All About Estates

Compensation as Attorney for Personal Care: Guided by Reasonableness and Proportionality

The 2021 decision in Sasso v. Sasso[1] was recently affirmed by the Ontario Court of Appeal. The Sasso case has a few interesting aspects to it but for the purpose of this blog I focus on the claim for compensation which was made by an attorney for personal care. Although it may not happen often, attorneys for personal care can claim compensation. Unlike guardians and attorneys for property, calculating the possible quantum of compensation is not based on a prescribed formula or percentage guideline.

Sasso was a dispute between two brothers, Frank and Raffaele, who were the residuary beneficiaries of their father’s estate. The brothers were also jointly appointed as Estate Trustees. While their father was alive but no longer capable, Raffaele made decisions regarding his father’s assets and property which led to a dispute between the brothers. They went to mediation and arrived at an agreement. After the father’s death, Frank began to have concerns about how Raffaele was acting as Estate Trustee and that he was not following through on the agreement. In response to an application to remove Raffaele as Estate Trustee, Raffaele commenced a claim which included compensation for years of acting as his father’s attorney for personal care – a claim that was not raised during the mediation. Raffaele calculated that the compensation owed to him was $198,850.00. The application judge found that Raffaele’s informal accounts were:

Time Period: January 1, 2011 – August 22, 2016

Cost: 4 hours/day at a rate of $25.00/hour, 5950 hours over this 68 month time period $148,750.00

Time Period: August 24, 2016 – June 3, 2018

Cost: 4 hours/day at a rate of $25.00/hour, 2004 hours over this 21 month time period $50,00.00[2]

The court noted that Raffaele did not keep a record of the time he spent caring for his father or the decisions he made on behalf of his father, as required by the Substitute Decisions Act.[3]  Instead, Raffaele’s evidence in support of his claim was found in two paragraphs of his sworn affidavit, in which he described the care he provided and why it was necessary and reasonable. The court reviewed Re Brown[4] and stated that when determining compensation for attorneys for personal care the court is “guided by the overarching principles of reasonableness and proportionality”. Citing Re Brown, the court stated:

“…compensation for legitimate services may be awarded, provided there is sufficient evidence about the nature and extent of the services provided and evidence from which a reasonable amount can be fixed for compensation… that the reasonableness of the claim for compensation will be determined by the court in each case, bearing in mind, among other things, the need for the services, the nature of the services provided, the qualifications of the person providing the services, the value of such services, and the period over which the services were furnished.”[5]

After reviewing Raffaele’s evidence, the court declined to award Raffaele any compensation. The court found that there was insufficient evidence to calculate the value of the services Raffaele may have provided and the reasonableness of the amount claimed.[6] Determining compensation as an attorney for property is not formulaic or based in a prescribed set of guidelines. But the claim must nonetheless be detailed, ideally with contemporaneous recording of the care provided, and rooted in evidence, so that the court can assess the reasonableness of the claim and whether it is proportionate.


[1] Sasso v. Sasso, 2021 ONSC 3259 (CanLII), aff’d 2022 ONCA 339 (“Sasso“)

[2] Sasso, at para 41.

[3] Substitute Decisions Act, 1992, S.O. 1992, c. 30, s. 66(4.1).

[4] Brown (Re), 1999 CarswellOnt 4628 (Ont. S.C.J.)

[5] Sasso, at para 46.

[6] Sasso, at para 55.

About Karen Watters
Karen is a senior estates litigator who represents clients in a variety of proceedings including will challenges, dependant’s relief claims, guardianship applications, and powers of attorney disputes. Karen obtained her law degree from Queen’s University and was called to the Ontario Bar in 2011. More of Karen's blogs can be found at


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