Valente v. Careri, 2017 ONSC 6701
CITATION: Valente v. Careri, 2017 ONSC 6701
COURT FILE NO.: CV-13-5439-00, CV-14-3280-00
DATE: 2017-11-07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
FRANCO VALENTE AND ANGELA VALENTE
Applicants
- and -
VITTORIA VALENTE, ROSA CARERI, VINCENZO CARERI, and the PUBLIC GUARDIAN AND TRUSTEE
Respondents
A N D B E T W E E N:
VITTORIA VALENTE by her Litigation Guardians, FRANCO VALENTE and ANGELA VALENTE
Plaintiffs
- and –
ROSA CARERI and VINCENZO CARERI
Defendants
COUNSEL:
R. Avery Zeidman, for the Applicants/Plaintiffs
Angi Panzaru, for the Respondents/Defendants Rosa and Vincenzo Careri
HEARD: June 16, 2017, at Brampton, Ontario
Price J.
Costs Endorsement
OVERVIEW
[1] These motions by Rosa and Vincenzo Careri for access to Rosa’s mother, Vittoria Valente, which this Court heard on June 16, 2017, became moot with Ms. Valente death on August 25, 2017. This endorsement disposes of the costs of the motions.
BACKGROUND FACTS
[2] On February 6, 2014, Barnes J. heard an application by Franco and Angela Valente in court file no. CV-13-5439, to remove Rosa Careri as attorney for personal care and property for Vittoria Valente. Justice Barnes found strong evidence that Rosa had misappropriated her mother’s property, and therefore removed Rosa as her mother’s attorney for personal care and property. Justice Barnes appointed Frank and Angela Valente (“Mr. and Ms. Valente”) as joint guardians for personal care and property in Rosa’s place, pursuant to sections 22 and 55 and of the Substitute Decisions Act, 1992, S.O. 1992, c. 30.
[3] Justice Barnes noted, in his endorsement, that his appointment of Mr. and Ms. Valente was not intended to exclude Rosa and her family from visiting Vittoria. Justice Barnes stated:
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.
[4] Justice Barnes ordered Mr. and Ms. Valente to allow Rosa Careri and her family access to Vittoria, and ordered all parties to act in Vittoria’s best interests. In a later endorsement dated November 25, 2014, Barnes J. ordered Rosa and Vincenzo Careri to pay Mr. and Ms. Valente’s costs of the motion in the amount of $33,188.68.
[5] Rosa and Vincenzo Careri (“Mr. and Ms. Careri”) made a motion, in the same proceeding, to enforce Barnes J.’s Order for access, and on December 11, 2014, the parties consented to an Order by Lemon J. setting out specific terms of interim access, and reserving costs to the judge hearing the motion. Justice Lemon’s Order provided, in part, as follows:
- The within motion shall be adjourned and traversed to Court File CV-13-5439-00 before Justice Barnes, preferably (unless Justice Barnes is not available and an emergency exists.) to a date to be arranged by counsel and [the] trial coordinator.
[6] Mr. and Ms. Valente allowed Rosa Careri and her family access to Vittoria on December 14 and December 24, 2014, and on January 15, 2015, but further conflict developed between the families in Vittoria’s presence, whereupon Mr. and Ms. Valente discontinued Rosa’s and her family’s access.
[7] Mr. and Ms. Careri made a new motion in court file no. CV-14-3280, seeking substantially the same relief that they had sought before Lemon J. In response, Mr. and Ms. Valente made a motion in Form 14, based on Lemon J.’s Order dated December 11, 2014, to consolidate the new motion with the earlier one. On May 9, 2017, Barnes J. made an order consolidating the two motions.
[8] Justice Wein adjourned the Careri’s motions for access from May 9 to May 18, 2017, and from that date to June 16, 2017. Justice Barnes was unavailable on June 16, 2017, as a result of which I heard the motions on that date. I informed counsel that having regard to the fact that Vittoria Valente’s condition had deteriorated to the point that she was unable to recognize her children, and that the only evidence that Rosa’ conduct had disturbed her was that Rosa had made the single statement to her during her visit in October 2016, that, “You will be leaving these evil people soon”, I proposed to direct that further access take place with supervision, and would not be ordering any of the parties to pay costs of the motions to the others.
[9] I informed counsel that I would delay releasing reasons to give them time to agree on the form of an Order containing the terms discussed at the hearing. I indicated that visitors to Vittoria’s room would be limited, visits would be supervised by Brayden Supervision Services Inc., at the Careri’s expense, and that Brayden, or Mr. or Ms. Valente, could video-tape the visits. Counsel for Mr. and Ms. Valente later sent a draft Order with the terms discussed, but Rosa and Vincenzo Careri would not consent to it. Counsel for Mr. and Ms. Valente continued his efforts, as late as August 22, 2017, to find terms acceptable to Mr. and Ms. Careri, until the issue was rendered moot by Vittoria’s death on August 25, 2017.
ANALYSIS AND EVIDENCE
[10] There are three principal objectives of a costs order, namely:
a) To indemnify the successful party;
b) To sanction unreasonable conduct; and
c) To encourage settlement.
[11] In light of those objectives, it would serve no purpose to order any of the parties to pay the costs of these motions to the others. Rosa’s conduct did not preclude further access by her and her family to her mother, so she was entitled to some measure of success in the motions. However, her unwise conduct at the October 2016 visit precipitated the motions, and disentitled her to her costs.
[12] It is unfortunate that the conflict between the Valente and Careri families deprived Ms. Careri and her family of access to Vittoria in the months preceding her death. Vittoria’s diminished mental capacity likely relieved her of any impact of this, and the impact on Rosa and her family is the sad consequence of their failure to manage their differences with the Valente family more constructively.
[13] The costs that Barnes J. imposed on Mr. and Ms. Careri on November 25, 2014, is a sufficient sanction for Rosa’s unreasonable conduct in the litigation. Further costs would only compound her loss and render reconciliation between the families, and a settlement of the remaining issues arising from the management of Vittoria’s property and Estate, less likely.
CONCLUSION AND ORDER
[14] For the reasons stated above, there will be no order for costs of these motions.
Price J.
Released: November 7, 2017
CITATION: Valente v. Careri, 2017 ONSC 6701
COURT FILE NO.: CV-13-5439-00, CV-14-3280-00
DATE: 2017-11-07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
FRANCO VALENTE AND ANGELA VALENTE
Applicants
– and –
VITTORIA VALENTE, ROSA CARERI, VINCENZO CARERI, and the PUBLIC GUARDIAN AND TRUSTEE
Respondents
A N D B E T W E E N:
VITTORIA VALENTE by her Litigation Guardians, FRANCO VALENTE and ANGELA VALENTE
Plaintiffs
– and –
ROSA CARERI and VINCENZO CARERI
Defendants
COSTS ENDORSEMENT
Price J.
Released: November 7, 2017