Court File and Parties

COURT FILE NO.: CV-18-0204 (Chatham) DATE: 20190829

SUPERIOR COURT OF JUSTICE - ONTARIO

In the Estate of Norman Roman Zock, deceased

RE: Norma Lynn Pierce and Gary Zock, in their capacities as Estate Trustees of the Estate of Norman Zock and Trustees of the Henson Trust in favour of Stephen Wayne Zock, Applicants

AND:

Stephen Wayne Zock, Respondent

BEFORE: Justice R. Raikes

COUNSEL: Stephanie Marentette Di Battista, Counsel for the Applicants James E. S. Allin, Counsel for the Respondent

HEARD: In writing

Cost ENDORSEMENT

[1] The Applicants sought an order removing themselves as trustees of the Henson trust for their brother, Stephen, and for an order as estate trustees of their late father’s Will to sell the farm occupied by Stephen. They were mostly successful on the request to be removed as trustees but unsuccessful on the request for directions to sell the farm.

[2] The Respondent, Stephen, seeks costs on a partial indemnity basis in the amount of $30,555.90 payable by the applicants, Gary and Norma, from their shares of the estate of Norman Zock. He submits that he was successful on both issues because the farm is not to be sold at this point in time and Gary was not allowed to withdraw as trustee of the Henson trust.

[3] The Applicants ask that no costs be awarded to the Respondent given his conduct leading to the request that the trustees be permitted to withdraw, and they should receive partial indemnity costs of $18,000. Alternatively, they submit that no costs should be awarded.

[4] As indicated, the Applicants were largely successful on the motion to be removed as trustees of the Henson trust. Norma was removed. Gary was not but measures were put in place to protect him from further aggression by his brother, Stephen, who is the beneficiary of the trust. Frankly, had there been a viable alternative that would not have left the trust without a trustee, I would have allowed him to withdraw as well.

[5] With respect to the request for direction to be able to sell the farm, Stephen was entirely successful. The conditions precedent to the sale of the property under the Will were not established on the evidence.

[6] Thus, there is divided success. I find that there should be no costs ordered in view of the relative equal division of success.

Justice R. Raikes

Date: August 29, 2019