In a recent court of appeal decision, the court upheld the trial judge’s costs award and reiterated the deference allotted to trial judges when exercising discretion to fix costs.

In Prelorentzos v. Havaris, the court dismissed the appellant’s appeal.  At trial, the appellant was found to be the deceased’s common law spouse and was awarded $30,000 from his estate.  However, the trial judge was frustrated with the lack of disclosure made by the appellant and had issues with her credibility and conduct at trial. The appellant was ordered to pay costs of $20,000 to the respondent (the testator’s legal wife).  In part, the appellant sought to appeal the costs award which she argued should be paid from the deceased’s estate.

The court dismissed the appeal and upheld the costs order. The appeal court found that the trial judge was right to follow the new approach in estate litigation of costs payable by a party and not out of the estate. The appeal court went on to award costs to the respondent of $18,000 for the appeal. As such, the appellant’s costs payable to the respondent exceeded the support she received from the estate.

With respect to the “new costs approach”, as always, trial judges continue to have wide discretion when fixing costs.  While costs may normally be payable by parties, other recent cases have fixed the payment of costs from the estate, usually for public policy reasons. In Driscoll v Driscoll, the objectors’ costs were paid from the estate, even though the objectors had declined a reasonable settlement offer. The court found that the objectors had reasonable grounds to pursue a will challenge. In Fournier v. Harinko, the unsuccessful party’s costs were paid from the estate for public policy reasons.

Costs orders continue to be fact driven with a high degree of deference from the appeal court to trial judges’ discretion.

Thanks for reading,

Diane