No reason to depart from normal award of costs despite concerns about depleting estate

Ontario civil | Estates and Trusts | Mental incompetency | Practice and procedure in mental incompetency proceedings

Adult children of elderly mother suffering from Alzheimer’s disease, M, A, C and P, could not agree on her care. Counsel was appointed for mother, C was appointed guardian of mother’s personal care, bank was appointed guardian of mother’s property, and M as was appointed mother’s litigation guardian. Mother’s counsel obtained order replacing C as guardian of mother’s personal care with M. P and C brought number of unsuccessful appeals which depleted estate and sought to discredit mother’s counsel and applications judge. Hearing was held to determine costs. M was awarded $24,400 in costs for review motion and appeals on partial indemnity basis, inclusive of fees, disbursements and HST, paid by bank as guardian of property for mother, from current assets of mother, with amount offset against any inheritance P and C were to receive on death of mother, equally. Any unpaid costs orders in proceedings in favour of M, payable by P and or C, were to be paid by bank as guardian of property for mother, from current assets of mother, to be offset against any inheritance P and C were to receive on death of mother, equally. Despite M’s concerns about depleting mother’s estate, there was no reason to depart from normal practice of awarding costs on partial indemnity basis to successful party.

Childs v. Childs (2017), 2017 CarswellOnt 11044, 2017 ONCA 608, Eileen E. Gillese J.A., Grant Huscroft J.A., and Gary T. Trotter J.A. (Ont. C.A.); additional reasons (2017), 2017 CarswellOnt 9394, 2017 ONCA 516, Eileen E. Gillese J.A., Grant Huscroft J.A., and G.T. Trotter J.A. (Ont. C.A.).

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