Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jack Shapiro, Applicant
AND:
Michael Shapiro, personally and in his capacity as Estate Trustee for the Estate of Carol-Sue Shapiro and Tracy Shapiro, Respondent
BEFORE: Justice K.A. Jensen
COUNSEL: Anne E. Posno, Dantae Gagnier and Stephen Victor Q.C., Counsel for the Applicant
Ian McBride and Margot Pomerleau, Counsel for the Respondent
HEARD: In writing
COSTS ENDORSEMENT
1This decision concerns costs arising from two related proceedings.
2The first proceeding involved an application for a Certificate of Appointment of Estate Trustee for the Estate of Carol-Sue Shapiro. The application was opposed by her husband, Jack and her daughter, Tracy (the objectors). They alleged that the latest version of Carol-Sue’s Wills (the October 2018 Wills or (the Wills) were procured through undue influence amounting to testamentary fraud. The Wills represented a significant departure from earlier testamentary plans. The residue of the estate, valued at approximately $7 million, was left entirely to the son, Michael. Jack’s entitlement was reduced, and Tracy was effectively disinherited.
3The objectors alleged Michael and his wife misled Carol-Sue. They argued false information was provided about Tracy’s husband and about Jack’s financial circumstances. According to them, this caused Carol-Sue to change her testamentary intentions. The central issue was whether Carol-Sue made her decisions independently or whether those decisions were induced by misrepresentation.
4I dismissed the objections and upheld the validity of the 2018 Wills. I found that undue influence had not been proven on a balance of probabilities. Carol-Sue may have held some mistaken beliefs. However, most of her concerns had some factual basis. They were not shown to have been fabricated or imposed by Michael or his wife.
5The evidence showed that Carol-Sue was strong-willed and well-advised. She was not dependent or isolated. She had longstanding concerns about protecting the family legacy from Tracy’s husband. She had considered reducing or eliminating Tracy’s inheritance well before 2018. The changes in the Wills reflected an evolving intention driven largely by her own views about family dynamics. I therefore concluded that her decisions were deliberate and independent. The Certificate of Appointment of Estate Trustee was granted to Michael and the objections were dismissed.
6The second proceeding involved a claim by Jack under the Succession Law Reform Act, R.S.O. 1990, c. S.26. He sought dependant support and a proprietary interest in the matrimonial condominium. I found that Jack qualified as a dependant spouse. Carol-Sue had provided him with essential support, including housing. Her 2018 Wills did not make adequate provision for him. I also found that Jack had a strong moral and legal claim to the condominium. It had been the matrimonial home and Carol-Sue had promised to place it in joint title.
7Balancing testamentary autonomy with legal and moral obligations, I ordered that title to the condominium be transferred to Jack, in addition to the $250,000 bequest. This remedy ensured his financial security while preserving most of the estate for Michael.
The Parties’ Positions
8Michael seeks substantial indemnity costs of approximately $297,849 from Jack and Tracy for the Will Challenge. He submits he was entirely successful. He argues the objectors advanced broad and unsupported allegations, failed to narrow the issues in a timely way, brought unnecessary motions, and rejected reasonable settlement offers. He submits their conduct prolonged the litigation and increased costs.
9With respect to the dependency claim, Michael accepts that Jack has some entitlement to costs. However, he submits those costs should be modest. He argues they should be assessed on a partial indemnity basis using Ottawa rates. He also seeks to set them off against his entitlement on the Will Challenge.
10Jack submits that costs should be governed by public policy. He argues that the litigation was caused by Carol‑Sue’s conduct. He points to her secret departure from earlier wills, her failure to provide adequately for him, and her decision to disinherit Tracy based on unfounded beliefs. He emphasizes that she was advised of alternatives. She was told that a trust could protect Tracy’s inheritance. She was also warned of the risk of a dependency claim.
11Jack submits the proceedings were necessary and reasonably brought. He states that he attempted to avoid litigation early. He further submits the estate did not make a reasonable settlement offer. He seeks full indemnity costs payable from the estate. In the alternative, he submits that there should be no costs due to the mixed result.
12In reply, Michael argues that the objectors overstate their success. He emphasizes that he succeeded entirely on the Will Challenge. He notes Tracy obtained no relief and Jack obtained only limited relief. He submits public policy does not apply because this was not a case of ambiguity or estate‑driven litigation. Rather, it was an adversarial challenge based on serious allegations. He argues any costs awarded to Jack should be reduced and set off.
13Jack, in reply, denies any improper conduct. He emphasizes that the litigation was found to be reasonable. He maintains that public policy applies because the litigation was foreseeable and caused by Carol‑Sue’s decisions. He reiterates that no party beat its settlement offer and that fairness supports either estate‑funded costs or no costs.
14Jack seeks a total costs award of approximately $785,000, payable from the estate. This amount consists of two components. He claims $235,783 on a full indemnity basis for the dependency application and $550,000 on a discounted full indemnity basis for the Will Challenge, shared with Tracy.
The Law
15In estate litigation, costs are governed by a distinct framework that reflects broader public interests. As the Court of Appeal held in McGrath v. Joy, 2022 ONCA 119, 471 D.L.R. (4th) 211, the court must first determine whether public policy considerations apply. If they do, the general rule is that the parties’ reasonable costs are to be paid from the estate: at paras. 94–95.
16Public policy considerations arise because estate disputes engage interests beyond those of the parties. They include the need to give effect to valid wills and to ensure the proper administration of estates: Sawdon Estate v. Watch Tower Bible and Tract Society of Canada, 2014 ONCA 101, 119 O.R. (3d) 81, at pp. 95-96. Probate proceedings are also in rem, engaging the interests of the testator and the public at large: Neuberger Estate v. York, 2016 ONCA 191, 129 O.R. (3d) 721, at pp. 734-5.
17Where the testator’s conduct has caused the litigation, courts may order that costs be borne by the estate: Sawdon, at p. 96. However, the analysis is sequential. If public policy considerations do not apply, the court reverts to the modern approach under s. 131 of the Courts of Justice Act and r. 57.01, where costs generally follow the event: McGrath, at para. 92. Even where public policy considerations are engaged, the court retains discretion to fashion a costs order that reflects fairness, success, and proportionality: Sawdon, at pp. 97-98.
Analysis
18The starting point is McGrath v. Joy. I must first determine whether public policy considerations apply.
19Jack submits that the litigation was caused by Carol-Sue’s conduct. There is force to that submission. Carol-Sue departed from earlier wills without informing Jack, failed to provide adequately for her spouse, and acted on concerns about Tracy’s husband. She was advised of alternatives and warned of the risk of a dependency claim but chose not to follow that advice.
20Public policy considerations are engaged in relation to the dependency claim, but do not arise in the same way on the Will Challenge. The extent to which those considerations affect the costs outcome is addressed below.
21Where public policy considerations are engaged, they do not automatically entitle a party to full indemnity from the estate. The court retains discretion to fix costs in accordance with civil cost principles, including success and reasonableness: McDougald Estate v. Gooderham, 2005 CanLII 21091, 255 D.L.R. (4th) 435 (Ont. C.A.), at paras. 86-91; see also Di Nunzio v. Di Nunzio, 2022 ONCA 889, 164 O.R. (3d) 796, at paras. 9-13; McGrath, at paras. 95 and 98.
22Applying the modern approach, success is a primary factor. Michael was entirely successful on the Will Challenge. Tracy obtained no relief. Jack succeeded only in part. This favours an award of costs to Michael on the Will Challenge and a more limited award to Jack on the dependency claim.
23There is no basis for substantial indemnity costs. Such awards are reserved for exceptional circumstances involving conduct worthy of sanction: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at p. 134; Davies v. Clarington (Municipality), 2009 ONCA 722, 100 O.R. (3d) 66, at paras. 28 and 40. Although this litigation was vigorously contested, it does not rise to the level of impropriety required to justify a departure from the ordinary partial indemnity scale. Parties are entitled to advance and resist claims. Absent reprehensible or egregious conduct amounting to a misuse of the court’s process, such steps do not attract elevated cost consequences: Davies, at paras. 28, 29 and 40.
24In that regard, the fact that Michael was required to bring a contested motion to reinstate the monthly allowance previously provided by Carol‑Sue does not, without more, constitute an abuse of process or reprehensible conduct. Nor does the fact that Jack and Tracy advanced a position that Carol‑Sue lacked testamentary capacity, notwithstanding the medical evidence. Parties are entitled to test their positions on contested issues, including capacity, and there is no evidence that this allegation was advanced in bad faith or for an improper purpose.
25I find that the parties’ settlement conduct in this case does not affect the result. No party obtained a judgment more favourable than its offer.
26Proportionality must also be considered. Jack retained Toronto counsel at higher rates. That was his choice. However, recovery must reflect rates appropriate to this jurisdiction: see, for example, Brahma v. HR Services, 2022 ONSC 2645, at para. 49.
Quantum
27A blended costs award is appropriate in this case.
28Michael is entitled to his costs of the Will Challenge as the successful party. Jack is entitled to recovery of a portion of his costs of the dependency claim, reflecting both his limited success and the role of public policy.
29I have reviewed the parties’ Bills of Costs. With the exception of the higher rates charged by Toronto counsel, I find that the hourly rates, the time spent, and the allocation of work were reasonable in the circumstances. However, recovery must reflect rates appropriate to this jurisdiction.
30I fix costs on a partial indemnity basis, adjusted for the complexity of the proceedings and for rates appropriate to Ottawa.
31In fixing Michael’s costs of the Will Challenge, I have had regard to the factors set out in r. 57.01, including the result, the complexity of the issues, the importance of the matter to the parties, and the reasonableness of the time expended. Michael was wholly successful in defending the validity of the Will, an issue of central importance to the administration of the estate and the parties’ respective entitlements. The Will Challenge involved contested issues of capacity and undue influence requiring a detailed review of the evidentiary record and careful legal analysis. I am satisfied the time expended and allocation of work were appropriate to the nature of the proceeding.
32Michael seeks costs in the amount of $297,849. While that amount reasonably reflects the legal fees actually incurred, it exceeds what is recoverable on a partial indemnity basis. Costs must reflect an amount that is fair and reasonable for the unsuccessful party to pay, and not a full reimbursement of the successful party’s actual expense. Having regard to proportionality, the complexity of the proceeding, and the reasonable expectations of the parties, the amount claimed is high relative to the issues determined. In my view, an award of $200,000 appropriately balances compensation and proportionality, and fairly reflects the work reasonably required to respond to and successfully defend the challenge.
33In fixing Jack’s costs of the dependency claim, I have again had regard to the factors set out in r. 57.01. The dependency claim raised issues of entitlement and support that required a careful evidentiary and legal analysis. While Jack did not achieve complete success, the claim was reasonably advanced and not disproportionate to the issues in dispute. I am satisfied that the time spent, and the allocation of work were appropriate to the nature of the proceeding.
34Jack seeks total costs of approximately $785,000, consisting of $235,783 on a full indemnity basis for the dependency application and $550,000 on a discounted full indemnity basis for the Will Challenge. That claim must be assessed in light of the result. Jack was unsuccessful on the Will Challenge and achieved only partial success on the dependency claim. In addition, I have rejected the applicability of elevated cost scales and have fixed costs on a partial indemnity basis using rates appropriate to this jurisdiction. Viewed in that framework, the amount claimed substantially exceeds what is fair and reasonable for the opposing party to pay. It reflects, in significant part, work undertaken in respect of issues on which Jack did not succeed and at rates that are not recoverable. A substantial reduction is therefore required to align the award with the principles of success, proportionality, and reasonable expectations.
35Adjusting the rates claimed to those applicable in this jurisdiction and applying a partial indemnity scale, I find that an award of $125,000 fairly reflects the work reasonably required to advance the claim.
36For the Will Challenge, I fix Michael’s costs, inclusive of fees and disbursements, at $200,000. For the dependency claim, I fix Jack’s costs, inclusive of fees and disbursements, at $125,000.
37While Jack achieved only limited success, his dependency claim engaged a legitimate public policy interest in the proper adjudication of support claims and was reasonably advanced. Those considerations justify a meaningful contribution from the estate. At the same time, the limited success of the claim and the fact that any such contribution is borne by Michael as the beneficiary militate against a more substantial allocation. Fixing the estate’s contribution at 40% strikes an appropriate balance between these competing considerations. I therefore direct that 40% of Jack’s costs ($50,000) be paid from the estate, with the balance borne personally.
38Accordingly, the estate shall pay to Jack the amount of $50,000 in respect of his costs of the dependency claim.
39For the purposes of the set-off, only the portion of Jack’s costs not borne by the estate is recoverable as against Michael. The balance of Jack’s costs, amounting to $75,000, is therefore the relevant comparator to Michael’s costs of $200,000. Set against Michael’s entitlement, this yields a net amount of $125,000 payable by Jack to Michael. After set-off, Jack shall pay to Michael the net amount of $125,000.
40This result reflects relative success, proportionality, and fairness, consistent with the principles governing costs in estate litigation.
Justice K. A. Jensen
Date: June 30, 2026