Superior Court of Justice – Ontario
Court File No.: CV-24-910
Date: 2025/07/15
RE: Karen Marie Skinner, Applicant
AND: Kathleen Margaret Power and The Public Guardian and Trustee, Respondents
Before: K. Tranquilli
Counsel:
- Leanne Kuchynski, for the Applicant
- Douglas Ferguson, Section 3 Counsel for the Respondent Kathleen Power
- Kelley Walker and Kimberley Bryce – self-represented responding parties
Heard: In Writing
Endorsement
Introduction
[1] This contested application arose from a conflict amongst siblings about the care of their incapable sister. The parties now require the court’s determination of costs. At issue is an underlying settlement agreement that was to have guided the conduct of this application, including the satisfaction of any costs incurred.
[2] The applicant, Karen Skinner, was wholly successful in obtaining judgment appointing her as Guardian for Property and Person for her respondent sister, Kathleen Margaret Power, pursuant to sections 22 and 55 of the Substitute Decisions Act, 1992.
[3] The applicant seeks a “blended” costs award of $69,554.77, with $8,000 of that sum to be paid by the parties’ mother on behalf of their incapable sister, who has very modest financial means. The applicant proposes that the remaining sum of $61,544.77 is to be paid personally in equal shares by her sisters, the unsuccessful responding parties, Kelley Anne Walker and Kimberly Ann Bryce, from their eventual shares in their mother’s estate. The applicant explains that the sum of $8,000 sought to be paid from their mother represents the estimated costs of an unopposed application. She submits that the responding parties disputed the application contrary to the terms of the settlement agreement, thereby unjustifiably increasing the costs such that they should be personally responsible.
[4] The responding parties question the reasonableness of costs sought against them and submit that, in any event, costs arising from their opposition to the application should be paid on behalf of the mother/from their mother’s estate, as is contemplated by the agreement.
[5] Section 3 counsel does not seek costs and did not provide submissions regarding costs.
Background
[6] Kathleen Power has permanent and significant intellectual and developmental limitations. She previously lived in the care of her mother, Alice Power, in Ontario until late 2021, when Alice Power was urgently placed into long-term care with a diagnosis of vascular dementia. A disagreement then arose among Ms. Power’s three sisters as to whether Ms. Power would reside under her sister Kelly Anne Walker’s care in Alberta or under her sister Karen Skinner’s care in Ontario.
[7] The dispute first crystallized through collateral proceedings by Ms. Skinner and Ms. Walker in Alberta and was eventually resolved through a settlement agreement prepared with the assistance of counsel. The settlement agreement of June 2023 was entered into by all four of Ms. Power’s siblings (her brother has not participated in the litigation). Pursuant to that agreement, Ms. Skinner was appointed as Ms. Power’s guardian and trustee in Alberta. The agreement also contemplated that Ms. Skinner would next apply to this court to be appointed as guardian for personal care and property for their sister in Ontario and on consent of the siblings.
[8] Ms. Skinner’s and Ms. Walker’s costs of the Alberta proceedings and Ms. Skinner’s costs in bringing the Ontario application were also to be paid from their mother’s finances/estate. Ms. Skinner and Ms. Walker are the co-attorneys for property for their mother, Alice Power. Paragraph 24 of the settlement agreement provides:
The legal costs incurred by Kelley and Karen will be reimbursed to Kelley and Karen from the funds of Alice Power, including Karen’s legal costs for the Application for Guardianship of Person and Property in Ontario.
[9] The agreement expressly noted costs as a factor in the parties’ intention to resolve the capacity litigation:
Finally, please be advised that Karen and Kelley’s cumulative legal costs are currently approximately $80,000 - $90,000 plus costs and disbursements. If contentious litigation continues, these legal costs will increase. It is Karen’s and Kelley’s position that it is in the interest of all Parties to settle these guardianship and trusteeship arrangements in Alberta and Ontario.
[10] Notwithstanding their recognition of the agreement, sisters Kelley Anne Walker and Kimberly Ann Bryce opposed this application. Among other concerns, they alleged the applicant was not honouring the terms of the agreement. This application therefore proceeded on a contested basis through to a hearing after the exchange of affidavits, cross-examinations on those affidavits, the appointment of Section 3 counsel and the delivery of written submissions.
[11] By reasons reported at 2025 ONSC 3207, I allowed the application and granted judgment finding the respondent Kathleen Power incapable of managing her property and making decisions concerning her care, and appointed Ms. Skinner as her Guardian for Property and Personal Care.
Positions of the Parties
[12] The applicant submits that her additional costs of $61,554.77 were caused by the responding parties’ unreasonable and bad faith conduct. They disregarded the settlement agreement and forced an unproductive relitigation of the issues. They exacerbated the conflict and increased expenses through making scandalous and meritless claims of financial misappropriation and other breaches of fiduciary duties to which the applicant had to respond for which the responding parties offered no evidence beyond repeated bald assertions. With their repudiation of the agreement, the applicant notified her sisters she would seek these application costs against them. She gave them several opportunities to reconsider their position. The applicant proposes that Ms. Walker’s and Ms. Bryce’s costs are to be payable from their eventual residual shares in their mother’s estate.
[13] The responding parties Ms. Walker and Ms. Bryce submit that any costs for this application should be paid from their mother’s estate, as contemplated by the settlement agreement. They maintain they are not responsible for the applicant’s own decision to incur a significant amount of legal fees. They suggest her decision to retain counsel was unreasonable given that they were self-represented. Similarly, they question the reasonableness of costs. They estimate they invested between 150 and 250 hours of their own time, which, at $30/hour would approximate costs between $4,500 and $7,500.
Analysis
[14] The court understood from submissions during the hearing that Ms. Power is of very modest financial means. However, the parties’ mother’s assets and estate planning have assisted in providing for their sister and Ms. Skinner and Ms. Walker are co-attorneys for property for their mother. Importantly, as reflected in the settlement agreement, their mother’s financial resources have been the means of establishing their sister’s guardianship.
[15] The responding parties expect that their mother’s funds are available to finance this contested guardianship application. It is ironic that they seek the protection of the settlement agreement cost provisions after they otherwise disregarded the core intention of the same agreement by opposing this application.
[16] While the source of litigation funds in this guardianship application is somewhat different, I find that the comments of the court in Fiacco v. Lombardi remain apposite. I have considered those principles in the exercise of my discretion. Estate disputes, including capacity litigation, and like any other form of civil litigation, operate subject to the general civil litigation costs regime established by s. 131 of the Courts of Justice Act and r. 57 of the Rules of Civil Procedure. The “loser pays” principle promotes discipline and accountability. Parties must assess their personal exposure to costs before launching down the road of a lawsuit or motion. This is particularly important with the emotional dynamics of estate litigation. The parties cannot treat the available assets of the estate or incapable person as a kind of ATM bank machine from which withdrawals automatically flow to fund their litigation. A contested guardianship application may lose sight of its purpose to benefit the incapable person and degenerate into a battle amongst siblings. It is therefore necessary to insert a modicum of reasonableness into a party’s decision about whether to litigate a dispute. In considering who is to bear the costs of this litigation, a court must examine what benefit, if any, the incapable person derived from the legal work which generated those costs: Fiacco, at paras. 31-36.
[17] The applicant, as the successful party, is entitled to her costs of the application. The application was necessary for the benefit of Kathleen Power. This should have proceeded on an uncontested basis, as was anticipated by the settlement agreement, and demonstrated by the evidence. The sustained and entrenched opposition by the responding parties to the application was the direct cause of the significant increase in costs. It would be reasonable if the responding parties had some initial questions and concerns about the application and the management of their sister’s property and care since execution of the settlement agreement. However, it was evident from their stance throughout this litigation that the responding parties would not be satisfied with any explanation and that there was some dissatisfaction with the merits of the settlement agreement, which they nevertheless signed. Rather, they were intent on upending the guardianship arrangements in both Ontario and Alberta.
[18] The Public Guardian and Trustee screened the Guardianship and Management Plans and raised no concerns. The plans were also consistent with Kathleen Power’s views, as was expressed on her behalf by Section 3 counsel. In the end, the responding parties offered no compelling evidence of financial mismanagement by the applicant. They continued to rely on vaguely described incidents and concerns that predated the settlement agreement and both proceedings. In all the circumstances, I find that the positions taken were not for the benefit of their incapable sister, were not grounded in evidence and were therefore unreasonable, warranting elevated costs.
[19] Moreover, I find there is no reasonable basis on which the responding parties should have expected that their mother’s assets would fund their opposition to the application. This is precisely the type of conduct that the cost regime in this context is intended to discourage. The responding parties may not have been required to adhere to the agreement. However, having now disputed the application contrary to the agreement, and without producing any discernable benefit to their incapable sister, the responding parties cannot now reasonably expect that the costs caused by their opposition should also be borne by their mother’s resources, particularly where a primary rationale for the agreement was to limit further costs of contentious proceedings.
[20] I have carefully considered that the responding parties are self-represented and can be entitled to some latitude in the conduct of a matter to promote access to justice and to ensure that they are not unfairly disadvantaged. However, there must also be fairness and an equal application of the law to all parties in the proceeding, represented and self-represented. The settlement agreement evidences that the parties recently expressly turned their minds to the expense of contentious litigation and agreed that it was in the interest of all parties to settle the guardianship and trusteeship arrangements for their sister. And yet, the responding parties then proceeded to act contrary to that agreement and in so doing, the contested guardianship application lost sight of its purpose to benefit their sister. The applicant put the responding parties on notice that she would claim costs against them personally if they continued to oppose the application contrary to the agreement and she reminded them of her position throughout the course of the litigation. The record demonstrates the responding parties summarily deflected all further overtures by the applicant to revisit and resolve the matter on an uncontested basis to avoid further costs.
[21] Finally, I do not accept the responding parties’ suggestion that they could not have expected this quantum of costs. The agreement expressly noted the cumulative costs in the Alberta proceeding were in a range that exceeded the amount in issue on this application. The applicant should also not be penalized for retaining counsel to assist in the application. The involvement of counsel was within the reasonable expectations of the parties, given that both sisters, including one of the responding parties, were represented by counsel in the Alberta proceedings. A review of the applicant’s bill of costs also indicates that applicant counsel’s time on the file is reasonably similar to the upper end of the time the responding parties estimated they invested into the file.
[22] For these reasons, an order will go awarding the applicant her full-indemnity costs of this application in the amount of $69,554.77 inclusive of fees, disbursements, and applicable taxes, towards which the following contributions shall be made:
a. The sum of $8,000 is to be paid by or on behalf of Alice Power and on behalf of Kathleen Margaret Power; and
b. The sum of $61,554.77 is to be paid by Kelley Anne Walker and Kimberly Ann Bryce in equal shares of $30,777.39 each and which may be satisfied from Ms. Walker’s and Ms. Bryce’s shares in the Estate of Alice Power, as per the Last Will and Testament of Alice Power, dated February 14, 2012 (or under any other testamentary document executed by Alice Power).
Justice K. Tranquilli
Date: July 15, 2025