Ontario Superior Court of Justice

Court File No.: CV-21-00670118-00ES
Date: 2025-07-07

Between

Amato Forgione and Luisa Forgione
Applicants

– and –

Anne-Marie Alonzi
Respondent

James M. Gilmore, for the Applicants
Bradley Phillips and David Wagner, for the Respondent

Heard: July 5, 2025

Frederick L. Myers J.

Reasons for Decision (Costs and Pre-Judgment Interest)

Costs

1The applicants are the uncle and aunt of the respondent Ms. Alonzi. The two applicants and their brother are the three children of their deceased father. They are the beneficiaries under his will.

2The deceased chose to designate his granddaughter Ms. Alonzi his attorney for property and personal care before he died and as his estate trustee.

3Ms. Alonzi’s father, uncle and aunt have made Ms. Alonzi pay for their father’s perceived insult to them.

4In a trial decision dated June 6, 2025, reported at 2025 ONSC 3393, I awarded Ms. Alonzi aggregate compensation of $537,922.25 as estate trustee and as attorney for her grandfather under his powers of attorney.

5In arriving at the amount of Ms. Alonzi’s compensation as attorney, at paragraphs 181 through 183 of the decision, I required Ms. Alonzi to account to the estate for $100,000. I held that this was profit improperly obtained by her husband, and hence indirectly by her, because Ms. Alonzi paid her husband in cash and without keeping proper records. By skirting taxes, she effectively doubled her husband’s take-home pay. I held that as a person in a fiduciary position, she should not profit from her own wrongdoing. I therefore offset $100,000 against the sums otherwise awarded to her for compensation.

6I do not agree with the applicants that they should be entitled to costs for this reduction. Ms. Alonzi still received net compensation for the period of time in which she served as her grandfather’s attorney. She was the successful party. She won less than she claimed. But I also noted in my decision the exemplary care demonstrated by Ms. Alonzi and her husband towards the deceased. Apart from the issue of recordkeeping, the applicant uncle and aunt proved none of their severe allegations of wrongdoing against Ms. Alonzi.

7Moreover, Ms. Alonzi’s compensation was heavily weighted to her role as estate trustee because she chose to claim fees for the bulk of the asset receipt and disbursement just once in the estate rather than under the power of attorney for property as well. The effect of the offset would have been far less significant had she chosen to claim fees related to the assets in and out as part of the attorneyship rather than the estate.

8Ms. Alonzi made an offer to settle shortly before the trial. Her counsel was prescient as the offer sought about $2,000 (or about 0.4%) more than what I ordered. She did not beat her offer. But the offer was a very reasonable assessment of the value of the claim.

9By contrast, the applicants’ offers, although substantial, were far less than what Ms. Alonzi was entitled to receive.

10The applicants agree that Ms. Alonzi should be entitled to reimbursement of her costs from the estate as estate trustee. They do not want to pay the costs personally. Ms. Alonzi is not a beneficiary. So she is not really affected by the identity of the payer.

11I already held that, as Estate Trustee, Ms. Alonzi is entitled to indemnification for her full costs from the estate. Mr. Gilmore correctly understood that I left open the issue of a blended order – with some costs being costs paid by the estate and some from individuals’ shares in the estate.

12Ms. Alonzi asks for costs personally against the applicants or against only their shares in the estate. The applicants ask that the estate pay the costs sought by Ms. Alonzi. The practical difference is that Ms. Alonzi’s father is a beneficiary but not an applicant. If the estate pays Ms. Alonzi’s costs, he may effectively bear a portion of the costs.

13From the outset in early 2018, Ms. Alonzi’s father was the lead actor in the attacks on Ms. Alonzi. He told the applicants that Ms. Alonzi stole $300,000 from her grandfather when, in fact, it was he who had taken the money.

14Ms. Alonzi’s father also objected to probate. The applicants tried to blame Ms. Alonzi for a two-month delay in the sale of a property. But it was her father’s failure to file with the court his withdrawal of his objection to probate that prevented Ms. Alonzi from completing the sale.

15In my view, considered under Rule 57 of the Rules of Civil Procedure (as distinct from a trustee’s right to indemnification of her expenses) Ms. Alonzi ought to be entitled to payment of her costs on a substantial indemnity basis in the litigation. The applicants and their brother engaged in a relentless campaign of allegations of mismanagement, theft, and fraud against Ms. Alonzi. They threatened to call the police and have her charged if she did not turn over the management of their father’s property to them. The threat itself smacks of extortion. The allegations commenced almost as soon as Ms. Alonzi began acting under the powers of attorney and well before the applicants could even make a fair assessment about her performance.

16The applicants initially alleged that Ms. Alonzi and her husband kept the grandfather alive to enhance their profit from their care for him.

17The grandfather lived for two years after he returned home from the hospital in late 2017. The applicants submitted that Ms. Alonzi should have followed the doctors’ recommendation to allow the hospital to starve their father to death while he was in the hospital for a non-fatal illness.

18Ms. Alonzi rejected the medical advice and refused to starve her grandfather when he was not otherwise dying.

19There was no evidence at trial that the grandfather had a poor quality of life for his ensuing two years. To the contrary, he had personal care by Ed Alonzi 24/7 and daily PSW assistance in his own home as he wished. He could communicate in a basic way. There is no evidence that he ever expressed dissatisfaction. The applicants recorded in at least one email that he was happy and laughing with them during a visit.

20The Alonzis put their lives and their family life on hold for two years to care for the deceased. The level of care went above and beyond what anyone could reasonably expect of a family member.

21At the pretrial conference, the applicants formally waived the claim that Ms. Alonzi kept her grandfather alive to enhance her profit. But that did not prevent Amato Forgione from repeating his subjective belief to this assertion twice during his testimony.

22The applicants’ allegations against Ms. Alonzi were reprehensible and unproven. Her care of her grandfather was extraordinary. She was not incompetent in her handling of properties as alleged. She did not steal $300,000 as alleged. The applicants did not prove that she took any funds improperly despite the recordkeeping issue with her husband’s wages as caregiver. Rather, in this multimillion-dollar estate, the applicants were so petty as to attack Ms. Alonzi for buying a large screen TV for her grandfather’s enjoyment and for buying an $800 lawn mower to replace the one that Ms. Alonzi’s father took from the grandfather’s garage.

23Were I ordering payment by the applicants either personally or from their shares of the estate, I would accept the amount claimed by Ms. Alonzi of $315,902.70 on a substantial indemnity basis all-inclusive. I agree with Mr. Gilmore, it is reasonable although the lack of detail limits somewhat the depth of assessment. However, it is not my role to assess each docket entry. Rather, the issues are whether the quantum is fair and reasonable in all the circumstances and whether the amount is within the reasonable range that the paying party ought to have anticipated. I am satisfied that it is.

24In my view, this passing of accounts must be paid for by the estate. It was needed to ensure that the estate was properly administered. I agree with Mr. Gilmore that Ms. Alonzi’s failure to maintain the records required of her made the passing of accounts an important step to properly administer and close this estate.

25This whole process was about Ms. Alonzi managing the grandfather’s care and assets while under attack from his children. Her failure to keep records made passing accounts necessary and complex.

26But the need for passing accounts does not mean that it had to be a process infused with reprehensible and unsupportable allegations.

27If I order costs payable by the applicants personally or from their shares of the estate, it is possible they might lose contribution from Ms. Alonzi’s father’s share as a beneficiary in the estate. But I know nothing of the state of affairs among the three siblings. I do not know why the father is not an applicant in this case. I do not know much about the applicants’ dealings with him. I know they all took title to one multimillion-dollar property into their personal names to get it away from the estate. I know they sold that property and Amato Forgione mentioned that the applicants had issues with their brother in that sale too.

28But the brother is not a party and is not before me. In my view, he is not part of the calculus. Under Neuberger Estate v. York, 2016 ONCA 303, costs are ordered against the parties unless the proceeding was caused by some ambiguity caused by the testator or if it was needed to ensure that the estate was properly administered. I have already found that the latter policy consideration applies.

29Making Ms. Alonzi’s father bear a piece of the costs ordered as a non-party plays no part in my decision. He is not before the court. In my view, saying that he bears one-third of the costs of the estate is too cursory an analysis. I know nothing of the dealings between and among the siblings. I would not assume a practical, real-world outcome due to a legal division of the estate under this will among these beneficiaries.

30Rather, my analysis is that this is a case in which the estate trustee and attorney is entitled to rely on her right to full indemnity from the estate for costs in the ordinary course. Neuberger supports that outcome. My finding above on the entitlement of the respondent to substantial indemnity for her costs is just to provide the alternative should I be held to be mistaken on my principal conclusion.

Pre-Judgment Interest

31Ms. Alonzi has not received any compensation although she has been entitled to be paid for her roles since late 2017.

32Ms. Alonzi seeks pre-judgment interest on the amount of compensation ordered (net of the $100,000 offset) from the date she commenced this proceeding in October, 2021 in the aggregate amount of approximately $70,000. Because there is no specific amount claimed in a passing of accounts, she does not want to be bound by the prevailing interest rate as at the date she commenced the proceeding. Rather, she asks for the pre-judgment interest rate to vary as it changed each quarter.

33The applicants ask that Ms. Alonzi be required to pay interest on the $100,000 that I have ordered her to repay. But they recognize that if the amount is taken as an offset against amounts to be paid by the estate (as it will be) then no interest repayment will be necessary as no interest or investment gain will have been available to Ms. Alonzi on the amount offset.

34Ms. Alonzi submits that pre-judgment interest is designed partly to encourage settlement and partly to replace the economic cost of delayed receipt of funds.

35I would not use interest to balance the settlement postures of the parties in this case (if ever). The applicants made offers earlier than Ms. Alonzi. They were substantial although they ultimately proved too low.

36In my view, in weighing which party should bear the opportunity costs of delayed payment, the fair answer is Ms. Alonzi. There has to be a reckoning for her failure to keep records as required by law. I already noted that her own failure to keep records made this proceeding an important step in the proper administration of this estate. She succeeded and will be paid her due despite her lack of proper reporting. But this would have been a much easier exercise had she kept records as required. She has to bear the opportunity cost of the exercise while everyone was waiting for her to report transparently as she was required to do starting in late 2017.

37This is a proper case to decline to award pre-judgment interest.

Frederick L. Myers J.

Released: July 7, 2025