ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 03-020112
DATE: January 28, 2013
BETWEEN:
CATERINA CONSIGLIO
Applicant
– and –
PIORRETTA CONSIGLIO, GEORGE CONSIGLIO, in his personal capacity and as Estate Trustee of the Estate of ROSA CONSIGLIO, deceased, CONCETTA VOCATURO, 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
Sean Graham for Caterina Consiglio
Courtney Grace Hughes for Antonio Consiglio
Guy Hunter for Concetta Vocaturo
Romeo D’Ambrosio for the Estate of Rosa Consiglio
HEARD: January 21, 2013
Perell, J.
REASONS FOR DECISION
[1] In Consiglio v. Consiglio, 2012 ONSC 4629, I decided two applications under sections 22 and 55 of the Substitute Decisions Act, 1992, S.O.1992, c. 30. In one application - the successful application - I granted the guardianship of Piorretta Consiglio (Piorretta) to Caterina (Cathy) Consiglio. The application of Antonio (Tony) Consiglio to be Piorretta’ guardian was dismissed. In the motion now before the court, Tony seeks to be reimbursed for the expenses he incurred caring for Piorretta for the 17 months in which he was Piorretta’s de facto guardian.
[2] Tony claims $17,000. Among the feuding family members, there is a dispute about the amount of Tony’s claim. There are disputes about whether there are setoffs and credits against Tony’s claim. There are disputes about who should pay Tony’s claim and about from what funds Tony’s claim should be paid. Sadly, as a family, the Consiglios agree about little except their love for Piorretta and that the court has the jurisdiction to decide Tony’s claim.
[3] Although Cathy submitted that a full-blown trial was necessary to decide fairly the many issues associated with Tony’s $17,000 claim, I disagree.
[4] Based on the evidentiary record from the guardianship applications, for which there already has been a simplified trial, the affidavit evidence for this motion, and the helpful argument from counsel, particularly that of Mr. Romeo D’Ambrosio for the trustees of the Estate of Rosa Consiglio, there has been ample due process and ample evidence for me to decide the largely factual issues associated with Tony’s claim and with the family members’ submissions of offsets or credits.
[5] Part of the factual background for the motion now before the Court may be found in my Reasons for Decision on the guardianship applications. For the purposes of deciding the motion now before the court, I make the following findings of fact, some of them a repetition of findings that I made on the guardianship applications.
[6] 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. Piorretta is and always has been a person who is incapable of personal care. 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.
[7] During most of her life, Piorretta lived with her late mother Rosa, who was Piorretta’s primary caregiver. Other siblings lived with Piorretta, until they moved away to establish their own families. To varying degrees, the family members voluntarily helped to care for Piorretta, but I find that Rosa had assumed a legal obligation to care for Piorretta. Rosa was Piorretta’s guardian and Piorretta was her ward.
[8] In 2010, Rosa had a fall that led to an illness and eventually her death, and with Rosa disabled, her daughter Teresa and her son Tony returned to the family home.
[9] Rosa died in March 2011 and with Rosa’s passing, Tony assumed the role as Piorretta’s primary care giver. Frequently, Tony was assisted by his friend Jennifer Lem in caring for Piorretta. Tony became Piorretta’s de facto guardian and assumed the role formerly played by Rosa.
[10] Tony was Piorretta’s primary caregiver for 17 months; i.e. from April 2011 until August 2012.
[11] I find as a fact that the family members who are the Trustees of Rosa’s Estate; namely George, Luigi, and Nina, asked Tony to assume the responsibility of being Piorretta’s primary caregiver. I find as a fact that the Trustees agreed to reimburse Tony for the expenses he incurred to care for Piorretta.
[12] Apart from the fact that the Trustees agreement to reimburse Tony was decent, moral, and honourable and consistent with the family’s professed love of Piorretta, I find that it was a proper expenditure in the administration of Rosa’s estate.
[13] While caring for Piorretta, Tony gave up employment opportunities, 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. I find as a fact that for seventeen months, Tony incurred expenses of at least $1,700 a month to care for Piorretta. None of these expenses were charges for personal or attendant care services by Tony or Jennifer Lem.
[14] Thus, subject to certain offsets and credits, and subject to the fact that Tony is only claiming $17,000, he has a claim against Rosa’s estate of $28,900.
[15] During the period from March, 2011 to January, 2012, Rosa’s estate made a partial payment to Tony of $2,000 on account of the expenses Tony was incurring for Piorretta. Tony must give credit for these payments.
[16] Teresa Rowland, one of the beneficiaries of the estate paid Tony $200 a month from October 31, 2011 until August 2012 on account of the expenses Tony was incurring for Piorretta. Tony must give credit for these payments. This amounts to a $2,000 credit.
[17] I find as a fact that the trustees of Rosa’s estate agreed that Tony should pay rent of $300 per month while he was the primary caretaker for Piorretta on the understanding that the monthly rent would be offset against Tony’s share of Rosa’s estate. Tony naturally enough has not paid the $300 rent, but it is not an offset against his claim for expenses, although it may be offset against his inheritance.
[18] The agreement that Tony pay rent of $300 while the primary caretaker for Piorretta meant that Tony paid $300 less than the rent that was being charged Teresa while she resided in the Consiglio family home. I find as a fact, however, that there was no agreement or understanding that because of the lower rent Tony must give a credit against his claim to be reimbursed for the expenses he was incurring to care for Piorretta.
[19] I suspect that the Estate Trustees charged Tony less rent because it was the decent thing to do having regard to Tony’s circumstances. In any event, there is no basis for offsetting any claim for unpaid rent against Tony’s claim for reimbursement.
[20] There is a dispute about whether Tony’s use of $4,000, apparently for legal fees, from an an account in his name was a proper use of monies belonging to Rosa’s Estate or perhaps Piorretta. I cannot resolve this dispute, but I can say that the $4,000 in dispute is not to be offset against Tony’s claim for reimbursement, and others will have to decide whether or not it should be offset against Tony’s share of the Estate.
[21] There is a dispute about payments to Tony about renovations to a property known as St. Lucie. Once again, I cannot resolve this dispute, but I can say that whatever the outcome of the dispute, there is no offset against Tony’s claim for reimbursement for expenses incurred for Piorretta’s care, and others will again have to decide whether or not there should be an offset against Tony’s share of the Estate.
[22] Tony acknowledges that the Estate lent him $5,000, and I find as a fact that there was an agreement that repayment of this loan is to come out of his share of Rosa’s Estate. However, it was never agreed that this money was to be offset against Tony’s claim to be reimbursed for the expenses being incurred on Piorretta’s behalf.
[23] It follows from the above findings of fact that Tony’s claim for $28,900 should be reduced to $24,900 and that it should be further reduced to $17,000, which is the amount actually claimed by Tony.
[24] The $17,000 payment should be paid from the assets of Rosa’s Estate as an expense of the Estate, which payment, practically speaking, means that fittingly all the members of the Consiglio family will share equally in the expenses incurred for Piorretta. It also means that, practically speaking, the payment will not be borne by Piorretta’s share of the estate, which is to be held in trust for her.
[25] It also follows that is not necessary for me to decide whether Piorretta’s expenses could or should have been paid from Piorretta’s benefits under the Ontario Disability Support Programs. It will be for the Estate to make such a claim as it may be advised with respect to those funds. That is a matter to be sorted out between the Estate Trustees and Piorretta’s current guardian.
[26] For the above reasons, I grant Tony judgment against Rosa’s Estate in the amount of $17,000.
[27] If the parties cannot agree about the matter of costs, they may make submissions in writing within thirty days of the release of these Reasons for Decision.
Perell, J.
Released: January 28, 2013
COURT FILE NO.: 03-020112
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, 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: January 28, 2013.