Court of Appeal for Ontario

CITATION: Cusinato v. Cusinato, 2010 ONCA 259

DATE: 20100408

DOCKET: C51222

Gillese, Lang and Rouleau JJ.A.

BETWEEN:

Carla Cusinato

Applicant (Appellant)

and

Jean Cusinato, Anthony Paniccia and the Public Guardian and Trustee

Respondents (Respondents)

Counsel:

Gregory Wrigglesworth, for the appellant

James H. Cooke, for the respondents Jean Cusinato and Anthony Paniccia

No one appearing for the Office of the Public Guardian and Trustee

Heard: April 7, 2010

On appeal from the judgment of Justice Terrence Patterson of the Superior Court of Justice dated September 29, 2009.

APPEAL BOOK ENDORSEMENT

[1] The appellant wished to be appointed as her mother’s guardian. She brought an application for, among other things, an order rescinding a Power of Attorney for personal care that her mother made in favour of her brother, Anthony Paniccia.

[2] The Public Guardian and Trustee did not appear on the application and does not appear on this appeal.

[3] The application judge dismissed the application as he found that the evidence on the proceeding demonstrated that the applicant’s mother had the capacity to make the Power of Attorney in question. Before deciding the application, the application judge dismissed a motion by the applicant for an adjournment to file further material and to cross-examine Mr. Paniccia, who had sworn an affidavit in the proceedings. The application judge awarded costs to the respondents, fixed at $1,250.00 each.

[4] The applicant appeals. She argues that the application judge erred in refusing to grant an adjournment.

[5] We see no basis on which to interfere with the application judge’s exercise of discretion in refusing an adjournment. As noted by the application judge, the applicant had sufficient time to serve responding material before the return of the application and did not do so.

[6] There was nothing in the material before the application judge or this court that explains why an adjournment was required so the applicant could file further material or cross-examine the affiant. Nor is there anything in the record to challenge the correctness of the application judge’s decision on capacity.

[7] Accordingly, the appeal is dismissed with costs to the respondent fixed at $2,000, inclusive of disbursements and GST.