Law Times

Law Times • June 19, 2017 Page 13 www.lawtimesnews.com Judge orders estate to pay damages in murder case BY DALE SMITH For Law Times A n Ontario Superior Court judge ordered damages be paid out from the estate of a Brantford, Ont. man who mur- dered his child and threatened his estranged wife with a knife before being shot dead by police. More significantly, the judge ordered the estate's executor to personally pay court costs when it came to fighting the order for damages. Lawyers say that the deci- sion in Craven v Osidacz and Osidacz, 2017 ONSC 1757 acts as a warning that trustees must treat an estate carefully when it comes to litigating wills. "[The ruling is] particularly relevant to the issue of a trustee's potential liability for costs on a personal basis," says Michael Jaeger, associate with Boddy Ryerson LLP in Brantford, Ont. who acted as counsel for the plaintiff. "It's been the law of the country for some years that 'the loser pays' principle applies in terms of estate litigation costs. Gone are the days when all the lawyers just feast on the estate." In the case, Julie Craven sought damages from the estate of her late estranged husband, Andrew Osidacz, after Osidacz stabbed their eight-year-old son Jared to death during one of his custody weekends in 2006, four years after the couple had sepa- rated after a domestic assault in- cident. Later that night, Osidacz forced his way into Craven's home, told her that he killed their son and terrorized her at knifepoint for 45 minutes, at which point he was shot dead by the Brantford Police. During the time that Osidacz was threaten- ing Craven, he telephoned his mother, Elizabeth, who lived two doors down who arrived at the home with two grandchil- dren, and she did nothing to assist Craven despite pleas for help, telling Craven that she had pushed Osidacz "too far," and locked the door before the police arrived. Osidacz's brother, Michael Osidacz, was named trustee in the will, and he and mother Elizabeth were the only benefi- ciaries, despite the fact that Cra- ven was receiving spousal and child support at the time of the fatal incident. Michael Osidacz began litigating to resist Craven's claims for compensation. The total value of assets of the estate amounted to $408,912.76, with approximately $130,000 avail- able at the time of trial. Craven sought family law damages for the death of her son, as well as general dam- ages, Dependant's Relief dam- ages under Ontario's Succession Law Reform Act and both ag- gravated and punitive damages for being held at knifepoint. As well, she had claims for arrears of spousal support. The judge ordered $565,000 in damages in total — more than was available from the estate, and ordered Michael Osidacz to reimburse $71,277,98 to the estate for liti- gation costs. "This is a hard-fought case with horrific circumstances, which is unlike most estate law cases where you're wrangling over the terms of a will or if the person had capacity. This was litigation on the substance of the issues," says Jaeger. "The trustee decided out of his own volition to fight each of those issues tooth and nail, as found by the judge. The sum total is that the judge ordered a significant repayment of legal costs that he incurred." Jaeger notes that they had to prevent even further depletion of the estate by the trustee with an injunction. "It stands as a warning for estate trustees that they'd bet- ter get direction from the court before they choose to embark on a path of aggressive litiga- tion, especially as with here, they did without any evidentiary ba- sis," says Jaeger. He noted that they are seeking a generous cost award for the case. The case is likely to be ap- pealed, notes Rick Simmons, partner with Ross & McBride LLP in Hamilton, Ont. who act- ed for the defence in this trial but none of the previous actions. "The litigation ramped up so fast that I think they lost sight of the big picture," says Simmons. "The plaintiff was traumatized, obviously, and it was just as emo- tional for the executor's family — their brother, son and grand- child were killed." Simmons says that in hind- sight it's easy to find people to blame for why they didn't settle, but with constant litigation, and even with pre-trial, the judges had plenty of opportunity be- forehand to pay out money in- stead of freezing the estate. "The estate bar is going to pay attention to it, because to go into your own pocket as an executor is quite unusual. . .," says Sim- mons. Some estate litigators are cautious about the ruling, saying it could put trustees in an im- possible situation. "How is an estate trustee sup- posed to know when you're sup- posed to get approval or when you're just supposed to defend claims in an ordinary court?" asks Miriam Vale Peters, partner with Kelly Manthorp Heaphy PC in Ottawa. "Under what cir- cumstances is an estate trustee supposed to exercise his or her own discretion? It seems a bit far-fetched to me to always have to go to the judge for approval." Pam MacEachern, partner with Nelligan O'Brien Payne LLP in Ottawa and head of the firm's family law practice group, says the case is unique. "Estate trustees are going to be given a degree of discretion in terms of making decisions," she says. "But, where it's a context that clearly tests their ability to do so based on the interests of benefi- ciaries and creditors, as opposed to their own personal issues, the safest thing is to go to court and ask for direction." LT Pam MacEachern says, 'Estate trustees are going to be given a degree of discretion in terms of making decisions.' TRUSTS & ESTATES GH95,(6/,7,*$7,21//3LVDOHDGLQJðUPLQHVWDWHWUXVWDQGFDSDFLW\OLWLJDWLRQ ZLWKRτFHVLQ7RURQWRDQG2DNYLOOH$UHDVRIH[SHUWLVHLQFOXGHZLOOFKDOOHQJHV EHQHðFLDU\DQGDWWRUQH\GLVSXWHVGHSHQGDQWVXSSRUWFODLPVFRQWHVWHGSDVVLQJ RIDFFRXQWVDQGGLVSXWHGHVWDWHDGPLQLVWUDWLRQ 2XUðUPKDVEXLOWLWVUHSXWDWLRQRQH[FHOOHQFHDQGHσHFWLYHDGYRFDF\:HDOVR KDYHDSURYHQWUDFNUHFRUGIRUHVWDWHDSSHDOV devrieslitigation.com 416.640.2754 Untitled-5 1 2017-06-13 2:21 PM

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