Court File and Parties

COURT FILE NO.: CV-24-95878 DATE: 2024-06-21 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Vincenzo Marcantonio, Applicant AND Rina Marcantonio, Assunta Marcantonio and Cristina Nicola, Respondents

BEFORE: The Honourable Mr. Justice Marc Smith

COUNSEL: Carol Craig, Counsel for the Applicant Christopher Clermont, Counsel for the Respondent, Cristina Nicola Peter Liston, Counsel for the Respondent, Rina Marcantonio Not represented, the Respondent Assunta Marcantonio

HEARD: June 10, 2024

Reasons for Decision

M. Smith J

[1] Vincenzo Marcantonio ("Applicant"), Rina Marcantonio ("Respondent"), and Cristina Nicola are siblings. Their mother, Assunta Marcantonio ("Mother") is 86 years old and, she was recently deemed to be incapacitated.

[2] The Applicant brings an urgent Motion and seeks an order that the Mother move into a memory care suite at the Prince of Wales retirement residence upon her discharge from the Ottawa Hospital. Cristina Nicola supports her brother's Application.

[3] The Respondent opposes the Application. She takes the position that the Mother should be placed in a long-term care facility, preferably at Villa Marconi, where she can be within the Italian community and Italian staff.

Brief facts

[4] On August 17, 2020, the Mother appointed the three siblings to be powers of attorney for property and personal care.

[5] In early 2023, the Mother was hospitalized. At that time, the medical records reflect that the Mother had full capacity and she was very averse to moving to a retirement home. After her hospitalization, she returned living at home, with the assistance of paid caregivers and the Respondent.

[6] The Mother was assessed in November 2023 and February 2024. It was reported that the Mother had previously been diagnosed with Alzheimer's disease and post-traumatic stress disorder. It was concluded that the Mother suffers from dementia.

[7] The Mother is currently residing in the transitional unit of the Ottawa Hospital, West End Villa, awaiting a permanent placement. The Mother is receiving 24 hour care at this facility, and it appears that she is stable.

[8] During argument, it was confirmed that the Mother is not at risk of being moved from this transitional unit. As such, there was no urgency to this matter.

Issues

[9] The issues to be determined on this Motion are:

a. Should the Mother be moved to a retirement residence or a long-term care facility? b. Should the Mother’s home be sold?

Legal principles

[10] Section 39(1) of the Substitute Decisions Act, S.O. 1992, c. 30 provides that if an incapable person has a guardian of property or an attorney under a continuing power of attorney, the court may give direction.

[11] Section 68(1) of the Substitute Decisions Act, S.O. 1992, c. 30 provides that if an incapable person has a guardian of the person or an attorney under a power of attorney for personal care, the court may give direction.

[12] While an application for directions is meant to provide guidance and direction by the court, in exceptional cases where an impasse may exist, the court may use this procedure to decide for the parties, in the best interest of the incapable person: Burnat v. Burnat, 2016 ONSC 2607, at paras. 23 to 25.

Analysis

Issue #1 - Should the Mother be moved to a retirement residence or a long-term care facility?

[13] The Applicant says that the Prince of Wales Retirement Home is ready to meet the Mother’s needs because they understand her condition and history. Also, a social worker at the Ottawa Hospital supports that the Mother be relocated to a retirement home if the finances permit.

[14] The Applicant and Cristina Nicola take the position that a retirement home is in their Mother’s best interest because she will get the consistent level of care that is needed. Also, she will have social interaction and she will participate in planned activities with other individuals in her peer group and follow a day-to-day routine.

[15] The Respondent says that based upon the Mother’s health records, the long term care is the best viable option because it will be required for her safety. The Mother has been diagnosed with advanced dementia, major neurological disorder with BPSD (Borderline Personality Syndrome Disorder). The Mother is significantly cognitively impaired, her condition is deteriorating, and she has demonstrated some difficult behaviors such as night screams and being very noisy.

[16] The Mother does not like to be alone, and the Respondent is of the view that the staff coverage at the proposed retirement home is insufficient.

[17] The Respondent submits that if the Mother is placed in a retirement residence, it will take her off the priority list for placement at a long-term care facility.

[18] There is a lack of independent evidence before me to determine if a relocation to the Prince of Wales Retirement Home is in the Mother’s best interest. The social worker at the Ottawa Hospital generally supports a retirement residence because it ensures that there is 24 hour nursing care and supervision. However, I do not attribute much weight to the social worker’s opinion. First, it is not proper opinion evidence. Second, the social worker’s beliefs are general in nature and not specifically tied to the Mother’s best interest.

[19] There is also a lack of evidence before me to confirm that the current complement of staffing at Prince of Wales Retirement Home is sufficient to meet the Mother’s specific medical and behavioural needs of night screams and her intolerance of being alone.

[20] There is also no evidence before me to determine if the Mother’s medical condition will deteriorate to the point where her living in a retirement home may no longer be a viable option, meaning that the Mother may have to be moved to a long-term care facility at some point in the future.

[21] In the absence of independent evidence regarding which type of residence is better suited for the Mother at this time, how does one resolve the impasse between the parties? In my view, the only way is to select the sibling that is the best suited to make such a decision. In other words, which power of attorney for personal care is in a better position to truly understand the Mother’s unique needs and wishes.

[22] I am of the view that the Respondent is the proper sibling that should make the decision of choosing the Mother’s next residence.

[23] The evidence demonstrates that the Respondent has, for numerous years, been the person that has primarily cared for the Mother, daily, for over a decade:

a. In 2012, the Respondent moved minutes away from her parents’ home. She would visit her parents every day on her way home from work. b. Following the death of the father in April 2018, the Respondent respected the Mother’s wishes that she remains in the family home. The Respondent continued to visit her Mother daily and provide her the assistance that she needed in her home, including helping her with the finances. c. The Respondent’s family is very close to the Mother. The Respondent’s son moved in with the Mother and provided additional assistance, including the routine maintenance, repair, and other tasks around the home because the Mother was unable to physically perform these tasks. d. After the first hospitalization in early 2023, the Mother wanted to return to her home. The medical records reflect that the Mother had capacity at that time. Again, the Respondent respected the Mother’s wishes that she remains at home. The Respondent provided her with the necessary assistance as well as managing the personal support workers that attended at the home.

[24] Based on the evidentiary record before me, I believe that the Respondent has developed a very close bond to the Mother and as such, she is the best person to better understand the Mother’s needs and wants. And I say so without diminishing any bond that may exist between the Mother and her other children.

[25] Therefore, the Respondent shall be the sole power of attorney for personal care to make the decision regarding the long-term care facility that is the most appropriate placement for the Mother.

Issue #2 – Should the Mother’s home be sold?

[26] The parties agree that the Mother's home located at 282 Breezehill Avenue South, Ottawa, K1Y 2J3 be listed for sale. The Mother is not returning home.

[27] Given the acrimonious nature of the relationship between the siblings, I am of the view that it is best that one party manages the sale of the home, and the Applicant shall be appointed in this regard, including signing the listing agreement and the purchase agreement as attorney for property of Assunta Marcantonio. That said, this appointment does not give the Applicant carte blanche to do as he pleases regarding the sale of the property and/or the disposal of the personal property. It is noted that the Respondent is concerned that the Applicant will “rent a dumpster and throw everything out.” Such an event will not occur. The siblings, through counsel, will agree on the terms and conditions of the sale of the home and the process to dispose of the Mother’s personal property.

[28] If there is a dispute regarding any aspect of the sale of the home and/or personal property, I shall remain seized, and an appointment shall be scheduled before me for my determination.

Disposition

[29] For these reasons, the following is ordered:

a. The Respondent shall be the sole power of attorney to make the decision regarding the long-term care facility that is the most appropriate placement for the Mother. b. The Applicant shall be sole power of attorney to sign the listing and purchase agreement for the Mother's home located at 282 Breezehill Avenue South, Ottawa, K1Y 2J3, subject to terms and conditions to be agreed upon regarding the sale of the home and the process to dispose of the Mother’s personal property.

[30] In terms of costs, it is my preliminary view that because there has been shared success, each party should bear their own costs. That said, if a party wishes to make costs submissions, that party shall serve and file costs submissions, limited to three pages, excluding a Bill of Costs and Offers to Settle, within 15 days of these Reasons for Decision. The responding parties shall serve and file their costs submissions, with the same page restrictions, within 15 days thereafter.

M. Smith J

Released: June 21, 2024