, particularly given they emanate from a court order. Accordingly, the occupants shall be required to advise any guest of the restriction that pictures of the interior of the Condo, either directly or indirectly, cannot be posted on social media. Again, I do not consider that such a restriction is too onerous or unenforceable.

Conclusion

[63] In conclusion, therefore, and for the reasons set out above, I order as follows:

1. Alona’s motion for interim support is allowed and, in addition to Conway J.’s Order of October 30, 2017, she is awarded the sum of $30,000 a month until the issues in the Application have been finally disposed of or until further order of the court;

2. Alona’s request for indemnification in respect of the HST liabilities of 1108570 is dismissed;

3. Alona’s request for payment of her professional fees both past and future is dismissed;

4. Alona’s request for production of all solicitor’s records, notes and files relating to Sam’s testamentary documents and estate planning is dismissed;

5. The Estate’s motion concerning Alona’s use of the Condo is allowed, in part, and Conway J.’s Order of October 30, 2017 is varied, in part, to provide:

i. Alona shall continue to occupy the Condo with her son Michael, his girlfriend Tillie and their dog until the final determination of the issues on the Application;

ii. Alona shall be permitted to entertain a maximum of 15 people at any one time at the Condo; and

iii. None of the occupants of the Condo or their families shall post direct or indirect pictures of the interior of the Condo on social media and they shall advise every guest of this restriction.

Costs

[64] At the conclusion of the argument, not all counsel had prepared Cost Outlines. As a result, I ordered that Cost Outlines be exchanged at 4 p.m. the following day and filed with the court. As a result, I have now received Cost Outlines from all parties.

[65] Alona has submitted a cost outline claiming full indemnity costs totaling $222,894.91, made up of fees from July 19, 2017 onward of $191,424.50, HST of $24,885.19 and disbursements of $6,585.23.

[66] The Estate has submitted a cost outline claiming total costs on a full indemnity basis of $117,759.14 and on a partial indemnity basis of $70,753.17.

[67] Finally, Tammy, Shari and Dianne, in her personal capacity, have submitted a costs outline claiming costs on a full indemnity basis totaling $104,317.36 and on a partial indemnity basis of $62,590.42.

[68] In my view, the Estate was successful in respect of Alona’s motion and is entitled to its costs on a partial indemnity basis. Given the relief sought by Alona on the motion as well as its interim nature, I do not consider it appropriate to order that Alona be required to pay the costs forthwith. Rather, I am of the view that the costs should be to the Estate in the cause of the Application.

[69] In that regard, given the issues raised before me and recognizing that much of the time spent on the preparation for the motion will serve the parties well when it comes time to argue the Application, I consider that an award of partial indemnity costs of $40,000 in total in respect of the motion is both fair and reasonable. Costs in the cause to the Estate, fixed at $40,000.

[70] I would award no costs in respect of the Estate’s motion concerning the occupancy of the Condo.

[71] Nor do I consider that Tammy, Shari and Dianne, in her personal capacity are entitled to any costs. While they are the beneficiaries of the Estate and have an interest in the outcome, they are not parties. In my view, their interests were well represented by counsel for the Estate as evidenced by the fact that they filed no factum and their counsel’s only submission at the hearing was to adopt the submissions of the Estate’s counsel.

L. A. Pattillo J.

Released: June 15, 2018