ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-11-00003055-00ES
DATE: 20130621
BETWEEN:
JOHN GIRONDA, FRANK GIRONDA
and SALVATORE GIRONDA
Applicants
– and –
VITO GIRONDA and CATERINA GIRONDA
Respondents
Charles Wagner and David Noseworthy,
for the Applicants
Enio Zeppieri and Rinus Pais,
for the Respondent, Vito Gironda
Richard A. Coutinho, for the Public Guardian and Trustee
HEARD: April 22 to 26, 29 and 30, and May 1 and 2, 2013
PENNY J.
Overview
[1] This is a case about the capacity of Caterina Gironda, who is 92 years of age. The applicants challenge Caterina’s 2005 will and powers of attorney, as well as transfers of Caterina’s property in 2008 and 2009, on grounds of incapacity and undue influence. They also seek declarations that Caterina is currently incapable, an order appointing Frank and John Gironda as guardians of Caterina’s person and property and an accounting. Their opponent in this litigation is Vito Gironda, the applicants’ younger brother. Vito is the attorney for property and personal care appointed in 2005 and a beneficiary of the 2005 will and the 2008 and 2009 property transfers.
Background
[2] Caterina and Antonio Gironda were married in 1945. They emigrated from southern Italy to Canada where they had four sons, Frank, John, Salvatore and Vito. Caterina, who is now 92, cannot read or write and speaks only the Calabrese dialect of Italian. During the marriage, Antonio looked after the finances and did most of the shopping for the home.
[3] Frank, John and Salvatore grew up, married and left their parents to live in their own homes. Vito, now 48, has lived with his parents all his life.
[4] Antonio died in 2003. From 2003 to 2011, Vito lived at home with his mother.
[5] In 2005, Caterina made a new will leaving her home, 35 Ettrick Avenue, to Vito. At the same time, she made new powers of attorney for property and personal care, changing her attorney from Frank and John jointly to Vito alone.
[6] In 2008, Caterina transferred 35 Ettrick to Vito for consideration of two dollars, retaining a life interest.
[7] In 2009, Caterina is alleged to have given all of her money, in excess of $175,000, to Vito.
[8] In 2011, Caterina suffered a fall in her home which resulted in an intracranial bleed. She has not returned home since that time and is currently a resident in Villa Colombo, a retirement home.
Issues
[9] There are six basic issues:
(1) Were the 2005 will and powers of attorney executed by Caterina valid?
(2) Was the 2008 transfer of 35 Ettrick from Caterina to Vito, with a life interest, valid?
(3) Was the transfer of substantially all of Caterina’s money to Vito in 2009 valid?
(4) What if any accounting should be made by Vito with respect to expenditures of Caterina’s money?
(5) Does Caterina have current capacity to care for her person and property, to grant or revoke powers of attorney or to make a will or substantial gift? and
(6) If the answer to (5) above is no, who should be the guardian of Caterina’s person and property?
Analysis
Caterina’s Medical History
[10] Caterina’s capacity at various points in time is at the heart of most of the issues in this litigation. I will, therefore, start with a review of her medical history from 2003 to 2011.
[11] In 2003, Dr. Vecchio had been Caterina’s family doctor for many years. Antonio Gironda, Caterina’s husband, died on May 24, 2003. Dr. Vecchio's consultation note on June 10, 2003 indicates that he saw Caterina that day because she had been struck by a cyclist and knocked to the ground. He noted that she was “mourning the death of her husband.”
[12] Dr. Vecchio testified, relying on his consultation notes, that Caterina first started complaining to him about memory loss in August 2003. Initially, he did not think it was serious and recommended an herbal remedy.
[13] Dr. Vecchio’s observations are consistent with the evidence of John, Frank and Salvatore. John, for example, testified that following his father's funeral, he started noticing that his mother was forgetting things and could not remember various relatives’ names. He testified that Caterina’s memory gradually got worse.
[14] Caterina’s complaints about memory loss persisted and Dr. Vecchio saw her again in September 2003. At that time, a referral was made to Dr. Marotta.
[15] Dr. Marotta is a specialist in internal medicine and geriatrics. He lectures in geriatric medicine at the University of Toronto and at Sunnybrook and the Toronto Rehabilitation Hospital. He conducts research in the area of geriatrics and, in particular, in the treatment of Alzheimer’s disease. He is a certified capacity assessor. Dr. Marotta made it clear in his evidence, however, that he was at no time asked to nor did he conduct a capacity assessment of Caterina in connection with her ability to make a will, to make a gift or to grant powers of attorney for personal care or property.
[16] Dr. Marotta saw Caterina in December 2003. He conducted a standard geriatric assessment. This involved taking a social, demographic and medical history and addressing the presenting concerns from the family doctor (memory loss). Dr. Marotta conducted a physical, neurological and cognitive examination.
[17] His report to Dr. Vecchio was filed in evidence. Dr. Marotta found Caterina to be:
[M]ost alert and oriented… Her mental status testing revealed she had some difficulty with concentration but she managed. She had definite difficulty recalling just a few items after a couple of minutes.
I think this woman has mild memory impairment or what we now call very mild cognitive impairment with memory difficulties. She does not have Alzheimer's disease. This condition is very common and does represent some risk for the development of Alzheimer's in future. Having said that, many patients remain stable for some time. I have reassured her. There is no evidence of depression.
[18] He recommended a follow up and a CT scan was ordered.
[19] Dr. Marotta saw Caterina again in February 2004. Her CT scan was completely normal. His report to Dr. Vecchio says: “I explained that there is no evidence of Alzheimer's. She does have persisting memory loss and I explained that this problem often remains stable.” He suggested that Caterina return in six months. It is not clear that she did so.
[20] However, the evidence of Vito and a lawyer, Mr. Baglieri, was that in 2005 Caterina wanted to change her will. Vito called Mr. Baglieri to make an appointment for his mother.
[21] Mr. Baglieri told Vito to take Caterina to see her family doctor regarding her competence to make a will.
[22] Vito arranged an appointment with Dr. Vecchio on March 14, 2005.
[23] Dr. Vecchio’s consultation note of that day reads: “Discussed Mother's Mental Competence – Okay!” Dr. Vecchio also wrote a short note to Mr. Baglieri on the same day. In it, he said: “Her mental status is normal and she exhibits normal mental competence. We converse clearly without any misunderstandings.”
[24] Dr. Vecchio explained during his testimony that Caterina was lucid, oriented to place and time and related to him appropriately. He indicated that he would have had a discussion with her about who she was, who he was, where she was and why, to determine whether she was appropriately engaging with him in the circumstances. Her speech was clear and she appeared to be without confusion. Her attire, personal appearance and personal hygiene were appropriate.
[25] According to John, in the 2005 - 2006 time period, he noticed that his mother sometimes could not remember what day it was and stopped coming to family gatherings.
[26] In June 2006, Dr. Vecchio prescribed a small dose of Aricept, a drug sometimes prescribed for the treatment of dementia. He testified that this was a trial to see if it would help with Caterina’s complaints of poor memory. He had no concerns about her ability to function with the elements of daily living. The drug trial was discontinued as Caterina did not tolerate the side effects.
[27] There was, however, sufficient concern to refer her again to Dr. Marotta. Dr. Marotta’s June 2006 report notes:
It appears that her cognitive symptoms have increased over the last two years. She's now starting to experience a certain amount of functional decline…
She had difficulty with the date. Difficulty with short term recall and couldn't do any written tasks.
This woman I think is struggling. I suspect she's probably crossed over into very mild Alzheimer's disease although vascular lesions certainly could be an issue. It would be worth getting a CT done again as the son has requested it and I think it reasonable given the change.
[28] By November 2006, Dr. Vecchio noted that Caterina presented with loss of attention, apathy and anxiety regarding her memory difficulties. He found her orientation as to time and place reduced by one third, her memory reduced by one third and her ability to do simple arithmetic calculations reduced by one fifth.
[29] In July 2007 Dr. Vecchio noted that Caterina was experiencing “fuzzy-headedness.” He ordered a CT head scan to explore likely “cerebral atrophy” and “arteriosclerosis vascular disease.” In September 2007, he noted that the CT scan disclosed “diffuse cerebral atrophy consistent with age.” By November 2007, Dr. Vecchio noted that Caterina had suffered “memory blowout,” by which he meant that Caterina was having more significant memory problems than previously recorded.
[30] John testified that in 2008, his mother sometimes did not recognize him.
[31] Dr. Vecchio’s notes recorded no further specific incidents until October 2009, when he recommended a neuro-geriatric assessment at Baycrest Hospital. Dr. Vecchio testified that he did not know whether this was ever done. There is no evidence that it was.
[32] In July 2010 Dr. Vecchio found Caterina to be alert, conversant and singing songs, and in August he noted “Alzheimer’s stable.” He has not treated Caterina since her March 2011 hospitalization, discussed below.
[33] In cross-examination Dr. Vecchio admitted that he did not have geriatric specialty training, that he had never been trained to conduct capacity assessments and had no experience or training in the tests for testamentary capacity or the capacity to grant powers of attorney for personal care or property. He has never been a capacity assessor under the Substitute Decisions Act, 1992, S.O. c.30 (SDA) and is unaware of the legal tests for the capacity to make a will or to grant powers of attorney.
[34] Caterina suffered a number of falls while living with Vito at 35 Ettrick. The most serious occurred on March 5, 2011. After the fall, Caterina became increasingly confused and was taken to emergency at the Humber River Regional Hospital (Humber) on March 7, 2011. A CT scan of the head disclosed an acute subdural hematoma. Caterina continued to deteriorate, showing poor responsiveness, left hemiplegia and right gaze deviation. She was unable to give verbal responses. Later that day, the attending physicians observed that “poor outcomes are likely.”
[35] Caterina underwent brain surgery at St. Michael’s Hospital on March 23, 2011. The initial surgery was not successful but, on March 24, 2011, she underwent a successful right frontal craniotomy. On April 18, 2011, Caterina was returned to Humber for discharge planning.
[36] The discharge co-ordinator’s report of April 21, 2011 indicated that Vito felt he was no longer able to care for his mother at home due to her increased care needs and was requesting long-term care placement for his mother.
[37] Caterina was referred to the Toronto Rehabilitation Institute (TRI) brain injury program but her referral was declined due to her persistent cognitive impairment, exit seeking, wandering, poor judgment and poor insight. In addition, TRI was aware that Caterina had been treated for dementia prior to her injury. TRI felt there was potential for progressive dementing illness in addition to her brain injury, which was an exclusion criterion.
[38] An occupational therapy report of May 31, 2011 revealed that Caterina had significantly impaired memory and required 24/7 supervision due to cognitive impairment and wandering.
[39] Caterina was transferred to Villa Colombo in October 2011, where she has remained since.
[40] The last time Dr. Marotta saw Caterina was in 2011 in Villa Colombo, where he visits from time to time. It was Dr. Marotta’s opinion that, in 2011, Caterina had experienced “significant decline into the moderately severe stages of dementia.”
[41] The only expert’s report in this proceeding was prepared by Dr. Richard Shulman.
[42] Dr. Shulman is a geriatric psychiatrist. He trained in medicine at McGill University and in Psychiatry, Geriatric Psychiatry and Clinical Pharmacology at the University of Toronto. He is a member of the Royal College of Physicians and Surgeons of Canada and has accreditation from the College in Clinical Pharmacology. He is licensed to practice medicine in the province of Ontario. In addition, he has been certified by the American Board of Psychiatry and Neurology with added qualifications in Geriatric Psychiatry. From 1996 to 1998, Dr. Shulman worked at the Sunnybrook Health Sciences Centre in geriatric psychiatry and the psychopharmacology research program. He is an adjunct assistant professor of the University of Toronto, Department of Psychiatry, in the division of geriatric psychiatry.
[43] At present, Dr. Shulman is the medical director of Seniors Mental Health Services at the Trillium Health Centre, Mississauga and West Toronto. He has, as well, conducted independent medical assessments and acted as a consultant to private legal counsel in connection with medical/legal matters involving testamentary capacity, capacity to grant powers of attorney and capacity to manage personal care and property. He has also acted as a consultant to private legal counsel, the Coroner’s Office of Toronto, the College and the Canadian Medical Protective Association in matters related to standards of care in psychiatry, psychopharmacology and geriatric psychiatry.
[44] Following a voir dire, I qualified Dr. Shulman as an expert witness able to give opinion evidence on matters relating to testamentary capacity, capacity to grant and revoke powers of attorney and capacity to manage personal care and property.
[45] In August 2011, Dr. Shulman was asked to prepare a report in connection with this litigation. His report of September 15, 2011 addressed two issues. First, Dr. Shulman offered an opinion regarding Caterina’s current capacity:
(1) to manage property;
(2) to manage personal care;
(3) to grant and revoke a power of attorney for property;
(4) to grant and revoke a power of attorney for personal care; and
(5) to make a will.
[46] Second, Dr. Shulman offered a retrospective opinion regarding Caterina’s prior capacity during the period between 2003 and 2011 with particular focus on the following dates:
(1) June 24, 2005, when Caterina executed her powers of attorney for property and personal care;
(2) October 28, 2008, when Caterina transferred her house to Vito; and
(3) January 26, 2009, when Caterina transferred most of her money out of a joint bank account to an account in her own name.
[47] In a supplementary report of March 8, 2013, Dr. Shulman provided a retrospective opinion regarding the testamentary capacity of Caterina on June 24, 2005.
[48] Dr. Shulman concluded that Caterina has lacked capacity to manage property and personal care, to grant and revoke powers of attorney, to make a will and to transfer or to make gifts of substantial property since at least June 2005.
(continued verbatim through the remainder of the judgment)
PENNY J.
Released: June 21, 2013
COURT FILE NO.: CV-11-00003055-00ES
DATE: 20130621
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOHN GIRONDA, FRANK GIRONDA
and SALVATORE GIRONDA
Applicants
– and –
VITO GIRONDA and CATERINA GIRONDA
Respondents
REASONS FOR JUDGMENT
PENNY J.
Released: June 21, 2013
[^1]: The issue is not moot because, as discussed later in these reasons, Caterina does not and is unlikely ever to have current capacity to make or change a will.
[^2]: Most of these funds have been held in trust by Zeppieri & Associates and, on consent of all parties, used to pay Caterina’s expenses at Villa Colombo.