September 24, 2024
We posted an article recently highlighting the issue of the risk of battles over dog ownership, focused on the case of Carvalho v. Verma, a particularly hard-fought battle.
How hard fought?
The court has now considered the costs of this application. Noteworthy is the fact that the two sides spent a collective total of over $250,000.00 in legal costs to fight over ownership of the dog.
The successful applicant sought over $200,000.00 in full indemnity costs against the respondent. Alternatively, she sought over $190,000.00 in substantial indemnity costs, or $129,000.00 in partial indemnity costs.
The losing party had partial indemnity costs of about $55,000.00.
In Ontario, the unsuccessful party normally must pay partial indemnity costs to the winner. Substantial indemnity costs are awarded in exceptional cases either because the loser ought to have accepted an earlier offer rather than proceed to the hearing, or to sanction the misconduct by the losing party. Full indemnity is almost never awarded.
Costs are always discretionary, but there are certain principles that judges follow. It is more than simply the hours spent by the lawyer times a reasonable hourly rate. Among the factors that a court considers in determining costs is proportionality – they must be reasonable for the losing part to pay, all circumstances considered. Another factor is the importance of the issue.
In this case, the losing party had offered to pay $100,000.00 for the dog. The judge took this to mean that the issue was very important to the parties. They awarded $83,570.00 (inclusive of legal fees, disbursements and taxes), the midpoint between the partial indemnity claims of the two parties.
We report on these costs to emphasize what we said in our first article- avoiding court disputes over who gets the dog is important.
Our takeaways bear repeating:
- Planning for your pets should be part of your estate planning.
- Consider the factors listed by this case.
- Leave a clear written summary of your position on ownership, either by will or separate document, which addresses the factors listed in our earlier article, to avoid a dispute as substantial and expensive as this case.
WHAT WEILERS LLP CAN DO TO HELP YOU
We ask the right questions and provide sound advice for all your estate planning decisions, including who gets the dog. We use a combination of a questionnaire and a personal meeting that surpasses the reliability of a do-it-yourself kit or computer program. We are willing to take the time to customize the estate plan, including the will, to fit your needs.
Whether it is concern about man’s best friend, or other issues that make YOUR estate plan personal to you, give us a call. We may be the right lawyers for you.