Court File and Parties

COURT FILE NO.: 36920ES/18 DATE: 20181122

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE ESTATE OF WILLIAM MALCOLM SIMMS, deceased

BETWEEN:

Beverly Joan Hees Michael James Simms Plaintiffs

– and –

Martyn Simms Defendant

Counsel: Ms. Vale-Peters, for the Estate Trustees Mr David Marks, former Counsel for Martyn Simms Mr. Martyn Simms, Self-Represented Ms. Letourneau, Counsel for Patricia Simms

HEARD: November 5, 2018 at Ottawa

Reasons for Decision

Kershman J.

[1] A Judgment on the Passing of Accounts in the Estate of William Malcolm Simms was granted on consent of all of the parties on October 19, 2018.

[2] The Court issued an endorsement in relation to the Judgment of Passing of Accounts which reads as follows:

“Judgment to go in accordance with the Consent to Judgment filed. Each party to bear their own costs”.

[3] Subsequently, the issue arose as to whether the Estate Trustee’s fees, disbursements and HST on the Judgment on the Passing of the Accounts should be paid out of the Estate in light of the aforesaid endorsement. The amount in question is $11,471.67 inclusive of fees and HST of $10,383.57 and disbursements and HST of $1,088.10.

[4] Martyn Simms objected to the payments of the aforesaid amounts to the Estate Trustee because of the wording of the endorsement and because it would reduce his share of the Estate. To clarify, it would reduce each beneficiary’s share of the Estate by approximately $2500.00.

[5] At the court appearance on November 5, 2018, Mr. Simms also sought other relief including a request for an adjournment, the appointment of the Public Guardian and Trustee for his son Kevin Simms, a beneficiary of the Estate as well as costs of a motion decided by Hackland, J. on a date prior to the hearing of a Judgment on the Passing of Accounts.

[6] In relation to the adjournment to deal with the matter of the clarification sought by the Estate Trustees, the Court notes that Mr. Simms had Mr. Marks as counsel, at the Judgment on the Passing of Accounts and the Consent to Judgment was signed in consultation between Mr. Simms and his counsel. Accordingly it is not proper to adjourn the matter to allow Mr. Simms to obtain new counsel. The Court denies the adjournment request.

[7] The Court notes that Mr. Simms has released Mr. Marks as his counsel, although not formally on the record.

[8] At this Court attendance, Mr. Simms seeks costs related to a Hackland, J. motion heard previously. Mr. Simms wrote to Justice Hackland about that issue, who responded by letter that the way to deal with that matter was for Mr. Simms to bring a Motion. Mr. Simms admitted that he has never brought the Motion. On that basis, the Court finds that it will not deal with that issue.

[9] In relation to the request to appoint the Public Guardian and Trustee for Kevin Simms, the Court finds that since there was no motion before the Court in relation to that issue that the Court would not deal with the matter.

Clarification of the October 19, 2018 Endorsement

[10] The Court is aware that the October 19, 2018 endorsement said that each party will bear its own costs.

[11] The Court is also aware that the two Estate Trustees are acting in a representative capacity as the Estate Trustees.

[12] As such, the Court finds that the Estate Trustees are entitled to their costs out of the Estate of $11,471.67 inclusive of disbursements and HST. There is no evidence that either of the two Estate Trustees acted improperly or maliciously in relation to this Estate. They were simply completing their duties as Estate Trustees.

[13] The Court orders that all of the other parties pay their own costs.

[14] There will be no costs ordered for the November 5, 2018 Court attendance.

[15] Order accordingly

Mr. Justice Stanley Kershman

Released: November 22, 2018