Superior Court of Justice – Ontario

Court File No.: CV-23-00703028-00ES
Date: 2025-02-06

Style of Cause

Re: In the Estate of Augustus Kenrick Forde, deceased

Applicant: Roxanne Forde (also known as Roxan D. Forde, also known as Roxanne Forde-Gooden)

Respondents:
Denise Dockery (in her personal capacity and as Estate Trustee of the Estate of Augustus Kenrick Forde, deceased),
Earle Forde,
Cedrick Forde,
Tenisha Forde,
Chyvonne Bennett,
Keisha Robertson-Forde,
Tevin Forde

Before: M.D. Faieta

Counsel:
Cassandra Fafalios, for the Applicant
Kerry-Ann Ebanks, as agent, for the Respondents Denise Dockery, Earle Forde, Cedrick Forde, Tenisha Forde, and Chyvonne Bennett

Heard: In writing

Costs Endorsement

Background

1The applicant, Roxanne Forde, brought this application for an order that the Will of her late father, Augustus Kenrick Forde, was invalid on the basis that the deceased lacked testamentary capacity, did not know and approve of the contents of the Will, and made the Will under undue influence. The applicant raised suspicious circumstances related to the first two grounds; however, she ultimately failed to establish any grounds for invalidating the Will, with the result that her application was dismissed. See Forde v. Dockery, 2024 ONSC 5878.

Submissions on Costs

2The applicant submits that both her costs and the costs of the respondents should be paid out of the Estate. The applicant seeks her costs of $56,184.17 inclusive of HST and disbursements, on a full indemnity basis. The respondents seek their costs of this application on a full indemnity basis in the amount of $89,581.24 inclusive of HST and disbursements. In addition, the respondent Denise Dockery, also Estate Trustee, is seeking additional full indemnity costs of $15,000.00 for representation of the Estate without counsel from July 2019–July 2020.

Principles Governing Costs in Estate Litigation

3The principles related to the award of costs were described by the Ontario Court of Appeal in Westover Estate v. Jolicouer, 2024 ONCA 81, as follows:

12 It is now well-established that estate litigation, like all civil litigation, is subject to the general civil litigation costs regime. The historical approach in estate proceedings that all parties' costs are paid out of the estate has been displaced by the modern approach to fixing costs in estate litigation that seeks to ensure estates are not depleted through the costs of unnecessary litigation and the assets of an estate are not treated "as a kind of ATM bank machine from which withdrawals automatically flow to fund their litigation": … The same rules that govern costs in civil litigation at the appeal level apply in estate litigation: …

13 Exceptions to the general approach may arise in limited cases where public policy considerations apply and mandate a different result: … Public policy considerations include the need to give effect to valid wills that reflect the intention of competent testators as well as the proper administration of estates: …

14 Estate trustees are generally "entitled to be indemnified for all reasonably incurred costs in the administration of an estate": ... Saddling estate trustees personally with legal costs where litigation was caused by the testator might well discourage them from initiating reasonably necessary legal proceedings to ensure the due administration of an estate: … However, this is not an absolute rule. A court may order otherwise if an estate trustee has acted unreasonably or in substance for their own benefit, rather than for the benefit of the estate: … [Emphasis added]

Application of Principles to the Facts

4If there are reasonable grounds to question the execution of the will, or to question whether the testator had testamentary capacity when making the will, then it may be in the public’s interest to resolve this question without cost to those questioning the will’s validity: Babchuk v. Kutz, 2007 ABQB 88, paras. 70-76, aff’d 2009 ABCA 144. Given the finding of suspicious circumstances (which served to place the onus on the respondents to prove that the deceased knew and approved of the contents of the Will and had testamentary capacity), I find that it is reasonable to order that only 50% of the respondents’ costs shall be paid by the applicant.

5The applicant submits that the amount of costs sought by the respondents are excessive and unreasonable in that they are almost double the applicant’s costs. In fact, the applicant’s costs are about 63% of the respondents’ costs. The respondents’ counsel note that they were retained 3½ years prior to the applicant’s counsel, who was initially retained for the limited purpose of conducting examinations. The respondents seek their costs not only in relation to this application that was commenced in July 2023 but also with respect to another application commenced in 2019 by Denise Dockery for the issuance of a Certificate of Appointment as Estate Trustee that was contested by the applicant. Costs of that earlier application are to be dealt with in that proceeding, not this one. With that context, I find the amount of the respondents’ actual costs are unreasonable and fix them, in relation to this application, in the amount of $65,000.00.

6Full indemnity costs are only awarded in exceptional circumstances. I find that there is no basis for the respondents’ claim for full indemnity costs from the applicant. Only one settlement offer was made. The applicant’s offer, made shortly before the hearing of this application, did not qualify as a Rule 49 offer nor did it come close to beating the outcome on this application. I find that the respondents are entitled to their partial indemnity costs. On a partial indemnity basis this amounts to $39,000.00. Accordingly, the applicant is ordered to pay $19,500.00 in costs to the respondents. The balance of the respondents’ costs of $45,500.00 shall be paid from the Estate given that Denise Dockery, as Estate Trustee, is entitled to be reimbursed from the Estate for all reasonably incurred costs.

Additional Claims for Costs

7The respondent Denise Dockery also claims additional full indemnity costs of $15,000.00 for representation of the Estate from July 2019–July 2020, which was prior to counsel’s involvement. For the same reasons as described above, Ms. Dockery’s claim is dismissed as her claims for costs are not in respect of this application. Further, in Girao v. Cunningham, 2021 ONCA 18, para. 9, the Ontario Court of Appeal stated that:

Fees should only be awarded to those lay litigants who can demonstrate that they: a) devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation; and b) as a result, incurred an opportunity cost by foregoing remunerative activity.

8While the respondents state that Ms. Dockery is a paralegal, there is no evidence regarding why $150 per hour is a reasonable figure, nor any evidence that she had to forego remunerative activity.

Applicant’s Claim for Costs from the Estate

9The applicant claims her costs of $56,184.17 from the Estate on the same public policy grounds as described above, namely that she had reasonable grounds to question the deceased’s testamentary capacity. I find that this request is unreasonable. First, the applicant has already received credit for that public policy consideration given that she will only be responsible for 50% of the respondents’ costs with the result that the Estate will absorb the balance. Second, it would further deplete a very modest Estate. Third, the request places too little weight on the fact that her application was dismissed. Fourth, the request goes too far in that it would remove most of the financial consequences that the applicant should have been expected to have resulted from having her application dismissed.

Order

10Order to go as follows:

(a) The applicant shall pay costs of $19,500.00 inclusive of HST and disbursements to the respondents.

(b) The respondents are entitled to the balance of their costs of $45,500.00 inclusive of HST and disbursements from the Estate.

(c) The applicant’s claim for costs from the Estate is dismissed.

(d) Denise Dockery’s own claim for costs of $15,000.00 from the applicant is dismissed.

M.D. Faieta