CITATION: Sparovec v. Smith, 2026 ONSC 74
SUPERIOR COURT OF JUSTICE – ONTARIO
IN THE MATTER OF THE ESTATE OF DRAGICA SPAROVEC a.k.a. CAROLINE SPAROVEC
RE: Valentin Sparovec, Applicant
AND:
Nevenka Smith, Jennifer Pegg, Jessica Wolfe, Stephanie Sparovec, Nicolas Sparovec and The Canadian Imperial Bank of Commerce, Respondents
BEFORE: C. Gilmore, J.
COUNSEL: Krystyne Rusek and Matthew Bradley, Counsel for the Applicant
The Respondent, Nevenka Smith, represented herself.
HEARD: In Writing
ENDORSEMENT ON TRIAL COSTS
Introduction
1The trial of this matter was heard over four days from September 15-19, 2025. The trial judgment was released on November 25, 2025, after written argument was received. I required that the parties provide written submissions on costs on a ten-day turnaround after the judgment was released. Those written submissions have now been received.
2The Applicant was entirely successful. The transfer of the property located at 24 McMurray Avenue, Toronto (“the Property”) from the deceased (the mother of the parties) to the deceased and the Respondent was set aside on the grounds of undue influence and resulting trust. I found that the Respondent had not rebutted either presumption.
3Further, the Respondent was found to have misappropriated funds from her mother’s bank account while acting as Attorney for Property and was required to repay half the balance of a mortgage she had registered on the property to the Applicant’s share of the Estate.
4References to the “Respondent” in this endorsement refer only Nevenka Smith. CIBC was no longer a party at the time of trial. The other Respondents did not file a Notice of Appearance.
The Position of the Applicant on Costs
5The Applicant seeks his costs on a partial indemnity basis to April 8, 2021 and substantial indemnity thereafter being an all-inclusive total of $486,500. The Applicant submits that the costs sought are warranted due to the Respondent’s conduct both before and during the trial, her breaches of numerous court orders and the five settlement offers submitted by the Applicant.
6The Applicant’s first settlement offer was made on September 3, 2021. He offered to accept a total of $600,000; $100,000 from the sale proceeds of the property and the balance to be secured against the property in Barrie for which the Respondent had entered into an agreement of purchase and sale (despite the 2017 Preservation Order). The terms of the mortgage were to be prepared by the Applicant’s counsel. Once the mortgage was registered, the Application would be dismissed without costs.
7When the above offer was rejected, the Applicant submitted a counteroffer which required the various payments be made from the sale proceeds of the property (such as outstanding realty taxes and the Enercare HVAC financing payout) and the balance would be paid into court. This offer was open until September 21, 2021. A second offer was made on the same day which permitted a payment of $100,000 to be each party which would not be subject to further adjustment, various other payments similar to Offer #1 and the balance paid into court. Offer #2 was open until September 30, 2021. Both Offer #1 and #2 were in addition to the September 3, 2021 offer.
8The Respondent made a further counteroffer which was rejected. The Applicant responded with another Offer on October 19, 2021. This was similar to Offer #1 above except that Nevenka would receive $20,000 instead of $10,000 from the sale proceeds which would not be subject to further adjustment. The offer was made in addition to the September 3, 2021 offer to settle all claims. All of the above offers included a provision that the Respondent would be entirely responsible for the mortgage registered against the Property.
9The Applicant made a further offer in January 2024 in which he agreed to accept $681,000 from the sale proceeds of the Property which included and/or waived all costs of the Applicant to date.
10In June 2025 the parties appeared before Regional Senior Justice Firestone for several Trial Management and Pre-trial Conferences. During the course of those conferences, settlement discussions took place. The Respondent signed a settlement agreement on June 6, 2025 and then repudiated it. Following that repudiation, counsel for the Applicant made a further settlement offer on June 18, 2025. In that offer the Applicant stipulated that the Property would be sold, and real estate commission and legal fees paid from the sale price. The Respondent was to be solely responsible for the mortgage. If the sale price was up to $900,000 the balance of the sale price would be divided between the parties. If the sale price was between $900,000 to $1,200,000 the proceeds would be divided 30% to the Respondent and 70% to the Applicant. If the sale price was more than $1,200,000, the Respondent would retain 100% of the proceeds after the division of 70/30 for the sale price up to $1,200,000. The September 2025 trial dates would be vacated, and a Case Conference scheduled to discuss the implementation of the settlement and an eventual dismissal. Based on the calculations provided by the Applicant in the offer, the Applicant’s maximum recovery under this offer would be $621,710 and he would waive over $360,000 in costs. The Applicant made it clear he would seek all costs if the matter went to trial.
11The Applicant provided a list of breaches of court orders by the Respondent which I have set out below:
Nevenka's Breached Court Orders
Nevenka has breached the following court orders issued in this proceeding, totaling 11 breaches:
a) the preservation order of Justice McEwen dated October 10, 2017-Nevenka twice attempted to sell property subject to the preservation order;
b) the order of Justice Gilmore dated May 26, 2023, ordering mediation-Nevenka unilaterally canceled the mediation mere days before it was to proceed, and after Wally's mediation brief had been prepared;
c) the following orders requiring Nevenka to copy Ms. Rusek on all correspondence to the Court, with which she refused to comply:
i)Justice Gilmore, dated August 17, 2023;
ii)Justice Dietrich, dated October 27, 2023;
d) the following orders setting deadlines or dates for the continued cross-examination of N. Smith, with which she refused to comply:
i)Justice Gilmore, dated May 26, 2023;
ii)Justice Gilmore, dated January 23, 2024;
iii)Justice Dietrich, dated March 13, 2024;
e) the order of Justice Gilmore, dated January 23, 2024 requiring Nevenka to provide a list of proposed witnesses by March 13, 2024-Nevenka did not provide a list of proposed witnesses.
f) the endorsement of Justice Sanfilippo dated September 26, 2024, requiring Nevenka to provide will-say statements by October 18, 2024-Nevenka did not provide will-say statements by the required date; and
g) the order of Regional Senior Justice Firestone dated June 11, 2025, requiring Nevenka to provide a completed Pre-Trial Conference Form by June 19, 2025-Nevenka did not provide said form by the required date.
12The Applicant refers to Facebook posts made by the Respondent after the trial in which she disparages the justice system, the presiding judge and opposing counsel.
13The Applicant is aware that the Respondent’s position is that his offers were not reasonable. However, the trial result (which was better than his offers) belies that position.
14The Applicant agrees with the Respondent that all settlement behaviour should be considered. He notes that he abandoned his contempt motion in relation to the Preservation Order in order to pursue mediation. However, that mediation never occurred because the Respondent then opposed mediation, cancelled the scheduled mediation at the last minute and then made false representations to the Court that the mediation had been waived.
15The Respondent’s position that she was self-represented at the time the offers were received is simply wrong. She was represented by counsel or by amicus at the time of receipt of all offers.
16The Applicant’s position is that he did far better at trial than his offers and that he should have his partial indemnity costs up to April 8, 2021 and substantial indemnity costs thereafter.
The Position of the Respondent
17The Respondent submits that the offers submitted by the Applicant were unfair and incorrect. Her non-acceptance of those offers was not bad faith but simply an indication of a genuine dispute which required litigation. The Applicant’s offers were one-sided and not financially feasible for the Respondent.
18The Respondent submitted that she made the first offer to settle and several others long before the Applicant’s first offer in September 2021. However, those offers were rejected. It is unfair to characterize the Respondent’s attempts to settle as a lack of reciprocation.
19Further, the Respondent was financially limited and self-represented when she received the offers and therefore not able to properly evaluate their import.
20The Respondent denies that she was involved in intentional exploitation or manipulation of her mother. She cared for her mother who was her best friend and maintained a genuine belief that she was acting in her mother’s best interests. The Respondent further denies that she “hid” the transfer of the Property. Any failure to advise her brother of the transfer was due to the stress the Respondent was experiencing in caring for her mother and should not be interpreted as a deliberate act of concealment.
21The Respondent denies that she breached over 10 court orders. Any alleged breaches occurred solely due to the Respondent’s misunderstanding of the meaning of court orders given that she was self-represented. She did not breach the Preservation Order as the Property was never sold.
22The Respondent submits that any comments made on Facebook following the trial were made during an emotional and overwhelming period and should not form the basis for a substantial indemnity costs award.
23Finally, the Respondent submits that the costs sought are disproportionate to the value of the Estate and with respect to her personal financial circumstances.
Analysis and Ruling
24A review of the Offers to Settle from the Applicant (the Respondent submitted she made offers to settle but did not attach them to her material) clearly demonstrate that this matter should have settled long ago, likely in 2021.
25At the time of the 2021 offers, the Respondent was in agreement that the Property should be sold, the only issue was how much was to be paid to the Applicant from the sale proceeds. The Applicant agreed to forego all costs in exchange for what was essentially half the sale proceeds so long as the Respondent agreed to be responsible for the mortgage (which was in her name in any event) with an adjustment for some other smaller amounts.
26The Respondent has an unrealistic view of her conduct in this case and her responding submissions make it clear that she continues renounce any responsibility for the enormous costs incurred by the Applicant.
27I note some examples of the conduct of the Respondent which have contributed to the costs of this case and in accordance with considerations under Rule 57.01:
a. The Respondent’s two attempts to sell the Property in defiance of the Preservation Order. While in my judgment I found that her behaviour in this regard “defied logic,” in her costs submission she continued to take the position that because no sale of the Property ever occurred, there was no breach of any order. The Respondent fails to mention that she tried to sell the Property twice without telling her litigation lawyer or her real estate lawyer. The Respondent was represented by counsel during the two times she attempted to sell the Property. Her claims that she “misunderstood” the Preservation Order are not plausible.
b. The breaches of the Preservation Order led the Applicant to bring a contempt motion and then abandoning that motion based on an agreement to mediate. The Respondent then cancelled the mediation because of “circumstances beyond her control.” She has never explained exactly what those circumstances were. Over $11,000 in costs were thrown away as a result of the aborted mediation.
c. The Respondent never agreed to a joint document brief or to the admission of medical or financial records prior to trial. No matter the excuses made by the Respondent, this position lengthened the trial unnecessarily. The Respondent’s somewhat baffling explanation for this was that she was concerned about accuracy and missing documents. The financial report submitted by her bookkeeper friend, Ms. Parke, was entirely rejected by this court. In a brief cross-examination it became clear that Ms. Parke’s concerns were simply inaccurate or not borne out. In summary, the fact that the financial and medical documents were admitted on consent at trial does not excuse the Respondent’s intractable position with respect to those documents in the many years prior to trial.
d. It is inaccurate to say that the Respondent was unable to properly evaluate the offers to settle from the Applicant because she was self-represented. The offers were directed to her counsel at the relevant time or to amicus.
e. The Respondent’s contention that she did not deliberately hide the transfer of the Property is disingenuous. Her explanation to Mr. Kay about why she did not tell her brother about the transfer was that it did not concern him. I accepted Mr. Kay’s evidence in its entirety. Mr. Kay’s evidence makes it clear that the Respondent deliberately concealed the transfer from her brother, and it most certainly did concern him as the co-Attorney for Property. The court went even further as the judgment sets out that the Respondent breached her fiduciary duties as an Attorney for Property under the Substitute Decisions Act by knowingly disposing of property which she knew was the subject of a testamentary gift. The Respondent’s position in her costs submissions that she was under stress and caring for her mother which prevented her from communicating with her brother, is not reasonable.
28The Respondent objects to the characterization of her use of her mother’s bank account as a “piggy bank.” While the term “piggy bank” may be a somewhat casual term, there can be no doubt that the Respondent was found to have misappropriated her mother’s money for her personal use. It should be noted that the Respondent was the beneficiary of generous assumptions made by the Court that large portions of those funds were used for Dragica’s benefit. That was not the position of the Applicant at trial. At trial, the Applicant took the view that the Respondent had provided no proof that any of the funds were used for Dragica’s benefit (other than very nominal amounts).
29The Respondent objects to the quantum of costs sought claiming that the costs are essentially the Applicant’s fault because he refused to narrow issues and insisted on complex procedures. There is no evidence of this. In fact, the many offers to settle submitted by the Applicant demonstrate that he was prepared to narrow the issues considerably, forgo costs and agree to terms which would permit the Respondent to retain a portion of the sale proceeds.
30The Respondent objects to the quantum of costs on the grounds that the issues were not complex. I disagree. This case involved undue influence, resulting trust, capacity issues, medical records, financial records, accounting issues, allegations of misappropriation and pre-death fiduciary duties. Further, the allegations went back to 2010 and the trial was not heard until 2025. The litigation went on for eight years prior to trial. This was not a straightforward matter.
31The Respondent submits that her personal financial circumstances are difficult. She is liable for an $80,000 consumer proposal, a $30,000 loan and the legal fees of her former counsel Mr. Mendes. Her car is old and requires frequent repairs. Her credit is damaged, and she cannot qualify for conventional rental housing in Toronto. Her income is $1,500 per month and she is not in a position to pay costs in the amount sought by the Applicant. While the Applicant’s financial circumstances may be considered by the Court, they are not the sole deciding factor.
32Regarding the parties’ reasonable expectations in relation to costs, in Aacurate v. Tarasco, 2015 ONSC 5980, the court addressed the issue of proportionality with respect to the reasonable expectations of the parties. Specifically, the court held at para 15 that:
…proportionality cannot and should not be routinely invoked to save litigants from the actual costs of proceedings in circumstances where those litigants have put forth a wholly unmeritorious defence to a legitimate claim or have caused the proceeding to become unduly prolonged or complicated. The principle should be applied thoughtfully and in a balanced fashion along with the other factors set out in rule 57.01.
33I have already found that the Respondent has unduly lengthened this proceeding and that her reasons for doing so were not tenable.
34I make no specific comment about the Facebook postings (which I have reviewed) other than they are unfortunate and certainly do not assist the Respondent.
35The Respondent, having rejected all of the Applicant’s offers is now in a far more difficult position than she would have been had she accepted any of the Applicant’s offers. She will be required to contribute to the cost of having a neutral third party sell the Property, she will be required to repay the Estate for sums misappropriated from her mother’s account, she will be required to reimburse her brother for half of the $175,000 mortgage, the costs owed by her will significantly reduce her share of the proceeds and the house sale proceeds will be further reduced by the legacies owed to the grandchildren. Those legacies never factored into any of the settlement offers made by the parties. Finally, the housing market is no longer at the peak that it was when offers were exchanged and the Property is unlikely to sell for the amount originally projected.
36The issue of reasonableness in relation to costs is an access to justice issue as per Boucher v. Public Accountants Council (Ontario) (2004), 2004 14579 (ON CA). In that case the Court adverted to the fact a costs award will act as a “reality check” to a losing party and assist in discouraging frivolous litigation, however, a costs award that exceeds the fair and reasonable expectations of the parties will have a chilling effect on litigation (para 37).
37While this Court is required to fix and not assess costs, some examination of the actual amounts charged are in order. I note, for example, that over 200 hours were billed for pre-trial conferences and 419 hours billed for a four-day trial (excluding written submissions). Both Mr. Bradley and Ms. Rusek attended the trial. I expect some duplication may have occurred.
38As well, Ms. Rusek requests partial indemnity costs to April 8, 2021 and substantial indemnity costs thereafter. However, the first offer to settle was not served until September 3, 2021.
39Given the concerns about duplication of time dockets, the date on which substantial indemnity costs should begin and the principle of proportionality, I find that the amount sought by Ms. Rusek may leave the Respondent with virtually nothing. Based on the offers submitted by the Applicant and the deceased’s Will there was never any intention that the Respondent receive nothing. Given all of the above and the factors set out in Rule 57.01, I order the Respondent to pay all-inclusive costs of $300,000 to the Applicant from her net share of sale proceeds.
C. Gilmore, J.
Date: January 5, 2026