Ferris v Ferris, 2025 ONSC 1372

Ferris v Ferris, 2025 ONSC 1372

COURT FILE NO.: CV-24-86129-00ES
DATE: 2025-03-04
ONTARIO
SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE ESTATE OF CHARLES WILLIAM FERRIS, deceased

BETWEEN:
DEBORAH LYNN FERRIS (Applicant)
– and –
CHRISTOPHER FERRIS, GREGORY FERRIS, BRITTANY FERRIS AND EMILY GILRUTH (Respondents)

Brad Wiseman for the Applicant
Drew Bowyer for the Respondent, Christopher Ferris

HEARD: In writing

COSTS DECISION
Justice L. Sheard

Overview

1This application was brought by Deborah Lynn Ferris (“DLF”), one of two named co-estate trustees of the estate of their late father (the “Estate”), who died on October 28, 2022 (the “Deceased”). DLF asserted that her brother, Christopher Ferris (“CF”), refused to cooperate with her in the administration of the Estate. DLF’s application was for the removal of CF as an estate trustee, and for an order appointing her as sole estate trustee. The application was heard, and granted, on October 15, 2024.

2DLF and CF each receive 47% of the Estate. The remaining 6% of the Estate is divided as follows: 2% to the Deceased’s third child, Gregory Merrell Ferris (“GMF”), and 2% to each of GMF’s two children.

3CF opposed the application. The other respondents attended at the hearing but did not otherwise participate.

4As DLF was successful on her application, she is presumptively entitled to her costs. DLF and CF were invited to make written costs submissions, and this decision follows the receipt and review of those submissions.

Background

5The application first came before me on September 5, 2024. On that date, I granted an interim order, the effect of which was to allow DLF to take steps to move forward with the administration of the Estate and to restrain CF from interfering with DLF in that task. The hearing of the application was then adjourned to October 15, 2024, peremptory upon CF.

6On October 10, 2024, CF filed his own motion for an order transferring this application to Simcoe. DLF delivered a responding record on October 10, 2024. (The late delivery of CF’s motion record made it impossible for DLF’s responding record to meet the timelines under the Notice to Profession, which requires materials to be uploaded 5 days before a hearing.)

7CF’s motion did not proceed on October 15, 2024. However, in my oral ruling on the application, I acknowledged that a Certificate of Appointment of Estate Trustee would need to be issued out of the Simcoe court, and ordered that to the extent possible, the Simcoe court office give that application priority. In my view, my ruling rendered moot CF’s motion to transfer this application to Simcoe.

Positions of the Parties

8DLF seeks full indemnity costs of $26,474.82 of which she asks that CF pay $23,863, on substantial indemnity basis (90%). DLF asks that the balance of her full indemnity costs be paid from the Estate.

9In his responding costs submissions, CF submits that the Estate should pay both parties’ “reasonable costs on a substantial indemnity basis” which, he submits, would be “equal to 75% of the claimed costs submitted by the parties”.

10I understand from CF’s submissions that he agrees that 75% of the costs claimed by DLF would be “reasonable”.

The Law

11In her costs submissions, DLF references the costs principles set out in Dewaele v. Roobroeck, 2021 ONSC 1604, a decision of this Court in an estate matter. Dewaele states as follows:

[13] With respect to fixing costs, the starting point is s. 131 of the Courts of Justice Act, RSO 1990, c C.43 as amended, which provides that, subject to the provisions of an Act or rules of court, costs are in the discretion of the court, which may determine by whom and to what extent the costs shall be paid.

[14] The overriding objective in a cost award is that it be fair and reasonable. In part, what is reasonable is determined by the expectations of the parties, and, in particular, the reasonable expectations of the losing party:

[15] The general rule is that estate trustees are entitled to be indemnified for costs reasonably incurred in the administration of the estate: see Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, at 390-1; Sawdon Estate v. Watch Tower Bible and Tract Society of Canada, 2014 ONCA 101; and Brown v. Rigsby, 2016 ONCA 521.

[16] The “loser pays” costs regime applies to estate matters: see McDougald Estate v. Gooderham, 255 D.L.R. (4th) 435 (Ont. C.A.). As explained by Gillese J.A. in Neuberger Estate v. York, 2016 ONCA 303, 131 O.R. (3d) 143, at paras. 24 and 25, a blended cost award—in which a portion of the costs is paid by the litigants and a portion from the estate—is within the court’s discretion:

[24] In estates litigation in Ontario, the historical approach to costs has been displaced in favour of one in which the costs rules in civil litigation apply both at first instance and on appeal, unless the court finds that one or more of the relevant public policy considerations dictate that costs (or some portion thereof) should be paid out of the assets of the estate: McDougald Estate v. Gooderham, 255 D.L.R. (4th) 435 (Ont. C.A.), at para. 80; see also Sawdon Estate v. Sawdon, 2014 ONCA 101, 370 D.L.R. (4th) 686, at para. 101. The public policy considerations at play in estate litigation are primarily of two sorts: (1) where the difficulties or ambiguities that give rise to the litigation are caused, in whole or in part, by the testator; and (2) the need to ensure that estates are properly administered.

[25] Blended costs awards, in which a portion of costs is payable by the losing party and the balance is payable out of the estate, are available at first instance and on appeal, in the discretion of the court, where one or more of the relevant public policy considerations are found to be engaged: Sawdon, at paras. 93-100 and 107.

12In his costs submissions, CF references the more recent decision of McGrath v. Joy, 2022 ONCA 119. In McGrath, the appellate court overturned the lower court’s finding that a suicide note was not a codicil. The Court found that the circumstances surrounding the suicide note led to the litigation—i.e. it was the deceased’s conduct that caused the litigation. The Court found that public policy considerations applied such that the application was necessary to ensure that the deceased’s estate was properly administered, and, for that reason, all parties were entitled to their costs of the application from the estate.

13Rule 57.01 of the Rules of Civil Procedure, RRO 1990, Reg 194, sets out factors that I may consider in exercising my discretion. Overall, the objective is to fix an amount that is fair and reasonable, having regard for, among other things, the expectations of the parties concerning the quantum of costs: see Boucher v. Public Accountants Council for the Province of Ontario, at paras. 26 and 38.

Analysis

14The entitlement of an estate trustee to indemnification for reasonably incurred costs was confirmed in Sawdon Estate v. Watch Tower Bible and Tract Society of Canada, 2014 ONCA 101. At para. 82 the Court stated:

[82] In Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, [1991] 2 S.C.R. 353, [1991] S.C.J. No. 53, at pp. 390-91 S.C.R., Wilson J., writing for the court on this issue, reiterated the long-standing principle that estate trustees are entitled to be indemnified for all reasonably incurred costs, including legal costs. She quoted with approval the following statement from Dallaway (Re), [1982] 3 All E.R. 118, [1982] 1 W.L.R. 756 (Ch. Div.), at p. 122 All E.R.:

In so far as [an estate trustee] does not recover his costs from any other person, he is entitled to take his costs out of the fund held by him unless the court otherwise orders; and the court can otherwise order only on the ground that he has acted unreasonably, or in substance for his own benefit, rather than for the benefit of the fund.

15R. 57.01(4)(c) authorizes an award of costs on a substantial indemnity basis “where the losing party has engaged in behaviour worthy of sanction”: see Davies v. Clarington (Municipality), 2009 ONCA 722, 100 O.R. (3d) 66, at para. 28. Elevated costs should only be awarded where “there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties”: see Young v. Young, [1993] 4 S.C.R. 3, at p. 134.

16At para. 10 of his costs submissions, CF states: “It may be that how each or both of the parties conducted themselves and engaged in the dispute was unnecessarily provocative or even toxic. However, the uncivil tone of the dispute does not point to either party taking an unreasonable position”.

17In my view, the behaviour described above does apply to CF, but not to DLF. And, while I agree that an “uncivil tone” does not equate to taking an “unreasonable position”, in this case CF both took an uncivil tone and an unreasonable position. Both can be seen in CF’s letter of February 3, 2023 to DLF’s estate lawyer, Walter Jazvac. The letter begins:

I send this email against my better judgement and all Contempt, Disdain and Contempt to you, your office and my Lyn Ferris (my sister). I will make it clear I have just returned to Canada as of today and if NO Agreement can be put in place I will turn around and leave Canada next week and the Estate of my Parent's can wait, and wait and wait as far as I am concerned [sic].

18Another example may be found in CF’s transfer motion filed on October 10, 2024, in the face of an existing court order directing that the application proceed on October 15, 2024, peremptory upon CF.

19DLF seeks her costs of responding to CF’s motion which, she states, CF refused to abandon even after the ruling of October 15, 2024.

20In oral reasons, I found that CF ought to be removed as an estate trustee of the Estate, and that DLF be permitted to apply to act as sole estate trustee. The oral reasons state, in part:

I am persuaded that Christopher Ferris has clearly indicated that he is unable and unwilling to administer the estate in a proper manner in a way that is for the benefit of the beneficiaries. Rather, his communications make it clear that he has very little interest in moving the administration of the estate forward, clearly has very little respect or courtesy for the lawyer retained by his sister, the co-estate trustee, and is recently asserting that some of the contents of the estate, namely certain gold and silver bars and a vehicle, are his and not the estate assets. That is certainly a contentious issue, and one that puts him in a conflict.

So I find, based on the evidence before me, that because of the inability of the co-estate trustees to act together and, more particularly, because of the attitude expressed by Christopher Ferris in his correspondence and emails, slowing the administration of the estate or interfering with it altogether, that he should be removed as estate trustee, and that an order should issue allowing Deborah Lynn Ferris to apply as sole estate trustee of the estate of Charles William Ferris pursuant to his Will.

21In my view, DLF is entitled to full indemnity of her reasonable costs. I also find that CF’s conduct is worthy of sanction and can be characterized as reprehensible and outrageous. For that reason, I conclude that it is proper for me to exercise my discretion to award costs against him on an elevated scale.

22In determining what amount is reasonable, I have taken into account CF’s submission that 75% of the amount claimed by DLF is reasonable. I have also looked at CF’s full indemnity costs, which total $8,023.00, but which do not appear to include all time spent. For example, Mr. Bowyer has made no entry for his court attendance on September 5, 2024, for which Mr. Wiseman recorded 1.4 hours.

23In addition, DLF includes her costs of responding to CF’s transfer motion, which has been rendered moot by the Order made on October 15, 2024. I accept that DLF is entitled to her costs of CF’s motion, which are included in the amount awarded to her here.

Disposition

24Having considered the parties’ submissions and the applicable legal principles, I fix DLF’s fair and reasonable costs of this application and CF’s transfer motion at $26,474.82.

25For the reasons set out, I find that DLF, as an estate trustee, is entitled to be fully indemnified for her costs.

26I make the following blended costs order, payable forthwith:

1. CF shall pay DLF’s costs of the application and of CF’s motion in the total amount of $19,856.12, calculated on an elevated scale ($26,474.82 x 75%).
2. The balance of DLF’s costs of $6,618.70 ($26,474.82 - $19,856.12) shall be paid by the Estate.

27I award no costs to CF for the application or for his transfer motion.