ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-23-00000234-0000

DATE: 2026 03 02

BETWEE N:

ROSARIO VACCARO

Jonathan Rosenstein, for the Applicant

Applicant

• and -

LILLO VACCARO, GIUSEPPA BRUNETTO, and STANLEY FIENBERG, MICHELINA (MICHELLE) FRANCESCA VACCARO in her capacity as Trustee of the Estate of Joe Vaccaro, GIUSEPPINA (JOSIE) VACCARO, CYNTHIA VACCARO, and AGATA BRUNETTO

Jonathan Keslassy for the Respondents Giuseppa Brunetto and Agata Brunetto Lorne Levine for the Respondent Michelina (Michelle) Francesca Vacarro in her capacity as Trustee of the Estate of Joe Vaccaro Jane Sirdevan for the respondent Stanley Feinberg Other Respondents self-represented

Defendants

HEARD: In Writing

REASONS FOR JUDGMENT

LEMAY J

[ 1 ] This is a contentious estates matter that has been before the Courts for some time. The late Giuseppina Vaccaro (“Giuseppina”) owned two properties, among other assets. While alive but mentally incapable, her daughter, Giuseppa Brunetto (“Josie”) transferred the properties from Giuseppina’s sole name into the name of Giuseppina and her three surviving children as joint tenants. Giuseppina subsequently died. One of the properties was sold. The monies are being held in trust because, since the sale, there has been litigation between Rosario Vaccaro (“Ross”), one of Giuseppina’s living children on one side and Lillo Vaccaro (“Lillo”) and Jose on the other side as to what should be done with the proceeds. Ross wants his share of the money paid out to him. Josie and Lillo now say that the money is being held in trust for the Estate.

[ 2 ] The underlying issue is that Giuseppina had four children. The fourth child, Joseph (“Joe”) predeceased her and her husband. Originally, Giuseppina and her husband, Angelo, had left all of their assets to their four children equally. When Joe died, Angelo and Giuseppina changed their wills so that their assets were divided into four equal parts, being one share for each of the three surviving children and one share split between all ten grandchildren, including Joe’s three children.

[ 3 ] Ross brought this Application against Josie and Lillo only, seeking the payment of the monies held in trust from the sale of the property to the three of them or, in the alternative, the distribution of his third to himself. The Application has been pending before the Court for well over a year. A number of other parties were added to the application, but Giuseppina’s Estate was not added to the Application.

[ 4 ] Ross wants to distribute ¼ of the value of the property to Joe’s children because he believes that they have been treated unfairly under the terms of Giuseppina’s will. He wants to have his share paid out and has undertaken to make those payments. Josie and Lillo were opposed to Ross receiving the money and are arguing that they held joint title to the property in trust for Giuseppina’s Estate.

[ 5 ] In December of last year, I released reasons ( 2025 ONSC 6521 ) determining that, on the evidentiary record I had, the transfer of the property by Josie appeared to be a gift on behalf of Giuseppina to her three surviving children. However, I also found that there was a legal question as to whether Josie had the authority to make the gift, given that it appeared to have been designed to defeat the terms of Giuseppina’s will. However, given that the Estate was not a party to this Application, I determined that Ross’s request for the money to be paid out to him should be dismissed. I am now required to fix the costs for this Application.

The Positions of the Parties

[ 6 ] There were a number of parties, both represented by counsel and self-represented, in this matter. As a result, I invited any party who was seeking costs to provide submissions and then invited any party who costs were sought from to provide responding submissions. I have received requests for costs from both Ross and from Josie and one of her nieces, who were represented by the same counsel.

[ 7 ] Ross seeks partial indemnity costs in the sum of $29,222.04 inclusive of HST and disbursements, payable by Lillo, Josie and Agata, the grandchild who joined Josie in the action. Ross asks that those costs be payable out of either the proceeds of sale or the shares of Lillo, Josie and Agata, depending on whether the proceeds of sale are part of the estate.

[ 8 ] Ross advances his claim for costs on the basis that he was successful and that my reasons vindicated the position that he had taken. Ross also argues that the fact that the Estate was not a party was the responsibility of Josie and others, and not his responsibility. As a result, he argues that he should not be responsible for the costs. Ross submits that it was Josie and Lillo who opposed the distribution of the proceeds of sale and the two of them who failed to advance the interests of the Estate by not joining the Estate to this litigation.

[ 9 ] Josie and Agata are seeking partial indemnity costs in the amount of $54,000.00 inclusive of HST and disbursements. They argue that they were successful because Ross’s application was dismissed. They also argue that Ross’s decision to bring this proceeding against Josie and Lillo only was an intentional attempt to circumvent the actual issues in this case, which was whether the properties were transferred as gifts or whether they were transferred to be held in trust for the Estate to avoid probate fees. Finally, they argue that Ross intentionally put up barriers to the Estate being added as a party.

[ 10 ] In terms of the quantum of costs, Josie and Agata acknowledge that their costs are higher than those sought by Ross. However, they argue that proportionality should not be used as a sword to undercompensate a litigant for costs legitimately incurred. They also argue that they made good faith efforts to settle the costs by offering to accept $25,000. They argue that I should consider that offer in determining the appropriate costs in this matter.

Issues

[ 11 ] Rule 57.01 sets out the principles that govern an award of costs. Based on those principles, and the submissions of the parties, I am of the view that the following issues should be addressed:

a) Who was the successful party?

b) Is the quantum of costs sought reasonable?

c) Has the conduct of the parties resulted in legal fees being unnecessarily incurred?

[ 12 ] I will deal with each issue in turn.

Issue #1- Who Was Successful?

[ 13 ] In this case, both sides have claimed that they were the successful party. That cannot be correct. As noted in Scipione v. Scipione , 2015 ONSC 5982 , the question of which party was successful focuses on the very simple question of who got what they asked for.

[ 14 ] In this case, Ross did not get what he asked for, as he wanted the monies paid out. However, Ross got some of what he asked for. On the evidentiary record I had, I concluded that, for the purposes of this application, that Josie was intending to make a gift of the properties on behalf of Giuseppina.

[ 15 ] This brings me to Josie and Lillo. They were successful in resisting Ross’s request to have the monies paid out. However, they were unsuccessful in advancing their argument that the monies belonged to the Estate, at least in this proceeding.

[ 16 ] When I step back and look at the matter, neither party was completely successful. As a result, this is a factor that suggests that no costs should be ordered or, at a minimum, that any costs award should be reduced.

Issue #2- Quantum of Costs

[ 17 ] Assessing whether the quantum of costs is reasonable requires a consideration of the complexity and importance of the matter. The matter was obviously important to the parties, and it involves approximately $3 million, so it is also a significant financial matter.

[ 18 ] This Application involved a number of Case Conferences, as well as the preparation of materials and the completion of examinations. The materials included affidavits and factums. It was not a simple application. Further, the legal issues in this case were not simple.

[ 19 ] As a result, I would view $25,000.00 as a reasonable amount for the partial indemnity costs for this matter. While I do not doubt that Josie’s counsel has spent the time claimed, the costs of $54,000 sought by Josie’s counsel are, in my view, excessive. An example of the excessive nature of those costs can be found in the amount charged for the costs submissions. That amount was $2,000.00. At a partial indemnity rate of $300.00 per hour that works out to more than six hours of time.

[ 20 ] Given that success has been divided in this matter, any costs award should be significantly less than $25,000.00.

Issue #3- The Conduct of the Parties

[ 21 ] As set out in the decision on the merits, I have significant concerns about the conduct of both sides in this litigation. This matter would have been significantly shorter and easier to manage if the Estate had been added as a party to the litigation.

[ 22 ] The blame for that fact lies primarily with Josie, who is also the Estate Trustee. If Josie was going to take the position that the properties had been transferred in trust for the Estate, it was incumbent on her to advance that position as the Estate Trustee and not just in her personal capacity.

[ 23 ] However, the blame for the fact that the Estate is not a party to the litigation does not rest solely with Josie. Other parties could have added the Estate as a party at any point. Ross’s position that Josie and Lillo have “failed to advance the interests of the Estate” is not a complete answer to this issue. Ross could have added the Estate.

[ 24 ] In February of 2025, Josie’s counsel asked Ross’s counsel to add Josie, in her capacity as Estate Trustee, to the Application. On February 21 st , 2025, Ross’s counsel refused, stating:

I have not adopted Mr. Keslassy's request to have Giuseppa Brunetto ("Brunetto") added as a respondent in her capacity as trustee for the estate of Giuseppina Vaccaro. My client does not consent to adding Ms. Brunetto as a respondent in her capacity as estate trustee. If she insists, Ms. Brunetto will be obliged to do so by way of a formal motion.

[ 25 ] When this letter was sent, it should have been clear that the issues in this case involved the Estate and that the Estate was a necessary party. Ross’s refusal to consent to adding the Estate lengthened this proceeding and contributed to an increase in the costs. Had that request been consented to, the matter would have proceeded more efficiently.

[ 26 ] That being said, the primary responsibility of advancing the interests of the Estate rests with the Estate Trustee. She did not carry that responsibility out in a timely way, as she should have brought a motion to add the Estate as a party, even if that motion was going to be opposed.

[ 27 ] Given that the primary responsibility for the Estate not being included in this proceeding rests with the Estate Trustee, she should be responsible for paying some of Ross’s costs in this matter. As I noted in my decision on the merits, this Application was necessary to get the matter moving forward.

Conclusion

[ 28 ] When I step back and consider all of the factors, I am of the view that costs in the sum of $5,000.00 inclusive of HST and disbursements should be paid by Josie to Ross. Those costs should be payable on the earlier of the conclusion of the proceeding or within eighteen (18) months of today’s date.

LEMAY J

Released: March 2, 2026

Duplicate Header Block

COURT FILE NO.: CV-23-00000234-0000

DATE: 2026 03 02

ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: ROSARIO VACCARO Applicant - and - LILLO VACCARO, GIUSEPPA BRUNETTO, and STANLEY FIENBERG, MICHELINA (MICHELLE) FRANCESCA VACCARO in her capacity as Trustee of the Estate of Joe Vaccaro, GIUSEPPINA (JOSIE) VACCARO, CYNTHIA VACCARO, and AGATA BRUNETTO Defendants REASONS FOR JUDGMENT LEMAY J

Released: March 2, 2026