ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARIA BEATRIZ REINOSO CANTILLO Applicant
– and –
ESTATE OF FRANK INSERRA Respondent
Elena Mazinani, Counsel, for the Applicant, Maria Beatriz Reinoso Cantillo
William H. Abbott, Counsel, for the Respondent, Estate of Frank Inserra
S. J. WOODLEY, J:
HEARD: In Writing
Reasons for decision: re COSTS
OVERVIEW
1This family law proceeding between the applicant Maria Beatriz Reinoso Cantillo (the “Applicant”) and the Estate of her late husband Frank Inserra (the “Respondent” and/or the “Husband”) came before me by way of a focused trial to determine the validity of a Marriage Contract, executed severally in 2004, prior to marriage.
2The focused trial was heard on June 4, 5, 6, and 19, 2025, and culminated in Reasons for Decision released as Cantillo v. Inserra, 2025 ONSC 6889, on December 16, 2025, that determined that the Marriage Contract was invalid.
3With respect to the issue of costs, it was determined that subject to any offers to settle that may affect costs, the Applicant as the successful party is entitled to be paid her costs of the focused trial.
4These Reasons for Decision are restricted to the determination of costs of the trial.
POSITIONS OF THE PARTIES
5The Applicant, Ms. Cantillo, submits that she was entirely successful in obtaining the result sought and meeting her Offer to Settle served on May 12, 2025. As the successful party, she submits that she is entitled to her costs of the trial pursuant to r. 24(3), and due to the behavior of the Respondent, such costs should be awarded on a full indemnity basis, pursuant to r. 24(10).
6The Applicant seeks costs and disbursements fixed at $133,193.40, on a full indemnity basis, and otherwise seeks costs and disbursements fixed at $102,848.51, on a substantial indemnity basis.
7In support of her request for costs, the Applicant included a copy of the May 12, 2025 Offer to Settle, together with the Applicant’s Bill of Costs.
8The Respondent acknowledges that the trial decision is in the Applicant’s favour but submits that the quantum of costs sought are excessive and disproportionate to the limited issue in trial.
9The Respondent advised that the Respondent’s trial costs were $124,474.95. The Respondent notes that the trial costs incurred by the Respondent are lower than that incurred by the Applicant even though the Respondent changed counsel around the mid-point of the litigation leading up to the trial. The Respondent submits that the Applicant be paid costs fixed at $60,000, inclusive, and that such costs be paid from the net proceeds of sale of the matrimonial home after the house is sold.
10In support of their requests for costs, the Respondent included a copy of the Offers to Settle. Section 131(1) of the Courts of Justice Act, provides that cost orders are in the discretion of the court.
THE LAW AND ANALYSIS
11Rule 24 sets out a framework for awarding costs for family law cases in the Family Court of the Superior Court of Justice, in the Superior Court of Justice and in the Ontario Court of Justice.
12The Court of Appeal for Ontario has held that modern family cost rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants: Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, at para. 8; Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330 (C.A.), at para. 22.
13According to Mattina, at para. 10, r. 2(2) adds a fourth fundamental purpose: to ensure that cases are dealt with justly.
14Rule 24(1) creates a presumption of costs in favour of the successful party of a motion, case, or appeal: Berta v. Berta, 2015 ONCA 918, 128 O.R. (3d) 730, at para. 89.
15Rule 24(14) sets out a list of factors the court may consider in determining an appropriate amount of costs:
(a) the reasonableness and proportionality of each of the following factors, as applicable, as they relate to the importance and complexity of the issues in the step:
(i) Each party’s behaviour.
(ii) The time spent by each party.
(iii) Any written offers to settle, including offers that do not meet the conditions set out in subrule (12) or the requirements of rule 18.
(iv) Any legal fees, including the number of licensed representatives and their rates.
(v) Any expert witness fees, including the number of experts and their rates.
(vi) Any other expenses properly paid or payable; and
(b) any other relevant matter.
16Rule 18(12.1) states that “[t]he making, withdrawal, acceptance and rejection of offers are subject to the cost consequences provided for under rule 24.” Therefore, r. 24(14) sets forth the factors that may be considered within context of the factual matrix in this proceeding.
17With respect to the reasonableness and proportionality of the fees sought, it is notable that the results achieved by the Applicant bested the Applicant’s Offer to Settle dated May 12, 2025, and bested the Respondent’s Offers to Settle made on March 17, 2021, and on October 10, 2023.
18Further consideration regarding the reasonableness and proportionality of the legal fees may be made in reference to “each party’s behaviour” that culminated in the necessity for the focused trial.
19In this regard, the Reasons for Decision detail, inter alia, the following behaviour that in my view is relevant to determination of the issue of costs as it relates to this focused trial:
i) The Contract, executed in 2004, was prepared entirely by the Husband’s lawyer and executed by the Applicant Wife without revision.
ii) The Contract was written entirely in English, despite the fact that the Applicant could neither read nor understand English.
iii) The Applicant was induced to marry the Husband and induced to enter the Contract, which Contract did not represent a fair bargain between the spouses.
iv) No financial statements were exchanged between the spouses and the Husband’s financial disclosure attached to the Contract materially misrepresented the Husband’s assets.
v) No certificate of independent legal advice was attached to the Contract or produced by the Husband’s representatives at trial.
vi) The “ILA” lawyer had no documents and no memory of the provision of legal services to the Applicant that could support any finding that ILA had been provided to the Applicant.
vii) The Contract on its face contains contradictory and misleading information relating to the matrimonial home.
viii) The Husband provided an explanation to the Applicant as to the nature and consequences of the Contract that did not reflect the Contract as written.
ix) The Contract was unconscionable based on the financial/legal control the Husband held over the Applicant, including her lack of status to work or reside in Canada, her inability to speak English, her inability to bring her son to Canada without the Husband’s assistance, and her employment status/her lack of income. There was also evidence of emotional/social/financial duress even though such duress was not recognized by the Applicant.
x) No copy of the Contract was provided to the Wife following execution. The Husband and/or his lawyer retained the Contract.
xi) Following execution of the Contract, but prior to marriage, unbeknownst to the Applicant, the Husband transferred the parties’ matrimonial home from his sole corporate ownership to ownership held personally between himself and one of his daughters.
xii) In November of 2014, unbeknownst to the Applicant, the Husband attended his lawyer’s office and executed powers of attorney for property and personal care, which appointed his children as his attorneys. The Husband also executed a Will on this same date that appointed two of his children as his estate trustees and left his entire estate to his children, to the exclusion of the Wife and her son. The Will and the powers of attorney were retained at the lawyer’s office and were not disclosed to the Wife.
xiii) On July 23, 2018, the Husband fell, broke his hip, and required surgery. Following surgery, the Husband returned to the matrimonial home and was cared for by the Wife, without assistance, and on September 3, 2019, fell once again, broke his hip, and was hospitalized.
xiv) The Wife remained in hospital with the Husband from September 3 to October 12, 2019.
xv) On September 18, 2019, the Husband’s lawyer, attended the hospital, “declared” the husband incapable, and released the powers of attorney for property and personal care to the Husband’s children. From this date onwards (September 18, 2019), the Husband’s children assumed control of all medical decisions for the Husband without consulting the Wife. The Husband’s children also invoked the Husband’s power of attorney for property and began managing the Husband’s assets, without consulting the Wife.
xvi) On September 25, 2019, the Applicant removed $140,000 from a joint bank account between the Applicant and Husband as the Husband’s son, Salvatore, was in the process of emptying the Husband’s accounts and the Applicant had no income or assets to support herself, to pay for the expenses relating to the home, or to pay for nursing care for the Husband.
xvii) On October 12, 2019, the Husband was discharged from the hospital and was transferred to a rehabilitation facility against the Applicant’s wishes.
xviii) On December 5, 2019, the Husband’s children’s lawyer sent a letter to the Applicant suggesting that it may be advisable for the parties to “separate” and offered to deal with issues of support and equalization of net family property.
xix) On June 9, 2020, the Applicant was provided with a copy of the Marriage Contract for the first time.
xx) On July 2, 2020, the Applicant commenced family law proceedings seeking spousal support, equalization, exclusive possession of the matrimonial home, an Order setting aside the marriage contract, an Order setting aside the Husband’s powers of attorney and appointing the Wife as guardian, an accounting, an Order setting aside the transfer of the matrimonial home for lack of spousal consent, and a divorce.
xxi) On August 4, 2020, the Husband’s Response, as prepared by his son/attorney for property and personal care, Salvatore, was served upon the Wife. The Response denied that the Wife was entitled to any relief claimed in her application pursuant to the terms of the Marriage Contract.
20Additionally, the following findings were made concerning the credibility and reliability of the witnesses at trial:
i) The Applicant gave her evidence in a straightforward manner and was prepared to admit facts that were not to her advantage. She appeared to be financially unsophisticated and guileless, which are traits, in my view, that rendered her vulnerable to manipulation by the Husband. I found the Wife to be a credible witness who provided reliable evidence regarding the validity of the Marriage Contract that was uncontroverted and corroborated in part by events that transpired following the marriage and the Husband’s incapacity.
ii) The Husband’s son, Salvatore, also provided evidence at trial. Salvatore appeared eager to testify and advised that he wished to provide evidence “relevant to the integrity” of his family and to himself. Salvatore’s testimony was often outside his scope of knowledge and unfailingly favoured the Estate’s position that the Wife was entitled to nothing. Salvatore was only 14 years of age at the date of execution of the Contract and had no direct or independent knowledge of any of the events or circumstances that surrounded the execution of the Contract. He attempted to provide colloquial evidence related to “stories told around the table.” All evidence provided by Salvatore relating to the validity of the Marriage Contract was based on hearsay and speculation. Salvatore’s evidence was of no assistance to the Court, as it relates to the validity of the Marriage Contract. Salvatore did, however, provide ample evidence of the circumstances and conflict that the Wife endured following her Husband’s dementia and related illness. Salvatore’s evidence confirmed the Wife’s position that following release of the power of attorney documents on September 18, 2019, the Husband’s children took full control of his person and assets without any consideration of the spouses’ (then) 17-year relationship, or the continued love and affection shared between the spouses. Given the Draconian position taken by Salvatore and his siblings following release of the powers of attorney, I have no criticism of the Wife’s attempts to financially and legally protect herself by removing funds from the joint bank account, or by registering the matrimonial home designation. I also have no real criticism of the children’s attempts to protect the Husband’s assets given that the Husband appointed his children as his attorneys and Estate Trustees with full knowledge of his children’s resentment towards the Wife. The scope of Salvatore’s testimony regarding the Marriage Contract was well outside of his scope of knowledge. Salvatore’s evidence appeared tailored to provide the best result for the Husband’s Estate, regardless of the truth or accuracy of the information. Overall, I do not find Salvatore to be a credible witness, nor do I find his evidence to be reliable. I do, however, find that Salvatore, acting as representative for the Husband, acted as he believed his father, the Husband, would have wished.
21It is well established that costs are discretionary. A court has discretion to make an award that is just in all the circumstances considering the factors in Rule 24(14).
22Rule 24(14) obligates the Court, in determining the appropriate amount of costs, to consider each of the party’s behaviour; the time spent by each party; any written Offers to Settle, including Offers that do not meet the requirements of Rule 18; any legal fees, including the number of lawyers and their rates; any other expenses properly paid or payable; and, any other relevant matter.
23Even where a party has met or exceeded the terms of their Offer to Settle, the Court retains the discretion to decline an award of full recovery of costs, including where a party failed to approach the matter in a cost-effective manner: see Sepiashvili v. Sepiashvili, 2001 CarswellOnt 2459 (S.C.) at para 21.
24The Court is not obligated to award costs pursuant to Rule 18 and retains the discretion to “order otherwise”. It may be appropriate to exercise discretion where there is an “absence of compromise” in the offer itself. An offer may also be given lesser weight where the proceeding creates a “limited scope for compromise”. Intercity Transport Ltd. v. GTI Roll Transportation Services (Canada) Inc., 2007 411 (Ont. S.C.), para 3; Cornaz v. Cornaz-Nikuluw, 2005 47770 (Ont. S.C.) at para 7.
25In the present case, the underlying facts are determinative of the issue of costs.
26As detailed above, the behaviour of the Husband, as supported and continued by his children as his powers of attorney and as his Estate Trustees, can easily be identified as being the sole or primary cause for the proceedings before the Court.
27Even in the absence of a Rule 18 Offer to Settle, the behaviour of the Respondent both personally and as continued by his Estate representatives, is sufficient to warrant the exercise of discretion to award costs on a full indemnity basis. The Applicant’s Offer to Settle merely cements the finding that full indemnity costs are warranted in this case.
28I have had an opportunity to review the Bill of Costs as submitted by the Applicant. I find the hourly rate charged and the hours docketed to be reasonable in the context of this proceeding. I also find by way of comparison, that the Bill of Costs as submitted by the Respondent is supportive of this conclusion.
29During my review of the dockets, I noted some “overlap” between counsel assigned to the matter and some docketing that I found to be unconnected to the trial and/or repetitive and, for these reasons, I have reduced the amount of fees sought by $4,000.00, inclusive. I have also reviewed and approved the disbursements as claimed, including the summary of disbursements relating to the period April 2020 to January 2023, as being proportionate, fair, and reasonable in the circumstances.
30For the foregoing reasons, I hereby fix the Applicant’s fees and disbursements, on a complete indemnity basis, at $129,293.40, inclusive of fees, disbursements, and HST, said amount payable within 60 days of the date herein.
The Honourable Justice S. J. Woodley
Released: April 7, 2026
CITATION: Cantillo v. Inserra Estate, 2026 ONSC 2022
COURT FILE NO.: FC-20-703-00
DATE: 2026-07-04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARIA BEATRIZ REINOSO CANTILLO
– and –
ESTATE OF FRANK INSERRA
REASONS FOR DECISION RE COSTS
The Honourable Justice S.J. Woodley
Released: April 7, 2026