In Lacaria v. Lacaria^[1], 2026 ONSC 591, a guardianship application became moot upon the incapable person’s passing but proceeded to a contested costs determination.

Background

Caterina was born in 1927, was predeceased by her husband, Bruno, in 2023. Together they had four children: Cosimo (the “Applicant”), Bruno, Damiano, and Salvatore (the “Respondents”). In December 2023, Caterina was diagnosed with advanced dementia, which left her housebound and unable to manage her personal care. Under the power of attorney for personal care executed by Caterina on December 1, 1990 (the “POAPC”), all four of her children were jointly appointed as her attorneys for personal care.^[2]

As Caterina’s needs grew, the Applicant alleged increasing difficulty in coordinating care with his brothers, citing disagreements over her diet, safety measures, and the hiring personal support workers (“PSW”). On the other hand, the Respondents asserted that Salvatore, who lived with Caterina his whole life, was central to her daily care.^[3]

The Guardianship Application

On June 11, 2024, the Applicant commenced a guardianship application under the Substitute Decisions Act (“SDA”) seeking a declaration of Caterina’s incapacity for personal care, termination of the POAPC, and his appointment as her sole guardian. ^[4]

On January 9, 2025, Caterina passed away before the issues in the guardianship application could be adjudicated. The only significant procedural step that was taken was a scheduling appointment attended by the parties on July 26, 2024. ^[5]

Before Caterina’s passing and following the commencement of the guardianship application, the parties negotiated two agreements concerning her health. The “Care Protocol for Caterina Lacaria,” dated July 31, 2024, addressed feeding processes and medical direction, while the “Hiring of PSWs Protocol for Caterina Lacaria,” dated September 11, 2024, outlined detailed steps for identifying and retaining qualified PSWs (the “Agreements”).^[6]

The Court determined that these agreements were comprehensive, served Caterina’s best interests, and would not have been implemented without the guardianship application.

The Costs

Cosimo sought actual costs of $90,453.79, claiming partial indemnity of $54,521.21 from the Respondents and the remaining $35,932.58 from Caterina’s Estate (the “Estate”). The Respondents contended that the guardianship application was unnecessary, opposed Cosimo’s cost request, and argued that each party should bear their own costs.^[7]

Although the guardianship application was not decided on its merits, the Court affirmed its discretion to award costs, cautioning against conducting a “phantom trial” when proceedings are resolved or become moot. The Court emphasized that costs should not overshadow the substantive purpose of the proceeding.^[8]

The court went on to describe a “phantom trial” as follows:

[17] Courts 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. 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.^[9]

The Court distinguished statutory guardianship cases by requiring a best interests analysis focused on the extent to which the allegedly incapable person benefited from the application. The Court asserted that the Applicant’s guardianship application provided Caterina with the benefit of care and PSW protocols made through the Agreements.^[10]

However, the Court closely examined the timing and proportionality of the Applicant’s fees. Before Caterina’s death, $21,615.00 was incurred, while an additional $69,705.50 plus HST was accrued after her death solely to pursue costs. The Court found this was inefficient, disproportionate, and contrary to the guardianship application’s protective purpose.^[11]

On this basis, the court awarded the Applicant costs at $12,000, payable from the Estate, with each party otherwise bearing their own costs.

The cost award covered only the efforts made before Caterina’s passing that genuinely benefited her, such as negotiating and implementing the Agreements, and excluded any costs incurred after her death solely to pursue costs.^[12]

The Court declined to order costs payable by the Respondents personally, as the guardianship application was not adjudicated on the merits and no “phantom trial” occurred. As residuary beneficiaries and co-estate trustees under Caterina’s Will, the parties would equally share the impact of the Applicant’s cost award. The Court found this fair, given their failure to collaborate, which led to the guardianship application, despite their joint obligations under the POAPC.^[13]

Concluding Remarks:

Lacaria highlights that in contested guardianship applications, courts will fund only those legal actions from the incapable person’s assets that genuinely protect and benefit them. These costs will be measured carefully against reasonableness and proportionality, while resisting efforts to convert protective proceedings into a “phantom trial”.

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[1] Lacaria v. Lacaria, 2026 ONSC 591

[2] Ibid at para 2

[3] Ibid at para 4

[4] Ibid at para 5

[5] Ibid at para 6

[6] Ibid at para 11

[7] Ibid at para 7

[8] Ibid at para 17

[9] Ibid at para 17

[10] Ibid at para 23

[11] Ibid at para 26

[12] Ibid at para 26

[13] Ibid at para 25