Lacaria v. Lacaria, 2026 ONSC 591

CITATION: Lacaria v. Lacaria, 2026 ONSC 591

COURT FILE NO.: CV-24-00722121-00ES

DATE: 20260130

ONTARIO SUPERIOR COURT OF JUSTICE (Estates List)

IN THE MATTER OF THE PERSONAL CARE OF CATERINA LACARIA

BETWEEN:

COSIMO LACARIA Applicant

AND:

CATERINA LACARIA, BRUNO J. LACARIA, DAMIANO ROCCO ANTONIO (TONY) R.A. LACARIA, SALVATORE LACARIA and THE PUBLIC GUARDIAN AND TRUSTEE Respondents

BEFORE: Justice A.A. Sanfilippo

COUNSEL: Matthew Furrow and Alexandra M.H. Cuperfain, for the Applicant Bruno J. Lacaria, Damiano Rocco Antonio (Tony) R.A. Lacaria, and Salvatore Lacaria, Respondents acting in person

HEARD: November 24, 2025

ENDORSEMENT

1Caterina Lacaria was born in 1927, and was married to Bruno Lacaria, who predeceased her in 2023. Caterina and Bruno had four children: the Applicant, Cosimo Lacaria, and the three Respondents, Bruno J. Lacaria, Damiano Rocco Antonio (Tony) R.A. Lacaria, and Salvatore Lacaria (collectively, the “Respondents”).

2Caterina signed a Power of Attorney for Personal Care on December 1, 1999, by which she appointed her husband as her attorney for personal care and in the event that he should predecease her, as he did, Caterina appointed her four children to act jointly as her attorneys for personal care (the “1999 POAPC”). No one disputed the validity of the 1999 POAPC. From at least the time of Bruno’s death in 2023, the Applicant and the three Respondents were Caterina’s joint attorneys for personal care.

3Caterina was diagnosed on December 4, 2023, by her geriatrician, Dr. Alana Miller, as having severe dementia, with the result that she was incapable of preparing food or medications, feeding herself, dressing, and personal care. She was housebound, incontinent of bowel and bladder, and observed to be unresponsive to verbal or nonverbal cues.

4As Caterina’s condition worsened, the Applicant and the Respondents were increasingly called upon to make decisions about their mother’s care and support. The Applicant submitted that he had significant difficulties in collaborating with his brothers and in accessing information about his mother’s health and needs. The Applicant claimed that his brothers were ignoring the dietary recommendations for his mother and preventative measures to keep Caterina safe, and that the siblings disputed the hiring of personal support care workers (“PSW”). The Respondents submitted that Salvatore, who lived with his parents all his life, was of paramount, if not primary importance in addressing Caterina’s needs.

5On June 11, 2024, the Applicant brought this Application by Notice of Application issued under the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”), for an order that Caterina is incapable of personal care; for an order that he be appointed as the sole Guardian of Personal Care of his mother; for directions regarding the provision of personal care; and for an order terminating the 1999 POAPC.

6Caterina Lacaria died on January 9, 2025, some seven months after Cosimo’s initiation of this Application. With her death, the guardianship sought by this Application was concluded. In the result, none of the issues raised by this Application were determined by the Court. The only appearance before the Court in this Application was a Scheduling Appointment on July 26, 2024, which was adjourned to August 1, 2024, and then not conducted.

7The Applicant seeks an award of costs of this Application. The Applicant claims that in this statutory guardianship Application he incurred actual costs of $90,453.79, of which he claims partial indemnity costs of $54,521.21, all inclusive, payable by the Respondents and $35,932.58, all inclusive, payable from the assets of the estate of Caterina Lacaria (the “Estate”). The Respondents denied that the Applicant had any entitlement to costs and submitted that the amount of costs sought by the Applicant was unreasonable, excessive, and disproportionate. The Respondents did not seek an award of costs but rather submitted that all parties should bear their own costs.

8For the reasons that follow, I find that the Applicant is awarded costs fixed in the amount of $12,000.00, all inclusive of legal fees, disbursements, and applicable taxes, payable from the assets of Caterina’s Estate. Other than this cost award, the Applicant shall bear any other costs that he incurred in this Application and the Respondents shall each bear their own costs of this Application.

9For brevity and clarity, I will respectfully refer to the parties by their first names, considering that they share the surname Lacaria, in the same manner used by the parties in their written and oral submissions.

I. THE APPLICANT’S POSITION

10Cosimo claims that he brought this Application for the benefit of Caterina as he could not reach agreement with his brothers for the proper care of their mother. Cosimo concedes that Salvatore lived with his mother and provided non-professional care and supervision but claimed that the Respondents were not prepared to arrange for an acceptable level of care by PSWs and were not prepared to implement a feeding protocol that was required to manage Caterina’s susceptibility to choking or aspirating while eating due to her advanced dementia and diagnosis of dysphagia.

11Cosimo concedes that there was no determination by the Court of any issue raised by his Application and, indeed, not even a Court hearing involving the Respondents. However, Cosimo submitted that following the rescheduled Scheduling Appointment of July 26, 2024, the Respondents delivered a Notice of Appearance on July 29, 2024, and the parties thereafter negotiated two agreements: a “Care Protocol for Caterina Lacaria” dated July 31, 2024 (the “Care Agreement”); and a “Hiring of PSWs Protocol for Caterina Lacaria” dated September 11, 2024 (the “PSW Agreement”). Cosimo submitted that the Care Agreement and the PSW Agreement (collectively, the “Agreements”) benefitted Caterina and would not have been implemented but for the Applicant commencing this Application.

12Cosimo claims that he has incurred actual legal costs in the amount of $90,453.79, consisting of legal fees in the amount of $89,831.44 inclusive of HST and disbursements of $622.35. On a partial indemnity basis, Cosimo submitted that these costs total $54,521.21, all inclusive. Cosimo sought a partial indemnity award of costs against the Respondents, jointly and severally, in the amount of $54,521.21, all inclusive, and the balance of his actual costs, $35,932.58, payable from the assets of the Estate.

II. THE RESPONDENTS’ POSITION

13The Respondents submitted that this Application was unnecessary because they were properly managing Caterina’s care, as they had always done. They claimed that they had always attended at their mother’s medical appointments, unlike the absent Cosimo, and that Salvatore was constantly and consistently the principal caregiver and care coordinator for Caterina throughout her senior years. The Respondents tendered a Coroner’s Report that states that Caterina’s death was caused by pneumonia. Other significant conditions included vascular dementia, flexion contractures, peripheral vascular disease, and type 2 diabetes. The manner of her death, at 97 years of age, was found by the Coroner to be natural with no signs of neglect or traumatic causes of death.

14The Respondents submitted that there is a long-standing rift between them and Cosimo, that has been exacerbated by their concerns regarding Cosimo’s management of assets alleged to belong to their parents and now their respective estates. The Respondents submitted that Cosimo began this Application solely to deflect and distract attention from the Respondents’ scrutiny of his conduct regarding their parents’ assets. The Respondents claimed that this Application did not benefit Caterina, did not proceed to any determination, and only served to generate costs that were unreasonably incurred for no proper purpose. The Respondents submitted that all parties should bear their own costs of this Application.

III. ANALYSIS

15The Court’s jurisdiction on the issue of costs derives from s. 131(1) of the Courts of Justice Act, which provides as follows: “Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.”¹ The case law has established that the Court has jurisdiction to award costs even where there has been no adjudication of the proceeding.

16The Courts have been cautious in exercising their discretion to award costs in settled matters, for reasons that I summarized in Carinci v. Carinci-Serrao, at paras. 15-16.² Costs are not an end unto themselves. Costs are not the purpose for which the litigation was commenced. Rather, costs are an incident of the determination of the rights of the parties and depend for their adjudication on the determination of the issues raised by the proceeding.³

17Courts have uniformly rejected the invitation to conduct a “phantom trial” to assess the merits of the pleaded claims and defences in the context of a costs hearing as cost-inefficient and disproportionate.⁴ A “phantom trial” risks unfairness and would call for the allocation of scarce judicial resources to conduct a moot trial to determine an issue that had no continued relevance in a resolved proceeding except for the parties’ dispute on the costs of the process or, worse, the last outlet of the parties’ unspent acrimony.⁵

18This case provides a cogent example of the reason for caution on the issue of costs in a resolved proceeding. Caterina’s death before the adjudication of this statutory guardianship application rendered moot the issue of Caterina’s capacity and guardianship. The Applicant’s Bill of Costs is divided between the costs incurred by the Applicant to the time of Caterina’s death and the costs incurred thereafter. The Applicant’s incurred actual legal fees to the time of Caterina’s death are in the amount of $21,615.00 plus HST. After Caterina’s death, and accordingly after this Application was rendered moot, the Applicant incurred a further $69,705.50 in actual legal fees plus HST to pursue his claim for costs. Two-thirds of the legal fees incurred, and now claimed by the Applicant, were in furtherance of his claim for costs: not for the substantive determination of guardianship. This is inefficient and disproportionate and, in my view, subverts the purpose of this statutory guardianship application from its objective of obtaining a benefit for Caterina to the ongoing incurring of legal costs for the sole purpose of recovering legal costs.

19Had this proceeding not been a statutory guardianship application, I would have exercised my discretion to dismiss the Applicant’s claim for costs on this resolved proceeding on the basis of the case law that I have summarized. Specifically, as costs are incidental to a determination of success and as no such adjudication was required with the result that no findings were made, and because no “phantom trial” ought to be held, I would have held that the parties bear their own costs. Unlike Carinci, there was no obvious, conceded, or admitted default by a party that would support the exercise of discretion to grant an award of costs to either party in this resolved proceeding.⁶

20However, a statutory guardianship application raises another consideration. Specifically, whether all or part of the Applicant’s costs should be paid from the assets of the incapable person. In Fiacco v. Lombardi, Justice D.M. Brown, as he then was, explained that a cost claim in a statutory guardianship application, brought in the protection of an allegedly vulnerable person under the SDA, requires consideration of whether the person said to be incapable benefited from the proceeding, necessitating an examination by the Court of “what, if any, benefit the incapable person derived from the legal work which generated those costs.”⁷ This reflects the basic purpose of the SDA, in the case of a guardian of property to manage the incapable person’s property wisely,⁸ and in the case of a guardian of the person to make decisions regarding care and support in the best interests of the incapable person.⁹ Regarding contested guardianship applications, like the present, Justice Brown explained that costs must be determined on a best interest analysis:

Contested guardianship applications are more problematic. While bona fide disputes may exist amongst those interested in the well-being of the incapable person as to who should be appointed her guardian, a significant risk exists that a contested guardianship application may lose sight of its purpose – to benefit the incapable person – and degenerate into a battle amongst siblings or other family members, some of whom may have only their own interests at heart. In such circumstances courts must scrutinize rigorously claims of costs made against the estate of the incapable person to ensure that they are justified by reference to the best interests of the incapable person.¹⁰

21The Applicant relied heavily on cases brought under the SDA where the Court considered the issue of costs notwithstanding the proceeding having been rendered moot by the death before adjudication of the person alleged to be incapable. In Donovan v. MacKenzie, Justice Tranquilli held that the Court had jurisdiction to determine costs even though the allegedly incapable person died before adjudication, and focused the analysis on whether the applicant was motivated by the best interests of her father in the conduct of the application and whether the applicant acted in an unreasonable manner that led to unnecessary costs.¹¹ Justice Tranquilli applied the principle expressed by Justice Spies in Ziskos v. Miksche, again in the context of capacity litigation rendered moot by the death of the person alleged to be incapable, that “[t]he court has a responsibility to ensure that legal costs incurred on behalf of vulnerable persons are necessary and reasonable and for that person’s benefit, before ordering that such costs be paid by the assets or estate of the vulnerable person.”¹²

22In Donovan, Justice Tranquilli ordered that the parties bear their own costs of the moot application, on the finding that the siblings’ dispute resulted in “unfortunate litigation that consumed the final years of her father’s life.”¹³ In Ziskos, Justice Spies awarded a total of $131,187.00 in costs payable from the assets of estate of the incapable person, on the finding that the incapable person benefited from the Application, but ordered that the parties bear the balance of the combined $1,170,435.00 claimed in costs. The Respondents relied on Opalinski v. Opalinski, wherein Justice Faieta considered a claim for costs in a capacity dispute rendered moot by the death of the incapable person, and declined to award any of the costs claimed by the parties, totaling $480,423.77, against the assets of the estate of the incapable person, on the finding that the Application was not for the benefit of the incapable person, but rather constituted “a battle between siblings which resulted in their mother becoming a pawn in their own ever escalating conflict.”¹⁴

23Here, I accept that the Applicant brought this Application for the benefit of Caterina and that the Application conferred a benefit to Caterina as manifested by the Care Agreement and the PSW Agreement. These Agreements were implemented by the parties with the advice of counsel and are comprehensive. The Care Agreement established a protocol for the process for feeding Caterina and the nature of the food, all subject to direction from medical professionals, and called for collaboration in the hiring of PSWs. The PSW Agreement set out a detailed protocol by which the parties would contact PSW providers, investigate available and qualified PSWs, and make arrangements for the retainer and instruction of PSWs. I find that these Agreements were in the best interests of Caterina and would not have been implemented by the parties, with the advice of counsel, but for the Applicant having brought this Application.

24Accordingly, I accept that, on the basis of the principles set out in the SDA and applicable case law, that the Applicant shall receive an award of costs in this Application. As these costs were incurred for the benefit of Caterina, these costs shall be paid from the assets of the Estate. I do not accept Cosimo’s submission that a portion of the costs should be paid by the Respondents because no determination was made in this Application regarding the Respondents’ positions and no “phantom trial” will be conducted of the issues raised by this Application.

25The Applicant tendered a last will and testament alleged to have been executed by Caterina on December 1, 1999 (the “Will”). The Will provides that, considering Bruno’s death, the Applicant and the Respondents are, jointly, the trustees of the Estate and the residuary beneficiaries of the Estate. As equal residuary beneficiaries, the inheritance of each of the parties is equally reduced by the payment of this cost award from the assets of the Estate because the amount available for distribution to them will be diminished. Considering the parties’ admitted rift and strained communication during a time when the 1999 POAPC called for the parties to act faithfully, cohesively, and collaboratively in their mother’s best interest, I find that this is a just and fair result.

26Regarding the amount of the cost award, I find that only the actual costs incurred prior to Caterina’s death ought to be considered. These costs total $21,615.00. I find that the costs incurred by the Applicant after Caterina’s death were unreasonably incurred for the purposes of an Application that had, by that point, been rendered moot. It was not within the reasonable expectation of the Respondents that Cosimo would incur more costs after the Application became moot than he incurred while the Application was pending. The Court of Appeal has instructed that the fixing of costs involves a determination of costs that are fair, reasonable, and proportionate and not necessarily a simple tabulation of the amount that a party may choose to pay their lawyer:

Costs that are reasonable, fair, and proportionate for a party to pay in the circumstances of the case should reflect what is reasonably predictable and warranted for the type of activity undertaken in the circumstances of the case, rather than the amount of time that a party’s lawyer is willing or permitted to expend.¹⁵

27The fixing of costs requires a Court to undertake a critical examination of the relevant factors set out in Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as applied to the costs claimed and then “step back and consider the result produced and question whether, in all the circumstances, the result is fair and reasonable”.¹⁶ Here, while I accept that the hourly rates used by the Applicant are reasonable, I do not accept that 146 hours of lawyers’ time was reasonably incurred to prepare a statutory guardianship application and negotiate the Agreements, or was in the reasonable expectation of the parties or proportionate. Considering all the factors under Rule 57.01, I find that the fair, reasonable, and proportionate amount of costs to be fixed for the Applicant bringing this statutory guardianship Application, including the negotiation and implementation of the Care Agreement and the PSW Agreement, is $12,000.00, all inclusive of legal fees, disbursements, and applicable taxes.

IV. DISPOSITION

28On the basis of these reasons, I order:

1. The Applicant, Cosimo Lacaria, is awarded costs of this Application, fixed in the amount of $12,000.00, all inclusive of fees, disbursements, and applicable taxes, payable from the assets of the Estate of Caterina Lacaria.

2. Other than the costs awarded in paragraph 1, hereof, the Applicant, Cosimo Lacaria, shall bear any other costs that he incurred in this Application and the Respondents, Bruno J. Lacaria, Damiano Rocco Antonio (Tony) R.A. Lacaria, and Salvatore Lacaria, shall each bear their own costs of this Application.

29Any party may take out a formal order by filing a draft order on the Case Center bundle for this hearing (005), together with the approval as to form and content of all parties, and forwarding a copy, in PDF and Word format, to the Court Registrar and the Estates List Trial Coordinator, to be brought to my attention.

Footnotes

1. 1Courts of Justice Act, R.S.O. 1990, c. C.43.
2. 22024 ONSC 2955, citing Kearney v. Hill, 2017 ONSC 6306, 139 O.R. (3d) 786, at para. 27; Casey v. Casey, 2023 ONSC 2512, 93 R.F.L. (8th) 486, at para. 5; Upton v. Harris, 2016 ONSC 2891, at para. 13.
3. 3Muskala v. Sitarski, 2017 ONSC 2842, at para. 8; Dhillon v. Dhillon Estate, 2009 58607 (ON SC), [2009] 75 R.F.L. (6th) 284 (Ont. S.C.), at para. 10; Hassan v. Hassan, 2019 ONSC 1199, at para. 33; Brown v. Brown, 2025 ONSC 2336, at paras. 13-15. Also, Koster v. Koster, 2018 ONSC 6896, 44 E.T.R. (4th) 335, at para. 18: “Put another way, an award of costs is typically grounded in findings by the court as to the parties’ respective success and the impact of their actions during litigation, which are findings not made in the event of a settlement.”
4. 4Woloski v. Woloski, 2022 ONSC 7013, 83 E.T.R. (4th) 150, at para. 37: “The caselaw is consistent in recognizing that the court should not attempt to run a “phantom trial” in an attempt to determine which party might have been successful on which issue had the matter actually proceeded to trial.”
5. 5Carinci, at para. 16, citing Waterloo North Condominium Corporation No. 161 v. Redmond, 2017 ONSC 1304, at paras. 33-34.
6. 6Carinci, at para. 20; Kearney, at para. 39; JV Mechanical Limited v. Solarc Construction Ltd., [2008] O.J. No. 1977 (S.C.), at para. 10.
7. 7Fiacco v. Lombardi, 2009 46170, at para. 33.
8. 8SDA, ss. 32(1) and 37.
9. 9SDA, ss. 66.
10. 10Fiacco, at para. 36.
11. 11Donovan v. MacKenzie, 2021 ONSC 1865, at para. 19.
12. 12Ziskos v. Miksche, 2007 46711, at para. 75. Also, Skinner v. Power, 2025 ONSC 4202, 99 E.T.R. (4th) 102, at para. 16.
13. 13Donovan, at para. 37.
14. 14Opalinski v. Opalinski, 2024 ONSC 5696, at para. 40.
15. 15100 Bloor Street West Corporation v. Barry's Bootcamp Canada Inc., 2025 ONCA 447, at para. 86, applying Apotex Inc. v. Eli Lilly Canada Inc., 2022 ONCA 587, at para. 65, leave to appeal refused, [2022] S.C.C.A. No. 387; Moon v. Sher, 2004 39005 (ON CA), [2004] 246 D.L.R. (4th) 440, at paras. 33 and 42 (C.A.).
16. 16Apotex, at para. 60, applying Restoule v. Canada (Attorney General), 2021 ONCA 779, 466 D.L.R. (4th) 2, at para. 356, citing Boucher v. Public Accountants Council (Ontario) 2004 14579 (ON CA), [2004] 71 O.R. (3d) 291 (C.A.), at para. 24.