SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: CV-13-5439-00
DATE: 2014-04-17

RE: Franco Valente and Angela Valente v. Vittoria Valente, Rosa Careri, Vincenzo Careri, and The Public Guardian and Trustee

BEFORE: Barnes J.

COUNSEL: Avery Zeidman, for the Applicants

Sender Herschorn, for the Respondents, Rosa and Vincenzo Careri

HEARD: February 6, 2014

E N D O R S E M E N T

INTRODUCTION

[1] The applicants have applied for an order pursuant to ss. 22 and 55 of the Substitute Decisions SDA S.O. 1992, Chapter 30 (the SDA). They seek an order appointing them guardians of the property and person of the respondent Vittoria Valente (“Vittoria”). The applicants are married. Vittoria is Franco Valente’s mother.

[2] The applicants also seek an order declaring that Vittoria, is incapable of managing property; an order appointing the applicants as joint and several guardians of the property Vittoria; an order declaring Vittoria incapable in respect of all personal care functions referred to in s. 45 of the SDA; an order appointing the applicants as joint and several guardians of the person of Vittoria; and costs of this motion.

[3] Based on the evidence before me, I conclude that Vittoria is incapable of making decisions with respect to her personal care and property, however, I order that that Vittoria shall submit to a formal assessment at contemplated under s. 79(1) of the SDA; Franco Valente and Angela Valente are appointed guardians of Vittoria’s property and personal care under the SDA; Pursuant to s. 3 of the SDA, the Public Guardian and Trustee shall appoint a litigation guardian to represent Vittoria in any future proceedings with respect to her personal care or property; the Management Plan submitted by the applicants shall include provisions for periodic review of accounts and an accounting mechanism with time lines; the Management Plan shall be filed with the Public Trustee and Guardian by May 30, 2014.

[4] All evidence on this application was provided by way of affidavit. I have reviewed all affidavits, accompanying exhibits and considered the submissions of counsel, however, I only refer to portions of such as is necessary to provide context to or explain the conclusions I have reached in this case.

BACKGROUND FACTS

[5] The respondent, Vittoria is a widow. She has five adult children. Her children are the applicant, Franco Valente (“Franco”), the respondent, Rosa Careri (“Rosa”), Maria Lombardo (Maria), Domenic Valente (“Domenic”), Salvatore Valente (“Salvatore”) and Cosimo Valente (“Cosimo”).

[6] Vittoria has been diagnosed with Alzheimer’s disease and dementia. She also suffers from Diabetes, Congestive Heart Failure, Hypertension, Osteoporosis, Dyspepsia, Disruptive Sleep Apnea, left hip replacement, interstitial lung disease, transient ischemic attacks and atrial fibrillation.

[7] On October 25, 1993, Vittoria signed a Power of Attorney for personal care and property. She appointed Franco and Rosa as her attorneys for property and personal care.

[8] Since her husband’s death in 2011, Vittoria has resided with the respondent, Rosa and her family. On December 6, 2013, Andre J, appointed the applicants temporary guardians of Vittoria’s personal care and property. I subsequently continued that order pending my final determination of this application.

[9] The applicants allege that Rosa and her family have been mistreating the Vittoria; made questionable management decisions about Vittoria’s health; made questionable management decisions about the Vittoria’s finances; used Vittoria’s money for their own personal needs; and are rapidly depleting the mother’s finances.

[10] Vittoria’s sons, Cosimo Valente and Salvatore Valente, are supportive of their brother, Franco’s application. The applicants have filed other affidavits to support their claims.

[11] The respondents, Rosa and her husband Vincenzo Careri (“Vincenzo”), deny the allegations. They have filed affidavits from Antoinette Lombardo; Eva Martino; Rosemary Pimentel; Riccardo Yelda Yosif; and Mary Fernandes.

[12] The sworn evidence filed in this motion is untested by cross-examination, comes from family members, neighbours and friends, who cannot necessarily be deemed as unbiased. Thus I approach the evidence of all the parties with caution. Letters from a member of the clergy are referred to, however, this unsworn testimony is given little weight.

ISSUES

[13] This cases raises the following issues:

a) Is Vittoria Valente incapable of making decisions about her property and personal care?

b) Who should be appointed Guardians of Vittoria Valente’s personal care and property?

Is Vittoria Valente incapable of making decisions about her property and personal care?

[14] I find Vittoria incapable of making decisions with respect to her person and her property. Despite this finding, I order that she shall be assessed pursuant to s. 79(1) of the SDA.

CAPACITY

[15] Dr. Giovanni Marta expresses concerns about the Alzheimer dementia diagnosis of Vittoria Valente. The doctor makes no comments about her ability to make decisions about her property or about her well-being. Dr. Marta also makes no adverse comments about Rosa or Franco’s ability to care for their mother. It is clear that Dr. Marta was not conducting any assessment with respect to the Vittoria’s capacity or the suitability of her care and living arrangements.

[16] Dr. Panini’s letter is more comprehensive. It is clear that he has had the opportunity to assess Vittoria in the context of her capacity to make decisions about her property and about herself. I conclude that his opinion is thorough and helpful. I prefer the opinion of Dr. Papain to that of Dr. Marta.

[17] I note however, that there has not been a formal assessment by a psychiatrist or psychologist on Vittoria’s mental capacity and I will look to additional evidence to assist me in reaching a conclusion on her capacity.

[18] In support of their application, the applicants filed a set of video clippings (the applicants’ video). The respondents filed their own set of video clippings and pictures (respondents’ video clippings and pictures). These video clippings all include images of Vitoria. Each party submits that video images in their set of video clippings depict the other party mocking or taking advantage of Victoria Valente.

[19] The applicants’ video clipping includes video footage posted on YouTube by the son of the respondents, Rosa and Vincenzo (“the grandson”). The video footage depicts Vittoria mother as follows:

a) singing “I love you nigga”, using a derogatory racial slur;

b) hitting an object or person with a slipper;

c) chugging or drinking beer;

d) the grandson teasing mother with a slipper;

e) the grandson mocking mother under the caption “she has no clue what she is saying”;

f) the grandson mocking mother, getting her to repeat the words “fuck you”;

g) the grandson with mother in a speeding vehicle; and

h) the grandson mocking mother for not understanding a word of English;

[20] The grandson is an adult. He refers to Vittoria as “nana”. References in the above description to “mother” are references to “nana”.

[21] The respondent Rosa explained the racial references as comments made without malice; she described the video clip of her son and Vittoria in a car travelling at excessive speeds as fake. The images depicted in the applicants, video clippings are concerning.

[22] The images depicted in the respondents’ video clippings and pictures showed Vittoria using various forms of profanity at the instigation of others. The respondents submit the applicants’’ and other family members were behind such conduct. I conclude that the evidence is inconclusive on this point, as the instigators are not caught on camera.

[23] The respondents also filed several video images and pictures that showed several kind and loving interactions with Vittoria.

[24] A review of the evidence leads me to make the following findings:

a) Vittoria is not capable of making her decisions as she blindly follows her grandson’s instructions which are clearly intended to ridicule and mock her for the entertainment of others and himself;

b) Vittoria is clearly unaware of what she is saying or doing and simply follows the grandson’s instructions. In fact, this is the essence of the “fun” the grandson seeks to exploit at mother’s expense; and

c) When the images of the You Tube video clips are considered together with the opinion of Dr. Papain, it is clear that Vittoria can be easily manipulated.

[25] Section 22(3) of the SDA prohibits the court from making a formal finding that a person is incapable of managing property and appointing guardian if there is an alternative course of action that is less restrictive on the person’s decision making ability. On these facts, there is no less restrictive alternative. I am satisfied that Vittoria does not have the capacity to make decisions about her property, her personal affairs or to determine who should be her power of attorney.

ASSESSMENT

[26] Despite this finding, it is desirable to have a formal assessment in place. Pursuant to s. 79(1) of the SDA, a court may order a formal assessment where: a) a proceeding is pending under the SDA in which the person’s capacity is in issue and b) the court must be satisfied that there are reasonable grounds to believe that the person is incapable: Neil v Pell olio (2001), 2001 6452 (ON CA), 151 O.A.C. 343 (Ont. C.A.). Both preconditions are satisfied in this case and I order that Vittoria shall submit to a formal assessment as contemplated under s. 79(1) of the SDA.

Who should be appointed Guardians of Vittoria Valente’s personal care and property?

[27] The parties have filed various video clippings with images of Vittoria. The respondents have also filed some pictures. I have already outlined my findings upon reviewing these images.

[28] There is however, reason to be concerned about how the respondents have managed Vittoria’s property. In his affidavit dated December 4, 2014, the Franco Valente, alleges that the respondents have made a number of unexplained financial transactions, using Vittoria’s funds, these include: taking vacations; purchasing an Escalade valued at between 50,000 to 60,000; a 20,000 dollar diamond ring; paying for an eight person trip to Jamaica; purchasing a yellow diamond ring for 30,000; purchasing a brand new bath tub; home renovations; purchase of a Harley Davidson motor cycle; possible depletion of at least 150,000 Canadian dollars etc. etc. This is not an exhaustive list.

[29] The respondents have provided no credible response to concerns and allegations raised by the applicants on the financial issues. I conclude that there is some evidence to conclude that the respondents have engaged in financial mismanagement of Vittoria’s property.

[30] This finding together the conclusions I have drawn, from watching all of the video, still images and reviewing all of the other evidence filed, leads me to conclude that the time has come for a change in guardianship.

POWER OF ATTORNEY AND MISCONDUCT

[31] Where there is a Power of Attorney in existence and the court determines that there is strong evidence of misconduct or neglect, on the part of the Attorney, the court may ignore the wishes of the donor: Glen v Brennan, [2006]] O.T.C. 18, at paragraphs. 8-10(S.C.); Defer v Schaeffer (2008), 2008 46929 (ON SC), 93 O.R. (3d) 447, at p. 455-56(S.C.)

[32] I am satisfied on these facts that there is strong evidence of misconduct, specifically financial misappropriation on the part of the respondents, to warrant the removal of Rosa as an attorney for Vittoria’s personal care and property. Rosa is removed as an attorney under Vittoria’s current power of attorney.

GUARDIANSHIP

[33] The purpose of the SDA is to protect the vulnerable, while at the same time, upholding the principle that the dignity and privacy of a person must be respected. In Park v. Park, 2010 ONSC 2627, at para. 48, Turnbull J. properly identified this balance:

The court is therefore placed in a position where it must weigh the fundamental rights of each citizen against the danger that that vulnerable person may be taken advantage of due to his/her incapacity to protect or care for her/himself or his/her assets and property. In doing that, the court must be cognizant that the capacity to perform certain functions differs, depending on the nature of the function.

[34] Section 70(1)(c) of the SDA requires every application for guardianship to include a statement by the applicants that the alleged incapable person has been informed of the application, its nature and the right to oppose it. Where it is not possible to do so, the applicant must include a statement explaining why it this has not been done.

[35] The applicants have not informed Vittoria that they are bringing this application. The applicants explained this by attributing the in ability to do so to the actions of Rosa who is alleged to have prevented them from informing Vittoria. Without imputing any improper conduct to Rosa in this regard, I am satisfied on these specific facts that in view of Vittoria’s mental state she would have been incapable of comprehending her options or understanding what was going on. In effect, informing Vittoria, on these specific facts, would have served no useful purpose.

[36] Franco is currently an attorney under Vittoria’s current power of attorney. He is Vittoria’s son. Angela is his spouse. Vittoria is not currently in a position to express her wishes. I am satisfied that in her current state Vittoria can be persuaded by either party to express any opinion either party wishes her to express.

[37] This court declares that Vittoria Valente is a person incapable of managing her property and personal care. As a result, it is necessary for decisions to be made on her behalf by a person who is authorized to do so.

[38] This court is satisfied that Franco and Angela are best suited to act as guardians of Vittoria, both with respect to personal care and the management of her property.

[39] This court orders that Frank Valente and Angela Valente be appointed the joint guardians of personal care of Vittoria Valente under s. 55 of the Substitute Decisions SDA, 1992, S.O. 1992, c. 30 (the “SDA”).

[40] This court orders that Frank Valente and Angela Valente be appointed the joint guardians of property of Vittoria Valente under s. 22 of the SDA.

[41] This court orders that Franco Valente and Angela Valente, as guardians of property of Vitoria Valente, shall keep the accounts and records required by O. Reg. 100/96 of the SDA and shall apply to the court under s. 42 of the SDA to pass the accounts within six months of the one year anniversary of this order and thereafter every two years.

[42] Franco and Valente have submitted a guardianship plan for Vitoria and a plan for the management of Vitoria’s property. Franco and Angela shall serve the Public Guardian and Trustee and file an amended management plan, in accordance with s. 32(11) of the SDA and Regulation s. 2(1) of O. Reg. 100/96 of the SDA. This regulation prescribes the form of accounts and records a guardian of property must keep in transactions involving property. This shall be done by May 30, 2014. The applicants shall update the amended plan regularly in accordance the requirements listed in s. 2(1) of the Regulation.

[43] The appointment of the applicants as guardians is not meant to exclude the adult children and grandchildren from visiting Vittoria. It is hoped that the offensive communication with Vittoria, and the exploitation of her deteriorating condition, will cease. If so, it is anticipated that appropriate contact with the respondents and Vittoria will continue, as in accordance with Vittoria’s best interests.

[44] The applicants shall provide the respondents and their children access to Vittoria. All parties shall act in the best interests of Vittoria.

[45] This court orders that the respondents shall provide the applicants with all medical and financial information with respect to the personal care and property of Vittoria by April 30, 2014.

[46] The applicants shall provide a copy of this order to the Public Guardian and Trustee forthwith.

COSTS

[47] The parties shall submit cost outlines by May 20, 2014. The outlines shall be no more than two pages in length.

Barnes J.

DATE: April 17, 2014