In Nanchin v. Peller, 2022 ONSC 1760 (CanLII), the Applicant, Tiffany, brought a motion for interim support from the deceased’s estate. The decision turned on whether Tiffany was a “spouse” of the deceased. That is, whether she cohabited continuously with the deceased for a period of not less than three years. The burden of proof was on her, on a balance of probabilities.
Tiffany was not successful on her motion for interim support. Her application was allowed to continue. As the court noted, it is possible that Tiffany will succeed at the hearing of her application, but not at this point, not on an interim basis.
(We blogged on the interim support decision, here and discussed it on our podcast here.)
On the issue of costs, reported at Nanchin v. Peller, 2022 ONSC 2846 (CanLII), the estate trustees claimed costs payable by Tiffany of $54,166.31, being their costs on a “partial indemnity” basis. Tiffany proposed that the costs of all parties be paid out of the estate, or alternatively, reserved to the judge hearing the main application, or in the further alternative, the parties should bear their own costs.
The court did not accept any of these arguments. The court observed:
- The estate trustees were successful and were presumptively entitled to costs.
- Costs out of the estate is contrary to the current trend that the normal costs rules in civil litigation apply unless there was some relevant public policy consideration that dictates that costs should be paid out of the estate. There were no such public policy considerations in the matter before the court.
- There was no basis for deferring the costs question to the application judge, and it was easier and less expensive to fix costs at each step of the proceeding.
- It was not reasonable to suggest that each side bear their own costs as success was not divided.
The court did, however, reduce the quantum of costs to $35,000, noting that the amount claimed of $54,166.31 on a partial indemnity basis “is a lot of money to pay for costs of a motion which was argued in one-half day and which could not have resulted in a final order being made.”
A lot of strategic thought goes into the litigation process and the question of whether to take certain steps. In this case, the motion for interim support was heard in March, 2022. The application was to be heard in October, 2022. Success or failure on the motion would not determine the ultimate outcome of the application, but it would go a long way to suggesting how the matter might play out. It is not clear from the decisions as to what support was being sought. However, whatever the amount, it would only have been for a limited time. It is also not clear whether interim support for legal costs was sought. Often, such an award is necessary to allow a claimant to proceed with their claim. Failure to get interim support for costs often short-circuits the claim. If, on top of that, there is a significant adverse costs award, the matter may be even less likely to proceed.
Thank you for reading.