ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 03-120/12
DATE: August 13, 2012
BETWEEN:
Caterina Consiglio
Applicant
- and -
Piorretta Consiglio, George Consiglio, in his personal capacity and as Estate Trustee of the Estate of Rosa Consiglio, deceased, Luigi Consiglio, in his personal capacity and as Estate Trustee of the Estate of Rosa Consiglio, deceased, Concetta Vocaturo, Anna Nina Serafini, in her personal capacity and as Estate Trustee of the Estate of Rosa Consiglio, deceased, Teresa Rowland, Michele Consiglio, Antonio Consiglio, Francesco Consiglio, and The Public Guardian and Trustee of Ontario
Respondents
Application under ss. 22 and 55 of the Substitute Decisions Act, 1992, S.O.1992, c. 30.
COUNSEL:
• Sean Graham for Caterina Consiglio
• Courtney Grace Hughes for Antonio Consiglio
• Guy Hunter for Concetta Vocaturo
HEARING DATE: August 7, 2012
PERELL, J.
REASONS FOR DECISION
[ 1 ] Before the court are two applications under s ections 22 and 55 of the Substitute Decisions Act, 1992, S.O.1992, c. 30 in which the applicants seek to be appointed as personal care guardian and guardian of property for Piorretta Consiglio (Piorretta).
[ 2 ] Piorretta, age 35, is the youngest of the ten children of the late Domenic and Rosa Consiglio. She has Down Syndrome, and Piorretta has always needed someone to care for her. She is a delightful and dear person, but she has the health issues associated with Down Syndrome, and she has the intellectual capabilities of a six or seven-year old child, although without literacy and with poor speech skills.
[ 3 ] I heard evidence about Piorretta’s capabilities, and although she was not sworn as a witness, I spoke to her in open court. Based on the evidence, there is no doubt that Piorretta is a person who is incapable of personal care and, as a result, needs decisions to be made on her behalf by a person who is authorized to do so. She is not able to understand information that is relevant to making a decision concerning her own health care, nutrition, shelter, clothing, hygiene, or safety, and she is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
[ 4 ] Any guardianship of Piorretta should be a full guardianship; she is incapable of all of health care, nutrition, shelter, clothing, hygiene, and safety. (See sections 45, 55-65 of the Act).
[ 5 ] There is also no doubt that is she is incapable of managing property and that, as a result, it is necessary for decisions to be made on her behalf by a person who is authorized to do so. She is not able to understand information that is relevant to making a decision in the management of her property, and she is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. (See sections, 6 and 22-30 of the Act.)
[ 6 ] It would be very difficult not to like Piorretta, and her eight surviving siblings love her dearly. Unfortunately, the Consiglio siblings are embroiled in a dispute about their late mother’s estate, and currently, there is considerable animosity and distrust among them and their in-laws. And, unfortunately, there is disagreement about who should assume the role played by their late mother Rosa, who was Piorretta’s unofficial guardian for care and for property until Rosa’s death in March 2011.
[ 7 ] Sadly, the Consiglio family relationships are dysfunctional and perhaps beyond salvaging. But, fortunately, Piorretta is not being abandoned, and the family seems committed to doing what is in Piorretta’s best interest. With competing proposals, they turn to the court to make a decision for them about what is in Piorretta’s best interest.
[ 8 ] The siblings are divided into two opposing camps. First, there are Cathy’s supporters. Caterina (Cathy) Consiglio (age 47), who is married to Anthony Lobo, applies to be Piorretta’s guardian. A fundamental component of Cathy’s management plan is that Piorretta would live with her in the Lobo household with their two teenage daughters.
[ 9 ] Cathy’s application is supported by her sister Anna (Nina) Serafina (neé Consiglio) (age 51) and her brother Francesco (Frank) Consiglio (age 46).
[ 10 ] Second, there are Tony’s supporters. Antonio (Tony) Consiglio (age 44), who is unmarried, applies to be Piorretta’ guardian. A fundamental component of Tony’s management plan is that Piorretta remain and live with him at 85 Arleta Ave., Toronto, which is the Consiglio family home, where, except for a few years, when she was an infant, is where Piorretta has always lived.
[ 11 ] Tony’s application is supported by Concetta (Connie) Vocaturo (neé Consiglio) (age 55) and Teresa Rowland (neé Consiglio) (age 48), who is married to Roberto Rowland. Teresa and her family also live at 85 Arleta Ave. Tony’s application may also be supported by Giorgio (George) Consiglio (age 59), who is an executor of Rosa’s estate and Luigi Consiglio (age 57), who is an executor of her estate. George and Luigi were not affiants or witnesses in the proceeding.
[ 12 ] I received affidavit evidence from Cathy, Nina, Frank, Anthony Lobo, Lucy DiPalma (who is a Community Resource Facilitator with Family Services, Toronto), Tony, Jennifer Lem (who is a friend of Tony), Connie, Teresa, and Irene Genua (who is Piorretta’s next-door neighbour). Pursuant to a simplified trial procedure, I heard viva voca evidence from Cathy, Nina, Frank, Anthony Lobo, Ms. DiPalma, Tony, Ms. Lem, Connie, and Teresa.
[ 13 ] For the present purposes of deciding the rival guardianship applications, it is necessary only to summarize what I learned about Piorretta’s personal and family history and about her relationship with her siblings.
[ 14 ] I say at the outset that Cathy and Tony have a deep love for Piorretta and both would be qualified to be her guardian.
[ 15 ] Also, I say at the outset that, in my opinion, for the reasons that follow and notwithstanding Tony’s arguments, it is much more in Piorretta’s best interest that Cathy be appointed Piorretta’s guardian.
[ 16 ] Tony has been a good brother and recently a good and loving surrogate parent for Piorretta, but Cathy has been a good sister for much longer and having regard to her life experiences and prospects, she is the preferable choice to parent Piorretta and be her guardian.
[ 17 ] Acknowledging that Tony has done his best and would do his best, Piorretta’s best interests are best served by a sibling who would be the more experienced and capable parent with a more stable and sturdy home life. Piorretta’s fondness for staying at 85 Arleta Ave. and the fact that Tony is her current favourite sibling does not come close to tipping the balance toward Tony’s proposal as being in the best interests of Piorretta.
[ 18 ] To summarize the factual background, in 1961, Domenic Consiglio immigrated to Toronto, Canada, from Italy. In 1963, he was joined by Rosa and their four children. They would have six more children. In 1981, Domenic and Rosa purchased their family home at 85 Arleta Ave., Toronto. Domenic died in 1992. Over the years, most of the siblings moved out of the house. Some of them, Teresa and Michael Consiglio (now deceased) lived at another Toronto property, 153 St. Lucie Drive, which was purchased by or for several members of the Consiglio family.
[ 19 ] As the siblings left 85 Arleta Ave. to start their own independent lives, Rosa and Piorretta remained in the family home, but the siblings to various and varying degrees would visit and provide assistance to Rosa and Piorretta.
[ 20 ] Cathy left the Consiglio family home after high school, but she visited often and she made a major contribution to Piorretta life, of which I will say more below. Rosa, however, was the primary caregiver for Piorretta and her unofficial guardian of property and of the person. This situation continued until an accidental fall, which led to an illness, and Rosa’s eventual death in March 2011.
[ 21 ] With Rosa disabled, Teresa returned to 85 Arleta Ave. as did Tony, who with Rosa’s passing commendably assumed the role as Piorretta’s primary care giver. His brother Michael also lived there until his death in February 2012. Mike was a drug addict, and his death was another family tragedy, particularly for Piorretta who was very close to Michael. It seems that this affection moved to Tony, whose contribution to Piorretta’s life largely has occurred since he moved back to the house to assume the responsibility for Piorretta’s care.
[ 22 ] I was not told Tony’s educational background. He is unmarried and has worked as a martial arts instructor and may have had his own gym-studio. His principal occupation is in construction, where he has skills in floor installation. He has no property to speak of, other than his inheritance in Rosa’s estate. While caring for Piorretta, he gave up his employment opportunities to care for Piorretta, and he has expended all his savings to feed and clothe Piorretta. He has paid particular attention to improving Piorretta’s diet and physical regimen with exercise.
[ 23 ] I pause here to say that while for the purposes of this application nothing will ultimately turn on it, several Consiglio family members, including Cathy, and Rosa’s estate executors have inexcusably not reimbursed Tony for his expenses incurred on Piorretta’s behalf. Their conduct is proof of the distrust among family members and shows how dysfunctional the family clan has become. The family ought to have been providing Tony with funds for Piorretta rather than requiring him to prove his receipts, like some employee asking to be reimbursed out of petty cash.
[ 24 ] It is equally shameful that false allegations were made that Tony’s friend, Jennifer Lem was seeking to secure free accommodation at 85 Arleta Ave. Ms. Lem has been a good and kind friend to Piorretta, and should be thanked for her kindness. Also deplorable were the innuendoes and double or multiple hearsay that Tony had a drug problem or an anger management problem.
[ 25 ] Returning to the family background, after she left the family home, Cathy married Tony Lobo and established a family of her own. They have 2 daughters, aged 12 and 14. She and her husband have good jobs at VIA Rail. They own their family home and are financially stable.
[ 26 ] After leaving the family home, Cathy was a frequent visitor at 85 Arleta Ave. and at Piorretta’s day programs. Although to varying degrees other siblings were engaged in improving Piorretta’s life, Cathy undoubtedly made a major contribution to bettering Piorretta’s life by encouraging her to make the most of her capabilities. Cathy helped Rosa by assuming a large responsibility for attending to Piorretta’s numerous health concerns and for arranging for Piorretta’s physical and mental development. Cathy made a major contribution by researching and selecting appropriate skills and education programs for Piorretta, and Cathy, with assistance from Ms. DiPalma, secured outside funding so that Piorretta could attend those programs.
[ 27 ] Cathy should be credited for arranging for Piorretta to be placed at the Meta Centre where Piorretta attends day programs and some evening programs. Piorretta seems to have been very happy attending the Meta Centre.
[ 28 ] Historically, Piorretta has had a warm relationship with Cathy and Cathy’s family and was a frequent overnight visitor with some longer visits during the summer time. Tony’s supporters submits that Piorretta’s relationship with Cathy has soured and that Piorretta is afraid of or uncomfortable with Cathy.
[ 29 ] In around February 2012, after Rosa’s passing, Cathy decided that Piorretta’s care at 85 Arleta Ave. was inadequate, and she brought an application to be Piorretta’s guardian pursuant to the Substitute Decisions Act , 1992 .
[ 30 ] Cathy’s application, along with feuding between family members about Rosa’s estate, appears to have caused considerable acrimony and distrust among the family members. It appears that some family members believe that if Cathy obtains guardianship of Piorretta, this will force a sale of 85 Arleta Ave. or otherwise advantage Cathy in the squabbles over Rosa’s estate. For their part, Cathy and her supporters seem to believe that Tony is seeking guardianship for his own financial advantage and to secure free rent at 85 Arleta Ave.
[ 31 ] The ill-feelings were exacerbated by Michael’s death and by the affidavits that began to be delivered in this application and in Tony’s later-arriving counter-application for guardianship. The affidavit material of both camps contains passionate arguments about what is in Piorretta’s best interest but the affidavits are besmirched by the mudslinging between distrustful family members.
[ 32 ] In Tony’s application for guardianship, Connie, Teresa, and Tony, and perhaps George and Luigi, believe that it would be best for Piorretta to continue to live at 85 Arleta Ave. They submit that this would be best because 85 Arleta Ave. is close to the Meta Centre, where Piorretta attends a program five days a week and because 85 Arleta Ave. is in the neighbourhood familiar to Piorretta and where she has friendships. The house has already been retrofitted to accommodate Piorretta’s needs. Staying at 85 Arleta Ave. would allow Piorretta to maintain her relationship with a personal support worker who baths Piorretta twice a week. Staying at 85 Arleta Ave. also has the advantages that two siblings, Teresa and Tony, live there and the rest of the family has easier access to the family home.
[ 33 ] Tony’s supporters note that Cathy and Tony Lobo work full-time and have two teenage daughters to care for. They submit that a joint 5-person guardianship of Tony, Cathy, Teresa, Luigi, and Connie would be preferable than Cathy having guardianship. I can immediate say, however, that given the dysfunctional status of the Consiglio clan, a joint guardianship or dividing the guardianship would not be feasible and not in Piorretta’s best interest.
[ 34 ] In Cathy’s application for guardianship, Cathy, Tony Lobo, Nina, and Frank submit that Cathy has a long-established commitment to Piorretta and that she provides a more stable and durable home life. They diminish the importance of 85 Arleta Ave. to Piorretta’s happiness and challenge the feasibility of Tony’s plans because given the family quarrels and his own negligible wealth, he may not be able to retain the property. They accept that Tony appears to be Piorretta’s current favourite and that she appears to have turned cold toward living with Cathy but attribute these attitudes to Tony’s current control over Piorretta.
[ 35 ] With the above summary of the family background, I turn now to my reasons for appointing Cathy guardian.
[ 36 ] The S ubstitute Decisions Act, 1992, provides criteria for the type of person that the court may appoint as a guardian of property. Except in the case of an application by summary application, the court shall consider: (a) whether the proposed guardian is the attorney under a continuing power of attorney; (b) the incapable person’s current wishes, if they can be ascertained; and, (c) the closeness of the applicant’s relationship to the incapable person. (See sections 25 (5) and 77 of the Act.).
[ 37 ] The overarching and fundamental factor, however, in appointing a guardian or having one replaced or removed is what is in the best interest of the incapable person: Bennett v. Gotlibowicz , [2009] O.J. No. 1438 at para. 19 (S.C.J.) ; Chu v. Chang , [2009] O.J. No. 4989 at para. 26 (S.C.J.) .
[ 38 ] The first criterion, whether the proposed guardian is the attorney under a continuing power of attorney, is not applicable here.
[ 39 ] The second criterion, the current wishes of the incapable person, is applicable in this case, but, in my opinion, Piorretta’s wishes are not very influential in the circumstances of this case.
[ 40 ] Based on the evidence, my conclusion is that Piorretta’s wishes are to stay with Tony at 85 Arleta Ave. largely because Tony has replaced Michael as her favourite and because she is happy at 85 Arleta Ave. She, however, has no ability to judge her current happiness against her prospects for happiness in the future and her needs for a secure and stable life. She has been comfortable and happy at Cathy’s home, in the past. Her wish to stay at 85 Arleta Ave. can be explained by emotions and instinct, but it is not a reasoned aspiration, because she is not capable of judging what is in her best interest. If her wish had been to go to Cathy’s home, it would have been equally unpersuasive about what is in her best interest.
[ 41 ] As for the third criterion, which is the closeness of Piorretta to the person seeking her guardianship, it also has little influence. Based on the evidence, I conclude that she is equally close to Tony and Cathy. In terms of closeness, Piorretta has bonded with both her brother and her sister, and they both love her. Although, at the moment, Tony is the closest and most important person in her life, in the past, Cathy was just as close to Piorretta and just as important.
[ 42 ] Thus, the stipulated criteria are not particularly influential in the case at bar. Two additional criteria suggested by the parties in their evidence and argument are also not helpful to making a decision.
[ 43 ] First, both parties argued over the significance of Rosa’s wishes about Piorretta being an important consideration for the court. Tony’s supporters argued that his plan was consistent with Rosa’s hopes and aspirations, which they understood to be that Piorretta, Tony and Michael would have a home at 85 Arleta Ave. Rosa’s plans and aspirations, however, are not relevant save to the extent that coincidentally they may align themselves with what is in Piorretta’s best interest. It appears that Rosa loved all her children and that she was concerned that all of them, and particularly the most vulnerable and weakest of them, have safe and secure futures, but Rosa’s noble wishes are not determinative of what are Piorretta’s best interests.
[ 44 ] Second, Tony and his supporters seemed to suggest that the guardianship should go to whoever was prepared to make more sacrifices for Piorretta. The argument seemed to be that since Piorretta was happy at 85 Arleta Ave., whoever sought to be guardian should be prepared to move to 85 Arleta Ave. to accommodate Piorretta. Similarly, the argument seemed to be that a candidate for guardian should be prepared to give up job opportunities and commitments to others to prioritize making Piorretta happy, as Tony appears to have done.
[ 45 ] This argument is false. Guardianship entails fiduciary responsibility, but it does not require an applicant to be a martyr and to forsake their own interests and their own family and other ties and commitments. Cathy cannot be faulted for not wishing to disrupt her own family life by being reluctant to move to 85 Arleta Ave. Although nothing turns on it, I do not think it was wise for Tony to impoverish himself or to forego his occupation and his employment opportunities in order to demonstrate his merits as a potential guardian for Piorretta.
[ 46 ] Thus, the success of the competing guardianship applications must be determined by the overarching and fundamental factor of what is in Piorretta’s best interest.
[ 47 ] In this regard, the choice is actually relatively easy. Even putting aside the fact that Cathy has a commendable record of caring for Piorretta’s health and education, Cathy has 15 years of experience of being a mother. While maintaining a successful career and family life, it appears that she has successfully nurtured her own children and fostered a successful marriage. I was impressed with Tony Lobo who is devoted, mature, and supportive.
[ 48 ] And nobody criticized Cathy’s abilities as a mother and caregiver other than suggesting that she was too aggressive in pushing Piorretta to improve herself and more rigid than Tony has been in giving autonomy and independence to Piorretta. However, as any parent would know, no parent can be or is perfect, and Cathy’s aspirations for Piorretta cannot be faulted.
[ 49 ] It may be, although I doubt it, that Tony is a better friend to Piorretta than is Cathy, but Tony does not have either the experience or the skill set that Cathy offers as a parent. For most of his life, it appears that Tony has been a single man, and while he should be praised for stepping up and filling the void that was left when Rosa died and complimented for doing an admirable job, the fact remains that Cathy is clearly the better at parenting, and she has far more experience and success at it.
[ 50 ] It is in Piorretta’s best interest that she be parented by Cathy. Intellectually, Piorretta is a female child. She is better off with a mother figure to replace Rosa than a big brother to replace Michael.
[ 51 ] Further, Cathy also offers a stable and more financially secure foundation for caring for Piorretta. She and Tony own a home, and they are gainfully employed. Despite the suspicions of the opposing camps, I do not believe that either Cathy or Tony have anything personally to gain by taking on this guardianship. A guardian of property is required to pass his or her accounts and a guardian has a fiduciary duty not to misappropriate the incapable person’s property. It is appropriate to be reimbursed from Piorretta’s property for expenses incurred on her behalf and neither Cathy nor Tony should be required to deplete their own resources.
[ 52 ] Neither Cathy nor Tony are required to financially support Piorretta, and so the fact that Cathy is able to do so and Tony, at the moment, is not able to do so is not the point that I am making here. The point about Cathy and Tony Lobo having a more financially secure situation is that they are better positioned to take on the serious responsibilities of being Piorretta’s guardian. They have a home ready for Piorretta and the personal resources to be able to take care of her needs.
[ 53 ] The last point brings the discussion to the last point that I shall consider, which is the significance of 85 Arleta Ave. and the beliefs of several family members that it is in Piorretta’s best interest that she stay at 35 Arleta Ave.
[ 54 ] It is trite to say that a house is not a home. I have no doubt that Piorretta is happy at and fond of 35 Arleta Ave., but there is no reason to think that she cannot be just as happy at Cathy’s home. Piorretta has shown the ability to adapt to change, and dealing with the deaths of Rosa and Michael, she has confronted change before. If guardianship were granted to Tony, Piorretta would have to adapt to the circumstance that he will resume working and life may take him away from 35 Arleta Ave.
[ 55 ] The notion that Piorretta’s guardianship should be tied to a place is neither sensible nor practical, and it may not even be feasible, because the fate of 35 Arleta Ave. will depend upon the resolution of the squabbling about the estate. The main point, however, is not to find a house for Piorretta or for Tony but to find the best home for Piorretta.
[ 56 ] For the above reasons, I grant Cathy’s application.
[ 57 ] The order should indicate that Cathy shall serve the Public Guardian and Trustee and file an Amended Management Plan in accordance with s. 32 (11) of the Act within 60 days following the determination of the estate litigation.
[ 58 ] If the parties cannot settle the terms of the order, which I must approve in any event, they should arrange for a further attendance, and I will settle the order. If they can settle the terms of the order, but I am not satisfied with it, then I will settle the matter after further argument.
[ 59 ] In my opinion, apart for the fee for the Official Guardian and Trustee for reviewing the applications, this is not a case for costs, but if the parties disagree, they may make submissions in writing within 20 days of the release of these Reasons for Decision.
Perell, J.
Released: August 13, 2012
COURT FILE NO.: 03-120/12
DATE: August 13, 2012
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Caterina Consiglio
Applicant
‑ and ‑
Piorretta Consiglio , George Consiglio , in his personal capacity and as Estate Trustee of the Estate of Rosa Consiglio, deceased, Luigi Consiglio, in his personal capacity and as Estate Trustee of the Estate of Rosa Consiglio, deceased, Concetta Vocaturo, Anna Nina Serafini, in her personal capacity and as Estate Trustee of the Estate of Rosa Consiglio, deceased, Teresa Rowland, Michele Consiglio, Antonio Consiglio, Francesco Consiglio, and The Public Guardian and Trustee of Ontario
Respondents
REASONS FOR DECISION
Perell, J.
Released: August 13, 2012.