CITATION: Del Ben v. Arseneau, 2026 ONSC 2828

COURT FILE NO.: CV-24-0433-00

DATE: 2026-05-13

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

RICK DEL BEN

C. Carr, for the Applicant

Applicant

• and -

DAWN ARSENEAU, personally and in her capacity as trustee and attorney for property for HELEN DEL BEN

J. Kirk, for the Respondent

Respondent

HEARD: April 22, 2026

Justice W.D. Newton R.S.J.

Decision On Costs

1The respondent was the attorney for property for her grandmother who has since died. The applicant is her uncle and the son of the deceased. Both are residuary beneficiaries under the grandmother’s will – the son, 60%, and the granddaughter, 40%.

2Before the grandmother’s death, the applicant brought an application against the respondent alleging the respondent breached her duties as an attorney for property and converted the grandmother’s property to her own use. Orders sought included declarations with respect to the foregoing, an accounting, and removal of the respondent as attorney for property.

3The application was brought in November 2024. The grandmother died in January 2025. The respondent delivered a responding application record in May 2024. Cross-examinations were held in August 2025. In January 2026 the applicant set this matter down for a hearing on April 22, 2026. A month before the hearing, the applicant delivered a Notice of Abandonment.

4The respondent seeks her costs of $29,191.82. The applicant seeks his costs of $15754.00.

5The issues are who gets costs, who pays costs, and how much.

6The starting point is Rule 38.08(3) which provides that, where an application is abandoned, the respondent is entitled to the costs of the application unless the court orders otherwise.

7Trustees are entitled to be indemnified for all costs, including legal costs, which they have reasonably incurred from the trust fund if not recovered from another provided that the trustee had not acted for her own benefit.¹

8As Chozik J. noted in Lyons v. Todd² in circumstances where a challenge to a will, or in this case a challenge to the actions of an attorney for property, is abandoned “the court must consider the circumstances that gave rise to the initiation of the application and its abandonment and make a costs award that is in the interests of justice and fair and reasonable.” As Justice Chozik observed, the decision with respect to costs “turns to some extent on whether I accept that there were suspicious circumstances that merited investigation…”.

9Having reviewed the application material filed the answer is now “no”. Based on the grandmother’s prior wills, the applicant knew that it was the grandmother’s intention to leave her granddaughter an investment account and have her granddaughter share in the residue of her estate, first as a 35% beneficiary and then as a 40% beneficiary, with the applicant a 60% beneficiary.

10The declaration of gifts signed by the grandmother and witnessed by two witnesses, who also provided affidavits, are ample evidence supporting the intention to gift as is the affidavit of the financial advisor at CIBC.

11That the applicant caused the respondent to be investigated by the police for financial abuse and elder neglect is also a factor to be considered.

12In short, these vey serious allegations were unfounded as evidenced by this abandoned application. However, it can be said that the circumstances did not warrant an investigation.

13The respondent is entitled to be fully indemnified for her costs. I have reviewed the bill of costs and am satisfied that the hours claimed, the rate sought, and disbursements are reasonable.

14As the unsuccessful party, the applicant is not entitled to costs from the respondent or the estate. His actions were taken to benefit him and deprive the respondent.

15The remaining issue is whether the respondent is to have her costs from the applicant, the estate, or both the estate and the applicant. Paying costs from the estate impoverishes the respondent against whom the applicant brought, then abandoned, an application. In the circumstances, a modest sum is to be paid by the estate given that it cannot be said there were no grounds to commence the application. The balance is to be paid by the applicant, who brought, and then abandoned, the application about a year and one half later.

16The respondent shall have her costs of the application in the amount of $29,191.82 with the sum of $5,000 payable by the estate and the balance, $24,191.82, payable by the applicant.

17There are no costs payable for this brief appearance on costs.

The Hon. Justice D. Newton R.S.J.

Footnotes

1. 1See Geffen v. Goodman Estate, 1991 69 (SCC), [1991] 2 S.C.R. 353 at pp. 390-91 and Bogue v. Bogue, 2024 ONSC 5403 at apara.12.
2. 22019 ONSC 2269 at para. 22 -23.