COURT FILE NO.: 18-75736-ES
DATE: 20190903
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: BMO TRUST COMPANY, in its capacity as Guardian of Property for Eileen Vera Childs / Applicant
AND
MICHAEL CHILDS, in his capacity as Litigation Guardian for Eileen Vera Childs / Respondent
BEFORE: Justice C.T. Hackland
COUNSEL: David Morgan Smith, Counsel for Michael Childs in his capacity as Litigation guardian for Eileen Vera Childs, the Applicant/Moving Party
Peter Childs, Andrew Childs and Caroline Childs, in person, Responding parties
HEARD: April 29, 2019 (Ottawa)
COSTS ENDORSEMENT
[1] This costs order arises from my endorsement of April 29, 2019 (BMO TRUST COMPANY v. Childs, 2019 ONSC 2637). This was a motion for directions in the administration of the estate of Eileen Vera Childs (“Mrs. Childs”). Mrs. Childs is in her 90’s and has been found to be an incapable person. She resides with her daughter Caroline Childs who is her guardian for personal care. Her guardian for property is BMO TRUST COMPANY and her litigation guardian is her son Michael Childs.
[2] The motion for directions was brought pursuant to my order of December 10, 2018 made following a case conference in the passing of accounts being brought by BMO TRUST COMPANY for its management of Mrs. Child’s estate for the period of April 29, 2015 to June 25, 2017.
[3] The purpose of the motion for directions was to determine whether Mrs. Child’s daughter Caroline and one of her other sons, Peter Childs, had standing to participate in the passing of accounts and to determine whether the passing of accounts would include a re-litigation of the issues of the appointment or continuing appointment of BMO TRUST COMPANY as guardian of Mrs. Child’s property and of Michael Childs appointment as Mrs. Childs litigation guardian. Caroline and Peter Childs had both filed notices of objection in the passing of accounts which challenged the continuing appointments of BMO TRUST COMPANY and Michael Childs.
[4] As explained in my April 29, 2019 endorsement there has been a long and acrimonious history of litigation in the administration of Mrs. Child’s estate which has extended to the Court of Appeal, including an unsuccessful motion for leave to appeal to the Supreme Court of Canada. Throughout the previous litigation, Peter Childs, supported by his sister Caroline, has unsuccessfully opposed their brother Michael’s appointment as litigation guardian and has sought the removal of BMO TRUST COMPANY as guardian of Mrs. Childs property.
[5] At the hearing of the motion for directions Peter Childs, in both his notice of objection, his written materials and his oral submissions has chosen to advance the same arguments against his brother Michael and against BMO TRUST COMPANY previously rejected by the court as being without merit. Moreover he did not file any affidavit supporting the scandalous allegations he is currently attempting to advance.
[6] Peter Childs was entirely unsuccessful on the present motion for directions. I denied Peter Childs leave to participate in the passing of accounts and struck his notice of objection to the accounts. I found him to be a vexatious litigant in the context of the current proceeding (the passing of accounts). I accepted the position advanced by the litigation guardian that Peter Childs objections’ represented an abuse of process as representing an attempt to re-litigate issues finally determined in previous court proceedings.
[7] In the circumstances, the litigation guardian seeks full indemnity costs of the motion for directions against Peter Childs, in the sum of $43,297, inclusive of disbursements or, alternatively substantial indemnity costs in the sum of $39,274, which is also inclusive of disbursements. Peter Childs has not filed a costs submission despite being granted leave to do so under para. 20 of my previous endorsement.
[8] In my opinion the litigation guardian is entitled to his costs of this motion on the basis that he was entirely successful in the result. These costs should be on a substantial indemnity scale, payable by Peter Childs personally. As noted, I have found that Mr. Childs relentless efforts to re-litigate the guardianship appointments of Michael Childs and BMO TRUST COMPANY are vexatious and amount to an abuse of process. As the Court of Appeal has previously pointed out Peter Childs is responsible for “unnecessarily protracted litigation that has depleted Mrs. Child’s estate, wreaked havoc on the emotional and financial health of all concerned… it is past time for litigation… to end”, see Childs v. Childs, 2017 ONCA 516 at para. 50. I see no reasonable alternative to requiring Peter Childs to pay these costs personally and I recognize that it would be unconscionable to have Mrs. Child’s estate pay these costs thereby putting at risk her estate’s ability to fund her future care needs.
[9] No costs were sought against Caroline Childs and she was accorded standing on the passing of accounts with the proviso that she is not to contest the guardianship appointments of Michael Childs and BMO TRUST COMPANY.
[10] I have reviewed the litigation guardian’s costs outline which I find on the whole to be reasonable. I have made some adjustments where appropriate. I fix the cost of the litigation guardian Michael Childs as follows:
Fees: $30,000
HST on fees: $3,900
Disbursements: $3,069
Total: $36,969
[11] The sum of $36,969 is to be paid forthwith by Peter Childs to Michael Childs as litigation guardian. If and to the extent this amount is outstanding on the date of Mrs. Child’s death, it shall form a charge on Peter Childs share of Mrs. Childs estate.
Justice C.T. Hackland
Dated at Ottawa: September 3, 2019
COURT FILE NO.: 18-75736-ES
DATE: 20190903
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: BMO TRUST COMPANY, in its capacity as Guardian of Property for Eileen Vera Childs / Applicant
AND
MICHAEL CHILDS, in his capacity as Litigation Guardian for Eileen Vera Childs / Respondent
BEFORE: Justice C.T. Hackland
COUNSEL: David Morgan Smith, Counsel for Michael Childs in his capacity as Litigation guardian for Eileen Vera Childs, the Applicant/Moving party
Peter Childs, Andrew Childs and Caroline Childs, in person Counsel, for the Plaintiffs/Responding parties
COSTS ENDORSEMENT
Justice C.T. Hackland.
Released: September 3, 2019