COURT FILE NO.: 03-65/13

DATE: 20131210

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: AVV. MARIA CARIELLO, Applicant

A N D:

FATHER MICHELE PERRELLA, MARISA ROGUCKI, ALDO COSTANTINO, ARCHDIOCESE OF TORONTO and THE OFFICE OF THE PUBLIC GUARDIAN AND TRUSTEE, Respondents

BEFORE: MESBUR J.

COUNSEL: Sara Riboldi, for the Applicant

Susan Adam Metzler, for the Respondents Marisa Rogucki, Aldo Costantino and the Archdiocese of Toronto

Romeo D’Ambrosio for Father Michele Perrella, pursuant to the provisions of s. 3 of the Substitute Decisions Act, 1992.

HEARD: November 25, 2013

E N D O R S E M E N T

Introduction:

[1] This case raises the question of which jurisdiction has guardianship authority over Father Michele Perrella, a retired Roman Catholic priest, who maintains both Italian and Canadian connections. Although there has been no finding of incapacity by an Ontario court, it appears Fr. Perrella is currently incapable of managing either his property or personal care. He is staying in a long term care facility in Scarborough. The applicant, Avv. [Lawyer] Maria Cariello was appointed interim guardian of Fr. Perrella’s person and property by an Italian court in July of 2011. She asserts Italy properly has jurisdiction over Fr. Perrella, and Ontario should decline to take any. She says Fr. Perrella was both domiciled and ordinarily resident in Italy at the time he became incapable, and thus remains an Italian domiciliary. She says only Italy has jurisdiction.

[2] The respondents Marisa Rogucki and Aldo Costantino are old friends of Fr. Perrella. They hold powers of attorney for him. The validity of these powers of attorney is in issue. As to the respondent The Archdiocese of Toronto, that Archdiocese is where Fr. Perrella remains “incardinated” under Roman Catholic Canon law. Ms. Rogucki, Mr. Costantino and the Archdiocese have applied for an order first declaring Fr. Perrella incapable of managing either his property or his personal care, then appointing Ms. Rogucki as guardian of the person and of property for Fr. Perrella and approving her management plan for him.

[3] While that is the relief the respondents seek on the application, their position seems to have changed somewhat since their application was issued on September 25, 2013. Now they appear to be pursuing primarily the relief in relation to Fr. Perrella’s personal care. They maintain Ontario should assert jurisdiction over Fr. Perrella, at least insofar as his personal care is concerned. They suggest he is domiciled in Canada, and therefore Ontario should take jurisdiction. They seem to concede that since the bulk of his assets (some € 1,000,000 in bank accounts and investments, together with an interest in 19 parcels of land) are in Italy, a guardian over his property should perhaps be made by the Italian court. They say, however, that because Fr. Perrella is here in Ontario, and has many real and substantial connections to Ontario their application for Ms. Rogucki to be appointed guardian for personal care should be allowed to continue. They also assert that under Canon Law, it is the Diocese to which he is incardinated that is responsible for him spiritually, financially and otherwise until he dies.[^1]

[4] The respondents framed the only issue for the motion as answering the question of whether the Ontario court should take jurisdiction to hear their cross application.

Factual background and context for the applications:

[5] Fr. Perrella is a retired Roman Catholic priest. He is now 80 years old, and suffers from advanced Alzheimer’s disease.[^2] He currently resides in a long term care facility in Scarborough.

[6] Fr. Perrella was born in Bojano, Italy in 1933. He joined a seminary and became an ordained priest in the Roman Catholic Church. He is not a member of a religious order, such as the Jesuits or Franciscans. Instead, he is what is called a Diocesan priest, attached to a particular Archdiocese or Diocese.

[7] On his ordination, Father was “incardinated” to the Diocese of Bojano, Italy. According to the Collins English Dictionary, the verb “to incardinate” means “to transfer (a cleric) to the jurisdiction of a new bishop.” A priest must always be subject to the authority of a bishop or other higher cleric. A priest can only be incardinated to one Diocese, but must always be incardinated somewhere. There is no such thing as a “free-standing” priest.[^3]

[8] Fr. Perrella came to Canada in around 1969 to minister to the needs of the Italian community in and around Toronto. He remained incardinated to the Diocese Bojano until he asked to be “excardinated” from Bojano and incardinated into the Archdiocese of Toronto. He sought and received permission to be excardinated and incardinated in this fashion. His incardination into the Archdiocese of Toronto occurred in around 1974. After that, he served the parish of Saints Peter and Paul in Mississauga until he retired. Sometime during that period Fr. Perrella became a Canadian citizen. He did not, however, give up his Italian citizenship.

[9] Fr. Perrella retired from active ministry in 2001. At that time, he left Toronto. Before he did so, he went to the Consulate General of Italy in Toronto and executed a Consular Declaration which stated [in translation from Italian]:

[He] has hereby declared that he continuously resided in Canada for work reasons from September 1, 1969 to September 15, 2001, date when he declared to move permanently to Italy, with the intention to establish his domicile in the City of Bojano, bringing with him two suitcases of personal effects.

This declaration is made for the purpose of repatriation, for the use at Customs, and to benefit of the subsidies eventually provided for the emigrated.

The document states that it is “to be used for repatriation”.

[10] Fr. Perrella then moved to Australia, where he lived for some years. He also apparently spent some time in Germany. In Australia he was registered with the Italian Consulate as an Italian residing abroad. Fr. Perrella continued to be a retired priest, in the sense that he did not have a regular ministry and was not attached to a particular parish as a parish priest. He was, however, permitted to minister unofficially, and to administer the sacraments and celebrate mass. He remained incardinated to the Archdiocese of Toronto after his retirement and after leaving Canada. He remains incardinated to the Archdiocese of Toronto to this day.

[11] Fr. Perrella travelled during his retirement. He maintained both Canadian and Italian passports. Copies of them are contained in the responding material. His Italian passport was issued on 12 February 2009. It shows him travelling to Canada in early April of 2009, and arriving and departing Australia in October of that year. It shows him travelling in and out of Australia in April of 2010. The passport contains a visa for travel to Indonesia for up to thirty days in May of 2010. The passport shows him returning to Australia in September of 2010, and then travelling to Canada in November of that year. Last, the passport shows travel to and from Australia in early 2011.

[12] A photocopy of Fr. Perrella’s Canadian passport was placed in evidence. It was issued on 25 September 2009 in Canberra, Australia. It does not contain copies of all the pages of the document. The copy in the court materials shows no stamps from any country. From this I infer Fr. Perrella travelled exclusively on his Italian passport after he left Canada, or at least since 2009 when his current passports were issued.

[13] In November of 2010 Fr. Perrella returned to Italy. He registered himself with the City of Bojano, and the Registrar’s Office of the City provided notice of this registration to the Consulate of Italy in Perth, Australia. The notice reads [in translation]:

His registration was deleted from the A.I.R.E. [Registry of Italian Citizen Resident Abroad] and he was registered with the APR [Registry of the Population Resident] pm 27-09-2010 with file no. 0000101

The document bears the stamp of City of Bojano in Italy.

[14] In April of 2011, Fr. Perrella purchased a return ticket to travel to Toronto and back to Italy. His flight to Toronto was on April 8, 2011, with a planned return to Italy on April 26. Thus, his stay here was to be for only about two and a half weeks. Apparently, the purpose of his trip was to try to buy out the interests of his cousins in some properties they co-owned in Italy.

[15] While Fr. Perrella was in Toronto in April of 2011 at some point he suffered a seizure and was hospitalized. This seems to be the beginning of a marked decline in his health and apparently in his cognitive function as well. On April 13, 2011 his Ontario drivers’ licence, which he had apparently maintained, was suspended as a result of this medical condition. It appears his treating physicians reported his seizure to the Ministry of Transportation, as they are obliged to do. It is noteworthy the letter of suspension is addressed to Fr. Perrella at his former address in Mississauga, a location he had not lived in for a decade.

[16] The respondent Marisa Rogucki is an old friend of Fr. Perrella. She has worked for the Archdiocese of Toronto for many years, and now holds the position of Coordinator of Retired Diocesan Priests. She received a call on April 11, 2011 from someone at Saints Peter & Paul Church, (Fr. Perrella’s former parish) advising her that Fr. Perrella had been hospitalized at Scarborough General Hospital. When she contacted the hospital, she learned he had been discharged.

[17] A few days later, Ms. Rogucki learned that Fr. Perrella was now a patient at Humber River Hospital. She also learned that his brother Emilio had arrived from Italy to help him fly back to Italy. Fr. Perrella refused to enter the plane for the return flight, and his disruptive and agitated behavior at the airport resulted in his being denied boarding onto the aircraft.

[18] Humber River wished to discharge Fr. Perrella. Ms. Rogucki began to make arrangements for him to be transferred to St. Bernard’s Retirement Residence, and made inquiries to see if they had available space for Fr. Perrella.

[19] On April 21, 2011 Fr. Perrella moved into St. Bernard’s. A personal support worker was put in place over night, since he was not sleeping.

[20] On April 23 Ms. Rogucki learned that Fr. Perrella had gone missing from St. Bernard’s. Police were called. They located him seven hours later, in a restaurant far from the residence. He had no money, and appeared to have walked miles to get there. He was returned to St. Bernard’s. From that point, he had a personal support worker for 24 hours a day.

[21] On April 27, 2011 Ms. Rogucki and Mr. Costantino, another old friend of Fr. Perrella, obtained powers of attorney for both property and personal care from Fr. Perrella. No capacity assessment was conducted prior to his executing these powers of attorney. On May 10, 2011, however, a Community Care Access Centre worker visited Fr. Perrella to determine his capacity regarding a potential placement in long term care. Her report states, among other things:

Writer had an approx. 45 minutes in total conversation with clt [client]… spoke in Italian … Clt sometimes stated “I don’t know” or “I don’t remember” but most of the time clt responded inappropriately, talking about things he does for the church or his finances … clt would ramble on about the church or his finances or both … he reported he had to go to his home in Italy tonight, he has tickets etc. … Clt had no insight into his situation … Clt unable to make a decision re Placement …

[22] The assessor determined Fr. Perrella was incapable, and informed him of the finding of incapacity.

[23] On June 1, 2011 Fr. Perrella was assessed again, this time by Dr. Richard J. Magder, a neurologist. He opines in his letter of June 1: “In summary, Father Michele presents with advanced dementia, almost certainly Alzheimer Disease…”

[24] From these findings, and their timing, I infer it is more likely than not Fr. Perrella was similarly incapable and suffering from advanced dementia at the time he executed the powers of attorney in favour of Ms. Rogucki and Mr. Costantino. I must conclude he had no capacity to grant the powers of attorney and they must therefore be set aside and declared invalid.

[25] Meanwhile, in Italy Fr. Perrella’s relatives were taking proceedings. On May 19, 2011 Fr. Perrella’s brother Emilio Perrella brought an application for guardianship before the Superior Court of Campobasso. Emilio asserted the application because his brother was unwell, affected by Alzheimer disease and no longer capable of looking after himself for his personal care and financial matters. In the Italian proceedings, Emilio is named as the applicant, with Fr. Perrella and other family members named as respondents.

[26] The Italian court found it had jurisdiction on the basis of Fr. Perrella’s permanent residency in Italy and his being domiciled in Italy when the guardianship proceedings began. The court appointed the applicant, Maria Cariello as Fr. Perrella’s interim guardian, pending a determination of Fr. Perrella’s capacity and a final order.

[27] Ms. Cariello is a lawyer practicing in the Campobasso area. She is listed on the roster of approved guardians for the Italian court. Italy, of course, is a civil law country, with an inquisitorial system for the judiciary. Ms. Cariello has filed a letter with the court in which she describes in some detail the judicial process in the court in Campobasso. This is in addition to her initial affidavit sworn in support her application.

[28] Ms. Cariello describes the proceedings and operation of the Italian court in a letter dated November 14, 2013. In it she explains [in translation]:

The competent jurisdiction for the determination of an incapacity process is the Superior Court, in collegial composition, located at the district where are localized the affairs and interests of the person whose capacity in in issue … The investigating Judge in charge of the hearing of the application, based on the request made by Emilio Perrella [Fr. Perrella’s brother] has designated an interim guardian … with the function of representing and assisting the person until the issuance of the final order …[citations and legal references omitted]

[29] The letter goes on to say:

It is important to highlight how the investigating Judge decided to appoint an individual impartial to potential conflict of interests, even with those of Mr. Emilio Perrella.

The order of appointment has not been appealed by the parties, or revoked by the Investigating Judge. To today’s date, the Court … ruled to proceed to the decision-making phase.

[30] The guardianship office is gratuitous. Before taking on the powers of guardian the guardian is required to take an oath promising to exercise those powers with loyalty and diligence. The guardian is responsible for caring for and protecting the person whose capacity is in issue. Personal care under an Italian guardianship order includes “any activity aimed to meet every need of the minor either it be material and spiritual, all under the supervision of the Guardianship Judge.”[^4]

[31] As to guardians of property, “the guardian must invest the funds in government bonds or government guaranteed bonds, interest-bearing deposits in postal or banking institutions, in mortgage loans or bonds issued by credit institutions authorized to issue mortgage loans, or the purchase of immovable goods located within the State.”[^5]

[32] The Guardianship Court, which is a different judicial entity from the one that appoints the guardian, has overriding supervisory authority over the guardian. It has the ability to authorize different investments that the ones listed above.

[33] Avv. Cariello’s letter concludes with an inventory of Fr. Perrella’s Italian property. The property includes an interest in nineteen parcels of real estate, €800,000 held in two postal accounts and an additional €200,000 in insurance company funds. These funds have all been paid into court in Italy “in the interest of Michele Perrella.”[^6]

[34] Once Ms. Cariello was appointed interim guardian, she first took steps to secure Fr. Perrella’s assets in Italy. On August 4, 2012, following the instructions of the Italian court, she came to Toronto to serve Fr. Perrella in person with the Italian interim guardianship documents, to inquire about his health and living conditions, and to try to move him back to Italy. She encountered some difficulty in doing so.

[35] In March of this year, Justice Calabria of the Superior Court of Campobasso, issued an order requesting an examination of Fr. Perrella by an appointed expert to opine on his capacity. The Campobasso court sought the assistance of the Consulate General in Italy, and also relied on the international convention between Italy and Canada for the execution of Letters Rogatory.

[36] In accordance with article 28(3) of Italian Consular Law, the Italian embassy in Ottawa appointed Dr. Giorgio Ilacqua to be the expert to carry out the examination and assessment of Fr. Perrella’s to determine Fr. Perrella’s capacity. The Consul General of Italy formally requested Fr. Perrella to attend for this examination on June 25, 2013. The notice was directed to Fr. Perrella, as well as Ms. Rogucki, Mr. Costantino and the Archdiocese. Ms. Rogucki advised Fr. Perrella would not be attending. She provided no explanation. The Consul General then asked the respondents’ counsel to provide the reasons for the non-attendance. She did not respond.

[37] The Consul General of Italy in Toronto then advised the Italian court of the difficulties it faced with the execution of the consular Rogatory, and asked for instructions. The Italian court responded by asking the Consulate first to contact Ms. Rogucki’s lawyer to clarify why Fr. Perrella refused to attend for the examination. The Italian Court suggested the expert, Dr. Ilacqua should meet Fr. Perrella personally at the long term care facility where he resided. The court stated the consul general needed to ascertain the legal grounds for the refusal to the examination.

[38] The court’s letter goes on to say [in translation]:

In case of persistent refusal, the consulate will give this judge assigned for the investigation phase its opinion on the legitimacy of the refusal, on the basis of the principles of international law and applicable treaties, also stating if, according to the consulate, the conduct of Mrs. Rogucki is to be considered illegal from the point of view of criminal law, according to the laws of Canada, and if, in any case, it is possible and realistic to take this matter before the Canadian authorities for the execution to the capacity assessment/examination, if necessary through the assistance of the local police to get into the facility where Mr. Perrella is hospitalized.[^7]

[39] This series of events has prompted both the application and cross-application. The applicant, instead of simply seeking this court’s assistance in arranging for a capacity assessment of Fr. Perrella applies instead for “resealing” the Italian order, or, alternatively, declaring Fr. Perrella incapable, setting aside the powers of attorney granted to Ms. Rogucki and Mr. Costantino, and for ancillary relief.

[40] The cross application seeks orders setting aside the powers of attorney, declaring Fr. Perrella incapable, appointing Ms. Rogucki as Fr. Perrella’s guardian of personal care and guardian of his property, and approving Ms. Rogucki’s management plan for him.

[41] The parties seem to view this motion as focusing on whether the court has jurisdiction to hear the cross application or not.

The issues:

[42] Thus, the primary issue to decide is whether this court has jurisdiction to deal with Fr. Perrella’s incapacity, or whether that role falls to the Italian court. The applicant, as the Italian court-appointed interim guardian, says it is Italy, and this court should recognize and enforce the Italian order. She suggests the court should do so under the “resealing” provisions of the Substitute Decisions Act, 1992[^8], (SDA) or alternatively, pursuant to the provisions of the Hague Convention on the International Protection of Adults (Hague Convention), or under the general conflict of laws rules.

[43] The respondents take the position it is the Ontario court that has jurisdiction. They say Fr. Perrella is domiciled here. They also say that as a priest, Fr. Perrella is subject to Canon Law. They say that under the provisions of Canon law, it is the Church that has the obligation to care for and maintain Fr. Perrella until his death. Since Fr. Perrella remains incardinated to the Archdiocese of Toronto they suggest it is the Archdiocese in particular that bears the responsibility to care for Fr. Perrella. Thus, they argue Canon Law should prevail, and the Ontario court should take jurisdiction to ensure the Church can fulfil its canonical duties to its priest.

Discussion:

“Resealing” under s. 86 of the SDA

[44] First, the applicant asserts this court should decline jurisdiction on the basis of s. 86 of the SDA. That section deals with recognition in Ontario of foreign guardianship orders. In subsection (1) it defines a “foreign order” as “an order made by a court outside Ontario that appoints, for a person who is sixteen years of age or older, a person having duties comparable to those of a guardian of property or guardian of the person.”

[45] The SDA goes on to say in subsection 86(2) that “Any person may apply to the court for an order resealing a foreign order that was made in a province or territory of Canada or in a prescribed jurisdiction.” The effect of “resealing” a foreign order is that it will have the same effect in Ontario “as if it were an order under this Act appointing a guardian of property or guardian of the person as the case may be” and “is subject in Ontario to any condition imposed by the court that the court may impose under this Act on an order appointing a guardian of property or guardian of the person, as the case may be.” Last, any “resealed” order will be subject in Ontario to the provisions of the SDA respecting guardians of property or guardians of the person.

[46] The term “resealing” is an ancient term that essentially means “confirmation” of an order issued in a foreign jurisdiction. Thus, under s. 86 of the SDA the Ontario court will confirm a foreign guardianship order of any Canadian province or territory, and will also “reseal” any foreign guardianship order of any “prescribed jurisdiction”. Although many other Canadian provinces have similar provisions in their legislation, and have prescribed Italy as a “prescribed jurisdiction”, Ontario has yet to prescribe any other country as a “prescribed jurisdiction” under the SDA.

[47] The applicant suggests this creates a lacuna in the legislation, and I should therefore apply the principle of resealing by analogy to the Italian order, and recognize it and give it effect in Ontario under the resealing provisions of the Act.

[48] I disagree with this analysis. It seems to me that unless and until Ontario creates a list of “prescribed jurisdictions” there is simply no legislative basis on which I can apply s. 86. This is not a case where the statute inadvertently fails to deal with an issue. Here, the province has simply failed to take the regulatory steps necessary to create a list of prescribed jurisdictions to which s.86 would apply. I have no idea of the province’s intentions in that regard. I fail to see how I can simply assume Ontario would designate Italy as a prescribed jurisdiction when it finally creates a list of prescribed jurisdictions under the SDA. I have no basis to conclude that Ontario has any intention of having s.86 apply to any jurisdiction other than another Canadian province or territory. Section 86 cannot apply.[^9]

The Hague Convention on the International Protection of Adults

[49] The applicant then suggests that if resealing is not available, then the court should apply the Hague Convention.

[50] Article 3 of the Hague Convention provides that measures such as the determination of incapacity and guardianship, taken by the authorities of a contracting shall be recognized “by operation of law” in all other contracting states.[^10]

[51] At this point, Canada has not signed the Hague Convention. Although Italy has signed the Convention, it is not yet in force in Italy. Thus, the Hague Convention also has no application.

[52] The issue of jurisdiction must therefore be decided on the basis of the general conflict of law rules.

The conflict of law rules

[53] As a general rule, matters of a person’s status are determined by the law of place in which the person is domiciled.

[54] Both parties refer to the statement in Castel & Walker, Canadian Conflict of Laws[^11] in which the learned authors say:

Declarations of mental incompetence and appointments of those responsible for making decisions on their behalf are questions of status and are normally made by the court where the person is domiciled or ordinarily resident. However, for practical reasons, such determinations may also be made by courts in the place where the person is present.

[55] This is also the case under the Italian Conflict of Laws Act of May 31, 1995 n.218, which provides that declarations of mental incapacity are questions of status.

[56] Applying these general rules, I infer the question of which jurisdiction should make the decision of whether Fr. Perrella is incapable is answered by determining where Fr. Perrella was domiciled or ordinarily resident when the Italian court made its order.

[57] What, then, determines a person’s domicile? Again, I turn to Castel & Walker, where the authors point out in s. 4.4: “everyone has a domicile – everyone has only one domicile at a time.” They enunciate the general principles regarding domicile as follows:[^12]

The law attributes to each individual at birth a domicile which is called a domicile of origin. This domicile may be changed, and a new domicile, which is called a domicile or choice, acquired, but the two kinds of domicile differ in the following respects:

(1) The domicile of origin is received by operation of law at birth: the domicile of choice is acquired later by the individual actually moving to another country, state, province, territory or legal unit and intending to remain there indefinitely; [italics mine];

(2) The domicile of origin is retained until the acquisition of a domicile of choice; it cannot be divested, although it remains in abeyance during the continuance of a domicile of choice; the domicile of choice is lost by abandonment, whereupon the domicile of origin will revive unless some other domicile is acquired; the domicile of choice is destroyed when it is lost, but may be acquired anew by fulfilling the same conditions as are required in the first instance;

(3) The domicile of origin is more durable than a domicile of choice in the sense that it is more difficult to demonstrate a change of domicile when the domicile that is alleged to have displaced is the domicile of origin.

[58] The Italian court took interim jurisdiction on the basis of Fr. Perrella’s domicile and permanent residency in Italy. The question is whether this court agrees with that determination. When I look at the question Fr. Perrella’s domicile, I must look at it in the context of his capacity.

[59] Both the assessor from the Community Care Access Centre and Dr. Magder came to the conclusion Fr. Perrella is incapable. The first determination was made on May 10, 2011, with the second occurring on June 1, 2011. Both confirm a conclusion of incapacity.

[60] On July 17, 2013 Whitaker J made an order which, among other things, required the Public Guardian and Trustee to arrange for legal representation for Fr. Perrella under s. 3 of the Substitute Decisions Act, 1992. The PGT appointed Mr. D’Ambrosio to fulfil that function. Mr. D’Ambrosio has met recently with Fr. Perrella and provided the court with helpful information both about Fr. Perrella’s current condition and needs, and also about where he might be domiciled.

[61] First, Mr. D’Ambrosio advises that in his opinion, Fr. Perrella is indeed incapable of managing both his property and personal care. He reported on his attempts to interview Fr. Perrella and obtain some information about his wishes. Mr. D’Ambrosio reported he was unable to get any kind of rational answer from Fr. Perrella. On the question of where he would like to be, Fr. Perrella apparently says he wants to go where God sends him and where he can do God’s work.

[62] Fr. Perrella is now clearly incapable. In my view, he has been incapable at least since the time the police found him wandering far away from St. Bernard’s Residence in April of 2011. Since Fr. Perrella is incapable, this means he has no capacity to change whatever domicile he had prior to his becoming incapable.

[63] Mr. D’Ambrosio also advised the court that Fr. Perrella is being well taken care of here in Ontario. At present, his expenses are being met by the Good Shepherd Trust, which is a fund related to the Church, and provides funding for the needs of retired priests. Mr. D’Ambrosio said, however, that he has some recommendations regarding improvements to Fr. Perrella’s accommodations. This would include finding him a place in an Italian speaking facility and also providing him with a private room. Since these improvements would likely cost more than what is available from the Good Shepherd Trust some of Fr. Perrella’s significant assets would have to be accessed in order to provide this for him if he remains in Ontario.

[64] Mr. D’Ambrosio was particularly helpful to the court in setting out the arguments in favour of each position concerning Fr. Perrella’s domicile. From looking at all the facts and the arguments from all counsel I conclude that Father did acquire Canada as his domicile of choice sometime in the 1970s, particularly at the time he became excardinated from the Archdiocese of Bojano, and incardinated to the Archdiocese of Toronto in 1974. At that point, he chose to remain in Canada indefinitely.

[65] That changed, however, when he left Canada in 2001. At that point, Fr. Perrella clearly indicated his intention to leave Canada permanently, and re-establish himself elsewhere, namely repatriating himself to Italy. He thus lost his domicile of choice. On losing his domicile of choice, his domicile would automatically revert to his domicile of origin, namely Italy. More than that, however, he clearly stated his intention to “repatriate” in Italy. I infer he re-acquired his domicile of origin at the time he left Canada in 2001 by showing a clear intention to give up his domicile of choice in Canada and repatriate himself in Italy, thus reverting to his domicile of origin.

[66] I have no evidence Fr. Perrella acquired a domicile of choice in any other jurisdiction following leaving Canada, and therefore assume he retained his domicile of origin in Italy from that point forward.

[67] This is clear, for example, from the steps he took when he returned to Italy from Australia in 2010 when he registered as a permanent resident of Bojano, and advised the Italian Consular authorities in Australia of his doing so.

[68] I am not persuaded that when Fr. Perrella returned to Canada in the spring of 2011 he intended to re-establish Canada as his domicile of choice at that time. I say this for a number of reasons.

[69] First of all, he travelled with a return ticket. More than anything this suggests to me that he intended to return to his home in Italy on April 26, 2011. It was only his having a seizure, which seems to have worsened his condition, which prevented him from doing so.

[70] Second, most of Fr. Perrella’s assets are in Italy. He is an owner, or part owner, of 19 parcels of land in Italy. In addition to the land, he has investments worth over € 1,000,000, all of which are in Italy. Although he has some bank accounts and GICs in Toronto, these are apparently worth only about $80,000.

[71] Third, Fr. Perrella is registered as a resident of Bojano, Italy, and has been since his return there in 2010.

[72] Fourth, most of Fr. Perrella’s extended family resides in Italy. He has two surviving siblings, and a number of nieces and nephews in Italy. In Canada, he has only some cousins.

[73] Fifth, from the time of his birth until he became incapable in 2011, Fr. Perrella has lived in Italy longer than anywhere else. He was born in 1933 in Italy and remained there until he came to Canada in 1969 after his ordination. Thus, he spent the first 36 years of his life in Italy. He lived in Canada from 1969 until 2001, a period of 32 years. He then lived away from Canada for 10 years, and resumed living in Italy for just under a year. Italy, therefore, represents the place where he has lived the longest during his life, prior to becoming incapable.

[74] Sixth, when Fr. Perrella left Canada he signed a declaration at the Italian Consulate setting out clearly his intention to repatriate to Italy. He signed no such declaration when he came to Canada in April of 2011. He did not attend the Italian Consulate at all. This confirms to me had no intention of remaining in Canada. Had he had that intention, I have no doubt he would have done the necessary steps to register himself here, just as he had done when he returned to Bojano when he left Australia.

[75] Seventh, I find it more likely than not Fr. Perrella was already incapable when he came to Canada in April of 2011. Thus, he would not have been capable of forming the intention of re-acquiring Canada as his domicile of choice then.

[76] Last, even though he was incapable at the time, Fr. Perrella seemed to be trying to advise the Community Care Access Centre assessor in early May of 2011 that he needed to go back home to Italy. He said much the same thing to Avv. Cariello when she met with him in August of 2012.[^13]

[77] I therefore conclude that Fr. Perrella is and remains domiciled in Italy. I also conclude that at the time Italy took jurisdiction, Fr. Perrella was also ordinarily resident in Italy. The court where a person is domiciled has the jurisdiction to deal with question of that person’s status. Capacity is a question of status. Thus, since Fr. Perrella is domiciled in Italy it is the Italian court that must take the jurisdiction to determine his capacity and ancillary matters arising from that determination.

Canon Law

[78] The respondents raise an issue about the applicability of Roman Catholic Canon Law. They say Canon law applies, and it is the Diocese where Fr. Perrella is incardinated that should make decisions about him and has the responsibility to care for him until his death.

[79] I disagree. The applicant wrote to the Vatican in May of this year, and received a response dated May 23, 2013.[^14] It reads, in part (in translation):

With this fax of May 13, 2013 you sought the assistance of the Holy Father and of the other offices of the Holy See, asking to intervene in favour of father Perrella, hospitalized in Toronto.

In that regard, even though we comprehend the bitter situation which has developed, I regret to inform You that, since this is a private matter, it is not within the powers of the Holy See to intervene directly or take particular legal action versus the contenders. Therefore, You can either contact with confidence the Excellency of the diocese where the Priest is incardinated, to obtain the wished resolution, or refer the matter to the usual legal routes in case of non respect of justice and the good rights of the parties.

[80] From this letter I infer that while the parties can seek the assistance of the Diocese to resolve the conflict between them, they are also free to “refer the matter to the usual legal routes.”

[81] Thus, there is certainly no prohibition on this court assuming jurisdiction to adjudicate the issue of where legal jurisdiction over Fr. Perrella lies. This is particularly so when the rights of a vulnerable individual are at stake. The court must be vigilant in protecting those rights.

[82] As I see it, the issue of jurisdiction is a purely legal one. It must be adjudicated according to the principles of Canadian law. I see no basis to defer the decision to Canon Law.

The powers of attorney

[83] Last, I turn to the issue of the powers of attorney, and whether they are valid or not. It seems to me this is an important issue, and one on which the parties appear to agree that they should be set aside.

[84] Shortly after the powers of attorney were granted, Fr. Perrella underwent two capacity assessments. Both found him incapable. Clearly, since May 10, 2011, just days after the powers of attorney were executed, Fr. Perrella has been incapable of managing either his property or personal care. Given Fr. Perrella’s wandering away from the facility just days before the power of attorney was executed, I find it more likely than not he was also incapable when he purported to grant the two powers of attorney. Since he was incapable, the powers of attorney must be set aside.

Conclusion:

[85] For all these reasons I conclude that at the time the Italian court took jurisdiction, Father Michele Perrella was domiciled and ordinarily resident in Italy. I also conclude he remains domiciled in Italy. As a result, I decline jurisdiction defer to the decisions of the Italian court.

[86] All parties seek an order terminating the powers of attorney Fr. Perrella executed in 2011. As I have said, it is clear, on the balance of probabilities, he did not have the capacity to execute them at the time he did so, and he remains incapable. Accordingly, the powers of attorney will be terminated forthwith.

[87] As requested in the application, the applicant will have the authority, and responsibility, under the interim guardianship order from the Superior Court of Campobasso to make decisions on behalf of Fr. Perrella, both as to property and personal care. I would hope she, and the Italian court, would enlist the assistance of someone in Toronto to participate in the day to day decisions that are necessary to ensure Fr. Perrella’s ongoing wellbeing, and particularly whether or not he can or should be moved back to Italy.

[88] I hope as well that as long as Fr. Perrella remains in Canada, the guardian will follow the advice of Mr. D’Ambrosio regarding improvements to Fr. Perrella living conditions here.

[89] The Italian court considered the option of moving Father to Italy, but noted the decision “could be considered … should this decision reflect the will of the elderly priest and is not against his need for care and protection.”

[90] This statement gives me particular comfort, as it reflects both a sensitivity to Fr. Perrella’s wishes, his role as a priest, and to his need for the court’s overriding “care and protection”. The Italian court also considered the “family conflicts” among the Italian parties, the nature of the entire property to be managed, and “the sensitive personal and property decisions” that would need to be made. Considering all of this, the Italian court determined it best to appoint a guardian outside the family. I must say I agree with this disposition, particularly since I understand Italian guardians are chosen only from an approved list of guardians, and will be subject to the ongoing supervision of the specialized guardianship court in Italy. Avv. Cariello is a lawyer and a member of the approved list of guardians. As temporary guardian of Fr. Perrella, Ms. Cariello was required to swear an oath before the court stating:

I make oath and say to faithfully and diligently fulfill the mandate of guardian of the person to declare incompetent, Michele Perrella, for which I have been nominated.

[91] I am satisfied the Italian court has assumed jurisdiction on an appropriate basis, and will ensure, as would this court, that Fr. Perrella’s interests as a vulnerable person will be properly protected.

[92] Since this is an unusual and unique situation, it is not a case for costs, other than for an order that Mr. D’Ambrosio’s costs be paid out of Fr. Perrella’s estate, as contemplated by the order of Whitaker, J of July 17, 2013. Those costs will be at an amount agreed upon, or failing agreement, after assessment.

[93] Orders will therefore issue:

a) Terminating the powers of attorney executed by Fr. Perrella on April 27, 2011;

b) Declaring the Italian Superior Court of Campobasso has exclusive jurisdiction to determine questions of guardianship of the person and guardianship of property of Fr. Perrella;

c) Making no order as to costs, other than to order Mr. D’Ambrosio’s costs shall be paid out of Fr. Perrella’s estate, at an amount agreed upon, or failing agreement, after assessment.

[94] I wish to thank all counsel for their helpful materials and submissions.

MESBUR J.

Released: 20131210

[^1]: Affidavit of Reverend Ivan Philip Camilleri, sworn September 27, 2013 [^2]: Opinion of Dr. Richard J. Magder, a neurologist, in his letter dated June 1, 2011. [^3]: Affidavit of Reverend Ivan Philip Camilleri, note 1, above [^4]: Letter of Avv. Cariello 14 November 2013 [^5]: Ibid. [^6]: Ibid. [^7]: Letter from Mr. Justice Stefano Calabria of the Superior Court of Campobasso, Civil Section, R.G. [General Registry] no 834/2011 [^8]: S.O. 1992 c. 30 [^9]: In fact, the Public Guardian and Trustee came to the same conclusion in its letter of July 16, 2013 directed to both the court and to applicant’s counsel, Ms. Riboldi [^10]: Article 22 of the Hague convention [^11]: Sixth edition, Vol. 1, p. 21-1 [^12]: Ibid. ss. 4.4,4.5 Citations omitted [^13]: Affidavit of Avv. Cariello sworn 7 August 2013 [^14]: Letter dated May 23, 2013 from Mons. Peter B. Wells of the Secretary of State of the Vatican to Maria Cariello