In Vacarro v. Vacarro et al.,2026 ONSC 1154[1], the Ontario Superior Court of Justice considered the appropriate costs award following a contested application involving the proceeds from the sale of a property transferred into joint tenancy prior to the testator’s death.

While the underlying dispute concerned whether the transfer constituted a gift or whether the property was held in trust for the estate, the decision addressed a narrower question: how costs should be allocated where neither party was fully successful and the litigation was complicated by the absence of a necessary party.

Background

The late Giuseppina Vaccaro (the “Giuseppina”) owned two properties. While she was incapable, her daughter, Giuseppa Brunetto (“Josie”) transferred the properties from Giuseppina’s sole name into joint tenancy with Josie and Giuseppina’s other two surviving children.[2]

Giuseppina had four children. One of them, Joseph (“Joe”), predeceased her.[3] Prior to Joe’s death, Giuseppina and her husband had intended their estate to be divided equally among their four children. After Joe died, they revised their estate plan so that their estate would still be divided into four equal shares: one share for each of the three surviving children and a fourth share to be divided among all ten grandchildren, including Joe’s three children.[4]

Following Giuseppina’s death, one of the properties was sold and the proceeds, worth approximately $3 million, were held in trust pending litigation among the siblings regarding entitlement to the funds.[5]

One of the surviving children, Ross Vaccaro (“Ross”) brought an application seeking distribution of the proceeds, including payment of his share. His siblings opposed the request, arguing that the property had been transferred into joint ownership to be held in trust for the estate.[6]

In earlier reasons, the Court determined that the transfer appeared to have been intended as a gift to the three surviving children.[7] However, the Court also noted that the authority of the daughter to make such a gift while acting for an incapable person raised legal concerns. Because the estate itself had not been added as a party to the application, the Court dismissed Ross’s request for distribution of the proceeds.[8]

The remaining issue before the Court was the appropriate award of costs.[9]

Divided Success

Justice Lemay emphasized that determining the successful party requires examining whether a party obtained the relief they sought.[10]

Ross was unsuccessful in obtaining an order distributing the proceeds. However, he did succeed in advancing his position that the property transfer appeared to have been intended as a gift.[11]

Conversely, the responding siblings successfully resisted the immediate distribution of the proceeds but failed to establish that the property was held in trust for the estate within the scope of the application.[12]

Given these mixed results, the Court found that neither party was entirely successful.[13]

The Missing Estate Trustee & Conduct of the Parties

A central issue affecting the costs determination was the failure to add the estate trustee as a party to the proceeding.[14]

The Court observed that the litigation would have been significantly more efficient had the estate trustee been included in that capacity from the outset. While the estate trustee was a party in her personal capacity from the outset and bore the primary responsibility for advancing the estate’s interests, other parties also had the ability to seek the addition of the estate trustee as a party in that capacity.[15]

Notably, Ross had refused an earlier request to consent to adding the estate trustee in her representative capacity, which contributed to prolonging the litigation.[16]

Costs Award

Although one party sought approximately $29,000 in costs and the other sought $54,000, the Court concluded that neither claim was proportionate given the divided success and the conduct of the parties.[17]

Justice Lemay ultimately ordered costs of $5,000 payable by the estate trustee personally to Ross, payable upon the earlier of the conclusion of the proceedings or within 18 months.[18]

Takeaways

This decision highlights several practical considerations for estate litigators:

• Ensure the estate trustee is a proper party before the Court. Where the estate is a beneficiary but the dispute concerns whether property belongs to the estate, the estate trustee will be a necessary party in their representative capacity, not jus their personal capacity.
• Estate trustees must actively advance the estate’s position.
• Divided success and procedural missteps can significantly reduce costs. Even in complex litigation involving substantial assets, the court may award only modest costs where success is mixed and the parties’ conduct contributed to inefficiency.

Ultimately, Vaccaro illustrates how procedural decisions,  particularly regarding proper parties, can shape both the outcome of the case and the court’s approach to costs.

Disclaimer:
The decision occasionally refers to the “estate” and the “estate trustee” interchangeably. Strictly speaking, an estate is not a juridical entity capable of participating in litigation. Any reference to the “estate” should therefore be understood as referring to the estate trustee acting in their representative capacity on behalf of the estate.

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[1] 2026 ONSC 1154 [Vacarro].

[2] Ibid at para 1.

[3] Ibid at para 2.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Ibid at para 5.

[8] Ibid.

[9] Ibid.

[10] Ibid at para 13.

[11] Ibid at para 14.

[12] Ibid at para 15.

[13] Ibid at para 16.

[14] Ibid at para 21.

[15] Ibid at para 22-23.

[16] Ibid at para 25.

[17] Ibid at paras 7,9, 17-20.

[18] Ibid at para 28.