De Novellis v. Ceci, 2025 ONSC 20
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ADA DE NOVELLIS and MICHAEL CECI (aka MIKE CECI), Applicants
AND:
DARIO CECI, DOLOROSA CECI and PUBLIC GUARDIAN AND TRUSTEE, Respondents
BEFORE: B. Dietrich J.
COUNSEL: Peter Neufeld, for the Applicants
Benjamin D. Arkin and Alexandra M.H. Cuperfain, for the Respondent, Dario Ceci
Natalia Angelini, s. 3 counsel for Dolorosa Ceci
HEARD: May 29, 2024, decision reserved pending the release of the decision on an interim, interim motion released November 12, 2024
ENDORSEMENT
1Dolorosa Ceci (“Dolorosa”)1 is nearly 93 years of age. She is at the centre of this dispute between her children, Ada De Novellis (“Ada”) and Michael Ceci (“Michael”), on one side, and her son, Dario Ceci (“Dario”), on the other. Both sides agree that Dolorosa suffers from dementia. They do not agree on the extent of Dolorosa’s dementia.
2Ada and Michael (the “Applicants”) brought the within application in 2023. In it, they challenge the validity of a continuing power of attorney for property and a power of attorney for personal care, each alleged to have been signed by Dolorosa, with an “X”, on February 23, 2018 (the “2018 Powers of Attorney”). The Respondent, Dario, is named as the sole attorney for property and the sole attorney for personal care in the 2018 Powers of Attorney. The Applicants seek an order removing Dario as attorney for property and attorney for personal care, and they seek to be appointed as co-guardians of Dolorosa’s property and personal care.
3The Applicants also challenge the validity of the transfer of two properties from Dolorosa to Dolorosa and Dario, as joint tenants (the “Property Transfers”). The Property Transfers are also alleged to have taken place on February 23, 2018.
4The properties are Dolorosa’s residence at 32 Whitfield Avenue, in the City of Toronto (the “Residence”) and Dolorosa’s 10-per cent interest in a farm property at 1364 The Gore Road, in Caledon, Ontario (the “Farm”).
5Dario acknowledges that he is the joint owner of the Residence, the Farm, and Dolorosa’s bank accounts, for reasons of convenience and estate planning. He also acknowledges that he has no beneficial interest in the Residence, the Farm, and the joint bank accounts.
6On May 8, 2023, Dario’s counsel wrote to the Applicants’ counsel and enclosed declarations of trust regarding the Residence and the Farm and confirmed that Dario had no beneficial ownership in the properties transferred to him as a joint tenant with Dolorosa. In the same letter, counsel for Dario confirmed that Dario claims no beneficial interest in any bank account or investment account owned jointly with Dolorosa. Dario’s counsel enclosed declarations of trust, in which Dario acknowledged that he had no beneficial interest in the jointly held properties and bank accounts.
7The Applicants claim that Dolorosa lacked capacity or may have been vulnerable to undue influence when she made the 2018 Powers of Attorney and the Property Transfers.
8There are two motions before this court.
9The Applicants move for an order directing that Dolorosa undergo a capacity assessment. They also seek production of Dolorosa’s medical, financial, and solicitors’ records, and a statement of Dolorosa’s assets and liabilities, dating back as far as January 1, 2016.
10Dario brings a cross-motion to vary an Order made by me on December 7, 2023, which authorized one or the other of the Applicants to reside at the Residence with Dolorosa every other week and to care for her while residing there (the “Co-Care Order”). Dario seeks to terminate the Applicants’ right to provide such care to Dolorosa on these terms. The Applicants submit that any variation to the Co-Care Order should be limited to requiring Dario to provide around-the-clock professional care for Dolorosa.
Background Facts
11Dolorosa was born in Italy and moved to Canada in 1963 with her now late husband, Gaetano Ceci. Gaetano Ceci died on June 27, 2016.
12In addition to Ada, Michael, and Dario, Dolorosa has a son, Carmino Ceci (“Carmino”). Dolorosa’s daughter, Nancy De Franco, predeceased her on October 17, 2022. Carmino is not a party to these proceedings, but he did provide affidavit evidence in support of Dario’s position regarding Dolorosa’s care.
13At the Applicants’ request, Dario has provided an informal accounting of Dolorosa’s assets and liabilities. This accounting discloses that the Residence has a value of approximately $900,000 and is subject to a reverse mortgage; Dolorosa’s fractional share of the Farm has a value of approximately $2,000,000; Dolorosa is owed $40,000 from Michael; and Dolorosa has a CIBC bank account, a TD Canada Trust bank account, and two Scotiabank accounts (collectively, the “bank accounts”). Dario has provided statements for each of these bank accounts for the period 2017 to April 2024, and he has provided explanations for expenditures that are not described on the statements themselves.
14Dario has reported that his mother has a fixed income of approximately $2,200 per month, which is insufficient to cover her ordinary expenses, not including legal fees. Dario has also reported that Dolorosa’s monthly expenses are approximately $3,800 per month, and that the addition of a private caregiver to the publicly funded homecare services now available to Dolorosa has depleted the capital that Dolorosa has available to support herself.
15Dolorosa was diagnosed with dementia in September 2020.
16In 2017, Dolorosa met with Frank Sgro, an Italian-speaking lawyer of Capo Sgro LLP. Dario’s evidence is that Mr. Sgro recommended the Property Transfers as a means to reduce estate administration tax and the costs of estate administration following Dolorosa’s death. Mr. Sgro prepared the documentation in support of the Property Transfers and, according to the parcel registers, he acted for both the transferor and the transferee on the Property Transfers in February 2018.
17In December 2017, Dolorosa was referred by her family physician, Dr. Sandy Shulman, to Dr. Giovanni Marotta, a geriatrician who is fluent in Italian, to determine whether she was experiencing any cognitive impairment. In his report dated February 7, 2018, Dr. Marotta confirmed that Dolorosa’s cognitive testing was normal and that her severe hearing loss and lack of education were likely making her appear to be experiencing cognitive impairment even though there was no evidence of such impairment. Dr. Marotta noted that Dolorosa was “remarkably independent.”
18On February 23, 2018, Dario took Dolorosa to Mr. Sgro’s office, where she signed the 2018 Powers of Attorney. Dolorosa signed these documents by marking them with an “X”.
19On the same day, Dolorosa also signed the Property Transfers, for no consideration, and the declarations of trust. In each declaration of trust, Dario is appointed as trustee.
20Dario has provided to the Applicants copies the declarations of trust, as well as copies of the 2018 Powers of Attorney.
21Dolorosa had a follow-up appointment with Dr. Marotta on July 17, 2018. Dr. Marotta then confirmed that Dolorosa did not exhibit any evidence of a cognitive syndrome.
22In a letter dated November 29, 2019 to Dr. Shulman, from Margaret Tersigni, a Nurse Practitioner in Dr. Marotta’s office, Ms. Tersigni stated that she saw Dolorosa for a follow-up appointment on that day. Ms. Tersigni reported that Dolorosa had been seen in September for stable, mild cognitive impairment compounded by severe hearing loss. Ms. Tersigni also reported that Dario, who accompanied Dolorosa reported “more confusion and decline” and that the decline coincided with her return from a trip to Italy. Under the heading “General/Mental Exam”, Ms. Tersigni reported that Dolorosa presented as a “well-groomed older woman in no distress … alert and oriented to person and place. She has some insight into her cognitive deficits and limitations.” Ms. Tersigni noted that Dolorosa’s cognitive decline was “likely related to delirium because of metabolic imbalance with her diabetes management and possibly anemia”, and Ms. Tersigni stated that she provided some teaching on the difference between delirium and dementia.
23On September 29, 2020, Dr. Marotta diagnosed Dolorosa as having mild dementia, caused by a combination of Alzheimer’s disease and small vessel disease.
24Following that diagnosis, Dr. Marotta made a referral to LOFT Community Services (“LOFT”) so that Dolorosa could receive behaviour support services. Following an initial home visit and a functional assessment, LOFT issued a report dated April 6, 2021 (the “LOFT Report”), which included strategies and techniques to address Dolorosa’s behaviour.
25On November 17, 2023, Sanfilippo J. ordered the Public Guardian and Trustee (the “PGT”) to appoint counsel to Dolorosa pursuant to s. 3 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”). Justice Sanfilippo also ordered that Dolorosa’s assets could be used to pay her own legal fees. The PGT appointed Natalia Angelini (“Ms. Angelini”) to the role of s. 3 counsel.
26Following the issuance of Sanfilippo J.’s Order and prior to Dolorosa meeting with Ms. Angelini, Dario encumbered the Residence with a $918,433.50 charge (the “Whitfield Charge”), of which $250,000 was withdrawn.
27Dario admits that he used $100,000 of the proceeds to pay his legal fees relating to his response to the within application and an application for partition or sale regarding the Farm. Both Dolorosa and Dario are respondents on the latter application.
28In December 2023, the Applicants brought a motion seeking an order granting them access to Dolorosa. They alleged that Dario was preventing them and their respective families from access to Dolorosa and an opportunity to care for her. On December 7, 2023, I issued the Co-Care Order.
The Interim, Interim Motion
29On April 10, 2024, the Applicants brought an interim, interim motion before Faieta J. for a) an order that Dario provide an accounting of the proceeds from the Whitfield Charge; b) an order directing Dario to reimburse Dolorosa for any and all payments of legal fees paid from Dolorosa’s assets for the purposes of the within application and two other applications (court file numbers CV-23-00697967-00ES (on behalf of the Estate of Nancy De Franco) and CV-23-00694230-00ES (re partition or sale of the Farm)); and c) an interim and interlocutory injunction restraining Dario from selling, further encumbering, or otherwise dealing with Dolorosa’s assets.
30The decision on the interim, interim motion was under reserve at the date of this hearing. Counsel submitted and agreed that it would be appropriate for the decision in the motions before me to be held in reserve pending the decision in the interim, interim motion.
31Justice Faieta released his decision on the interim, interim motion on November 12, 2024. The appeal period in respect of Faieta J.’s decision has expired.
32On the first issue on the interim, interim motion, Faieta J. ruled that the requirement for Dario to deliver an accounting of the proceeds from the Whitfield Charge was unnecessary. Justice Faieta found that Dario had provided an accounting, including bank statements for all Dolorosa’s bank accounts from 2017 to present [April 2024], and that while Dario did not manage Dolorosa’s property prior to 2020, he nevertheless tried to explain various transactions during the prior period. Justice Faieta also found that Dario had provided a detailed accounting of banking transactions from January 1, 2022 onwards; and Dario had explained why he arranged for the Property Transfers and the Whitfield Charge, and how the Whitfield Charge funds were drawn and used. Justice Faieta also found that Dario confirmed that the Whitfield Charge funds were only used to pay his legal fees relating to this application (approximately $80,000) and not the other two applications.
33On the second issue on the interim, interim motion, whether Dario ought to be ordered to reimburse Dolorosa for any and all payments of legal fees paid from Dolorosa’s assets for the purposes of this application and the other two other applications, Faieta J. accepted Dario’s evidence that he had not used Dolorosa’s assets to pay his legal expenses regarding the two other applications. The Applicants argued that Dario should not have used Dolorosa’s funds to pay his own legal fees in respect of the within guardianship application, in which the validity of the 2018 Powers of Attorney and the Property Transfers are being challenged. They argued that to permit such use would offend the court’s discretion to allocate costs awards to parties while protecting the incapable person’s property. Justice Faieta found that, considering Dario’s involvement in the Property Transfers and the Whitfield Charge, it would have been sensible for Dario to seek directions from the court pursuant to s. 68 of the SDA regarding the use of Dolorosa’s funds to pay his legal expenses relating to his response to the within guardianship application, prior to a passing of accounts. However, in lieu of an order requiring Dario to reimburse Dolorosa for funds taken from her property to pay his legal fees relating to the guardianship application, Faieta J. ordered that a charge be placed on title to Dario’s residence in the amount of $250,000 in favour of Dolorosa, without interest. This charge would be payable as and when ordered by the court. During the hearing before Faieta J., the parties had agreed with Faieta J.’s suggestion that this type of security would address the Applicants’ concern.
34On the third issue on the interim, interim motion, whether an interim and interlocutory injunction should be ordered pursuant to r. 45.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) restraining Dario from selling, further encumbering, or otherwise dealing with Dolorosa’s assets, Faieta J. declined to grant an injunction pursuant to this rule. Justice Faieta reasoned that the Applicants did not assert an interest in Dolorosa’s property, nor was it necessary to preserve her property as evidence in the proceeding. Justice Faieta also found that the Applicants could not rely on r. 45.02 of the Rules because the Applicants were not claiming a right to a “specific fund”. Justice Faieta concluded that there is a serious issue to be tried regarding Dario’s use of Dolorosa’s assets for his legal fees, but Dolorosa would not suffer irreparable harm if the injunction were not granted because she would have security should Dario be ordered to reimburse her for his legal fees paid using her property.
Issues
35The issues on this motion and cross-motion are as follows:
Should the court order a) a capacity assessment pursuant to s. 79 of the SDA; b) production of Dolorosa’s medical, financial, and solicitors’ records; and c) that Dario deliver a statement of Dolorosa’s assets and liabilities dating back to January 1, 2016; and
Should the Co-Care Order be varied?
THE APPLICANTS’ MOTION
A. Should the court order a capacity assessment of Dolorosa?
Positions and Evidence of the Parties
The Applicants
36In support of their request for an order requiring Dolorosa to undergo a capacity assessment, the Applicants make the following statements:
Dolorosa did not sign the 2018 Powers of Attorney and the documents in support of the Property Transfers, or if she did, the documents were not signed with her knowledge, understanding, and approval, Dolorosa did not have the requisite capacity to sign the documents, and she may have been unduly influenced in this regard.
Dolorosa began showing signs of cognitive decline in 2015.
Dolorosa is illiterate and does not speak English. She had limited understanding of her finances and, therefore, relied on her late husband to manage her finances until he died in 2016.
Dolorosa’s decline in cognitive function led to her inability to recognize certain family members; her inability to cook and to recall commonly used recipes; her inability to remember or dial telephone numbers; her inappropriate behaviour and personality changes; her confusion; her random bouts of rage resulting in damage to property; and her aggression towards a personal support worker (“PSW”) and a caregiver.
Dr. Marotta’s capacity assessment report is unreliable because he did not properly assess Dolorosa’s cognitive decline. Rather, Dr. Marotta relied primarily on information from Dario and Carmino, which was inaccurate. That information included statements relating to Dolorosa’s ability to cook, to keep house, to do laundry, and to manage her medication.
Ms. Tersigni’s notes and letter are also unreliable because she too relied on Dario’s statements about Dolorosa’s cognitive decline and whether she was adhering to her medication regimen. Dario’s statements were inaccurate.
37The Applicants further submit that Dario had multi-faceted control over Dolorosa’s assets. In their affidavit evidence, they state that:
Dario prevented Dolorosa from seeing family members, including the Applicants, and their respective children.
Dario attempted to cause rifts between his parents and his siblings to gain control over the parents’ assets.
Dario attended at Mr. Sgro’s law office to obtain the 2018 Powers of Attorney and the Property Transfers, of which Dolorosa was not aware.
Dario disregarded Dolorosa’s questions when Dolorosa told Carmino, Dario, and Ada that she did not know what the “man with the papers” did, and she wanted to “see what it is” so that she could understand what happened at the lawyer’s office.
When ownership of the Residence was put into the joint names of Dolorosa and Dario, Dario changed the locks and door lock combination, and he moved into the Residence.
Dolorosa and the Applicants were not given keys to the new locks or the door code combination at the Residence.
Dario
38Dario submits that Dolorosa should not be required to undergo a capacity assessment for these reasons:
In 2018, Dolorosa’s capacity was assessed by Dr. Marotta, an Italian-speaking designated capacity assessor, and Dario relies on Dr. Marotta’s report in support of his position that Dolorosa understood and appreciated the consequences of her estate planning decisions in 2018.
Dr. Marotta confirmed in his report dated February 7, 2018 that Dolorosa’s cognitive testing was normal, and that Dolorosa’s severe hearing loss and lack of education were likely making her appear to experience cognitive difficulty, even when there was no evidence of impairment.
Dr. Marotta found Dolorosa to be “remarkably independent”.
Dolorosa speaks broken English but has a basic understanding of the language. But she has a hearing impairment, and her refusal to wear hearing aids makes communicating with her difficult.
Dolorosa had capacity when she made the 2018 Powers of Attorney for Property and the Property Transfers such that both sets of documents are valid, and the Applicants’ guardianship application is not necessary.
Section 3 counsel
39Ms. Angelini submits that she made three attempts to meet with Dolorosa, the first two of which Dolorosa declined. Ms. Angelini submits that, on the third visit, Dolorosa was calm, but Ms. Angelini could not get any instructions from her on the issues raised in the within application.
40Ms. Angelini does not support any of the orders for production sought by the Applicants because, in her view, the orders are not necessary. She submits that if a designated capacity assessor requests the disclosure of medical records, financial records, and Mr. Sgro’s file, such disclosure could be provided to the assessor but otherwise remain private.
41Ms. Angelini does not oppose a capacity assessment on matters relevant to the guardianship application which, in her view, would include an assessment of Dolorosa’s capacity to manage her property and her personal care. But she submits that the assessment should not involve Dolorosa’s capacity to revoke powers or attorney or make or revoke a will, which are not in issue in the guardianship application.
Law
42Section 79 of the SDA provides that the court may order a capacity assessment if it is satisfied that there are reasonable grounds to believe that the person is incapable.
43In determining whether to order a capacity assessment under s. 79 of the SDA, the court must consider and balance the following factors:
(a) the purpose of the SDA, which is to protect the vulnerable;
(b) the terms of s. 79 of the SDA, namely: (i) the person’s capacity must be in issue; and (ii) there are reasonable grounds to believe that the person is incapable;
(c) the nature and circumstances of the proceedings in which the issue is raised;
(d) the nature and quality of the evidence before the court as to the person’s capacity and vulnerability to exploitation;
(e) if there has been a previous assessment, the qualifications of the assessor, the comprehensiveness of the report and the conclusions reached;
(f) whether there are flaws in the previous report, evidence of lack of objectivity, a failure to consider relevant evidence, the consideration of irrelevant evidence, and the application of the proper criteria;
(g) whether the assessment will be necessary in order to decide the issue before the court;
(h) whether any harm will be done if the assessment does not take place;
(i) whether there is any urgency to the assessment; and
(j) the wishes of the person sought to be examined, taking into account his or her capacity: Abrams v. Abrams, 2008 CarswellOnt 7788, at para. 53 (“Abrams”).
44The purpose of the SDA is to protect the vulnerable while at the same time ensuring that the dignity, privacy, and autonomy of the individual are “assiduously protected”: Park v. Park, 2010 ONSC 2627, at para. 47.
45In considering whether to order an assessment, a court must balance the affected party’s fundamental rights against the court’s duty to protect the vulnerable: Abrams, at para. 50.
Analysis
46For the reasons that follow, I find that it is appropriate to order a capacity assessment for Dolorosa. Both parties agree that Dolorosa has dementia, but there has been no finding that Dolorosa lacks the capacity to manage her property or her personal care.
47The assessment process is an important tool for the for the court in the discharge of its responsibility to protect the vulnerable. It enables the court to obtain an objective, independent and expert assessment of the individual’s capacity, free from partisan and subjective perceptions of the parties: Kischer v. Kischer, 2009 ONSC 495, at para. 10.
48Because the Applicants are seeking to be appointed as Dolorosa’s guardians of property and personal care, Dolorosa’s capacity to manage her property and personal care has been put in issue. A finding of incapacity is a necessary precursor to making a guardianship appointment, if appropriate and necessary.
49Ms. Angelini, as s. 3 counsel, submits that she has been unable to get any instructions from Dolorosa on the matters at issue in the Applicants’ guardianship application, which include Dolorosa’s capacity to manage her property and personal care. Ms. Angelini is attempting to obtain information from Dolorosa’s physicians to assess Dolorosa’s capacity.
50The Applicants have adduced evidence of Dolorosa’s inappropriate behaviour, personality changes, violent outbursts, a decline in memory, and confusion. The Applicants note that the LOFT Report adduced by Dario, dated April 6, 2021, confirms that Dolorosa suffers from limited mobility, hearing loss, poor vision, amnesia, mixed dementia with Alzheimer’s, vascular dementia, aphasia, and loss of insight into her cognitive states.
51According to Dario’s cross-motion record and his factum, Dario takes no position on the requested order for Dolorosa to undergo a capacity assessment. In his oral submissions, Dario states that his written submissions should not be taken to mean that he does not oppose the capacity assessment. Rather, he submits that the court must determine whether an assessment should be ordered considering all the relevant factors.
52Dario states that, in assessing the factors, the court must consider whether any harm will be done if the assessment does not take place. He submits that there would be no harm in this case because Dolorosa has already made the 2018 Powers of Attorney, which he submits are valid.
53The difficulty with this argument is that the Applicants are challenging the validity of the 2018 Powers of Attorney based on Dolorosa’s alleged lack of capacity.
54In considering and balancing the factors set out by Strathy, J., as he then was, in Abrams, I find that an order requiring Dolorosa to undergo a capacity assessment is appropriate. Dolorosa’s capacity has been put in issue by the Applicants in their guardianship application. Based on the evidence adduced by all parties, there are reasonable grounds to believe that Dolorosa is incapable of managing her property and her person. Dario admits to managing Dolorosa’s property since 2020, and Dolorosa has been described by family members as “dependent” or “completely dependent” on others to assist her with her personal care.
55The circumstances of this case include tension among certain of Dolorosa’s children regarding who among them should have responsibility for the management of Dolorosa’s property and personal care. The Applicants allege that Dario has misappropriated Dolorosa’s property, which he denies. While Dr. Marotta found that there was no evidence of a cognitive syndrome regarding Dolorosa and that she was “remarkably independent” in July 2018, the Applicants submit that Dr. Marotta’s report is outdated and flawed. They submit that Dr. Marotta relied too heavily on uncorroborated information and false assertions from Dario, and that his report lacked independent verification by Dr. Marotta of the information provided to him.
56In weighing the factors, and in balancing Dolorosa’s fundamental rights against the court’s duty to protect vulnerable persons, I am satisfied that ordering a capacity assessment of Dolorosa is warranted in this case.
57The Applicants seek an order directing the capacity assessor to assess whether Dolorosa a) is capable of managing property; b) is capable of instructing counsel; c) is capable of executing or revoking a continuing power of attorney property or a power of attorney for personal care; d) is capable of executing or revoking testamentary documents; and e) is capable of managing her personal care.2
58I agree with Dario’s submissions that under s. 79 of the SDA, the court is limited to ordering a capacity assessment if there are reasonable grounds to believe that someone is currently incapable of managing property, managing personal care, or making a will, a power of attorney for property or a power of attorney for personal care. The SDA does not authorize the court to make an order for a retrospective capacity assessment on these issues.
59Accordingly, an order should issue directing a capacity assessment of Dolorosa’s capacity to manage her property and her capacity to manage her personal care.
B. Should the court order production of Dolorosa’s medical, financial, and solicitors’ records?
60The Applicants seek production of Dolorosa’s medical, financial, and all her solicitors’ records.3
61In support of their request for an order for production of documents, the Applicants rely on s. 39 of the SDA. Section 39(1) of the SDA provides that if an incapable person has a guardian of property or an attorney under a continuing power of attorney, the court may give directions on any question arising in connection with the guardianship or power of attorney. Section 39(4) of the SDA authorizes the court to give such directions as it considers to be for the benefit of the incapable person.
62The Applicants submit that it is necessary, appropriate, and consistent with the SDA that the court make an order for the production of Dolorosa’s medical, financial, and solicitors’ records. They submit that Dolorosa’s capacity was in issue in 2016 when Dario began to control her assets and in 2018 when the 2018 Powers of Attorney and the Property Transfers were executed.
63The Applicants rely on the decision by Kitely J. in Chuvalo v. Chuvalo, 2018 ONSC 5873, at paras. 31-33, in which Kitely J. ordered limited production of medical records and production of solicitors’ records, limited to matters relating to Mr. Chuvalo’s powers of attorney.
64In my view, the facts of the Chuvalo case can be distinguished from the case at bar. In Chuvalo, Kitely J. had already declared George Chuvalo to be incapable of deciding whether to reconcile with his former spouse and incapable of instructing counsel before she made limited production orders.
65In the case of Dolorosa, there has been no finding of her incapacity. Broad production, dating back as far as 2016, of Dolorosa’s medical, financial, and all solicitors’ records would be a significant invasion into Dolorosa’s privacy, and it would not be in her best interest.
66I acknowledge that some of Dolorosa’s medical and financial records could be relevant to an assessment of her capacity to manage her property and person, and if so, would be of assistance to the capacity assessor. Ms. Angelini has already begun to make inquiries to obtain Dolorosa’s medical records. It is appropriate that any of Dolorosa’s financial and medical records requested by the capacity assessor be made available to him or her. An order should issue for the production of those financial and medical records, if any, which are identified by the capacity assessor as necessary for an assessment of Dolorosa’s capacity to manage her property and her person, and which cannot be provided by Dario or Ms. Angelini. Production of the medical and financial records, as set out in the order for production, shall only be made to s. 3 counsel and the capacity assessor. Any claim of professional privilege, including medical privilege, or duty of confidentiality relating to the documents produced, including health information regarding Dolorosa, for the purposes of the disclosure referred to herein should be waived in respect of s. 3 counsel and the capacity assessor only.
67Production of all solicitors’ records from any and all solicitors retained by Dolorosa, in my view, is not necessary or proportionate to the assessment of Dolorosa’s capacity. Further, Dolorosa would lose the protection of solicitor-client privilege through the production of all her solicitors’ records and through any examination of Mr. Sgro. I decline to order such production or any examination of Mr. Sgro at this time.
68For the reasons given, I decline to grant the Applicants the production they seek on this motion regarding Dolorosa’s medical, financial, and all her solicitors’ records.
C. Should Dario produce a statement of Dolorosa’s assets and liabilities dating back to January 1, 2016?
69The Applicants submit that Dario should be ordered to produce information regarding Dolorosa’s assets and liabilities because this relief is relevant to the determination of Dolorosa’s capacity to make the 2018 Powers of Attorney and the Property Transfers. In addition, they submit that the asset and liability information will assist them in their preparation of a management plan and a guardianship plan as part of their guardianship application.
70Dario submits that he has already provided the Applicants with information regarding Dolorosa’s assets and liabilities, including an informal accounting from 2017 to the beginning of 2024, complete with bank statements. That accounting provided a description or explanation of all transactions that were not obvious from the information in the statements.
71On the interim, interim motion, Faieta J. found Dario’s informal accounting, including bank statements from 2017 to the present to be adequate, and he declined to order Dario to pass his accounts.
72Dario submits that there is no evidence that he has mismanaged or misappropriated Dolorosa’s assets, that he has not refuted.
73Dario has already agreed to update his accounting to the current date and to provide it to the Applicants.
74I am satisfied that the Applicants have sufficient asset information regarding Dolorosa’s assets and liabilities to prepare a management plan for the purposes of their guardianship application. A guardian’s management plan can also be amended following the guardianship appointment. I also note that the preparation of a management plan will only be necessary if the Applicants are successful in proving that the 2018 Power of Attorney for Property is invalid.
DARIO’S CROSS-MOTION
Should the Co-Care Order be varied?
75The Co-Care Order provides that Ada and/or Michael shall stay with Dolorosa at the Residence, for the purposes of providing care to Dolorosa, for one week at a time, during alternating weeks, with Dario living with and caring for Dolorosa during the alternating week. The Co-Care Order also directs that Dario shall not attend at the Residence while Ada or Michael is staying with Dolorosa, unless necessary, without notice to Ada and/or Michael; and Ada and Michael shall not attend at the Residence when Dario is attending on Dolorosa, unless necessary. In addition, the Co-Care Order provides that none of Ada, Michael, or Dario will interfere with Dolorosa’s grandchildren’s reasonable access to and visits with Dolorosa. The Co-Care Order further provides that Ada, Michael, and Dario will provide each other with Dolorosa’s weekly schedule every Sunday by 9 p.m., and visits with Dolorosa must be coordinated around Dolorosa’s availability.
76The parties do not dispute that they are not following the terms of the Co-Care Order. Dario’s undisputed evidence is that Michael has not attended on Dolorosa at the Residence during any of the weeks for which he was scheduled, and Ada attended on Dolorosa during four of the eleven weeks for which she was scheduled. Nor do the parties dispute that Dario attended on Dolorosa during all the weeks for which he was scheduled, and he filled in for the Applicants when they could not or did not attend.
Positions of the Parties
77Dario seeks a variation of the Co-Care Order that would permit the parties to return to the pre-Co-Care Order schedule with him being Dolorosa’s primary caregiver. He submits that if Ada and Michael wish to care for Dolorosa, those arrangements could be made on an ad hoc basis through the assistance of an elder care coordinator.
78Dario submits that he should be the person overseeing Dolorosa’s care schedule as the current arrangement is producing last-minute gaps, which causes Dolorosa stress and aggravates existing family animosity, which is not in her best interest.
79Dario further submits that the Applicants are not familiar with Dolorosa’s medication regimen or treatment plan, they do not take Dolorosa to appointments, and they do not confer with Dolorosa’s healthcare team. By contrast, he submits that Dolorosa is dependent on him, as evidenced in letters from Dolorosa’s healthcare providers.
80Dario also submits that the Applicants’ allegations that he has not properly cared for Dolorosa are entirely false and unsubstantiated.
81The Applicants submit that Dario is in breach of the Co-Care Order because he did not provide them with Dolorosa’s full schedule, including her medication regimen, and he did not arrange for a caregiver to stay at the Residence for a full week as directed in the Order. The Applicants submit that they and Dario have health issues that do or could interfere with their caregiving abilities, and therefore, a full-time professional live-in caregiver with formal training, including training relating to persons with dementia, ought to be hired to care for Dolorosa at the Residence. The Applicants submit that the PSW and the live-in caregiver, who currently attend on Dolorosa do not have adequate specialized training in caring for patients with dementia. The Applicants submit that Dolorosa has shown aggression towards her caregivers, including Dario, which is not appropriate.
82The Applicants acknowledge that Dolorosa wishes for her children to be involved in her care and that Dolorosa does not want to leave the Residence. However, they submit that it is not realistic to think that her children, who are in their 60s, and have their own health issues, can care for Dolorosa without regular ongoing professional assistance.
83The Applicants submit that if Dario’s proposed variation to the Order is granted, there is a real risk that he would revert to isolating Dolorosa from her children. They seek an order dismissing Dario’s cross-motion and an order requiring him to hire full-time caregiving professionals who are trained in caring for persons with dementia.
Analysis
84It is obvious from the evidentiary record that the Applicants are not complying with the Co-Care Order, which they sought. Under cross-examination, Ada agreed that of the previous 52 weeks, Dario covered 48 weeks of Dolorosa’s care. Ada attended the other four weeks, and Michael never attended. Though there was never any agreement to this effect, Dario always covered the absences when Ada or Michael failed to show up. Based on the evidentiary record, Ada would sometimes provide a medical reason for her inability to attend on Dolorosa in accordance with the Co-Care Order. However, since May 2024, Ada has not been giving notice when she will not be able to attend.
85Michael testified that he was diagnosed with stomach cancer in August 2023, which explained his inability to participate in Dolorosa’s care. However, notwithstanding this diagnosis, his upcoming surgery plans, and the medical advice that he should avoid stress, which he received prior to the hearing regarding the Co-Care Order, Michael advocated for and agreed to the terms of the Co-Care Order. Michael gave notice for the first two attendances he missed but has not provided any notice since.
86One of Dolorosa’s PSWs, Jumie Bustos, deposed that when Ada attends and tries to care for Dolorosa, Dolorosa is agitated to the point of aggression or violence. By contrast, according to Ms. Bustos’s evidence, Dario is better able to manage Dolorosa’s agitation, and he can calm her down.
87I am satisfied that the Co-Care Order has not been effective in facilitating a care plan for Dolorosa in which the Applicants and Dario share the caregiving responsibilities. None of the parties is advocating for a continuation of the Co-Care Order insofar as it relates to a care-sharing arrangement as between Dario and the Applicants.
88I agree that the Co-Care Order should be varied to remove the provision that creates the schedule of alternate weeks of caregiving by each of Ada/Michael and Dario. This plan has failed. Attempts to enforce the Co-Care Order would not be in Dolorosa’s best interest.
89I decline to make an order that Dario hire a full-time professional caregiver with expertise in dealing with persons with dementia for Dolorosa, as the Applicants advocated. They have not brought a motion or cross-motion seeking such an order.
90Dario has been the primary caregiver for Dolorosa for many years. He took on this role following his father’s death in 2016. Dario’s caregiving efforts are recognized in Dr. Shulman’s letter dated March 10, 2023. In that letter, Dr. Shulman states: “Dario Ceci has been the direct contact for [Dolorosa’s] medical care and wellbeing. Dario has brought his mother to all her medical appointments at my office as well as phone consultations, consults with me when there are any health concerns. He then carries out all medical requirements, such as administering prescription medications at home, as the patient Delrosa [sic] Ceci is not medically able to do this herself.”
91Mary Medeiros, a registered pharmacy technician, stated in a letter dated December 7, 2022 that Dario has been Dolorosa’s primary caregiver and the point of contact for prescription pickup since 2001.
92Following an appointment Dolorosa had with Dr. Marotta on March 27, 2023, Dr. Marotta’s report included the following: “Between home care services and her son’s support from 2018 to present, she is getting good care … On observation today, she was well groomed and nourished … She acknowledged that she was doing well and was pleased with the help of her son who continues to live with her.”
93In Dr. Marotta’s report to Dr. Shulman, dated May 1, 2023, Dr. Marotta reported that he had “spoken directly with the community access care manager who confirms that her [Dolorosa’s] care needs are well met and that she too finds her [Dolorosa] quite stable.”
94Dario’s evidence is that Dolorosa wanted her children, as opposed to paid caregivers, to care for her. So, in 2018, he asked his siblings whether they would assist in caregiving for Dolorosa at that time. Most of them were then working, and none of them were prepared to commit to a caregiving arrangement. Around that time, Dario arranged for Lifeline fall detect services for Dolorosa.
95Carmino swore an affidavit on September 11, 2023 in support of Dario’s position. In that affidavit, he stated that he did not agree that the Applicants should be appointed as co-guardians of Dolorosa’s property and personal care, and he stated that he supports Dario as Dolorosa’s ongoing caregiver.
96Ada’s daughter-in-law, Fiorina Ferragine-De Novellis, swore an affidavit on June 12, 2023, in support of Dario’s position, in which she stated that Ada’s allegations regarding Dario’s care of Dolorosa are false. Ms. Ferragine-De Novellis also stated that Dolorosa is entirely dependent on Dario, and if he were not Dolorosa’s substitute decision maker, Dolorosa would suffer.
97I am satisfied that Dario is aware of the importance of keeping Dolorosa’s family members apprised of Dolorosa’s care and fostering relationships between Dolorosa and various supportive family members and friends. On more than one occasion, Dario has invited his siblings to participate in caregiving for Dolorosa, including his offer to Ada to have Dolorosa spend weekends at Ada’s home. Section 66(6) of the SDA imposes on a guardian of the person and an attorney for personal care an obligation to foster regular personal contact between the incapable person and supportive family members and friends of the incapable person.
98For these reasons, the Co-Care Order should be varied:
to terminate paragraphs 2-4 and 6 (being the shared caregiving arrangements); and paragraph 5 shall be replaced with the following:
THIS COURT ORDERS that no family member shall interfere with Dolorosa’s grandchildren’s, or Ada’s, or Mike’s reasonable access to and visitation of Dolorosa. Visitation shall be coordinated by texting Dario or calling Dolorosa’s caregiver, who is staying at the Whitfield Property to confirm Dolorosa’s availability.
to add a paragraph declaring that Dario shall be Dolorosa’s primary caregiver, and shall have responsibility for overseeing Dolorosa’s care schedule, pending the determination of the guardianship application or until otherwise ordered by the court. In that role, he shall accommodate requests from Ada, Mike and other family members who wish to participate in Dolorosa’s caregiving. If necessary, Dario shall engage an elder care coordinator to assist in accommodating such requests and to ensure all relevant information regarding Dolorosa’s care is shared with the family member wishing to provide caregiving to Dolorosa.
Disposition
99On the Applicants’ motion, an Order shall issue:
directing that Dolorosa submit to a capacity assessment by a designated capacity assessor within 30 days, which assessment may take place at the Residence or another place convenient to Dolorosa and the capacity assessor;
directing that any party, such party’s agent or assign, or person acting on his or her behalf is restrained from hindering, obstructing, or unduly influencing Dolorosa in respect of the capacity assessment;
directing that the capacity assessment of Dolorosa shall include an assessment of a) whether Dolorosa is capable of managing property within the meaning of s. 6 of the SDA; and b) whether Dolorosa is capable of managing personal care within the meaning of s. 45 of the SDA; and
directing that s. 3 counsel shall be entitled to compel those of Dolorosa’s medical records and financial records, if any, as are requested by the designated capacity assessor for the purposes of conducting the capacity assessment of Dolorosa. Such medical and financial records may only be disclosed to s. 3 counsel and the capacity assessor, and any professional privilege shall be waived in respect of s. 3 counsel and the capacity assessor only.
100I decline to make any further orders for production pending the capacity assessment, and I decline to order Dario to provide a statement of assets and liabilities dating back to January 1, 2016. Dario has already agreed to update his informal accounting to the present.
101Dario’s cross-motion is granted, and the Co-Care Order shall be varied as provided in paragraph 98 above.
Costs
102The parties are strongly encouraged to resolve the matter of costs between themselves. Should they be unsuccessful, any party seeking costs of this motion or cross-motion may make written submissions, not exceeding three pages in length (excluding offers to settle and a costs outline) by January 20, 2025. Responding submissions, not exceeding three pages in length, shall follow by January 27, 2025. Reply submissions, not exceeding one page in length, if any, shall follow by January 31, 2025.
B. Dietrich J.
Date: January 6, 2025
Footnotes
- Because many of the parties have the same surname, for brevity and clarity, I will refer to parties by their first names. In doing so, I intend no disrespect.
- I note that in my Order dated December 7, 2023, which set out the issues to be argued on this motion, the matter of whether Dolorosa lacks capacity was limited to Dolorosa’s capacity to manage her property and personal care only.
- I note that my Order dated December 7, 2023, which set out the issues to be argued on this motion, did not include the production of solicitors’ records but only medical and financial records.