



COURT OF APPEAL FOR ONTARIO

CITATION: Childs v. Childs, 2017 ONCA 608

DATE: 20170720

DOCKET: C61581 & C62716

Gillese, Huscroft and Trotter JJ.A.

BETWEEN

Michael Childs and Andrew Childs

Applicants

(Respondents)

and

Peter Childs
,
Caroline
    Childs
and the Public Guardian and Trustee

Respondents (Appellants)

AND BETWEEN

Peter Childs and
Caroline Childs

Applicants

(Appellant)

-and-

Michael Childs, Andrew Childs, Eileen Vera Childs
    and the Ontario Public Guardian and Trustee

Respondents

(Respondents)

Peter Childs and Caroline Childs, in person

Michael Childs and Andrew Childs, in person

Alexandra V. Mayeski, for BMO Trust Company

Debra Stephens and Kaylie Handler, for the intervener
    Wendy Griesdorf

Richard Coutinho, for the Public Guardian and Trustee

Heard: May 4, 2017

On appeal from the decision of Justice Gary W. Tranmer of
    the Superior Court of Justice, dated June 25, 2015, and the judgment dated December
    16, 2015, with reasons reported at 2015 ONSC 4036 and at 2015 ONSC 6616.

COSTS ENDORSEMENT

[1]

By reasons dated June 20, 2017, this court
    dismissed the review motion and within appeals heard on May 4, 2017. The
    parties were invited to make written submissions on costs of the appeals and
    the review motion, if they were unable to agree on those matters.

[2]

The court was advised that the parties agreed on
    the costs in respect of the following:

1.

The Public Guardian and Trustee sought no costs
    and there shall be no costs ordered payable to it.

2.

The costs of the Intervenor, Ms. Griesdorf, related
    to the review motion and appeals heard May 4, 2017, in the amount of
    $28,057.35, inclusive of fees, disbursements and HST shall be paid by BMO Trust
    Company, as guardian of property of Eileen Childs, from Eileen Childs current
    assets, to WELPartners LLP, counsel for the Intervenor from the current assets
    of Eileen Childs.  This includes the $5,000 amount ordered to be paid to the
    Intervenor pursuant to the Order of Justice McLeod dated November 10, 2016. 
    The amount of $28,057.35 shall be offset against any inheritance that Peter
    Childs and Caroline Childs are to receive on the death of Eileen Childs, equally,
    or as Peter Childs and Caroline Childs otherwise agree in writing.

3.

The costs of BMO Trust Company, related to the
    review motion and appeals heard May 4, 2017, in the amount of $18,996.93
    inclusive of fees, disbursements and HST, shall be paid by BMO Trust Company,
    as guardian of the property of Eileen Childs, to Mayeski Mathers LLP, counsel
    for BMO Trust Company, from the current assets of Eileen Childs.  The amount of
    $18, 996.93 shall be offset against any inheritance that Peter Childs and
    Caroline Childs are to receive on the death of Eileen Childs, equally or as Peter
    Childs and Caroline Childs otherwise agree in writing.

[3]

The court was asked to include the agreed on
    terms, set out in para. 2 above, in this endorsement and we are content that
    such an order should go.

[4]

Andrew Childs advised the court that he sought
    no costs but supported the position of Michael Childs on the matter of costs.

[5]

Michael Childs sought costs of approximately
    $50,000, on a full indemnity basis, for the appeals and review motion. He also
    asked that other outstanding costs orders be paid from Eileen Childs assets
    conditional on BMO Trust Company advising that such a payment was compatible
    with Eileen Childs ability to finance it from her guardianship plan of care.
    He asked that any amounts not immediately paid from Eileen Childs assets
    should be paid from her estate, on her death. He further asked that any costs
    payments made from Eileen Childs assets should be set off against any
    inheritance that Peter Childs and Caroline Childs are to receive on Eileen
    Childs death.

[6]

Peter Childs and Caroline Childs say that
    Michael Childs claim for costs is unreasonable. They ask that the court take
    into consideration the fact that Caroline Childs had the role of a full time
    live-in caregiver of an incapable person with dementia for over five years and
    that their actions truly benefitted Eileen Childs. They ask that all appeal
    costs be paid by the estate of Eileen Childs.

[7]

We see no reason to depart from this courts
    normal practice of awarding costs on a partial indemnity basis to the
    successful party. Accordingly, we order costs of the review motion and appeals
    in favour of Michael Childs in the amount of $24,400, inclusive of fees,
    disbursements and HST. Such costs shall be paid by BMO Trust Company, as
    guardian of property for Eileen Childs, from the current assets of Eileen
    Childs and that amount shall be offset against any inheritance that Peter
    Childs and Caroline Childs are to receive on the death of Eileen Childs,
    equally.

[8]

Further, we order that any unpaid costs orders
    in these proceedings in favour of Michael Childs, payable by Peter Childs
    and/or Caroline Childs, shall also be paid by BMO Trust Company, as guardian of
    property for Eileen Childs, from the current assets of Eileen Childs and those
    amounts shall be offset against any inheritance that Peter Childs and Caroline
    Childs are to receive on the death of Eileen Childs, equally.

[9]

We appreciate the concern that Michael Childs
    expressed about depleting Eileen Childs estate and possibly compromising her
    ability to finance her guardianship of care plan. However, we decline to make a
    conditional costs order of the sort sought by Michael Childs as it is not
    workable.

[10]

Order to go in accordance with these reasons.

Eileen E.
    Gillese J.A.

Grant Huscroft
    J.A.

Gary T. Trotter
    J.A.


