COURT FILE NO.: CV-24-95182 DATE: 2024/10/31 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
VERONICA ACKLAND Applicant – and – JOSEPH EDWARD DUMONT, personally and in his capacity as estate trustee for the estate of Ronald Edward Ackland, deceased, MATHEW ACKLAND, and JADA ACKLAND-PERRAS Respondents
Counsel: Christopher Shorey, for the applicant Paul Jakubiak, for the respondent, Joseph Edward Dumont J. Robert Allan, for the respondent, Mathew Ackland
HEARD: April 23, 2024 (By videoconference)
RULING on APPLICATION
Introduction
[1] In October 2019, the late Ronald Edward Ackland (“the Deceased” or “Ronald”) prepared a will (“the Will”). Ronald passed away in February 2023.
[2] Ronald is succeeded by his daughter, Veronica Ackland (“Veronica”); his son, and Veronica’s half-brother, Mathew Ackland (“Mat”); and his stepdaughter, Jada Ackland-Perras (“Jada”). In the Will, Ronald lists each of Veronica, Mat, and Jada as his “Current Children”.
[3] In the Will, Ronald appoints “Edward Dumont” as the first of two, alternate estate trustees. “Edward Dumont” is one and the same as the respondent, Joseph Edward Dumont (“Ted”). Ted is cousin to both Veronica and Mat; he is not a blood relation of Jada.
[4] The Will is typed in a pre-prepared form, with blank spaces to be filled in by the testator or whoever prepares the document on behalf of the testator. The handwritten entries, filling in those blank spaces in the Will, cover subjects such as Ronald’s current children and the names of the primary and alternate estate trustee.
[5] Blank spaces are also provided for the testator to identify specific bequests and to name the residuary beneficiary or beneficiaries of the estate. Those spaces are left blank in the Will. The impact of those blank spaces—for example, on the distribution of the Estate—is not relevant for the purpose of this proceeding. The existence of the blank spaces may be relevant to whether the Estate is distributed pursuant to the Will or on an intestacy.
[6] Pending a resolution—by adjudication or agreement—as to how the Estate is to be distributed, the Estate must be administered. Veronica commenced this proceeding to address her concerns regarding Ted’s administration of the Estate.
[7] The highest-value asset is the residential property, which Ronald owned and at which he was residing as of the date of his death (“the Property”). The Property is on Barlow Crescent in Ottawa, Ontario. Mat was living with Ronald when he died. Mat has, since his father’s death, continued to live at the Property.
[8] Veronica asks the court to provide directions for the administration of the Estate and the preservation of the Estate’s assets. Both Ted and Mat delivered a notice of appearance and a responding record. Jada did not deliver a notice of appearance. She attended on the return of the application as an observer.
[9] By the date on which the application was heard, the parties, other than Jada, had reached agreement as to some of the relief to be granted on the application. For example, the parties agree that Veronica is entitled to attend at the Property; they disagree, however, as to the terms pursuant to which she is permitted to do so. As another example, Ted agrees to produce to Veronica information she has been requesting and which he has not previously produced.
[10] The main point of contention continues to be the Property and the terms pursuant to which it is to be sold. I will first deal with the uncontentious or minimally contentious aspects of the administration of the Estate. I will then deal with the Property, including (a) Veronica’s request that Mat vacate the Property; (b) Veronica’s request for access to the Property; and (c) the listing and sale of the Property.
Administration of the Estate Generally
[11] The dispute as to the administration of the Estate is between Veronica and Ted. In her affidavit, Veronica sets out the efforts she made, personally or through her counsel, to have the administration of the Estate progress efficiently. The communication with Ted in that regard covers, amongst others, the following topics:
- providing Veronica with a copy of the Will;
- the production of an informal statement of the Estate’s assets and liabilities;
- the status of the home and the long-term plans regarding the Property; and
- confirmation that there will be no distribution from the Estate and no estate trustee compensation paid without Veronica’s consent or a court order.
[12] Veronica’s evidence regarding the communication with Ted (or, eventually, his lawyer), is set out in paras. 5-20 of Veronica’s affidavit. The evidence includes the date and substance of each communication.
[13] The only portion of Veronica’s evidence in this regard with which Ted takes issue relates to Veronica’s request for a copy of the Will. At para. 11 of her affidavit, Veronica refers to her lawyer’s letter to Ted dated July 12, 2023. The lawyer therein requests a copy of the Will. Veronica’s evidence is that “Ted had failed to provide [her] with a copy [of the Will] after [she] had given him the original”.
[14] In para. 20 of his affidavit, Ted responds by stating the following: “Contrary to what the Applicant alleges, I have never refused to provide her with a copy of the Will. The applicant in fact obtained the will herself from the deceased’s safety deposit box, and presumably could have obtained a copy at that time.”
[15] First, Ted misconstrues Veronica’s evidence. In her affidavit, Veronica does not say that Ted “refused” to produce a copy of the Will to her. Veronica says only that Ted “failed” to produce a copy of the Will to her. Refusing to do something and failing to do something are not the same things.
[16] Second, Ted’s comment that Veronica could have made a copy of the Will (i.e., before giving the original document to him) is indicative of a less-than-cooperative approach to Ted’s relationship with one of the potential beneficiaries of the estate he is mandated to administer. That comment also reflects a lack of sympathy for the fact that Veronica retrieved the Will and gave it to Ted on the third day after her father died. It is unfeeling for Ted to fault Veronica for failing to make a copy of the Will at a time when she was grieving the recent death of her father.
[17] I turn next to Ted’s position in response to the application, as it relates to matters other than the sale of the Property. In his affidavit, Ted summarizes his position as follows:
I am not opposed to much of the relief sought with respect to delivering to the estate a statement regarding the nature and value at death of the deceased’s assets, his debts, a list of his personal effects as at the date of death, which I am, of course, required to do anyway. I can provide a statement with respect to the income, assets, debts and expenses of the estate within thirty days in the form provided for under Rule 74.17.
[18] On the return of the application, Veronica’s counsel filed a draft order. Counsel for each of Veronica, Ted, and Mat referred to the draft order to identify points of agreement and the remaining contentious issues. An example of a point of agreement is the term of the draft order setting out a 30-day timeline (from the date of the order) within which Ted is to produce documents related to the Estate.
[19] Another example of a point of agreement is the term in the draft order stipulating a 60-day timeline (again, from the date of the order) within which Ted is to produce accounts in the form required pursuant to r. 74.17 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[20] The draft order prepared by Veronica calls for the production of documents only to her. In fairness to Mat and Jada, the documents should also be produced to them. The relevant terms of the draft order are revised accordingly.
[21] Paras. 1 and 3-8 of the draft order address the administration of the Estate generally. The relief granted on this application is set out in Appendix ‘A’ to this ruling. The substantive relief reflected in paras. 1 and 3-8 of the draft order is included in Appendix ‘A’. The form in which that relief is set out in Appendix ‘A’ differs slightly from the form in which it is set out in the draft order. The revisions, from the draft order to Appendix ‘A’, are for clarity, grammatical correctness, and ease of reading. In addition, lengthier terms are broken into two or more shorter terms. None of the revisions impact the substance of the relief.
[22] I turn next to the most contentious subject: the Property.
The Property
[23] As of the date on which the application was heard, Mat continued to reside at the Property. It is undisputed that he has lived at the Property his entire life.
[24] I pause to note that Veronica is Ronald’s daughter from a relationship which Ronald had prior to his relationship with Mat’s mother. Veronica is 46 years old; Mat is 34 years old; and Jada is 37 years old.
[25] Veronica, Ted, and Mat acknowledge that the Property must be sold as part of the administration of the Estate. They disagree as to the parameters for the sale. Their disagreement stems in part from Mat’s expression of interest to purchase the Property. Veronica is skeptical that Mat has the financial means with which to purchase of the Property. Veronica, Ted, and Mat also disagree as to (a) the terms pursuant to which Veronica should be entitled to attend the Property (para. 2 of the draft order), and (b) when, if at all, Mat should be required to vacate the Property. I will deal with those two issues and then with the parameters for the sale of the Property.
Veronica Wishes to Attend at the Property
[26] Veronica’s uncontradicted evidence regarding her efforts to gain access to the Property, includes the following evidence:
- Two days after Ronald died, Ted informed Veronica that he had changed the locks to the Property.
- On July 17, 2023, approximately four months after Ronald died, Veronica sent Mat a text message informing him of her intention to visit the Property on July 18, 2023. In her message, Veronica asked Mat to leave the door to the home unlocked and to provide her with a spare key to the home.
- Mat responded to Veronica’s July 17, 2023 text by stating, “I have been advised by the police that in no situation are you allowed to attempt or have access to this home.”
- On February 29, 2024, Veronica was permitted to attend the Property. On that date, she conducted a walk-through. That visit was the first time, in the more than 12 months subsequent to Ronald’s death, that Veronica was permitted access to the Property. In his affidavit, Ted says that he permitted Veronica to attend on that date after he received a request, on February 16, 2024, from Veronica in that regard. Exhibit “L” to Veronica’s affidavit is a copy of a chain of email messages exchanged between Veronica’s lawyer and Ted’s lawyer. The chain includes a February 16, 2024 email message from the former to the latter in which a request is made for Veronica to attend the Property.
[27] In para. 2 of the draft order, Veronica proposes that she is entitled to “periodically, and upon at least 48 hours notice to [Ted and Mat] attend and inspect [the Property]”. In her affidavit, Veronica does not define what she means by “periodically”.
[28] At para. 9 of his responding affidavit, Ted sets out his position regarding Veronica’s request for periodic access to the Property. Ted does not “consent to an order that Veronica have unfettered discretion to attend the [Property] at her whim.” Ted’s uncontradicted evidence is that the purpose of Veronica’s attendance at the Property in February 2024 was “to take pictures of the interior of the home and the chattels.” Veronica does not provide the respondents or the court with an explanation as to why she otherwise needs to attend at the Property periodically.
[29] In his responding affidavit, Ted expresses the view that Veronica’s attendance at the property would be “an imposition” to Mat. Ted consents to an order permitting Veronica to attend the Property “with prior notice and consent.” Ted does not stipulate whose consent would be required—his alone or his and Mat’s.
[30] Mat does not consent to an order providing Veronica with “unrestricted ‘periodic’ access” to the Property. Mat consents to an order permitting Veronica to attend the Property if she provides prior notice of her desire to do so and both Mat and Ted consent to the attendance.
[31] The attendance of the parties at the Property in the context of listing and sale is addressed below. The order made in Appendix ‘A’ includes directions for the listing and sale of the Property (i.e., the court’s revised version of paras. 9a to 9k of the draft order).
[32] Absent any concerns about facilitating the listing and sale of the Property, it is neither fair nor reasonable for Veronica to be entitled to attend at a Property which she does not own, and at a home of which she is not an occupant, without prior notice to and the consent of the individual responsible for the Property (Ted) and the resident of the home (Mat). If Veronica’s attendance at the Property is ultimately required for the distribution of Ronald’s personal effects, arrangements for that attendance can be made in the context of the administration of the Estate.
[33] The order made at the conclusion of the ruling provides that Veronica must give prior notice to and obtain the consent of both Ted and Mat before she is permitted to attend at the Property.
The Request for Mat to Vacate the Property
[34] Veronica asks the court to require Mat to vacate the Property by a specific date. She makes that request so that the Property can be prepared for listing, listed, and sold. Mat objects to being required to vacate the Property.
[35] Mat’s position is that he should not be required to vacate the Property, because his intention is to purchase the Property. Mat’s evidence is that he is prepared to pay fair market value for the Property. As of the date on which the application was heard, Mat was employed on a full-time basis and earning an annual income of approximately $82,000. One week prior to the return date for the application, Mat submitted an application to a mortgage broker for the requisite financing.
[36] At para. 9 of his responding affidavit, Mat says, “I have spoken to Jim Neumann of The Mortgage Advisors and they have advised me that I will be eligible for a conventional mortgage in the amount required to purchase the property from the estate”. Mat does not provide any evidence as to the price he proposes to pay for the Property or how his putative offer compares to the fair market value of the Property.
[37] Mat’s evidence that he is eligible for the mortgage he requires to purchase the Property is based on information (from Mr. Neumann) and belief. On an application, evidence based on information and belief is admissible only in relation to non-contentious issues: Rules of Civil Procedure, r. 39.01(5).
[38] Veronica is skeptical of Mat’s ability to fund a purchase of the Property. Mat’s financial ability to purchase the property is a contentious issue on the application. The passage from Mat’s affidavit quoted in para. 36, above, based on information and belief, is therefore inadmissible. That passage (i.e., the third sentence in para. 9) is struck from Mat’s affidavit.
[39] There is no evidence to support a finding that Mat had, as of the return date for the application, secured, or that he was about to secure, the financing he requires to purchase the Property. Six months have passed since the application was heard. Mat has had ample time within which to secure the financing he requires to purchase the Property at a fair market value. If, by now, Mat has not secured that financing then it is reasonable to (a) conclude that he is not, and will not be, in a position to purchase the Property, and (b) require that he vacate the Property to facilitate its listing and sale.
[40] The relief granted provides Mat with a brief period within which to produce to the parties evidence that he has secured the financing he requires to purchase the Property at fair market value. If Mat fails to produce that evidence within the brief period stipulated, then he must, no later than December 31, 2024, vacate the Property.
The Listing and Sale of the Property
[41] Whether the Property is to be sold to Mat or someone else, it must be sold for a reasonable and fair price. On March 31, 2023, Veronica sent an email to the respondents in which she outlined the steps she believes need to be taken to administer the Estate, including regarding the sale of the Property. One of those steps is to obtain an appraisal of the value of the Property.
[42] In her email, Veronica refers to an appraisal of the value of the Property obtained by Ronald in 2015. The email includes Veronica’s understanding of the appraised value at the time. The inclusion of that information in a document attached as an exhibit to Veronica’s affidavit does not make the information evidence.
[43] In the substantive text of her affidavit, Veronica does not state her belief, or the basis for it, as to the value of the Property.
[44] At para. 28 of his affidavit, Ted refers to an appraisal he obtained. Attached as exhibit “C” to Ted’s affidavit is a copy of a single-page letter, dated October 30, 2023. The letter is from Independent Appraisal Corp. and addressed to The Estate. The letter includes a statement as to the market value of the Property.
[45] In his affidavit, Ted does not address the appraised value of the Property. He does not refer to the appraised value set out in exhibit “C”, describe any conversations with the appraiser, or otherwise provide any evidence as to a fair market or appraised value for the Property. The value of the Property is a contentious issue. The inclusion of a copy of the October 30, 2023 document as an exhibit is evidence of the existence of the document; it is not evidence of the appraised or fair market value of the Property.
[46] In summary, there is no evidence as to an appraised or the fair market value of the Property. There is no evidence as to when Ted produced a copy of the appraisal to one or more of Veronica, Mat, and Jada. It is possible that the inclusion of the October 30, 2023 letter as an exhibit to Ted’s affidavit is the first time that one or more of Veronica, Mat, and Jada has seen that document.
[47] Ted owes a fiduciary duty to all beneficiaries of the Estate to obtain a fair and reasonable price for the Property when it is sold.
[48] The order made provides directions for the listing and sale of the Property. Those directions are in keeping with paras. 9a to 9k of the draft order. Once again, the original terms are revised for clarity, grammatical correctness, and ease of reading.
[49] Some of the revisions made to paras. 9a to 9k of the draft order impact the substantive relief. Those revisions reflect the fact that there is no evidence from Ted as to any steps taken by him, in the 14 months from the date of Ronald’s death to the return date for the application, to (a) identify a real estate agent whom the Estate could retain if it were necessary to list the Property for sale to someone other than Mat; and (b) obtain advice from a real estate agent or other professional regarding the listing and sale of the Property.
[50] The court’s concern is that the sale of the Property, whether to Mat or to someone else, is conducted in a manner which results in the Estate receiving a fair and reasonable purchase price for the Property. If the Property is sold for less than a fair and reasonable value, questions related to the administration of the Estate may result in further interim proceedings between the parties. It is important to minimize the risk of the Estate being exposed to dissipation of its assets because of continuing interim proceedings (i.e., because of the potential for the court to order that a party’s costs be paid, in whole or in part, from the Estate).
[51] The relief granted permits Mat to make an offer to purchase the Property—regardless of whether he is required to vacate or remain at the Property—so long as he is in a position to pay at least 95 percent of the listing price.
The Parties Must Communicate Effectively and Respectfully
[52] The relief granted does not address all possible scenarios, depending on whether or not Mat is entitled to remain at and purchase the Property. It is not a reasonable use of the parties’ time, their respective lawyers’ time, or judicial resources for the order to be drafted so as to cover all possible scenarios. It is important that the parties communicate effectively, respect the spirit of the order, and act in a manner that permits the administration of the Estate, including the sale of the Property, to move forward efficiently and cost-effectively.
[53] As already explained, the contents of some of the exhibits to the affidavits are not evidence themselves. The exhibits do, however, provide the court with evidence as to the respective parties’ communication styles. Veronica’s March 31, 2023 email is a thorough and thoughtful consideration of the steps to be taken in the administration of the Estate. The language used and the overall tone of the email reflect a cooperative stance and an effort on Veronica’s part to be respectful to the respondents.
[54] I contrast Veronica’s communication style with Ted’s and Mat’s respective communication styles. At para. 9 of her affidavit, Veronica recounts her telephone conversation with Ted in early April 2023. During this telephone conversation, Veronica and Ted disagreed as to whether Ted, in his capacity as estate trustee, required consent from Veronica, Mat, and Jada before he could take any step in the administration of the Estate. During that exchange, Ted said the following to Veronica: “Don’t push me”; “I’m in charge”; and “if you come at me, I’ll come at your harder” (or words to that effect). In his responding affidavit, Ted does not deny making these statements.
[55] As noted in an earlier section of this ruling, Mat’s response to Veronica’s request to attend at the Property was to invoke advice he received from the police. In his responding affidavit, Mat does not deny invoking that advice.
[56] Neither Ted or Mat provides any explanation as to why they either failed to respond to Veronica’s communication over time or, when they did respond, they responded in an aggressive manner.
[57] Once again, the court emphasizes that it is incumbent upon the parties to communicate effectively and in a tone that is civil and respectful of one another.
Ancillary Matters
[58] The relief granted includes Veronica being entitled to obtain records related to the Estate for the period from the date of her father’s death forward. In his responding materials, Mat did not express any interest in being entitled to access those records.
[59] None of the parties filed a factum prior to the return of the application. The relief granted includes a term dispensing with the requirement for the parties to file their respective facta.
Disposition
[60] For the reasons set out above, the court makes an order in accordance with the draft order attached as Appendix ‘A’.
Costs
[61] Each of Veronica, Ted, and Mat filed a costs outline for use on the return of the application. At the conclusion of the hearing, the court received oral submissions on costs. Given the nature of the costs award requested by Veronica, the court set a timeline for the delivery of brief, written submissions addressing costs. The court received written submissions from Veronica and Ted.
The Positions of the Parties
[62] The positions of the parties regarding costs of the application are as follows:
a) Veronica asks the court to award her costs of the application on the full indemnity scale ($18,535), with the substantial indemnity portion of the costs to be paid by Ted personally and the balance of her costs to be paid from the Estate. b) Ted does not dispute that Veronica is entitled to her costs of the application. He asks the court to order that Veronica’s reasonable costs be paid, on a scale other than full indemnity, entirely out of the Estate. If the court requires Ted to personally pay Veronica’s reasonable costs, then he asks that the payment be made out of the Estate (i.e., from the trustee compensation to which he is ultimately entitled). c) Mat seeks his costs only if he is successful in opposing the application.
Measuring Success on the Application
[63] Veronica is successful on every element of the relief requested, with the exception of the terms pursuant to which she is entitled to attend at and inspect the Property. That issue was determined in accordance with the position advanced by Mat. I find that in the overall sense intended for the purpose of dealing with costs, Veronica is the successful party on the application. Mat’s success on the singular issue of Veronica’s attendance at the Property does not entitle him to his costs of the application. He is, however, not required to pay any costs to Veronica.
[64] At the heart of the application is the dispute between Veronica and Ted as to the administration of the Estate. Veronica is entirely successful in that regard. Ted does not dispute that Veronica is entitled to her costs of the application. The issues, then, are the scale on which costs are payable, the quantum at which Veronica’s costs are fixed, and the responsibility for the payment of those costs (i.e., as between Ted and the Estate).
The Scale
[65] Veronica is not entirely successful on the application. Both Ted and Mat are successful in their opposition to the relief requested by Veronica related to her attendance at the Property. For that reason, I decline to award costs on the full indemnity scale.
[66] For the following reasons, I find that Veronica is entitled to her costs on the substantial indemnity scale. In Davies v. Clarington (Municipality) et al., 2009 ONCA 722, at para. 28, the Court of Appeal for Ontario sets out the two circumstances in which elevated costs are warranted. The first set of circumstances—arising from a r. 49.10 offer to settle—does not apply in the matter before this court. The second set of circumstances does, however, apply in the matter before this court: “ where the losing party has engaged in behaviour worthy of sanction.”
[67] At para. 45 of Davies, the Court is careful to distinguish between “hard-fought litigation that turns out to have been misguided, on the one hand, and malicious counter-productive conduct, on the other. The former, the thrust and parry of the adversary system, does not warrant sanction: the latter well may.”
[68] I find that Ted engaged in counter-productive conduct worthy of sanction. Listed below are examples of that conduct:
- The following statements made by Ted to Veronica during their early April 2023 telephone conversation: “Don’t push me”; “I’m in charge”; and “if you come at me, I’ll come at your harder” (or words to that effect).
- Ted’s failure to provide Veronica with a copy of the Will after she had, for his benefit in his capacity as the estate trustee, retrieved the original from the Deceased’s safety deposit box and provided the original to Ted.
- Ted’s evidence includes the single-page, October 2023 letter from an appraiser. Ted’s evidence is that he provided Veronica with a copy of that document. He does not identify when he did so. He could not have done so until October 30 or 31, 2023 or any date thereafter.
- At para. 27 of his affidavit, Ted outlines the steps taken in the administration of the Estate. He does not identify when each of those steps was carried out. Ted does not explain why he waited until after the application was commenced to provide Veronica with a meaningful response in that regard.
- The exhibits to Ted’s affidavit identify that the notices of assessment for Ronald’s tax returns for 2022 and 2023 are dated April 29, 2024. Ted does not provide any evidence as to when he prepared the Deceased’s tax returns for those two years and submitted them to the Canada Revenue Agency.
[69] Ted did not only delay in responding to Veronica’s inquiries; he delayed in responding to inquiries made on her behalf by her counsel. In a December 22, 2023 letter, Veronica’s lawyer sets out Veronica’s concerns, lists the information that Veronica continues to require, and identifies that Veronica has incurred expenses for the Estate and for which she expects to be reimbursed.
[70] The letter includes the following caution regarding costs of an application if commenced by Veronica: “If your client is unwilling or unable to correct his application [for a certificate of appointment as estate trustee] and comply with these reasonable requests in a timely fashion, then I expect to have instructions to bring a motion for directions with respect to the administration of the estate, for which we would seek to hold your client personally responsible for my client’s legal costs.”
[71] I find that Ted’s conduct was counter-productive and fell short of that required of an estate trustee. For those reasons, Veronica is entitled to her costs of the application on the substantial indemnity scale.
The Quantum
[72] Veronica’s costs on the full indemnity scale are $18,535. In her costs outline, Veronica lists full indemnity costs totalling $16,497.44. To that amount she adds 3.5 hours of her counsel’s time for (a) the full duration of the hearing of the application, and (b) work on the written costs submissions. Veronica calculates her costs on the substantial indemnity scale as 90 percent (or 1.5 x 60 percent) of the full indemnity costs:
Fees $ 14,156.10 HST on fees $ 1,840.29 Disbursements (incl. HST) $ 760.49 Total $ 16,756.88
[73] I am satisfied that the costs detailed for senior counsel and associate counsel are reasonable, both in terms of the amount of time and hourly rates.
[74] The fee portion of the costs includes the time of two individuals described as “law clerk”. There is no information to assist the court in determining whether either individual is a paralegal. Nor is there any information to assist the court in determining the nature of the work done by those individuals. Are the fees for their work related to administrative work or to legal work?
[75] Pursuant to the decision in Vriend v. Vriend, 2024 ONSC 4015, paras. 49-61, I exclude from the costs awarded to Veronica the substantial indemnity fees for the work of the two law clerks. I reduce the fees, and applicable HST, by a total of $2,425.
[76] I find the disbursements are reasonable.
[77] In summary, Veronica is awarded her costs of the application on the substantial indemnity scale fixed in the amount of $14,330 ($16,756.88 - $2,425.00). How are those costs to be paid?
Method of Payment
[78] In determining how Veronica’s costs are to be paid, I follow the modern approach to costs in estate litigation: McDougald Estate v. Gooderham, at paras. 78-80. I find that the difficulties related to the administration of the Estate at this time do not arise from ambiguities in the Will. The dispute before this court related exclusively to the practicalities of administering the Estate; the dispute does not relate to either the distribution of the Estate or challenges to the validity of the Will, the latter because of the manner in which it was completed.
[79] I find that the application was necessary because of Ted’s unresponsive, uncooperative, and aggressive attitude when carrying out his role as estate trustee. The Estate is modest in size. It would be unfair to the beneficiaries to permit Ted to rely on the Estate to fund any portion of the costs awarded against him. By that, I mean that Ted is responsible to pay the entirety of the substantial indemnity costs awarded to Veronica.
[80] Given the modest value of the Estate, it is possible that the estate trustee compensation to which Ted will be entitled over time will not be sufficient to cover the entire amount of costs awarded against him. For that reason, Ted is not entitled to defer payment of costs so as to be able to rely on his compensation as estate trustee from which to pay Veronica’s costs.
[81] The order attached as Appendix ‘A’ provides Ted with 60 days from the date of this order within which to pay Veronica’s costs.