Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Joanne Sebanc, Applicant
-and-
Floribet Fallas Mora, as estate trustee of the Estate of Mark Sebanc, Respondent
AND BETWEEN:
Roseanne Sebanc, Daniel Sebanc, and Natalie Sebanc, Applicants
-and-
Floribet Fallas Mora, as estate trustee of the Estate of Mark Sebanc, Respondent
BEFORE: Rees J.
COUNSEL: Joanne Sebanc, Self-represented Applicant Roseanne Sebanc, Daniel Sebanc, and Natalie Sebanc, Self-represented Applicants Claudia Falquez Warkentin, for the Respondent
HEARD: In writing
Costs ENDORSEMENT
1On December 5, 2025, I released my judgment dismissing the two applications. I have received costs submissions in both matters. The applications raise distinct considerations, which I address below.
Analysis
2The modern approach to fixing costs in estate litigation is to carefully scrutinize the litigation and, unless the court finds that one or more public policy considerations applies, to follow the costs rules that apply in civil litigation: McDougald Estate v. Gooderham (2005), 2005 21091 (ON CA), 255 D.L.R. (4th) 435 (Ont. C.A.), at para. 80. Public policy considerations include ambiguity or omission in the testator’s will or other conduct of the testator, or there were reasonable grounds upon which to question the will’s validity. Where public policy considerations apply, costs may be ordered out of the estate.
3Further, on a dependent’s relief claim s. 75 of the Succession Law Record Act, R.S.O. 1990, c. S.26 directs that:
The court may direct that the costs of the application be paid out of the estate or otherwise as it thinks proper, and may fix the amount of the costs payable by any party, exclusive of necessary disbursements, at a lump sum having regard to the value of the estate and the amount of any support applied for or directed by its order.
4In exercising my discretion in awarding costs, I may consider any relevant matter and r. 57.01(1) sets out a list of factors that the court may consider. I have considered these factors, including: the principle of indemnity; the experience of counsel, rates charged, and hours spent; the amount an unsuccessful party could reasonably expect to pay; the amount claimed and the amount recovered; the importance of issues; the complexity of the proceedings; and the conduct of the parties. The most significant factor to consider is that the amount of costs must be reasonable and fair.
5Rule 49.10 imposes costs consequences where the unsuccessful party did not accept a favourable offer. A favourable offer is one that the party ought to have accepted because it is as good as or better than the judgment obtained. Under r. 49.10(1), where a plaintiff made a favourable offer to the defendant that was not accepted, the plaintiff is entitled to partial indemnity costs to the date the offer to settle was served and substantial indemnity costs from that date, unless the court orders otherwise. Under r. 49.10(2), where the defendant made a favourable offer to the plaintiff that was not accepted, the plaintiff is entitled to partial indemnity costs to the date the offer to settle was served and the defendant is entitled to partial indemnity costs from that date, unless the court orders otherwise. While I have a discretion to depart from the rule, I should only do so where the interests of justice require me to do so.
Costs allocation between applications
6The estate takes the position that allocating fees between the two applications is challenging due to the interconnectedness of the relief sought in them. The estate proposes allocating the total costs of responding to both applications based on a 38% allocation to the application brought by Joanne Sebanc and 62% to the application brought by Roseanne Sebanc et al.
7In my view, this allocation of costs between the two applications is reasonable. Given the interconnectedness of the two applications, a more precise attribution is not reasonably possible.
Application by Joanne Sebanc (CV-23-134)
8The estate seeks the recovery of its costs of defending the application brought by Joanne Sebanc on a full recovery basis, in the amount of $33,240, all inclusive.
9Among other reasons for seeking to recover its costs on a full indemnity basis, the estate made a settlement offer to Joanne Sebanc on January 28, 2025 that was more favourable than the outcome of her application. This, however, does not entitle the estate to recover costs on a full indemnity basis.
10Ultimately, the deceased failed to properly provide for either dependant. But this is not a case in which it is reasonable to order the estate to pay the costs of the application because it is insolvent and the estate’s litigation costs are being borne by Floribet. It would also not be fair to direct that each party bear its own costs because it is unjust to shift the entire burden of the estate’s costs onto Floribet.
11That said, I recognize Joanne’s limited ability to pay. Further, Joanne’s success was mixed. Although Joanne’s application was ultimately unsuccessful, she acted reasonably in bringing the application and was found to be a dependent for whom Mark did not make adequate provision. In the result, however, I did not make an order for support because the estate was insolvent and I concluded that Floribet’s needs were greater than Joanne’s. As a result, I would not award substantial indemnity costs against Joanne.
12Accordingly, I order Joanne to pay costs of $14,000, all inclusive, on a partial indemnity basis. In arriving at this amount, I have reduced the costs claimed by the estate for overall reasonableness. This includes a reduction for the changes of estate counsel since transferring a file leads to additional expense.
Application by Roseanne Sebanc et al (CV-24-57)
13Different considerations apply to the application brought by Roseanne, Daniel, and Natalie.
14Having reviewed the course of the litigation, I conclude that while it was reasonable for them to have initiated their application, it should have become apparent to them when they received the respondent’s informal accounting that the estate was insolvent. To cause an insolvent estate to incur litigation costs of $49,168.70 was not reasonable.
15They should also have been more discerning than to initially attack the validity of the deceased’s and respondent’s marriage, which they alleged to be a marriage of convenience or marriage fraud. Although this was not pressed in their factum and oral submissions, the Notice of Application was not amended to remove this baseless allegation.
16Further, they alleged fraud in two other respects. First, they argued that the respondent engaged in fraudulent misrepresentation in obtaining the Certificate of Appointment of Estate Trustee. They pleaded that she did so, among other things, by misstating or excluding reference to the deceased’s intellectual property from the statement of assets. Although there appears to have been an issue regarding service of the application for the Certificate by the respondent’s former solicitor, there was no evidence of fraud in the statement of the deceased’s assets.
17Second, they argued that the respondent fraudulently conveyed estate assets for personal gain and fabricated documents to obscure the value of estate assets and debts.
18These issues had no evidentiary foundation and should not have been pursued.
19Although the respondent had difficulty administering the estate early on, she regularized matters once she retained her present counsel.
20Roseanne, Daniel, and Natalie made very serious allegations against the respondent that impugned her integrity. They pressed two of those allegations despite the detailed accounting ultimately provided by the respondent, and completely failed to substantiate them.
21On January 27, 2025, the respondent offered to settle the application brought by Roseanne, Daniel, and Natalie for a dismissal, release in favour of the respondent, and the parties bearing their own costs. This offer was as good as the outcome on the merits.
22Having regard to the applicants advancing baseless allegations of fraud and the respondent’s offer to settle, it is appropriate to award the respondent substantial indemnity costs. See e.g. The Catalyst Capital Group Inc. v. Moyse, 2018 ONCA 283, 130 O.R. (3d) 675, at paras. 47-55.
23As a preliminary matter, I reduce the litigation costs associated with this application for reasonableness and to account for the additional expenses associated with the changes of respondent’s counsel. Overall, I find that $41,000 of the respondent’s actual costs of this application were reasonably incurred.
24Based on this, I award the respondent $30,000 in substantial indemnity costs, all inclusive, in CV-24-57.
Justice Owen Rees
Date: February 12, 2026