COURT FILE NO.: CV-18-3090-00ES
DATE: 20221128
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LEONARDO CARELLA
Moving Party/Applicant
– and –
ANNA CARELLA, ROCCO CARELLA and STEFANO CARELLA
Responding Parties/Respondents
Bernie Romano and Jordan Nussbaum, for the Moving Party/Applicant
Julia Munk, for Anna Carella; Michael Buccioni, for Rocco Carella; and Edgar-Andre Montigny, for Stefano Carella, the Responding Parties/Respondents
HEARD: August 31, 2022
reasons for decision
dietrich j.
[1] The respondent, Stefano Carella, a 91-year-old father of three adult children, finds himself at the centre of a bitter dispute among his children regarding the management of his property and his person. This dispute has now been playing out for more than four years.
[2] The applicant, Mr. Carella’s son Leonardo Carella (“Dino”), commenced an application in 2018 in which, among other relief, he seeks to be appointed as the guardian of Mr. Carella’s property and the guardian of his personal care. Dino also seeks an accounting from the respondents, Anna Carella (“Anna”) and Rocco Carella (“Rocco”), who are Mr. Carella’s other children, respecting certain borrowed funds (the “Guardianship Application”).
[3] Dino alleges that, on May 8, 2017, Anna or Rocco, or both of them, arranged for the registration of a mortgage/line of credit in the principal amount of $280,000 in favour of the Toronto-Dominion Bank (the “Mortgage”) against Mr. Carella’s residence in the City of Toronto (the “Property”). Prior to that time, the Property had been unencumbered. The accounting that Dino seeks is in respect of the funds lent on the Mortgage.
[4] Mr. Carella resides in the Property, which is his home. His wife predeceased him. Anna, a former schoolteacher, has always resided in the Property. Anna is named as Mr. Carella’s attorney of property pursuant to a power of attorney for property dated October 11, 2019, and as Mr. Carella’s attorney for personal care pursuant to a power of attorney for personal care dated October 11, 2019. Mr. Carella has some medical issues and Anna is very involved in Mr. Carella’s day-to-day care.
[5] Dr. Giovanni Marotta assessed Mr. Carella on May 10, 2019, and in his report dated July 22, 2019 (“Dr. Marotta’s First Capacity Assessment”), he stated his opinion that Mr. Carella was incapable of managing his property and his personal care.
[6] Anna and Rocco oppose the Guardianship Application. By any objective standard, the COVID-19 pandemic notwithstanding, they have persisted in delaying the hearing of the Guardianship Application. Dino has brought a motion for an order finding them in contempt for their continued breach of court orders.
[7] In this proceeding, Dino moves for a determination as to Mr. Carella’s capacity to instruct counsel. If Mr. Carella is found not to have capacity to instruct counsel, Dino seeks an order directing the Public Guardian and Trustee (the “PGT”) to arrange for counsel pursuant to s. 3 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”). Dino also moves to enforce my orders requiring Anna and Rocco to provide financial disclosure and to account for the Mortgage proceeds, and my orders permitting Dino unimpeded access visits to Mr. Carella at the Property.
[8] For the reasons that follow, I find that Mr. Carella’s capacity to instruct counsel is very limited. I find that he has capacity to instruct counsel regarding his preference as to a guardian for personal care, and where he would like to live, but he does not have capacity to instruct counsel on matters affecting his property. My orders regarding Anna’s and Rocco’s obligations to provide financial disclosure and an accounting of the Mortgage proceeds, and my orders regarding Dino’s access to visit Mr. Carella should be enforced.
Factual Background and Chronology of the Proceedings
[9] On January 21, 2019, the respondents were represented by Frank Mendicino. The parties consented to an order which, among other things, directed the PGT to arrange for s. 3 counsel for Mr. Carella; directed a capacity assessment of Mr. Carella by Dr. Marotta; put in place an interim preservation order over the Property; and required Anna and Rocco to account for the Mortgage proceeds within sixty days (the “January 21, 2019 Order”).
[10] On April 25, 2019, Dino brought a motion to enforce the January 21, 2019 Order, and for an order finding Anna and Rocco in contempt of that Order. Dino opposed Anna and Rocco’s request for an adjournment on the basis that they had not complied with the January 21, 2019 Order requiring them to provide a “full accounting and all relevant documents” relating to the amount lent on the Mortgage, which Dino believed to be $130,000 at that time. Anna and Rocco had not offered any explanation for their non-compliance. I granted the adjournment on the condition that Anna and Rocco provide the accounting ordered within ten days, failing which they would be required to pay $130,000 into court. On consent of the parties, I also ordered that Mr. Carella’s capacity assessment would take place at the Property on May 10, 2019 (the “April 25, 2019 Order”).
[11] Anna and Rocco did not comply with the April 25, 2019 Order. On May 6, 2019, they provided an accounting that was not accompanied by any affidavit, and it failed to give any detail regarding the Mortgage proceeds other than to show that $139,000 had been deposited into a bank account and withdrawn shortly thereafter. There was no evidence to suggest that Mr. Carella benefited from these funds. The respondents again sought an adjournment to give them more time to provide a more comprehensive accounting. Dino opposed the adjournment on the basis that Anna and Rocco had been given plenty of time to provide an accounting and to properly respond to the motion, and they had not. I ordered Anna and Rocco to pay $130,000 into court within ten days. The balance of the motion was adjourned to July 3, 2019. At the May 22, 2019 hearing, Anna and Rocco were represented by Stephen Zampini.
[12] On July 3, 2019, Anna and Rocco were represented by Hershel Sahian. On consent, the July 3, 2019 hearing was adjourned to August 1, 2019, in the expectation that Dr. Marotta’s capacity assessment report would then be available.
[13] On August 1, 2019, Dino moved to enforce the January 21, 2019 Order and to have the Guardianship Application heard. Dr. Marotta’s First Capacity Assessment was in evidence, and Dr. Marotta had concluded that Mr. Carella lacked the capacity to manage his property and his personal care. I ordered that the PGT arrange s. 3 counsel. Dino’s motion and the Guardianship Application were adjourned to October 23, 2019. By this time, Anna and Rocco had started to make visits between Dino and Mr. Carella at the Property very difficult. I made an endorsement that permitted Dino to bring an emergency motion before me if he was denied access to the Property to visit Mr. Carella.
[14] On October 23, 2019, Dino moved to enforce my previous orders and for an order permitting him to visit Mr. Carella at the Property unimpeded. Anna and Rocco remained in contempt of my order to provide an accounting. They were again ordered to provide the accounting per the January 21, 2019 Order, and they were given further direction as to the specifics of the accounting to be provided. The accounting was to be provided to both Dino and s. 3 counsel, Natalia Angelini, by November 1, 2019, failing which Dino’s motion for contempt would be scheduled on November 5, 2019. Anna and Rocco had also failed to pay costs awarded against them. I also ordered that no amount could be drawn on the Mortgage absent court approval. In light of the evidence that Anna and Rocco had locked Dino out of the Property and called the police when he attempted to visit Mr. Carella, as suggested by the police, I made an order permitting Dino to visit Mr. Carella at the Property and allowing him unrestricted access to Mr. Carella in the way he had access prior to initiating the Guardianship Application. I further provided that if Dino’s visits were distressing Mr. Carella, then Dino would end the visit. Anna and Rocco were directed not to interfere or obstruct Dino’s visits with Mr. Carella. Ms. Angelini confirmed that based on her interactions with Mr. Carella, Mr. Carella wanted to see Dino (the “October 23, 2019 Order”).
[15] On December 11, 2019, the parties agreed to a timetable setting out each step leading to the Guardianship Application to be heard on May 25, 26 and 27, 2020.
[16] On February 20, 2020, Ms. Angelini reported that she had been called by Mr. Carella’s brother-in-law and told that her services were no longer required because Mr. Carella had retained a new lawyer. Antonietta Raviele appeared on Mr. Carella’s behalf. Ms. Angelini advised the court that it was the PGT’s position that Ms. Angelini’s role as s. 3 counsel should continue. Ms. Raviele submitted that Mr. Carella was able to instruct her, and s. 3 counsel was not required. The court was also advised that Mr. Carella had obtained an opinion from a psychologist that Mr. Carella had capacity to appoint an attorney for property. I ordered a further assessment by Dr. Marotta to determine whether Mr. Carella had the capacity to appoint, retain and instruct counsel, and the capacity to make and/or revoke a power of attorney (the “February 20, 2020 Order”).
[17] Ms. Raviele, on behalf of Mr. Carella, sought leave to appeal the February 20, 2020 Order. Anna and Rocco retained new counsel, Louis Mostyn, who represented them on the motion for leave. On July 20, 2020, the Divisional Court denied leave to appeal the February 20, 2020 Order.
[18] The appeal and the COVID-19 pandemic caused some delay in arranging for Dr. Marotta’s second assessment of Mr. Carella. However, Dr. Marotta was prepared to proceed on February 3, 2021 or February 10, 2021 at 1:30 p.m. Anna and Rocco opposed the assessment raising concerns about the possibility of Mr. Carella contracting COVID-19. Dr. Marotta was fully vaccinated at that time and, as a geriatric physician, undoubtedly aware of the appropriate protocols. On January 7, 2021, I ordered that the assessment proceed on either day, as determined by Dr. Marotta. Anna and Rocco also submitted that Dr. Marotta was not sufficiently fluent in Italian. Ms. Angelini confirmed that Dr. Marotta was one of two approved capacity assessors qualified to conduct capacity assessments in Italian. Given Mr. Carella’s aphasia, arrangements would be made for a speech pathologist to assist with communication between Dr. Marotta and Mr. Carella, and the speech pathologist would attend via videoconference to reduce Mr. Carella’s risk of exposure to COVID-19. Anna opposed the time of the appointment, stating that it would interfere with Mr. Carella’s lunch. Dr. Marotta was asked to consider a later appointment, if possible, but I ordered that the assessment was to proceed regardless, unless the City of Toronto was under a COVID-19 lockdown, and it would be a breach of the provincially-mandated guidelines for Dr. Marotta to attend at Mr. Carella’s home at the time set for the appointment. (the “January 7, 2021 Second Assessment Order”).
[19] Anna and Rocco did not facilitate Dr. Marotta’s assessment scheduled for February. They submitted that, at that time, there was a COVID-19 “lockdown”, and it would have been a breach of the guidelines for Dr. Marotta to attend on Mr. Carella. Dr. Marotta disagreed with their interpretation of the guidelines and advised that the assessment ordered was permitted under Ontario’s Stay at Home Order in Council, dated January 13, 2021. The assessment did not take place. Unfortunately, Dr. Marotta then had no availability to conduct the assessment until July 2021.
[20] On May 4, 2021, Dino brought a motion for an order for, among other things, finding Anna and Rocco in contempt of the January 7, 2021 Second Assessment Order. Anna and Rocco submitted that the assessment could not take place because Mr. Carella had not yet been vaccinated. They had no convincing explanation for why Mr. Carella, then 89 years of age, had not been vaccinated when, according to publicly available information, the majority of Canadians in his age group who wished to be vaccinated had already been vaccinated. Anna and Rocco admitted that they themselves had not been vaccinated, and they refused to disclose whether any of the personal support workers (“PSWs”) who were coming to the Property, on a regular basis, to attend on Mr. Carella, had been vaccinated. Anna produced a letter from a Dr. Caravaggio (who did not describe his relationship to Mr. Carella or comment on whether he had ever examined Mr. Carella). In the letter, Dr. Caravaggio stated: “Any visitation by family [other than Anna or Rocco] or medical assessors should be prohibited until Mr. Carella is fully vaccinated and the pandemic has quelled.” I ordered that the assessment take place at Dr. Marotta’s convenience on May 10, 2021 or later. The issues of contempt were deferred to the next hearing.
[21] On October 28, 2021, the parties attended at a case conference, at which the court was advised that another appointment for an assessment by Dr. Marotta had been scheduled for October 5, 2021. Appointment arrangements were made to address each of Anna’s concerns: the appointment would be held after lunch, by an Italian-speaking assessor (Dr. Marotta), outside of a COVID-19 lockdown, and in the presence of a speech pathologist. However, hours before the assessment, Anna and Rocco cancelled the appointment. They said that Mr. Carella had to have a chest x-ray instead. Without any evidence to support her request, Anna insisted that another assessment not be scheduled for at least a month because Mr. Carella had an infection. Satisfied that Dr. Marotta could properly assess Mr. Carella’s fitness for an assessment, I ordered that the assessment proceed on the earliest date available to Dr. Marotta and the speech pathologist. I cautioned that if Anna and Rocco continued to flout court orders, including the January 7, 2021 Second Assessment Order, they could face serious contempt consequences, including a jail sentence. I also made an order requiring Anna and Rocco to facilitate, and not participate in, a visit between Dino and Mr. Carella and Mr. Carella’s friend Rocco Pasquale. The contempt motion was scheduled to be heard on February 1, 2022.
[22] The next assessment with Dr. Marotta was arranged for November 23, 2021 at 2:30 p.m. Two hours before the assessment, Ms. Raviele wrote to Dr. Marotta to cancel the assessment because Anna had taken Mr. Carella to the hospital. Dino went to visit his father at the hospital and his evidence is that Anna and Rocco caused hospital staff to have him removed from the hospital.
[23] By February 23, 2022, each of Anna, Rocco and Mr. Carella had retained new counsel. Edgar-Andre Montigny was representing Mr. Carella, Julia Munk was representing Anna, and Michael Buccioni was representing Rocco. Dino agreed to defer his contempt motion because all parties agreed that Dr. Marotta would assess Mr. Carella at the Property on March 16, 2022 at 3 p.m., in accordance with the terms of my earlier orders. Based on the number of previous short notice cancellations, Dr. Marotta required a retainer. Visits between Dino and Mr. Carella continued to be difficult with regular interference by others in the household, including PSWs. I ordered regular Sunday morning visits between Mr. Carella, Dino, Dino’s daughter Brittany (a nurse), and Brittany’s infant child at 11 a.m., commencing February 27, 2022. Mr. Montigny kindly agreed to facilitate one such meeting. Other meetings were unsuccessful.
[24] Between the February 20, 2020 Order and March 16, 2022, when Dr. Marotta was finally able to assess Mr. Carella, I issued three more orders respecting Dr. Marotta’s assessment.
[25] On March 16, 2022, Dr. Marotta attended at the Property and assessed Mr. Carella regarding Mr. Carella’s capacity to instruct counsel. He issued his report on April 6, 2022 (the “Marotta Report”).
[26] Unbeknownst to Dino, the respondents arranged for three additional assessments of Mr. Carella. Those assessments are as follows:
a. Dr. Richard Shulman’s assessment of Mr. Carella’s capacity to instruct counsel, via videoconference, at the request of Mr. Carella’s counsel, Mr. Montigny, on March 15, 2022, resulting in Dr. Shulman’s report dated March 28, 2022 (the “Shulman Report”);
b. Rena Postoff’s assessment of Mr. Carella’s capacity to instruct counsel, and his capacity to make or revoke a power of attorney, at the request of Rocco, on June 4, 2022, resulting in her report dated June 6, 2022 (the “Postoff Report”); and
c. Helen Morgan’s assessment of Mr. Carella’s capacity to instruct counsel, at the request of Anna and Rocco, on June 6, 2022, via videoconference, resulting in her report dated June 10, 2022 (the “Morgan Report”).
A. Mr. Carella’s Capacity to Instruct Counsel
Positions of the Parties
The Applicant
[27] Dino relies on the Marotta Report in support of his position that Mr. Carella does not have capacity to instruct counsel.
[28] Dino also submits that each of the Shulman Report, the Postoff Report and the Morgan Report cannot be relied on because the capacity assessor in each of these cases was not provided with the relevant materials. Specifically, they were not provided with Mr. Carella’s medical records, the notice of application or any other materials relating to the Guardianship Application, including my orders and endorsements, being the litigation on which Mr. Carella would be expected to instruct his counsel; and the assessors did not speak to the applicant to gain any insight into his position in the litigation respecting the management of Mr. Carella’s property and personal care.
The Respondents
[29] Mr. Carella, Anna and Rocco rely on the Shulman Report, the Postoff Report and the Morgan Report in support of their respective positions that Mr. Carella has the capacity to instruct counsel regarding the Guardianship Application. In their view, it was only necessary for the assessors to know that the litigation, in respect of which Mr. Carella needed to instruct his counsel, was a guardianship application. They further submit that the assessors found that Mr. Carella could instruct his counsel, that Mr. Carella could make his own decisions, including a decision to remain living in the Property, and that if he could not make decisions on his own, he would want Anna to act as his guardian.
The Process of the Capacity Assessments
[30] Each of Dr. Marotta (a physician with a specialty in geriatric and internal medicine), Dr. Shulman (a psychiatrist with a specialty in geriatric psychiatry), Ms. Postoff (a social worker), and Ms. Morgan (an occupational therapist) is a qualified capacity assessor for the purposes of the SDA. Each of the assessors took care to accommodate Mr. Carella’s needs arising from the fact that he has had two strokes and, as a result, has been diagnosed with aphasia and dysphagia. All assessors agreed that Mr. Carella could not respond to open-ended questions due to his expressive aphasia. He could respond with a “yes” or “no” answer. He could also choose answers from pre-printed lists of options put before him, and he could also refer to statements prepared by Anna and Rocco, e.g., statements relating to assets, pension, expenses.
[31] Mr. Carella is hearing impaired and uses hearing aids. He is described by some of the assessors as having impairments in attention and memory. His first language is Italian. Ms. Postoff noted that among his speech impairments, Mr. Carella also had dysarthria.
[32] In her report, Ms. Postoff described aphasia as “a language impairment/loss of ability to understand or express speech, caused by brain damage”; dysarthria as “a speech impairment/difficulty speaking caused by brain damage, which results in an inability to control the muscles used in speech”; and dysphagia as “difficulty swallowing any liquid, including saliva, or solid material.”
[33] An Italian interpreter was present, via videoconference at the assessments conducted by each of the assessors.
[34] Elyse Shumway is a Speech-Language Pathologist (“SLP”), with experience working with individuals with aphasia. At the request of Anna, Ms. Shumway has been providing accommodation services to Mr. Carella since 2019. Ms. Shumway provided communication intermediary services for Mr. Carella at the assessments of each of Dr. Marotta, Dr. Shulman, and Ms. Postoff. Jennifer Hicks, SLP and Communication Intermediary, participated, in person, in the assessment conducted by Ms. Morgan.
[35] In terms of materials reviewed by each assessor, Dr. Marotta reviewed Mr. Carella’s medical history, Ms. Shumway’s “Communication Status Report of Mr. Stefano Carella” dated June 23, 2020 (the “Ms. Shumway’s Status Report”), and Ms. Shumway’s article “Assumptions About Decision-Making Capacity and Aphasia”, Mr. Montigny’s article “Notes on Capacity to Instruct Counsel” (2011), and Dino’s notice of application in the Guardianship Application.
[36] Dr. Shulman reviewed Dr. Marotta’s First Capacity Assessment, a later capacity assessment of Mr. Carella by Dr. Barrera, and Ms. Shumway’s Status Report. He did not review any of Mr. Carella’s medical records, the pleadings in the Guardianship Application, any of my orders and endorsements, and he did not speak to Dino in connection with the assessment.
[37] According to her report, Ms. Postoff relied on “historical information provided for context.” Rocco, alone, provided this historical information. According to Ms. Postoff’s report, Rocco explained to Ms. Postoff that Dino “is applying for guardianship [of Mr. Carella] and wants to put him in a home.” Rocco also reported to Ms. Postoff, as reflected in her report, that Dino believes that Mr. Carella needs to have decisions made for him because he is incapable, Dino is not involved in Mr. Carella’s care, and Dino does not know how to communicate with Mr. Carella. Rocco also reported to Ms. Postoff, as reflected in her report, that Mr. Carella wishes to remain in his own home and wants to make his own decisions. Ms. Postoff was not provided with Dr. Marotta’s First Capacity Assessment, any medical records, the pleadings in the Guardianship Application, or copies of any of my orders and endorsements. Ms. Postoff did not speak to Dino in connection with the assessment. Ms. Postoff was also not provided with a copy of the Marotta Report or the Shulman Report, nor was she told that those Reports had been sought and delivered prior to her assessment of Mr. Carella.
[38] Ms. Postoff testified that she asked Rocco to send her a list of the legal issues because she could not prepare for her assessment without knowing what the legal issues were if she was going to question Mr. Carella. Ms. Postoff testified that Rocco sent her a list of what he identified as the issues. Based on Ms. Postoff’s testimony under cross-examination, the list did not include the Mortgage. Ms. Postoff undertook to provide a copy of that list to Dino’s counsel, but she never did.
[39] In Ms. Morgan’s Report, she states that she was contacted by Rocco, who requested an assessment of Mr. Carella on Mr. Carella’s capacity to instruct counsel in the context of a guardian application. Ms. Morgan’s report states that she was told by Rocco that Mr. Carella was challenging the Guardianship Application because Dino was never involved in his father’s care, Mr. Carella does not have a good relationship with Dino, and he worries that Dino does not have Mr. Carella’s best interests at heart. Ms. Morgan also recorded that Anna and Rocco provided collateral information required for the assessment including supportive medical and financial documents prior to and at the time of the assessment for her review. These included personal and medical histories and details regarding his assets, finances, budget, expenses, and income. Ms. Morgan reported that Mr. Montigny provided her with instructions on the capacity assessment and the test for capacity to instruct counsel, and guidance on what she could expect during cross-examination. Ms. Morgan reported that she was informed that Mr. Carella had had other capacity assessments with inadequate accommodations not giving him the best opportunity to demonstrate his capacity. Ms. Morgan reported that she was provided with the following documents: “a) TWH Discharge Summary Statement dated April 4, 2014; b) TWH Stroke Prevention Clinic Record November 2014; c) Written monthly Finances/Budget; d) POA-Property dated October 11, 2019; e) POA Personal Care dated October 11, 2019; e) Capacity Assessment - Dr. Marotta (July 22, 2019); f) Capacity Assessment – 2022-06-13 Dr. Barrera; g) Communication Disability Status Report; h) Article on Capacity & Aphasia; i) SLP Support w Lawyer for PoA November 24, 2019; j) SLP Accommodations-Covid19 December 2020; and k) Doctor of Audiology report of February 13, 2020.” Present at the assessment with Ms. Morgan were an Italian interpreter and Mr. Montigny, both via videoconference, and Jennifer Hicks, SLP and Communication Intermediary, in person. Ms. Morgan reported that Mr. Montigny participated in the assessment and “educated” Mr. Carella sentence by sentence about the litigation process, demands of the application, his options and the potential outcomes. After Mr. Montigny “educated” Mr. Carella on these points, he left the assessment. Ms. Morgan undertook to provide a copy of her notes and information provided to her in respect of her assessment of Mr. Carella, but she did not fulfill this undertaking.
[40] Ms. Morgan was not provided with the pleadings in the Guardianship Application or copies of any of my orders or endorsements. She did not speak to Dino in connection with the assessment. Ms. Morgan was also not provided with the any of the Marotta Report, the Shulman Report or the Postoff Report, or told that Mr. Carella has already been assessed by three capacity assessors respecting his ability to instruct counsel. She was only given this information prior to her cross-examination.
Law
[41] In Costantino v. Costantino, 2016 ONSC 7279, at para. 47, Price J. set out a three-part test for capacity to instruct counsel.
To meet the test for capacity to instruct legal counsel, a person must:
a) Understand what he/she asked the lawyer to do for him/her and why;
b) Be able to understand and process the information, advice and options the lawyer presents to him/her; and
c) Appreciate the advantages and drawbacks and the potential consequences associated with the options they are presented with.
[42] In Calvert (Litigation Guardian of) v. Calvert (1997), 1997 CanLII 12096 (ON SC), 32 O.R. (3d) 281 (Gen. Div.), Benotto J. (as she then was), found at para. 56, that “[t]he capacity to instruct counsel involves the ability to understand financial and legal issues. This puts it significantly higher on the competency hierarchy.”
[43] However, in Sylvester v. Britton, 2018 ONSC 6620, at paras. 71 and 72, Raikes J. stated:
I do not agree that because there has been a finding of incapacity to manage property and finances, a party is necessarily incapable of providing instructions to counsel on all matters in issue in litigation. A person may be capable for one task yet incapable for another. The nature of the issues in the litigation will vary in complexity. A person with dementia may have a very strong view as to where he or she wishes to live and which of his or her children or family members he or she wants to make decisions for them. Such determinations are based on a lifetime of experience and interactions which may be unaffected by the disease. … In my view, it is inappropriate to apply a blanket rule that if a person is incapable of managing their property and finances, they are incapable of instructing counsel regardless of the nature of the issue.
[44] In addition, the person must be able to communicate with counsel to instruct counsel; to understand the function of counsel and to know that they can dispense with counsel even if it is not in their best interest. Instructing counsel also requires an understanding of the financial/legal issues and the person must be capable throughout the proceedings: Sylvester v. Britton.
Analysis of the Reports
Marotta Report
[45] Of all the assessors who assessed Mr. Carella, Dr. Marotta was the only one who was provided with Mr. Carella’s medical history, and the notice of application in the Guardianship Application. Dr. Marotta had that information before he assessed Mr. Carella’s ability to manage his property and personal care.
[46] In Dr. Marotta’s First Assessment Report, Dr. Marotta referred to the Guardian Application documents filed by Dino, in which Dino alleged that Anna and Rocco had arranged to have a mortgage of $280,000 registered against Mr. Carella’s residence, and he alleged that the money from the Mortgage may have been taken by Rocco and Anna, rather than kept for Mr. Carella and his personal care needs following his stroke. In his first assessment of Mr. Carella, Dr. Marotta asked Mr. Carella directly about the Mortgage and Mr. Carella’s dealings with the lender Toronto- Dominion Bank. Dr. Marotta reported that Mr. Carella firmly believed that his residence was mortgage-free and that he did not use Toronto-Dominion Bank. He was adamant in his denial of ever having signed papers for a mortgage with the Toronto-Dominion Bank.
[47] The Mortgage is a central issue in the Guardianship Application. Anna and Rocco do not deny that the Mortgage was put on the Property. However, despite court orders, they have failed to account for the Mortgage or demonstrate that the funds borrowed were used for Mr. Carella’s benefit.
[48] A principal allegation in the Guardianship Application is that Anna and Rocco arranged the Mortgage at a time when Mr. Carella did not have capacity to manage his property. And since then, they have failed to account for the proceeds. At the time of Dr. Marotta’s First Capacity Assessment, Mr. Carella had no knowledge of the Mortgage and vehemently denied any encumbrance against his residence.
[49] In the Guardianship Application, Dino alleges that if Anna and Rocco arranged for the Mortgage to assist one or both of themselves financially and have not used the funds for Mr. Carella’s benefit, then they are in an obvious conflict of interest, and are not suitable guardians for property.
[50] Of all the assessors, only Dr. Marotta interviewed all of Mr. Carella’s children in the context of Mr. Carella’s capacity proceedings.
[51] Dr. Marotta was aware of the three-part test to determine the capacity to instruct counsel, and he attempted to apply it. In the Marotta Report, he concluded as follows:
I am of the opinion that Mr. Stefano Carella is not capable of instructing counsel based upon a repeated inability to show an understanding of what he has asked his lawyer to do for him and why, the first part of the 3-part legal test for instructing counsel. In assessing the second part of the legal test, he also was repeatedly unable to show that he could understand and could process information, advice and options his lawyer might present as he repeatedly insisted Mr. Montigny was to help him only with his Will and where to live. He was unable to learn and process my attempts at re-direction that the case is about an application of guardianship for property and personal care brought by his son Dino.
In conclusion, I am satisfied that best efforts were made during the interview to accommodate for Mr. Carella’s communication barriers – hearing loss, non-fluent aphasia, language fluency Italian/English. I am confident that his aphasia was not a barrier for him to demonstrate whether he met the legal standard for capacity to instruct counsel. As well, I am satisfied that I explored sufficiently whether Mr. Carella was able to demonstrate an understanding of what the basic issue in the legal proceedings are, what he has asked his lawyer to do- i.e. for what matters his counsel has been retained and whether he can understand important and basic information, advice and options his lawyer may present to him. Mr. Carella’s inability to understand important basic information of the case is consistent with the cognitive deficits in attention and reasoning from the strokes that form the NCD. His aphasia, though part of the NCS, is not the reason for his incapacity. It is his observed, repeated inability to understand information relevant to making a decision and instruct counsel that confirms the incapacity.
[52] Dr. Marotta did not question Mr. Carella specifically about the Mortgage. Under cross-examination, he testified that he did not ask this question not because it was not relevant to Mr. Carella’s capacity to instruct counsel, but because Mr. Carella was unable to answer questions like: “Why do you need Mr. Montigny?” “Why is this man your lawyer?” What’s going on in the court?” Dr. Marotta confirmed that when Mr. Carella could not answer these questions, with Ms. Shumway’s support, he used different strategies to make sure that he could communicate with Mr. Carella, and keep it as simple as he could, to see if Mr. Carella could reach a conclusion by giving him a list of possible written options. Dr. Marotta confirmed in cross-examination that Mr. Carella could not identify one of the options correctly. Dr. Marotta testified that Mr. Carella could not refocus his attention to the “guardianship” option but chose “will” instead.
[53] Dr. Marotta also reported that with Ms. Shumway’s Communication Intermediary (CI) skills, he was confident that the potential communication barrier of Mr. Carella’s aphasia was addressed successfully.
[54] Though not an expert in capacity assessments, Ms. Shumway offered her opinion to Mr. Carella’s counsel, Mr. Montigny, on what each of three of the assessors did to accommodate Mr. Carella’s disabilities and the impact these actions had upon Mr. Carella’s ability to understand and respond to the questions asked. Ms. Shumway referred to the “SCA” communication accommodations that were used in the assessments to circumvent the language barrier through the use of individualized techniques and tools designed to enable conversation on simple and complex topics. It was Ms. Shumway’s opinion that Dr. Shulman and Ms. Postoff made better use of the SCA communication accommodations than did Dr. Marotta, but she confirmed that Dr. Marotta was able to correctly interpret Mr. Carella’s head nods as “yes” or “no” responses, and he relied more on Ms. Shumway to verify her understanding of Mr. Carella’s utterances. In her report to Mr. Montigny, Ms. Shumway posits that Mr. Carella would not likely have understood Dr. Marotta’s questions, comments and explanations if they were not supported using the “full SCA method”, meaning that Dr. Marotta’s explanations included complex and lengthy sentences and insufficient time was devoted to providing communication support for each instructional sequence.
[55] However, in Dr. Marotta’s report, he states that he spoke with Ms. Shumway and the interpreter nearing the end of his assessment to confirm that they were satisfied that the best communication possible with Mr. Carella was achieved during the capacity interview. There is no indication that Ms. Shumway raised any concern about Dr. Marotta’s method of communicating with Mr. Carella at the time of the assessment, even when specifically invited to do so. Ms. Shumway conceded during her cross-examination that she raised no such concern during the assessment by Mr. Marotta. I have some reservation about Ms. Shumway’s ability to be an objective witness in the proceedings given that in her cross-examination, she admitted that her involvement with Mr. Carella began when Rocco retained her to act as a “communication intermediary” between Mr. Carella and a lawyer assisting Mr. Carella with his will. Ms. Shumway also testified that she is paid by Anna and has been engaged by Anna since 2017 to provide support to Mr. Carella. A change in Mr. Carella’s guardianship or residence could affect Ms. Shumway’s retainer.
Shulman Report
[56] Dr. Shulman’s assessment of Mr. Carella was relatively short. It took place over approximately 40 minutes.
[57] Dr. Shulman concluded that Mr. Carella was able to understand that he had asked his lawyer to assist him in a guardianship application and that he did not wish for Dino to be his guardian, and he wished for Anna to assist him in managing his financial affairs and health care decisions, if needed. Dr. Shulman recorded that Mr. Carella was able to understand and process the information, advice and basic options a lawyer may present, but noted that “as a result of the severe expressive aphasia, cognitive testing to confirm Stefano’s ability to retain and remember information cannot be reliably assessed. However, when asked some summary questions, Mr. Carella was consistent about having a legal problem with Dino, who wishes to become his guardian, and that he does not want Dino to have any control over him.”
[58] Dr. Shulman qualified his report by stating: “A review of information that might become available in the future, could, of course, either modify or substantiate the opinions expressed in this report.
Postoff Report
[59] In her report, Ms. Postoff concluded that Mr. Carella was aware that he was involved in a legal matter with Dino and could identify his lawyer’s name from information sheets prepared by Rocco and Anna. Dr. Postoff recorded that Mr. Carella was consistent about his ability to make his own decisions, and about wanting to stay in his home and not go to a nursing home. Ms. Postoff reported that when asked about whether he could represent himself in court, Mr. Carella replied that Anna was helping him, by arranging meetings with his lawyer and keeping him informed of next steps, and that he was satisfied with how Anna was helping him with his legal matter and had no complaints about how his lawyer was handling his case.
[60] Ms. Postoff recorded that Ms. Carella knew that Anna had been helping him with his financial affairs and that he and Anna had a joint account.
[61] Ms. Postoff concluded that Mr. Carella demonstrated sufficient understanding of his legal matter and was, therefore, capable of instructing counsel.
Morgan Report
[62] Ms. Morgan’s assessment of Mr. Carella took place over three hours. In her report, Ms. Morgan concluded that Mr. Carella was knowledgeable about the purpose and process of the court hearing and demands after being educated by Mr. Montigny at the outset of the assessment. Ms. Morgan concluded that Mr. Carella “was aware of the reason for the court application and what Dino was seeking, who his legal counsel was, and what he had requested the lawyer to do for him.” Mr. Carella provided these responses to Ms. Morgan by choosing from 3-5 pre-printed options put before him and “by writing ‘Stare’ and verbally saying ‘Anna’ meaning he wants to ‘stay with Anna.’” When asked if he knew what was happening in court, he could pick the option that read “Dino is asking court to make him Steve’s guardian of Property and Personal Care”, as opposed to “Dino is asking for taking your car”, or “Dino is asking for 1 million dollars.”
[63] Ms. Morgan reported that Mr. Carella correctly chose the option that said “a court can appoint Dino or Ann as guardian” when asked what can happen if you are found incapable. Ms. Morgan reported that Mr. Carella understood that he had options if he did not want Dino to be appointed as his guardian and that Mr. Montigny had educated Mr. Carella on this at the beginning of the assessment. When given three options on decision making, Mr. Carella gestured to option 2 (of 3), which read: “If you are capable, if you Appoint POA, you can choose who you want to be a guardian.” Ms. Morgan reported that Mr. Carella could also correctly answer “yes” or point to “true” or “false” when asked questions about who could become his guardian and how.
[64] When asked his preference for his guardian of property and personal care, Ms. Morgan reported that Mr. Carella answered “Anna” without hesitation and wrote her name on a sheet. Ms. Morgan reported that when she asked for his reasons, Mr. Carella wrote “Fa Tu”, which she reported is an incomplete phrase but would mean “She does everything”, and he also pointed to pre-printed options “Anna loves you?” and “You love Anna?”
[65] Ms. Morgan reported that when she asked Mr. Carella why he did not want Dino as his guardian, Mr. Carella “said ‘fa male’, meaning ‘does harm.’”
[66] Ms. Morgan concluded that Mr. Carella met the “understand and appreciate” test for capacity to instruct counsel, though he needed time, repetition, and multiple attempts with written and verbal answers. Ms. Morgan also concluded that Mr. Carella knew the “facts regarding the Guardianship Application”, and that he “demonstrated insight that he is able to think clearly, or understand what the process involves, subsequently [sic] that he would be able to instruct his lawyer.”
Analysis
[67] I am satisfied that each of the assessors was aware of the test for determining capacity to instruct counsel, and each attempted to apply it. However, I find that without the benefit of Mr. Carella’s medical history, the notice of application in the Guardianship Application, and my orders and endorsements, Dr. Shulman, Ms. Postoff, and Ms. Morgan, were at a disadvantage in their ability to thoroughly assess Mr. Carella’s ability to instruct counsel on the Guardianship Application and all the legal issues it entails. Further, their failure to seek any input from Dino, the applicant on the Guardianship Application, limited their access to relevant information and insight into the proceeding in respect of which Mr. Carella would be required to instruct counsel. As a result, in my view, these assessors did not have the same tools available to them, as Dr. Marotta did, to properly test Mr. Carella’s capacity to instruct counsel.
[68] Each of them testified that all he or she really knew about the litigation was that it was a guardianship application, and each of them satisfied themselves that Mr. Carella knew who he wanted to act as his guardian, and that he wanted to stay in his residence. Ms. Morgan concluded that Mr. Carella “knows the facts regarding the guardianship application.” I question this finding given that Ms. Morgan herself was not given a copy of the notice of application so that she could properly test Mr. Carella’s knowledge of the litigation on which he is expected to instruct.
[69] Under cross-examination, Dr. Shulman admitted that his understanding going into the assessment was “simply to have legal representation about the guardianship application and, … he had a disability to communicate that he did not want this particular child of his to become his guardian. And he wanted legal representation and these more complicated matters - was not really the focus of this instruction.” He also testified that “I wasn’t focusing on [the] more complicated because … that would be very challenging to do. And this is what I was asked to opine about here, was … could he instruct counsel regarding the guardianship application.” When asked if a better method of proceeding would have been to speak to all sides prior to the assessment, Dr. Shulman agreed that, where it’s a court-ordered assessment, “[t]hat’s ideal way of doing it, yes… I think it’s a valuable way of proceeding.”
[70] On cross-examination, Dr. Shulman was asked whether the further information brought to his attention during his cross-examination, including information contained in the Guardianship Application record, fell into the category of “further information” as described in the qualification that Dr. Shulman included in his report. Dr. Shulman agreed that “in retrospect, he would’ve preferred to have read the application and be[en] cognizant, perhaps more so, of those issues.”
[71] Ms. Morgan confirmed that she was aware that there was a guardianship application but was not provided with a copy of it or any of the pleadings. She testified that she “was not informed of the financial aspects of the application.” She further testified that she “does not ask about financial details for any of [her] instructing counsel assessments.” She conceded that “she did not know what the application was”, other than Mr. Carella was “instructing counsel on a guardianship application.” When asked if she felt she was provided with all the necessary information, she responded, “if it’s pertaining to his mortgage, no. But again, I was giving an opinion on whether he has capacity to instruct counsel on a guardianship application. And so for that, I don’t need to know about the mortgage.” Ms. Morgan agreed under cross-examination that she read Dr. Marotta’s First Capacity Assessment “but did not pay much attention to [the reference to the mortgage registered on the home] because [she]was looking [at the First Assessment] more for the considerations given, how did they approach the client, for the accommodate[ion] and how he would seem to respond … and because this was not an assessment that I was doing regarding property.” However, when asked whether Ms. Morgan would have liked to have the information about the mortgage, and Mr. Carella’s denial that there was any mortgage, prior to determining his ability to retain counsel on a guardianship application that raises questions about this very mortgage, Ms. Morgan responded: “Probably having the court order would’ve helped, yes.” When questioned on her use of the term “court order”, Ms. Morgan confirmed that she meant “court application.” When asked whether, as Dr. Marotta had done, she too should have spoken to all three of Mr. Carella’s children, she responded: “It’s always helpful when you get all sides, right?” When Ms. Morgan was further pressed into agreeing that she did not ask Mr. Carella about the mortgage even though it would be a matter on which Mr. Carella would have to be able to instruct his counsel, Ms. Morgan asked if she could speak to Mr. Montigny before responding. That request was denied. Ms. Morgan’s reliance on Mr. Montigny to assist her in the assessment and for his advice on the cross-examination cause me to question her objectivity in the process. Mr. Montigny, as counsel to Mr. Carella, has a vested interest in the result of this motion.
[72] Under cross-examination, Ms. Postoff admitted that she did not read the notice of application in the Guardianship Application, and she did not read any affidavit sworn by Dino, Anna, or Rocco, or any court orders. She only read what she got from Mr. Montigny about the Zoom meeting. Ms. Postoff also testified that she only heard about Dr. Marotta’s First Capacity Assessment after she had conducted her own assessment. Rocco told her about it later. Ms. Postoff was not aware of the Marotta Report until her cross-examination.
[73] Ms. Postoff testified that she was made aware of the Shulman Report by Rocco, after she had conducted her own assessment. Ms. Postoff was not aware that the court had ordered an assessment of Mr. Carella’s capacity to instruct counsel in 2020. Ms. Postoff agreed that “people need to know what the case is about if they need to instruct counsel.” Ms. Postoff testified that she advised Rocco that she could not conduct her assessment without knowing what the legal issues were, and that he sent her a list via e-mail identifying the issues that she could speak to Mr. Carella about. Under cross-examination, Ms. Postoff admitted that she knew nothing about the funds that Anna and Rocco were required to pay into court, or that they were ordered to give an accounting, which in Dino’s opinion, they have not done. She testified that she could not ask Mr. Carella questions on topics of which she was unaware and that the issue on which she was questioning was whether Mr. Carella understood that there was a court proceeding. She deduced that Mr. Carella knew that there was a court proceeding, involving his son, and he knew that his son wanted him to go to a nursing home. She deposed: “That was the nature – the extent of what I understood the legal issue was.” Ms. Postoff was unaware that Mr. Carella had been found by Dr. Marotta to lack capacity to manage his property in 2019 and that the PGT had appointed s. 3 counsel for him. Ms. Postoff confirmed that in order to assess Mr. Carella on the actual issues in the litigation, she would need to interview Mr. Carella again. She confirmed that her assessment reflected her questioning based on the information she had at the time. Ms. Postoff confirmed that she did not ask Mr. Carella any questions about his relationship with Dino.
[74] Under cross-examination, Ms. Postoff agreed that in order to determine whether or not the person could look at alternatives and instruct counsel and understand options, they would at least have to understand and know what a mortgage is and why they put it on their house; but she confirmed that having none of the information relating to the mortgage going into the assessment, there was no way for her to be able to ask the questions to see what Mr. Carella’s understanding was. Ms. Postoff concluded her testimony by saying “knowing what I know now, I would have assessed what came to light. I did not have that. I only assessed what was available to me.”
[75] Without some knowledge of the legal issues raised in the Guardianship Application, apart from who Mr. Carella preferred to have as his guardian and where he wished to live, Dr. Shulman, Ms. Postoff and Ms. Morgan did not turn their minds to a critical issue on which Mr. Carella would need to instruct. They did not have the opportunity to test his ability to instruct on the Mortgage. That legal matter potentially engages issues such as conflicts of interest and undue influence. These assessors did not test whether Mr. Carella could appreciate the consequences that could flow from decisions made in a guardian application involving these legal issues.
[76] I agree with Dino’s submission that these assessors cannot conclude that Mr. Carella is capable of instructing his counsel on who he would choose to manage his property, if incapable, if Mr. Carella is not aware that the person he thinks he can trust may have used his property contrary to his best interests. Each of Dr. Shulman, Ms. Postoff and Ms. Morgan was not able to test Mr. Carella’s ability to instruct counsel on one of the central issues of the Guardianship Application - the Mortgage transaction and the use of the proceeds. They were not given the notice of application, and they did not speak to Dino. Had the assessors had the benefit of my orders and endorsements, they would have seen the clear attempts by Anna and Rocco to isolate Mr. Carella from Dino. Given the way this litigation has proceeded, an inference may be drawn from their conduct that Anna and Rocco do not want Dino, or anyone in his family, visiting with Mr. Carella for fear that the subject of the Mortgage and the lack of accounting will be brought to Mr. Carella’s attention.
[77] I accept that Mr. Carella knows who his lawyer is, and that with some education, coaching and the ability to choose from pre-printed options put in front of him, he can identify that his lawyer is assisting him in a guardianship application. I also accept that he has some insight into how and when guardians of property are chosen by the court.
[78] However, given the deficiencies in the assessments of Dr. Shulman, Ms. Postoff and Ms. Morgan, I find that I can rely only on their findings that Mr. Carella has capacity to instruct counsel regarding his preference to remain living at the Property and to have Anna look after him there. I cannot conclude that Mr. Carella has capacity to instruct counsel on the property aspects of the Guardianship Application.
[79] I am not persuaded that Mr. Carella is able to process the information that the Guardianship Application presents because none of Dr. Shulman, Ms. Postoff or Ms. Morgan tested Mr. Carella on the critical facts of the Guardianship Application, and the issues at stake, including the Mortgage. None of these assessors had the opportunity to probe into the current management of Mr. Carella’s property, including the Mortgage, and Mr. Carella’s ability to instruct counsel on his preference for Anna as a guardian of his property on an informed basis.
[80] Mr. Carella has been found by Dr. Marotta to be incapable of managing his property. There is no other report before the court respecting Mr. Carella’s capacity to manage property. The only financial information available to Mr. Carella, Dr. Shulman, Ms. Postoff and Ms. Morgan was financial information supplied by Anna and Rocco. As noted in Calvert “[t]he capacity to instruct counsel involves the ability to understand financial and legal issues. This puts it significantly higher on the competency hierarchy.” There is no evidence before the court to suggest that Mr. Carella is aware of his liabilities, including the Mortgage, or that this liability is a principal issue in the Guardianship Application. Under cross-examination, when pressed on the importance of this issue in the Guardianship Application, Dr. Shulman and Ms. Postoff agreed that knowledge of it would have been helpful to them in their assessment.
[81] One option would be to order that Dr. Shulman, Ms. Postoff and Ms. Morgan be provided with Mr. Carella’s medical history, the materials relating to the Guardianship Application, including my endorsements and orders, and copies of all assessment reports regarding Mr. Carella’s capacity, and to order that they interview Dino regarding the Guardianship Application. Then, with the benefit of these resources, they could reassess Mr. Carella. I am disinclined to do that. Mr. Carella has already endured at least six capacity assessments in less than three years, the last three of which were conducted within a three-month span, and two of those assessments were only two days apart. A capacity assessment is an invasive process. Given Mr. Carella’s age and medical conditions, to say nothing of the emotional toll of this bitter family dispute on him, I can only imagine that these assessments are both exhausting and upsetting for him. I will not direct that he undergo further assessment at this time. I am prepared to rely on the Marotta Report to find that Mr. Carella does not have capacity to instruct counsel on issues relating to his property.
[82] Dr. Marotta concluded that Mr. Carella’s inability to understand important, basic information in the Guardianship Application is consistent with the cognitive deficits in attention and reasoning from the strokes that form the NCD [neurocognitive disorders]. His aphasia, though part of the NCS [nerve conduction study], is not the reason for his incapacity. Dr. Marotta opined that it is Mr. Carella’s observed, repeated inability to understand information relevant to making a decision and instruct counsel that confirms the incapacity to instruct counsel.
[83] As such, it is necessary for the PGT to arrange for s. 3 counsel for Mr. Carella. Section 3 counsel will need to assess whether a litigation guardian is required to represent Mr. Carella in the Guardianship Application.
B. The Accounting Required of Anna and Rocco
[84] On this motion, Dino again seeks the court’s assistance in compelling Anna and Rocco to provide the financial disclosure and an accounting relating to the Mortgage, as set out in the January 21, 2019 Order, and the October 23, 2019 Order. Dino amended his motion in June 2022 to include this relief specifically.
[85] Rocco submits that Dino has improperly expanded the relief sought on this motion. I disagree. Rocco and Anna have had since June 2022 to respond to Dino’s renewed request for this specific accounting. Based on my earlier Orders, Anna and Rocco have now had more than three years to provide it. Rocco also submits that Dino ought to have responded to the accounting already provided before seeking this relief. I am satisfied that if this specific accounting had already been provided, Dino would not have amended his notice of motion to seek it again.
[86] Anna submits that the accounting issues should form part of the issues for trial and not this motion. I disagree. Anna and Rocco have not brought forward any evidence to demonstrate that they have complied with the January 21, 2019 Order and the October 23, 2019 Order, which include specific timelines.
[87] For more than three years, Anna and Rocco have been ordered to comply with these Orders. It is time they do so or face the consequences of non-compliance. These Orders should be enforced.
C. Dino’s Access to Mr. Carella
[88] Despite my orders granting Dino access to visit his father, that access has been largely denied or impeded. In an affidavit sworn January 21, 2022, Dino attested that Anna and Rocco, or the PSWs who have been engaged by and report to Anna or Rocco, have continued to deny Dino the access ordered. Dino’s affidavit contains the evidence that follows. Dino was denied access on October 31, 2021 and was not even permitted to speak to his father through a window. On November 7, 2021, Dino attended with Mr. Carella’s friend Rocco Pasquale, and after waiting for 20 minutes, a PSW told Dino that Mr. Carella did not want to see him. The PSW refused Dino’s request to bring Mr. Carella to the window so Dino could see him. On November 16, 2021, Dino and his son Matthew went to visit Mr. Carella on his 90th birthday. Dino rang the bell and could see that there were people inside the house, but no one answered the door. On November 21, 2021, Dino visited again. After waiting outside for 25 minutes, the PSW opened a blind and told Dino that Mr. Carella did not want to see him, and she refused to bring Mr. Carella to the window so Dino could see him from outside. On December 26, 2021, Dino attended at Mr. Carella’s residence with his son, Philip, who was visiting from England. The PSW came outside to tell them that Mr. Carella did not want to see them. Dino offered to wait outside while Philip went inside to see his grandfather. The PSW denied access stating that Mr. Carella did not wish to see anyone from Dino’s family. In addition to these unsuccessful visits, Dino attested that he attempted to visit Mr. Carella on each of November 28, 2021, December 5, 2021, December 25, 2021, December 31, 2021, January 1, 2022 and January 16, 2022. Each time he asked that Mr. Carella be brought to the window so he could assess for himself whether Mr. Carella did not want to see him. Each time his request was denied by a PSW.
[89] Anna and Rocco have adduced numerous affidavits from various persons, which are sworn in support of the position that Mr. Carella does not wish to see Dino or any member of Dino’s family. I am hesitant to conclude that Mr. Carella, if fully informed of, and capable of understanding all the issues relating to the Guardianship Application would, of his own free will, prevent Dino, his children and grandchildren from visiting him. In affidavits filed by Dino, and his daughter Brittany, they state that Mr. Carella was very happy to see them and Brittany’s infant. When Mr. Carella had s. 3 counsel, she advised the court that Mr. Carella told her that he wanted to see Dino. It is not difficult to see why Anna and Rocco might be motivated to isolate Mr. Carella from Dino and Dino’s family. Dino is aware of the Mortgage and the fact that Anna and Rocco have not accounted for the use of the Mortgage proceeds. I find it more likely than not that Anna and Rocco have persuaded Mr. Carella that Dino caused trouble for the family by bringing the Guardianship Application and that Dino is threatening to put Mr. Carella in a long-term care facility. If this message is routinely delivered to Mr. Carella by Anna, Rocco and the PSWs, especially at or near the time of a scheduled visit by Dino, it is unsurprising that Mr. Carella would be concerned about having a visit with Dino, especially if he perceived that his primary caregivers, Anna and Rocco, would disapprove. The access orders should be enforced.
Disposition
[90] Mr. Carella’s capacity to instruct counsel is limited to his ability to articulate his preference to stay in the Property and to be looked after there, by Anna. Mr. Carella is incapable of instructing counsel on matters involving his property. Accordingly, the PGT is hereby directed to arrange for legal representation for Mr. Carella pursuant to s. 3 of the SDA.
[91] Anna and Rocco shall provide the financial disclosure and the accounting they were ordered to provide in the January 21, 2019 Order (at para. 6) and the October 23, 2019 Order (at para. 3) within 30 days of these Reasons.
[92] Each of the Orders I have made granting Dino access visits with Mr. Carella, including the October 23, 2019 Order, the June 25, 2020 Order, the October 28, 2021 Order, the February 23, 2022 Order, the March 25, 2022 Order and the June 20, 2022 Order remain in force.
[93] Once the PGT has arranged for s. 3 counsel, the parties shall arrange a scheduling appointment to timetable the steps to advance the Guardianship Application, including mediation.
Costs
[94] Dino has succeeded on this motion. He seeks his costs of this motion and his costs arising out of the proceedings over the past two-and-a-half years during which he has had to initiate numerous hearings to enforce my Orders. Dino has submitted a costs outline in which his partial indemnity costs are shown to be $38,962.89 and his substantial indemnity costs are shown to be $58,142.38.
[95] On costs, Dino submits that Anna and Rocco have not provided the complete accounting that they were ordered to provide despite three court orders. Since the February 20, 2020 Order, directing the assessment of Mr. Carella’s capacity to instruct counsel, 20 months have elapsed. Dino submits that much of the delay was caused by Anna’s and Rocco’s interference with the assessment process and taking steps to cause Mr. Carella to be unavailable to be assessed. A total of 11 court appearances have been necessary to address compliance with my Orders addressing Mr. Carella’s capacity assessment or Dino’s access to Mr. Carella. Notwithstanding these appearances, Anna and Rocco have still not provided the accounting they were ordered to provide, and Dino’s access to Mr. Carella continues to be impeded. For these reasons, Dino submits that costs should be awarded against Anna and Rocco on a substantial indemnity basis.
[96] The Court of Appeal in Net Connect Installation Inc. v. Mobile Zone Inc., 2017 ONCA 766, 140 O.R. (3d) 77, at para. 8, stated: “Substantial indemnity costs is the elevated scale of costs normally resorted to when the court wishes to express its disapproval of the conduct of a party to the litigation.” In my view, Anna’s conduct and Rocco’s conduct in the litigation leading up to the hearing of this motion is worthy of the sanction of substantial indemnity costs. Anna and Rocco have flouted court orders, and they took deliberate steps to delay the Guardianship Application, contrary to the best interests of Mr. Carella. Mr. Carella deserves to have this highly contentious guardianship application resolved in a timely fashion. In my view, the conduct of Anna and Rocco rises to the level of reprehensible, being the standard set by the Court of Appeal in T.A.W. v. J.C.L., 2021 ONCA 270, at para. 4, for substantial indemnity costs.
[97] An award of substantial indemnity costs is appropriate for costs incurred by Dino up to this motion but not including his costs related to this motion. Based on his costs outline, dated August 17, 2022, it appears that $12,760 of the total substantial indemnity costs claim relates to this motion. Therefore, I deduct that amount from Dino’s total substantial indemnity costs claim and fix the costs to be paid by Anna and Rocco for matters other than this motion on a substantial indemnity basis at $37,000 plus HST, which costs shall be payable by them on a joint and several basis.[^1] Regarding the motion, based on Dino’s costs outline, I fix his costs on a partial indemnity basis at $8,430 plus HST, plus disbursements of $1,913.58 plus HST. These latter costs and disbursements shall be borne equally by Mr. Carella, Anna and Rocco. All costs are payable within 30 days.
Dietrich J.
Released: November 28, 2022
COURT FILE NO.: CV-18-3090-00ES
DATE: 20221128
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LEONARDO CARELLA
Moving Party/Applicant
– and –
ANNA CARELLA, ROCCO CARELLA and STEFANO CARELLA
Responding Parties/Respondents
REASONS FOR DECISION
Dietrich J.
Released: November 28, 2022
[^1]: If this amount includes an amount for costs for the February 20, 2020 hearing, then those costs must be deducted from the total as the costs of the February 20, 2020 hearing were reserved to the trial judge. The same direction applies to any other costs during this period that were reserved to the trial judge, if any.