Steingarten v. Steingarten

Steingarten v. Steingarten Collection Decisions of the Court of Appeal Date 1999-06-22 Docket numbers C30263 Judges Finlayson, George Duncan; Weiler, Karen Merle Magnuson; MacPherson, James C. Subject Civil Decision Content DATE: 19990622 DOCKET: C30263 COURT OF APPEAL FOR ONTARIO RE: LINDA STEINGARTEN, IN TRUST (Plaintiff / Respondent) and LEONARD STEINGARTEN, EXECUTOR OF THE ESTATE OF THE LATE EARL MORTON STEINGARTEN (Defendant / Appellant) BEFORE: FINLAYSON and WEILER JJ.A. and MacPHERSON J. (ad hoc) COUNSEL: P. Lepsoe, for the appellant E. Appotive, for the respondent HEARD: June 10, 1999 On appeal from the judgment of Kealey J., dated June 17, 1998. ENDORSEMENT [1] The appellant is not the trustee of the fund in question. He is the executor of the estate of the settlor. The trustee of the fund is the wife of the settlor and the mother of the two children who are the beneficiaries of the trust fund. They in turn are 25 and 21 years of age respectively. [2] The matter of the accounting between the trustee and her children has been carried on under the aegis of the court, in particular, by the judge in appeal. In his reasons for judgment, he stated: The within application for contempt, or an order directing the respondent to provide the accounting required by an earlier Court Order came before me on November 29, 1996. I ordered that Linda Steingarten, the trustee, provide a professional account of the funds in question on or before January 30, 1997. Since then, the matter has been before me on a number of occasions. Despite my directions, Ms. Steingarten’s efforts to account, technically, do not comply with the requirements of the Order. . . . . Presently, given the passage of time and her record keeping, the respondent cannot provide the appropriate accounting, despite efforts to do so with at least one chartered accountant. On reviewing the financial information provided and hearing the submissions of Ms. Steingarten, it seems clear that the money in question was expended directly or indirectly for the benefit of the boys. In my view, this matter has developed into a “serious family squabble” and the interests of justice would not be served by finding the respondent in contempt. Indeed, based on the facts herein related in my opinion no contempt has been established. As such, the applications motion is dismissed. Further, given the history of the matter, the efforts to account and the information provided, and especially because of the family overtones, I make no order as to costs. [3] We find no error on the part of the judge below. The appeal is dismissed. [4] We heard submissions as to the question of costs. In our opinion, this appeal should never have been proceeded with and it would be unfair to have the executor appellant recoup any of his legal costs out of either the estate of which he is executor or the funds which are subject to the trust. The appellant was put on notice by one of the beneficiaries and by the respondent trustee that costs would be an issue if this appeal proceeded. Additionally, during a pre-hearing conference call, Osborne J.A. of this court made clear that the executors should expect to have this issue raised in the event the appeal was dismissed. [5] In our view, the appeal should be dismissed with costs payable on a party and party basis to the respondent and to the beneficiary Evan Steingarten by Leonard Steingarten personally. Signed: “G.D. Finlayson J.A.” “K.M. Weiler J.A.” “J.C. MacPherson J. (ad hoc)”