Cosentino et al v. Cosentino Estate, 2025 ONSC 1166

Court File Nos: CV-21-896; CV-21-1203; CV-21-4060
Date: 2025-02-26
Ontario Superior Court of Justice

In the Matter of the Estate of Maria Giuseppa Cosentino, deceased.

Parties

CV-21-0896
Between:
Domenic Cosentino, personally and as Estate Trustee for the Estate of Maria Giuseppa Cosentino, deceased
And:
Cesare Cosentino and Vito Cosentino, personally and as Estate Trustees for the Estate of Maria Giuseppa Cosentino, deceased, Sam Cosentino, Mary Lekkas, Robert Cosentino, Giuseppe Cosentino, Teresa Cosentino, Peter Cosentino, and Francesca Marcolin

CV-21-1203
Between:
Cesare Cosentino and Vito Cosentino, Estate Trustees for the Estate of Maria Giuseppa Cosentino, deceased
And:
Domenic Cosentino, personally and as Estate Trustee for the Estate of Maria Giuseppa Cosentino, deceased, Sam Cosentino, Mark Lekkas, Robert Cosentino, Giuseppe Cosentino, Teresa Cosentino, Peter Cosentino, Maria Bruna Cosentino, Jason Cosentino, Vincent Cosentino, Steven Cosentino, Alex Lekkas, Noel Lekkas, Vittorio Cosentino, Domenico Cosentino, Michael Cosentino, Dante Cosentino, Emily Cosentino, Samantha Marcolin, Francesca Marcolin, Raimond Cosentino, Daniel Cosentino, Edda Cosentino, and Domenic Cosentino

CV-21-4060
Between:
Teresa Cosentino and Francesca Marcolin, Applicants
And:
Domenic Cosentino, Cesare Cosentino, and Vito Cosentino, as Estate Trustees of the Estate of Maria Giuseppa Cosentino, Respondents

Before: Susan J. Woodley
Counsel:

• Brendan Donovan, Rebecca Betel, and Shivam Thakur for Teresa Cosentino and Francesca Marcolin
• Rana Nosratpanah (Stellar Law) for the Respondent Cesare Cosentino
• Sam Cosentino, personally and for Edda Cosentino, and on a limited scope retainer for Domenic Cosentino, Mary Lekkas, Robert Cosentino, Giuseppe Cosentino, and Peter Cosentino

Heard: Written Submissions and Brief Oral Submissions heard November 4, 2024.

Reasons for Decision Regarding Costs

Nature of the Applications and Action

[1] These proceedings involve the administration and distribution of the estate of the deceased Maria Giuseppa Cosentino (“Maria” or the “deceased”) who died on October 19, 2020, at 94 years of age. The deceased was predeceased by her husband Vincenzo, who died on August 9, 2009, and by her eldest son Anthony, who died in 2010. The deceased never remarried and upon her death in October of 2020 was survived by nine (9) of her ten (10) children.

[2] At her death, Maria left a Last Will and Testament dated January 24, 2020, and a Codicil thereto dated June 12, 2020 (the “Will” and the “Codicil”).

[3] Pursuant to the terms of the deceased’s Will and Codicil, she appointed three of her children, namely, Domenic, Vito, and Cesare, jointly, to act as her Estate Trustees and directed that her Estate be distributed as follows:

a. certain specified “Caledon Lands” and any proceeds of sale or vendor take back mortgage to be divided equally between Cesare Cosentino and Teresa Cosentino, per stirpes with a note that her other children have already received their respective shares of this property.
b. the sum of $1,000.00 to be paid to every grandchild who has “never been married” as of the date of her death.
c. The sum of $10,000.00 to be paid to her granddaughter Francesca Marcolin, “as she has been devoted to my health and welfare”.
d. Any money lent to Vito is forgiven with no obligation to repay the Estate.
e. The residue is to be divided into ten equal shares and distributed equally amongst her surviving nine children (Teresa, Cesare, Mary, Domenic, Sam, Robert, Peter, Joe, and Vito), and the widow of her predeceased child Antonio (Edda), per stirpes.

[4] On July 11, 2020, following execution of her Will and Codicil, the deceased underwent a capacity assessment and was found to be capable of executing a Will and of managing her own finances.

[5] The deceased died on October 19, 2020. At her death, the deceased owned her home and contents (located at 29 Lund Street in Richmond Hill, the “Lund property”), and a bank account. The deceased’s assets totalled approximately $2.2 million, of which approximately $2 million (after payment of legacies, taxes and compensation/legal fees) was to be divided (roughly) between the ten beneficiaries.

[6] Following the deceased’s death, several disputes arose. It was alleged by Domenic and other siblings that Cesare and Vito planned to distribute the estate without reference to the deceased’s Will; that Cesare and Vito refused to act “jointly” with Domenic; that Cesare owed money to the deceased dating back to September 2004; that Teresa owed money to the deceased for (allegedly) wrongfully accessing the deceased’s bank account; and that Teresa and Francesca owed occupation rent to the Estate for the period of their occupation of the Lund property following the deceased’s death.

[7] As a result of the foregoing disputes, two separate applications and one action were commenced in this Court.

Application #1: CV-21-0896

[8] The first application (CV-21-0896) was commenced on March 15, 2021, by Domenic (as Estate Trustee) against his two co-estate trustees, Cesare and Vito, and against Teresa and Francesca. As required by the Rules, all beneficiaries of the Estate were also named as Respondents. Although no lawyer is noted on the issuing application as representing Domenic, his brother Sam Cosentino, a duly qualified lawyer, drafted Domenic’s application, amended application, and accompanying affidavits, acted as counsel for Domenic until April 21, 2021, and acted as counsel for five further siblings as well as himself, during varying periods.

[9] Domenic’s application, as drafted by Sam, claimed that throughout her life the deceased was a warm, selfless, and religious person who deeply loved her family but “her warmth and love for most of Sam, Mary, Robert, Giuseppe, the Applicant, and Peter changed for the worse in and after April 2020, due to her being manipulated, deceived, controlled, and unduly influenced by Cesare, Vito, Teresa and Francesca”.

[10] Domenic’s application sought the following relief:

a. The removal of Cesare and Vito as co-estate trustees, or alternatively, the appointment of an estate trustee during litigation;
b. Directions relating to the administration of the estate including an order requiring the estate trustees to apply for and obtain probate using the services of a lawyer not connected to the estate trustees;
c. Directing the sale of the Lund property and the sale of the deceased’s personal property excluding chattel, paper and documents;
d. An order requiring Teresa and Francesca to vacate the Lund property with their possessions seven (7) days prior to the sale of the Lund property;
e. An order requiring Cesare, Vito, Teresa, and Francesca to deliver a true copy of all testamentary documents signed after October 2, 2013, and to advise of the location of the originals;
f. To provide copies of all documents pertaining to assets owned by the deceased following October 2, 2013, and to disclose the current location of the assets;
g. To provide disclosure of the location of all chattels owned by the deceased and gifted or disposed of following October 2, 2013;
h. To disclose full particulars of each loan advanced directly or indirectly to him/her by the deceased and/or her predeceased spouse on or after January 1, 2008, and to provide copies of all documents relating to any such loans;
i. To disclose all gifts whose value exceeds $500 received from the deceased after January 1, 2008 and to provide all documents relating to the gift(s);
j. To preserve all electronic documents relating to the deceased or her property after November 12, 2019;
k. With respect to the co-estate trustee Cesare:
i. To account for all monies received from the deceased and/or her husband on or after January 1, 2000, including all interest, dividends, income, rent, and gains earned thereon, and to provide all documents relating to the monies/earnings, and to pay all said monies/earnings to the Estate;
ii. To account for all rents received by him or his spouse from the leasing of land in Caledon after 2002, to provide all documents relating to rental, and to pay the rents earned from the leasing after 2002 net of taxes and GST/HST from 2002 to 2019;
iii. A declaration that Cesare owes $200,000 plus interest from September 3, 2004 with interest at 5% as per the promissory note of same date and $152,000 plus interest, dividends, rents, income and gains from October 13, 2009 relating to an alleged $152,000 advance from the deceased to Cesare in or about 2009 to “invest” on the deceased’s behalf and $32,130.74 plus interest, dividends, gains, etc. earned after August 5, 2013 relating to a Direction signed by the deceased on August 5, 2013, to invest for the deceased.
l. With respect to Teresa and Francesca:
i. An order requiring them to pay rent for the Lund property totaling $25,935.48 for occupation rent ($4,000/month) plus utilities for the period October 19, 2020 (date of deceased’s death) to May 3, 2021 (amended to note the date on which they vacated). This relief was sought together with numerous other grounds of relief relating to keys, entry, removal of chattels and fixtures from Lund which was subsequently removed following the sale of the property.
m. An Order requiring the lawyer who drafted the deceased’s last Will to disclose/preserve his complete file with respect to the deceased, her last Will and Codicil and any prior Wills and/or Codicils.
n. An Order requiring each financial institution upon which an Order is served to disclose all bank accounts and investments and to provide complete copies of all statements for the period from January 2004 to June 2021.

[11] As is apparent, this application as drafted by Sam Cosentino on behalf of Domenic Cosentino sought production and investigation of the deceased’s finances and the management of her own property for a period commencing approximately 20 years prior to the deceased’s death despite the fact that the deceased was capable and competent throughout the period and despite the fact that no party acted as the deceased’s attorney for property at any time prior to her death.

Application #2: CV-21-1203

[12] The second application (CV-21-1203) was commenced on April 1, 2021, by Cesare and Vito (as Estate Trustees) as against their co-estate trustee Domenic. As required by the Rules, all beneficiaries of the Estate were also named as Respondents. This application was prepared by independent lawyers at Rosen Sack, namely Susan Sack and Alexandra Mayeski, who initially represented Cesare and Vito in the proceedings. Rosen Sack were soon replaced by Rana Nosratpanah of Stellar Law.

[13] By this application, Cesare and Vito sought to remove Domenic as a co-estate trustee on the grounds (in part) that he is unable to act jointly with them as co-estate trustee and has caused an impasse in the administration and has commenced proceedings to remove them without the consent of his two co-estate trustees and without representation (Sam’s name does not appear as lawyer of record on Domenic’s application).

[14] Cesare and Vito’s application sought the following relief:

a. The removal/passing over of Domenic as co-estate trustees with permission for Cesare and Vito to apply and be appointed as the Estate Trustees pursuant to the January 24, 2020 Will and June 12, 2020 Codicil on an expedited basis, and that they be permitted to administer the Estate including the sale of the Lund property.
b. Requiring Domenic to pass his accounts from the deceased’s date of death to his removal.
c. A dismissal of Domenic’s application and/or an order that they be heard at the same time or one after another.

Statement of Claim #3: CV-21-4060

[15] The third proceeding (CV-21-4060) was commenced by the issuance of a Statement of Claim on November 29, 2021 by Teresa Cosentino and Francesca Marcolin as against the three named Estate Trustees, namely Cesare, Vito, and Domenic. This proceeding was prepared by lawyers at Donovan Kochman LLP, namely Brendan Donovan and Praniet Chopra, who remained retained throughout the proceedings.

[16] Teresa and Francesca’s action sought damages or equitable compensation in the amount of $100,000 or such other amount as may be proven on the basis of unjust enrichment, interest, and costs on a substantial indemnity basis.

[17] Teresa and Francesca claimed that they began residing with Maria at the Lund property in 2005 (rent-free) and in 2010 agreed with Maria that in lieu of rent they would pay for the utilities, groceries, and certain miscellaneous expenses and Maria would pay the property taxes, and insurance. This agreement was followed. However, in 2014, Maria lent Teresa $10,000 to purchase a car and this sparked tension with her siblings. Spiteful words were exchanged that caused conflict with Maria (which resolved at Christmas in 2016). From Christmas 2016 onwards, Teresa began providing caregiving services for Maria that increased in 2019 after Maria was diagnosed with cancer. In 2020 Maria’s physical health declined. Teresa and Francesca (who is a PSW) began providing 24-hour care, including administering medications and bathing, until Maria’s death in October of 2020. Teresa and Francesca claimed the services provided from Christmas 2016 to October 2020 went beyond their agreement or that expected of a loving family member and, despite receiving periodic payments of approximately $1,000 per month as compensation, that Maria’s estate was unjustly enriched to their detriment. They also claimed that they spent $4,429.81 out of pocket for Maria’s expenses that should be repaid.

[18] As is apparent, there has been considerable friction and disagreement between the estate trustees which delayed and hindered the administration of the Estate.

Case Management Proceedings

[19] The applications of the Estate Trustees first came for hearing before Justice Bale on April 9, 2021, by videoconference. On this date, Sam Cosentino appeared as lawyer for Domenic; Alexander Mayeski appeared for Cesare and Vito; and Sheila Morris appeared on behalf of Teresa and Francesca.

[20] Justice Bale noted there were two applications before the Court and a third anticipated to be issued. His Honour adjourned the applications to a case conference set for April 3, 2021, to allow the parties to file responding materials and to facilitate an “organized approach to the disposition of all related issues”.

[21] On April 23, 2021, the parties attended virtually before Justice Bale for a case conference. Sam Cosentino appeared for Domenic as Estate Trustee, Edda, Mary, Robert, and (presumably) himself. Alexandra Mayeski appeared for Cesare and Vito. Jennifer Katz appeared for Teresa and Francesca. Domenic, Peter, Guiseppe, and Anthony appeared in person. The parties consented to the following orders:

a. The estate trustees were to retain Domenic Galati for the purpose of filing the deceased’s terminal tax return;
b. Peter and Vito were permitted to attend the Lund property to take videos and inventory the deceased’s personal property;
c. Teresa and Francesca agreed to vacate the property on May 3, 2021, following which it was to be listed for sale with an agent agreed upon by the Estate Trustees;
d. All parties to the litigation were to disclose and produce copies of all testamentary documents in their knowledge and control;
e. The grandchildren were to be paid their $1,000 legacies as per the Will following which the application was to be dismissed against them without costs;
f. A timetable was set for a hearing to remove Sam Cosentino as the lawyer for Domenic;
g. In the event that the parties could not agree on an application to appoint the estate trustees on or before April 30, 2021, any party could request a motion or case conference to deal with the issue.

[22] In April of 2021, Cesare and Vito prepared and filed a motion to remove Sam as Domenic’s lawyer. Prior to the motion being heard, Domenic appointed Harris + Harris (Norman Ronski) to act. Sam submitted responding materials and was awarded $3,500 in costs by Justice Bale.

[23] On June 9, 2021, the parties attended virtually before Justice Bale for a case conference. Norman Ronski appeared for Domenic. Ronald Chapman appeared for Cesare and Vito. Sam Cosentino appeared for himself, Edda, Mary, Robert, Guiseppe, and Peter. Sheila Morris and Jennifer Katz appeared for Teresa and Francesca.

[24] His Honour summarized the proceedings following April 23, 2021 as follows:

a. Domenic and Vito signed a listing agreement to sell the property but Cesare did not as he wishes to purchase the property. Cesare made an offer to purchase that was not accepted by Domenic or Vito. Cesare agreed to sign the listing agreement by June 16, 2021.
b. Cesare also failed to advise of his knowledge of any testamentary documents which he agreed would be completed by June 16, 2021.
c. The proposed timetable was not followed as all of the estate trustees had retained new counsel.
d. The parties agreed to cooperate in opening an estate account and Teresa agreed that no money would be paid from the deceased’s bank account held jointly with her.

[25] On October 25, 2021, the parties appeared before Justice Bale for a further case conference. Norman Ronski appeared for Domenic. Ronald Chapman appeared for Cesare and Vito. Sam Cosentino appeared for Edda, Mary, Robert, Giuseppe, and Peter. Brendan Donovan appeared for Teresa and Francesca.

[26] At this attendance the parties agreed that David Wagner would be appointed estate trustee during litigation. (Note: he declined to accept the appointment and this was not completed until June 15, 2023, when David Mills was appointed as the estate trustee during litigation, or ETDL.)

[27] His Honour noted that “the primary issue in this case is whether Cesare owes money to the estate. Domenic alleges that the deceased gave Cesare money to be invested on her behalf, that Cesare looked after revenue from a farm owned by the deceased, and that despite requests that he do so, Cesare has failed or refused to account. Sam says that the amount given to Cesare for investment purposes was $32,130.74. In addition, he alleged that Cesare is indebted to the estate in relation to a $200,000 promissory note and a further $152,000 advanced to him by the deceased”. (I note that the promissory note is dated September 2004).

[28] Cesare agreed to provide an informal accounting by November 24, 2021.

[29] The parties agreed to participate in mediation.

[30] An informal bidding procedure was set up to deal with the contents of the home. Cesare successfully bid $15,000. However, Domenic objected, and Cesare agreed to provide Domenic with a list of items he considered included. If the dispute was not resolved by November 1, 2021, the contents were to be removed and stored. Cesare argued that as he is now the owner, he should not be responsible for storage.

[31] Cesare, Vito, and Domenic as estate trustees signed a listing agreement for the Lund property. The agent had directed that certain repair be completed. Cesare wanted input and it was agreed the ETDL would determine the scope of work and conduct the sale.

[32] The parties were not able to agree on a timetable and were to provide draft schedules no later than November 24, 2021.

[33] Justice Bale urged the parties (Domenic, Cesare, and Vito) to stop arguing about who was to be estate trustee and to allow the ETDL to administer the estate.

[34] The $1,000.00 legacy to each grandchild was paid. The applications were dismissed against them without costs.

[35] Domenic requested that Teresa provide an accounting of her involvement in the deceased’s joint bank account which was agreed on consent said accounting to be provided by November 24, 2021.

[36] On May 25, 2023, Justice Bale held a case conference and signed an Order for Directions on consent. On that date Sam Cosentino was noted to represent himself, Edda, Mary, Robert, and Giuseppe. Peter was self-represented. Domenic, Cesare, and Vito were represented by the same counsel as the last appearance.

[37] By this May 25, 2023 Order, David Mills was appointed as the ETDL for the Estate with full authority to gather all assets, including the proceeds of the joint bank account with Teresa. Mr. Mills was specifically noted to not be a party to the litigation and to not be required to initiate collection with respect to any alleged indebtedness to the estate. Mr. Mills was authorized to keep the net proceeds from the sale of the Lund property in trust and available to pay the Estate’s necessary expenses. Mr. Mills was required to confirm that the contents of the Lund property were held in a storage facility and that the parties were to relinquish control of the storage unit, including all keys, and to provide an accounting of the cost of moving the contents and any storage fees to date. Within 30 days, the ETDL was to consult with Cesare to schedule a time for him to attend the storage facility to inspect the contents and, following inspection, to advise the ETDL whether he accepts the contents for the bid of $15,000 and takes immediate possession or withdraws his bid. (If so, the ETDL was to consult to determine an auction process).

[38] In January of 2024, the parties appeared before me to set a litigation timetable as part of the case management of the files, which were transferred from Justice Bale to myself.

[39] Sam Cosentino filed a 114-page case conference brief in which he proposed a 33-step timetable, including counterclaims, affidavit of documents, examinations for discovery, motions, cross-examinations, and a trial. Having reviewed the case conference brief(s) filed and the proposed draft litigation schedules, and having determined that the dispute was extremely limited in scope and value, I expressed “grave concern” for the manner in which the litigation was proposed to proceed and instead directed the parties to obtain instructions regarding the following:

a. Would the parties agree that Mr. Mills be appointed as ET to act without a bond?
b. Would Mr. Mills agree to be appointed as ET?
c. Would the parties agree that the claims involving Teresa and Francesca be determined by Mr. Mills or another independent party/mediator on an expedited basis without need for a trial?
d. Would the parties agree that the claims related to the alleged debt of Cesare (regarding the September 2004 promissory note/investment) be determined by Mr. Mills or another independent party/mediator on an expedited basis without need for a trial?
e. Could the parties agree on the distribution of personal items as proposed by Mr. Mills? If not, what is the alternative suggestion?
f. Are there any other issues outstanding?
g. Which beneficiary, if any, seeks to have the (narrow) issues proceed to trial? What are the parties’ positions regarding costs if the matter is required to proceed to trial versus mediation/arbitration?

[40] On May 1, 2024, the parties attended for a further case conference before me. On this date, Domenic was no longer represented by Sam. Sam Cosentino represented himself and Edda. Teresa and Francesca were represented by Donovan Kochman, and Cesare and Vito were represented by Stellar Law. During this case conference it was proposed by the parties that ALL proceedings be resolved, subject only to the payment of legal fees from the Estate. As at least three beneficiaries were not present, the conference was adjourned to May 3, 2024.

[41] On May 3, 2024, all parties attended. Despite that the parties present on May 1, 2024, proposed all issues be resolved, several parties resiled and wished to proceed to litigation. The Court expressed its displeasure in view of the issues and monetary amounts in dispute (minimal when one considers and balances the claims and defences) versus the amount of funds that would be required to determine the issues at trial. The case management conference was adjourned to a date to be obtained by the parties. Mr. Donovan was tasked with providing a short summary to the court prior to the next attendance.

[42] On June 21, 2024, all parties attended for a case conference hearing. On this date, it was agreed that all issues be resolved by all parties withdrawing their claims and moving forward with the distribution of the estate funds. The only matter to be determined was legal fees. I directed counsel to prepare their Bills of Costs and Costs Outline together with their proposal for the legal fees to be paid to them from the Estate. If not resolved on consent (which it was not), I was tasked with determining the issue after receiving submissions in writing and (brief) oral submissions.

[43] On August 14, 2024, all parties attended for a case conference hearing. On this date, Vito was self-represented and was no longer represented by Stellar Law. Cesare was represented by Stellar Law. Sam represented himself and Edda. Teresa and Francesca were represented by Donovan Kochman. All other beneficiaries were self-represented. The parties had submitted their request for fees. Sam Cosentino was ordered to serve any invoices that he intended to rely upon for services claimed to be provided to his sibling clients by September 16, 2024. The law firms seeking payment of their fees from the Estate were to serve and file their cost submissions limited to five pages with any Bill of Costs; Cost Outline; Invoices rendered; Offers to Settle; attached. The documents were to be served and filed by September 30, 2024 and any Response by October 15, 2024 and any Reply by October 30, 2024. The parties were directed to execute Minutes of Settlement and/or to file a consent Order for the completion of the administration/distribution of the Estate by Mr. Mills and for an order dismissing all proceedings. A check-in date to sign the final order and to monitor cost submissions was to be obtained by Mr. Donovan through my assistant.

[44] On November 4, 2024, the parties attended for a case management hearing. By this date, all costs submissions were received. The parties chose to rely upon their written submissions.

[45] I have now had an opportunity to review the submissions and provide the following determination as to the costs of the proceedings.

Review and Analysis of Legal Fees

[46] In these proceedings:

a. There were two applications prepared.
b. Sam prepared Domenic’s application and the amendments to that application. Sam also prepared Domenic’s affidavits, all of which set the stage for the litigation.
c. Cesare and Vito’s application and affidavits were prepared by their initial counsel.
d. A statement of claim was prepared for Teresa and Francesca by Donovan Kochman.
e. There was a motion record prepared to remove Sam as lawyer for Domenic which resolved without a hearing when Domenic agreed to obtain independent counsel. Sam was awarded $3,500 for this motion.
f. There was a one-day (failed) mediation that occurred on April 26, 2022.
g. There were numerous case conferences which resulted in consent orders/endorsements.
h. There was never a contested hearing on any issue, nor were any examinations for discovery or cross-examinations conducted.
i. All issues were resolved through the appointment of an estate trustee during litigation to administer and distribute the estate and the withdrawal of all claims.

[47] The costs sought by each of the law firms representing each of the represented litigants in this matter are as follows:

a. Legal fees and disbursements sought by Domenic Cosentino, Sam Cosentino, Edda Cosentino, Mary Lekkas, Robert Cosentino, Giuseppe Cosentino, and Peter Cosentino for representation by Sam Cosentino: $164,394.42 (full indemnity) and/or $132,864.24 (partial).
b. Legal fees and disbursements sought by Domenic Cosentino for representation by Norman Ronski: April 14, 2021 to May 14, 2024; $154,298.27 (full indemnity).
c. Legal fees and disbursements sought by Cesare Cosentino and Vito Cosentino (to May 14, 2024) for representation by Ronald Chapman, Rosen Sack, and Stellar Law: $171,909.69 (full indemnity); $154,858.81 (substantial indemnity); and $103,706.15 (partial indemnity).
d. Legal fees sought by Teresa Cosentino and Francesca Marcolin for representation by Minden Gross and Donovan Kochman: $88,212.69 (full indemnity).

[48] All (represented) parties objected to the amount of legal fees claimed by Sam Cosentino on the grounds that the costs were “unjustified and disproportionate” (Cesare) and that his behaviour throughout the litigation both as litigant and as lawyer was “inflammatory” (Teresa, Francesca, and Vito).

[49] I have reviewed the entirety of Sam’s dockets submitted in support of his legal fees. My opinion, following review of the dockets, is that Sam lacked any semblance of independence or critical legal thinking in the representation of his sibling clients. Instead, the dockets disclose that Sam, with instructions from his sibling clients, and for reasons not associated with the litigation itself, laid the groundwork for, and initiated, the litigation that consumed this estate for five years following the deceased’s death. My further opinion is that Sam, with the apparent approval of his sibling clients, spent excessive time attending to this litigation that was neither warranted nor required. The amount of time spent by Sam on the file was excessive, over-reaching, and reflects his personal attachment and absolute inability to provide reasoned, impassionate, and sound legal advice to any of his sibling clients regarding the proper administration of their mother’s estate.

[50] Firstly, it is noteworthy that Sam’s “dockets” recorded October 23, 2020 (4 days following death) as the date that Sam commenced drafting Domenic’s application. Recall that Sam’s explanation to the Court regarding the reason that the application was commenced was due to the “delay in administration”. It is difficult to conceive how there could be an alleged “delay” only four (4) days following the deceased’s death – which leads me to conclude that the application was not about delay but (more likely) about other issues, including challenging the validity of the deceased’s last Will and Codicil.

[51] Secondly, with respect to the issue of challenging the validity of the deceased’s Will, I note that, on November 23, 2020, Sam received the Will, Codicil, and a psychologist’s capacity assessment confirming the deceased’s capacity.

[52] Thirdly, with respect to seeking occupation rent against Teresa and Francesca, the dockets record on December 15, 2020, that Sam received information that the deceased expressed a desire or intention to amend her Will prior to her death to provide a gift of half of the Lund property to Teresa and Francesca – but that this intent was not completed and was not valid. However, notwithstanding the fact that Sam (and presumably Domenic and the other siblings that Sam represented at that time) were advised that their mother wished to provide a greater gift to Teresa and Francesca for their services (which was not valid or completed), instead of providing thanks to them for their services, the dockets reveal that Sam “reviews email from Domenic demanding payment to Estate of rent and asking if they intended to continue residing there”.

[53] On December 16, 2020, prior to the “formal” commencement of the litigation, Sam docketed “considering taking legal action”. On February 22, 2021, Sam docketed 635 minutes to “draft and revise Domenic’s affidavit in intended application”. Between February 26, 2021, and March 2, 2021, Sam dockets a further 380 minutes relating to the affidavit/application.

[54] On March 5, 2021, Sam docketed 40 minutes for an email exchange with court office to bring an application for directions and to “revise request to schedule regular or long civil motion”. On March 15, 2021, Sam learned that the filing of Domenic’s application failed, and he revised the application, spending a further 95 minutes. On March 16, 2021, Sam docketed 210 minutes (3.5 hours) preparing affidavits of service and assembling documents. This work is typically not docketed or completed by a lawyer charging $450 per hour.

[55] On March 17, 2021, Sam docketed 185 minutes (3 hours 5 minutes) for inconsequential administrative document preparation related to drafting emails, a notice of appearance and letters serving the application record (also usually not docketed by a lawyer).

[56] On March 18, 2021, Sam docketed a further 165 minutes relating to drafting Domenic’s supplementary affidavit in Domenic’s application; email exchanges with his siblings regarding Domenic’s application; and emails exchanges with several grandchildren; together with some minor administrative matters.

[57] On March 19, 2021, Sam docketed 40 minutes relating to drafting Domenic’s Affidavit of Service of the Application Record in Domenic’s application and had it sworn and commissioned; Drafted and had signed a letter from Domenic to Court filing Application Record and swore Affidavit of Service; Arranged courier from Domenic to Court filing Application Record and swore Affidavit of Service (matters also not usually docketed by a lawyer).

[58] Sam’s dockets are replete with further examples of excessive over-docketing, reflective of his personal investment in the litigation, and not based on any sound legal principles or reasoned judgment.

[59] Further examples of Sam’s personal investment and inability to act in a reasoned manner as a lawyer can be found throughout the dockets submitted in support of his invoices.

[60] Having reviewed the basis for the requested examinations and productions, I learned that Sam (and thus his sibling clients) sought to examine Cesare on alleged loan(s), investments, and repayments made between Cesare and his mother dating to 2004. This was approximately 16 years prior to the deceased’s death. By this date, Cesare had already provided extensive documentation detailing repayments but (understandably) could not find all evidence of repayment. There was no question that the deceased was capable and competent to the date of her death and managed her own finances. The issue of whether the deceased had lent or gifted money to Cesare in 2004 was well outside the scope of any reasonable enquiry. This is because (i) the deceased did not claim to be owed money by Cesare at her death; (ii) the deceased was at liberty to utilize her funds as she thought fit without requiring the consent of her children; and (iii) if funds were owed pursuant to a promissory note from 2004 any claim for repayment (of which there was none) would be fully statute-barred.

[61] In other words, much of the sought-after productions relating to the bank records and the deceased’s accounts, were not relevant to any triable issue.

[62] Clearly much of the litigation had to do with hurt feelings between the siblings, anger, jealousy, and sibling rivalry. It was not based on sound legal arguments or independent consideration of the issues that could be facing the estate trustees in the administration of the estate.

[63] For these reasons, I am of the view that Sam’s actions, as supported by his sibling clients, and his representation of Domenic and his other siblings, as well as himself, as a lawyer, did not assist the estate or the beneficiaries.

[64] It is difficult to gauge how Sam’s advice when purporting to act as a lawyer for Domenic and his other sibling clients caused, continued, or increased the litigation. Clearly, Sam was supported by most of his siblings (residuary beneficiaries), at varying times (which Sam refers to as the 7/10 group). Each of the siblings determined that they would accept Sam’s advice at varying times, each provided their instructions, and each of the siblings that Sam represented belonging to the 7/10 group must accept that, without their involvement, the litigation may have been averted or may have resolved much earlier.

[65] Having reviewed and considered Sam’s dockets and invoices submitted in support of his requested approximately $164,000.00, in view of the importance of the issues and the results achieved, I find myself unwilling to agree that Sam (and thus his sibling clients) should receive any amount from the Estate on account of his fees, beyond the $3,500 ordered by Justice Bale relating to the motion to remove him as solicitor of record, and a limited reasonable amount for those fees associated with the appointment of Mr. Mills as the ETDL.

[66] In my view, Sam and his sibling clients were fortunate that these proceedings resolved without further litigation and without a trial. It is possible, if not probable, that, had a trial ensued, Sam and his sibling clients (any or all of them) could have been found liable to pay the costs of the litigation due to the specious outdated claims made against Cesare, and the fact that they had all information necessary to resolve all issues involving Teresa and Francesca and regarding the deceased’s capacity, without involving the court, by December of 2020.

[67] However, being in possession of necessary information does not necessarily mean that litigation would not take place in any event. It is probable that the Estate Trustees would not have been able to work together “jointly” in any event and steps may have been necessary to deal with the impasse.

[68] The fact that the deceased had ten children (including Edda) generally means that there are differing perspectives, conflicting emotions, and plenty of opportunities for disputes, hard feelings, and conflict. As noted, had Sam not acted as the lawyer for Domenic (and himself and others), it is likely that there would have been conflict between Domenic, Cesare, and Vito, in any event as their appointment as “joint” Estate Trustees appeared destined for conflict.

[69] It is impossible to determine whether the conflict could have been resolved quickly with the assistance of an independent estate lawyer, as this scenario did not occur. Having said this, however, given the information available to the parties, it is difficult to understand why Domenic’s application (drafted by Sam) sought (i) repayment and accounting by Cesare for matters dating to 2004 on a statute-barred/paid note; (ii) references relating to incapacity and undue influence (which were abandoned); and (iii) occupation rent against Teresa and Francesca. The relief relating to these claims, in my view, was based on emotion and not on sound legal argument.

Costs of the Two Applications and Related Action

[70] I have considered the principles set out by the Court of Appeal as appropriate in determining the issue of costs, in contested estate litigation. The court is to carefully scrutinize the litigation and, unless it finds that one or more of the relevant public policy considerations apply, it shall follow the costs rules that apply in civil litigation. The public policy considerations have been identified primarily as: (1) the need to give effect to valid wills that reflect the intention of competent testators; and (2) the need to ensure that estates are properly administered. See McDougald Estate v. Gooderham; Sawdon Estate v. Watch Tower Bible and Tract Society, 2014 ONCA 101, paras. 84-85.

[71] Fiduciaries are entitled to be indemnified for reasonable expenses incurred in the exercise of their duties: see Geffen v. Goodman Estate. However, indemnification is subject to review for unreasonableness or impropriety.

[72] I have considered the governing principles set out in these cases and the factors under r. 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, including the degree of success of each of the applicants (Domenic vs. Cesare and Vito) and the action (Teresa and Francesca), any offers to settle, the complexity of the proceeding, the importance of the issues, and any conduct of the parties that contributed to the due administration of the estate or tended to lengthen the proceedings. I have taken proportionality into account and have considered the overriding principle of what is fair and reasonable.

[73] I have also considered that, in the present case, Sam was (i) a lawyer; (ii) a self-represented litigant; and (iii) a witness (he drafted Cesare’s 2004 promissory note). He has acted in a conflict of interest from the commencement of the proceedings.

[74] Under the Law Society of Ontario’s Rules of Professional Conduct (Toronto: LSO, 2022), r. 5.2-1, Sam ought not to have been acting as counsel, as this offends the witness-advocate rule. It is difficult to accept that he is now seeking approximately $164,000.00 for his involvement in this litigation.

[75] Although self-represented litigants, in some cases, may be awarded their costs for acting, they are usually nominal awards. Where a litigant can prove that, by acting, they missed out on business opportunities and income, they may be entitled to a greater amount on account of costs. In the present case, although Sam claimed that he suffered “missed business opportunities,” no evidence in this regard was provided. It is my view that such costs would not be payable in any event, due to his clear conflict of interest and his conduct during the litigation.

[76] When assessing a costs award, the analysis must include the special considerations specific to estate litigation. As summarized by Justice Brown in Salter v. Salter Estate, para. 6:

…Given the charged emotional dynamics of most pieces of estate litigation, an even greater need exists to impose the discipline of the general costs principle of “loser pays” in order to inject some modicum of reasonableness into decisions about whether to litigate estate-related disputes.

[77] Sam Cosentino seeks costs for his representation of approximately $164,000 on behalf of the legal services provided by him to the “7/10 Group” (Domenic, Mary, Robert, Giuseppe, Peter, Edda, and himself). He argues that Domenic’s application was necessary due to the pre-litigation misconduct of the “Opposing Parties” (Cesare, Vito, Teresa, and Francesca). He further argues that the litigation commenced by him for Domenic was “entirely well-grounded” as evidenced by the fact that Justice Bale granted much of the relief requested therein (disclosure from the parties, steps to administer the estate, and the sale of the Lund property). He also argues that the 7/10 group made bona fide attempts to settle, both before and during litigation, that their costs were incurred as the direct result of the opposing parties’ misconduct and failure to settle, and that their costs are reasonable and proportionate in all regards. Sam, on behalf of his sibling clients, seeks that the “opposing parties be ordered to pay out of their share of the Estate the 7/10 group’s costs incurred prior to August 29, 2022, on a partial indemnity scale and their costs incurred on and after on a substantial indemnity scale to be debited and taken only from the bequest of the beneficiary that incurred the costs.”

[78] I disagree.

[79] It is my view that Sam Cosentino should never have acted for Domenic or any of his other siblings. He lacked impartiality and with the support of any one or more of his siblings initiated the proceedings as the result of emotion and not based on reason, common sense, or logical legal thinking.

[80] Sam’s conflict of interest and inability to provide calm, reasoned, and objective legal advice was readily apparent upon review of Sam’s dockets, which disclose deep-seated family and sibling issues, which is neither uncommon nor surprising in the context of estate litigation. These issues are unconnected to any “delay” in administration as later claimed by Sam and his sibling clients to be the root of this litigation.

[81] Sam Cosentino was supported by his siblings who provided him with instructions and followed his advice (until they didn’t). As Sam Cosentino is a duly qualified lawyer, he may be entitled to be paid for his services by his sibling clients (subject to any retainer issues and/or assessment of those accounts). Sam Cosentino is not, however, in the present case, entitled to have his legal costs paid by the opposing parties, nor, considering the factors outlined above, is he or his sibling clients (the 7/10 group) entitled to be paid for the bulk of Sam’s costs out of the Estate. For these reasons, I award only those fees that relate to the appointment of the estate trustee during litigation and related administrative issues. Having reviewed the legal accounts filed, I find that the reasonable, appropriate, and proportionate amount of costs payable by the Estate on account of Sam’s legal fees to be $11,500 inclusive of HST and disbursements.

[82] With respect to Domenic’s legal fees paid and/or owing to Norman Ronski, a portion of these fees were reasonably incurred and are properly payable from the Estate, as Mr. Ronski was an independent lawyer who was retained at the insistence of the “opposing parties”. With respect to the quantum that is payable, having reviewed the invoices provided, I find that there is much overlap and extensive docketing between Mr. Ronski and Sam Cosentino. I also find that the amount charged is disproportionate to the results achieved. I also find that, although Domenic commenced the application as an estate trustee (and therefore would usually receive full indemnity), much of the relief sought was unwarranted (accounting by Cesare and occupation rent by Teresa and Francesca). The relief sought was not supported by the majority of the estate trustees or the evidence. For these reasons, I award only those fees which were reasonably incurred that relate to Domenic’s position as estate trustee. Having reviewed the legal accounts filed, I find the appropriate and proportionate amount of reasonable costs incurred and payable by the Estate on account of Mr. Ronski’s legal fees rendered to Domenic as estate trustee to be $70,000 inclusive of HST and disbursements.

[83] With respect to Teresa and Francesca’s legal fees, having reviewed the amount sought, and the results achieved, I am of the view that Teresa and Francesca’s legal fees are proportionate, appropriate, and properly payable by the Estate in their entirety. Teresa and Francesca’s action was commenced in response to Domenic’s application. The proceeding was focused and did not overreach. In the circumstances, the commencement of the action and the resolution thereof was justified. The involvement of Teresa and Francesca’s lawyers were crucial to the resolution of the matter and provided knowledgeable, timely, seasoned, and impartial advice in this very heated litigation. Considering all the factors noted above, I find that Teresa and Francesca’s lawyers acted to diffuse and contain the litigation to those issues that were relevant to the Estate administration and distribution. I find the fees charged by Minden Gross and by Donovan Kochman to have been incurred responsibly and with an eye to proportionality. I find that in all the circumstances of this case and considering all the information available to all parties, that Teresa and Francesca are entitled to payment of the total sum of $88,212.69, inclusive of HST and disbursements, payable from the Estate.

[84] Finally, I address Cesare and Vito’s legal fees. Cesare and Vito commenced their application in response to that commenced by Domenic. Their application was properly commenced and necessary in the circumstances. The application was appropriately brief and Cesare and Vito retained independent lawyers and appeared to follow the advice of their lawyers throughout the litigation. The only criticism I have with respect to their representation is that they retained three separate law firms over the course of the litigation which necessarily involved double docketing and “catch-up”. The fees sought with respect to their first lawyer (Rosen Sack LLP) total $14,170.29 plus disbursements of $275 (HST included) for a total payment of $14,445.29. These fees in their entirety shall be paid by the Estate as the application was drafted appropriately in accordance with their fiduciary duties as estate trustees. The second lawyer’s fees (Ronald Chapman) total $11,646.68 plus disbursements of $853.32. These fees necessarily involved duplication for “catch-up” and are reduced by $1,646.68 in this respect. As a result, the fees payable with respect to the second lawyer (Ronald Chapman) are hereby fixed as between the Estate and Cesare and Vito at $10,853.32 (inclusive of HST and disbursements). The fees sought with respect to their third lawyers (Stellar Law) total $123,050.22 plus disbursements of $272.52. Similar to Teresa and Francesca’s lawyers, Stellar Law provided independent, reasoned advice that tended to lessen the length of the litigation. However, having reviewed the dockets, I find that there are some entries that do not warrant a charge by a lawyer to a client (conducting legal research), and some that appeared to be docketed to the wrong file (strategy meeting and calculation of shares); and there appeared to be some double coverage by lawyers involved. Considering proportionality and results obtained and recognizing that Cesare and Vito acted in concert as co-estate trustees, in all the circumstances, I would fix the legal fees payable to Stellar Law from the Estate at $100,000, inclusive of HST and disbursements for a total amount payable from the Estate on account of Cesare and Vito’s legal fees fixed at $125,298.61.

[85] In summary, a total amount of $295,011.30 shall be paid from the Estate on account of the following legal fees incurred by the parties claimed and incurred in this proceeding:

a. The 7/10 group (Sam Cosentino, Domenic Cosentino, Mark Lekkas, Peter Cosentino, Robert Cosentino, Giuseppe Cosentino, and Edda Cosentino): for Sam Cosentino’s legal fees: $11,500.00 (inclusive of HST and disbursements);
b. Domenic Cosentino: for Norman Ronski’s legal fees: $70,000.00 (inclusive of HST and disbursements);
c. Teresa and Francesca: for all legal fees incurred: $88,212.69 (inclusive of HST and disbursements); and
d. Cesare and Vito: for all legal fees incurred: $125,298.61 (inclusive of HST and disbursements).

Request for Holdback and Distribution

[86] The last issue relates to distribution of the proceeds of sale of the farm as per Article 5(a) of the 2020 Will.

[87] Stellar Law provided a summary of the proposed distribution by letter dated December 13, 2024, copied to all parties, that has not been contradicted by any of the other parties. In the circumstances, I accept the submissions contained therein regarding Article 5(a) and find that the following amounts are owed to Cesare and Teresa pursuant to Article 5(a) of the Will: $8,102.13 is owed to Cesare and $12,998.78 is owed to Teresa. Distribution of these amounts may be made by Mr. Mills in his capacity as Estate Trustee During Litigation.

[88] Although the two applications sought to remove any one or more of the Estate Trustees, none were removed and the parties have agreed as part of the overall settlement of the proceedings that Mr. Mills shall complete the administration of the Estate and shall be tasked with distribution of the remaining estate assets.

Conclusion

[89] In accordance with the terms of these Reasons for Decision Regarding Costs, an Order shall issue:

a. to authorize Mr. Mills to pay those legal fees as determined in accordance with paragraph 85 herein;
b. to authorize Mr. Mills to finalize the administration of the Estate, including the filing of all income tax returns and payment of all just debts;
c. to authorize Mr. Mills to distribute and/or dispose of any and all personal effects remaining in the Estate as the parties may have agreed and failing a current agreement in place as he shall solely determine;
d. to authorize Mr. Mills to distribute the amounts due to Cesare and Teresa pursuant to Article 5(a) of the Will as determined in accordance with paragraph 87 herein; and
e. to authorize Mr. Mills to distribute the residue of the Estate, in accordance with the terms of the Will and Codicil.

[90] Counsel for Cesare shall be tasked with preparation of the above noted Order and shall forward the said Order to my assistant for signature, issuance, and entry.

[91] The applications and related action be and are hereby otherwise dismissed.

Susan J. Woodley
Date: February 26, 2025