



COURT OF APPEAL FOR ONTARIO

CITATION: Welton Estate v. Haugrud, 2017 ONCA 831

DATE: 20171030

DOCKET: C63326

MacFarland, Hourigan and Pardu JJ.A.

In the Matter of the Estate of David Munro
    Welton, deceased

BETWEEN

The Bank of Nova Scotia Trust Company in its
    capacity as Estate Trustee of the Estate of David Munro Welton

Applicant (Respondent)

and

Catherine Haugrud, Kym Welton, David Munro Welton
    Jr.,
Darlene Alice May Welton
, Morgan Welton, Gray
    Welton, Jack Haugrud, Emma Haugrud, and The Childrens Lawyer

Respondents (Appellant)

Robert Rueter and David Barbaree, for the appellant

Craig Vander Zee, for the respondent The Bank of Nova
    Scotia in its capacity of Estate Trustee

Justin de Vries, for the respondent Catherine Haugrud

Michael Bordin and Karen Watters, for Simpson Wigle Law
    LLP

Bianca La Neve, for the Office of the Childrens Lawyer

Heard and released orally: October 23, 2017

On appeal from the order of Justice Ruth Mesbur of the Superior
    Court of Justice, dated December 29, 2016.

REASONS FOR DECISION

[1]

The appellant who is the widow of the deceased testator did not
    challenge the will and elected to take under the will. In these circumstances,
    the motion judge was correct to proceed with the rectification motion before
    her. That motion, which was opposed only by the appellant, was to correct an
    error the drafting solicitor conceded he made, one where his evidence was
    corroborated by that of the deceaseds accountant. In our view, the deceaseds
    intention to liquidate sufficient shares that he owned to provide two of his
    children with $1 million each was apparent on the face of the will and
    redemption of 150 class D shares which he did not own when the will was
    drafted, would not have in any event have provided this necessary funding. In
    these circumstances, the motion judge made no error in receiving Mr. Milnes
    evidence.

[2]

The motion judge relied on correct legal principles as set out in
Robinson
    Estate v. Robinson
, 2011 ONCA 493 and applied those principles correctly. The
    factual findings are amply supported by the evidence she had before her. In our
    view, this appeal is simply an effort to have this court re-hear the issues
    that were before the motion judge, but to decide them differently. That is not
    the role of this court.

[3]

The appellant also seeks leave to appeal the motion judges costs
    disposition. It goes without saying that leave to appeal costs is sparingly
    granted and only where there has been an error in principle, or where the
    result is plainly wrong will this court intervene.

[4]

The argument before us seems to be that in not granting her costs below,
    and requiring her contribution to some of the other parties, the motion judge
    failed to take into consideration the public policy aspects of estate
    litigation. And accordingly it was unfair to deny the appellant her costs
    below and to require her contribution to the difference between full and
    partial indemnity costs to the other parties.

[5]

We disagree. It is clear from her endorsement that the motion judge was
    alive to the different considerations that apply in estate matters in relation
    to public policy issues: see para. 16 of her reasons. Her endorsement in
    relation to costs is reflective of the evidentiary findings she made on the
    particular facts of the case before her. We would not interfere, and leave to
    appeal is denied.

[6]

In the result, the appeal is dismissed as is the motion for leave to
    appeal costs.

[7]

In our view, all of the parties should receive their partial indemnity
    costs payable by the appellant. The estate trustee, Bank of Nova Scotia is
    entitled to its full indemnity costs  of $16,410.99 payable as follows:

-

by the appellant, its partial indemnity costs of $9625.34;

-

the balance of $6785.65 by the estate.

[8]

The Childrens Lawyer should receive its full indemnity costs of $10,000
    payable as follows:

-

Its partial indemnity costs of $7000, by the appellant;

-

the balance of $3000 by the estate.

[9]

Catherine Haugrud should have her full indemnity costs of $49,206.26
    payable as follows:

-

by the appellant, her partial indemnity costs of $28,856.25;

-

and the balance of $20,305.01 from the estate.

[10]

The
    non-party lawyer should receive his partial indemnity costs only in the sum of
    $33,957.89 from the appellant.

[11]

All
    figures are inclusive of disbursements and HST.

J. MacFarland J.A.

C.W. Hourigan J.A.

G. Pardu J.A.


