Ontario Superior Court of Justice

Court File No.: CV-23-32337-00ES
Date of Judgment: 2025-01-13

Between:
Nicholas Rizkallah in his capacity as Attorney for Property and Attorney for Personal Care for Michel George Rizkallah
Applicant

– and –

Michel George Rizkallah in his personal capacity; Ghada Rizkallah in her personal capacity and in her capacity as Attorney for Property and Attorney for Personal Care for Michel George Rizkallah
Respondents

Appearances:
Sam Abbott, for the Applicant
Natalie Kodsi, for the Respondent, Michel George Rizkallah
Joseph R. Deluca, for the Respondent, Ghada Rizkallah
Sarah Jones, appearing on behalf of the Office of the Public Guardian and Trustee

Heard: August 14, 2024

Ruling on Motion
Jennifer E. Bezaire

Overview

[1] This is a motion by the applicant, Nicholas Rizkallah (“Nicholas”), for various capacity assessments of the respondent, Michel George Rizkallah (“Michel”), as well as an interRAI Home Care assessment regarding whether Michel’s needs are being met and placement for long-term care.

[2] Michel is 78 years old, having been born on June 5, 1945. It is undisputed that he suffers cognitive impairments. He has been deemed incapable of managing his property and aspects of his personal care by virtue of an October 2023 capacity assessment. He is represented by s. 3 counsel pursuant to the Substitute Decisions Act, 1992 (“SDA”).

[3] Michel is married to the respondent, Ghada Rizkallah (“Ghada”) and has been so married for approximately 15 years. In 2023, Michel created a Power of Attorney (“POA”) that named Ghada as his POA. This POA is the subject of the underlying application.

[4] Nicholas is Michel’s son. He submits that Michel lacked capacity to make the 2023 POA and is the victim of spousal abuse. He seeks to have the 2023 POA declared invalid and to enforce a 2021 POA naming him as Michel’s POA.

[5] Michel and Ghada deny Nicholas’ claims of abuse and oppose the application and motion.

[6] The issue of Michel’s capacity to instruct counsel was previously before me in January 2024. At that time, I declined to appoint a litigation guardian on the basis that Michel is represented by s. 3 counsel. I did, however, indicate that “[s]hould concerns regarding [Michel’s] ability to instruct counsel arise in future, I order that section 3 counsel take steps forthwith to complete a capacity assessment regarding [Michel’s] ability to instruct counsel, and if appropriate, to appoint a litigation guardian”. Nicholas claims that concerns have arisen and, amongst other assessments, seeks to assess Michel’s capacity to instruct counsel.

[7] For the reasons that follow, I decline to order the requested assessments.

Chronology of the Application

[8] The underlying application was commenced in or around June 2023. It has been before the court several times since then, including:

a. On August 22, 2023, Nicholson J. ordered production of all originals and copies of the disputed 2023 POA and Michel’s passport to counsel for Nicholas. Section 3 counsel was appointed on consent.

b. On September 26, 2023, Howie J. ordered a capacity assessment and adjourned the application to October 24, 2023.

c. On October 24, 2023, the parties agreed to a consent order for a capacity assessment for property and personal care by designated capacity assessor, Judy Bartol. Ms. Bartol assessed Michel on October 26, 2023 and found him to be incapable of managing his property and personal care regarding his healthcare, nutrition, shelter, and safety. He was found capable of managing his own clothing and hygiene.

d. On November 28, 2023, Macfarlane J. determined, based on the capacity assessments, that Michel was a party under disability. The motion was adjourned “to allow submissions to be received from the parties and the [Public Guardian and Trustee (“PGT”)] as to the question of whether the PGT should be appointed as litigation guardian for [Michel] … pending further order of the court”.

e. On January 9, 2024, I heard motions regarding the appointment of a litigation guardian. On January 10, 2024, I released my Ruling in which I declined to appoint a litigation guardian.

[9] Almost immediately following my January 10, 2024 Ruling, Nicholas threatened to bring a further motion claiming he had concerns with Michel’s ability to instruct counsel. On January 24, 2024, counsel for Nicholas wrote to s. 3 counsel stating:

Our client has significant concerns that [Michel] is not capable of providing instructions to Counsel given my client’s interactions with [Michel] and the previous findings of Michel’s healthcare providers (Dr. Oozeer and the LHIN) and the results of his recent assessment by Ms. Bartol. Admittedly, Ms. Bartol did not assess Michel for his ability to instruct counsel or to make a POA at the time the assessment was completed in October of 2023. Rather than requiring our office to bring a motion on this matter or to cross examine Michel, which would undoubtedly be expensive for the parties involved and stressful for Michel, we request that your client submit for a further assessment with Ms. Bartol regarding his ability to instruct counsel and to make a POA. Ms. Bartol was the capacity assessor ordered by the Court previously, on consent of the parties, and she has already had the benefit of meeting Michel once before. It is our client’s hope that your client will be agreeable to submit to the assessment so as to streamline this process and to save Michel from the stresses that inherently come from being examined. [Emphasis added].

[10] Michel refused to submit to a further assessment. S. 3 counsel confirmed she is content to continue in her current role and noted: “[t]here is no need to relitigate the issue at this time – it is simply draining everyone’s finances.” Counsel for the PGT reminded Nicholas that Michel is deemed to be capable to instruct counsel and, per my January 10, 2024 Ruling, there is no need for such an assessment.

[11] This did not dissuade Nicholas. Three months later in or around April 2024, Nicholas produced an affidavit sworn by Michel’s family doctor, Dr. Oozeer, indicating Michel does not have capacity to instruct counsel or to give legal directives. Nicholas sought further capacity assessments, which were again refused.

[12] Nicholas then brought the subject motion, which resulted in further court appearances:

a. On May 28, 2024, Carroccia J. adjourned the motion to a special appointment on June 19, 2024. Despite the motion only having been served approximately two weeks prior, Nicholas opposed the adjournment claiming urgency.

b. On June 19, 2024, Hebner J. adjourned the motion to August 14, 2024. The PGT had not previously been served and required time to respond to the motion. Again, Nicholas opposed the adjournment claiming urgency. Hebner J. ordered the adjournment to allow the PGT to respond to the motion and to put the motion before myself given it related to the interpretation of my January 10, 2024 Ruling.

c. On August 14, 2024, the motion was argued before me. This is my Ruling with respect to this motion.

[13] I have since been appointed Case Management Judge and through discussions with counsel, made an Order for productions, dated August 20, 2024 but signed by me on November 12, 2024. I also ordered that the PGT be served with notice of all further proceedings.

Issues to be Determined on the Motion

[14] The main issue before me is whether further capacity assessments are required to determine if Michel is capable of:

a. granting and revoking a POA;

b. making a will; and

c. instructing counsel.

[15] In the event a capacity assessment is ordered, and the assessor determines Michel is incapable of instructing counsel, Nicholas requests an order that Michel requires a litigation guardian, which shall be appointed at the next hearing to allow interested parties to make submissions.

[16] Finally, Nicholas seeks a further assessment by Home and Community Care Support Service, Erie St. Clair, for an interRAI assessment regarding whether Michel’s needs are being met and whether he is to be placed on a list for a long-term care home.

Analysis

Further Capacity Assessments

[17] Section 79(1) of the SDA provides the court with authority to order a capacity assessment where a person’s capacity is in issue in proceedings under the Act and where there are reasonable grounds to believe that the person is incapable.

[18] As articulated in Abrams v. Abrams, para 53, the factors the court must consider in deciding whether to order a capacity assessment include:

a. The purpose of the SDA;

b. The requirements of s. 79, specifically, that the person’s capacity must be in issue and there must be reasonable grounds to believe 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 and the comprehensiveness of the report and the conclusions reached;

f. Whether there are flaws with the previous report, evidence of bias or 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 to decide the issues for the court;

h. Whether any harm will be done if an 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.

[19] In Abrams, Strathy J., as he then was, held that the purpose of the SDA is to protect the vulnerable. Assessments ought not to be ordered as a matter of course given they are a substantial intrusion into the privacy and security of the individual. In determining whether to order an assessment, the court must balance the affected party’s fundamental rights against the court’s duty to protect the vulnerable.

Michel’s Wishes and Preferences

[20] Michel opposes the assessments. He filed two affidavits in response to the application and motion (dated June 7, 2024, and November 21, 2023). Nicholas questions the appropriateness of these affidavits given Michel’s capacity issues.

[21] I agree with s. 3 counsel that the bar for a witness to swear an affidavit is low. Further, and to the extent Michel is able, it is important that his wishes and preferences be put before the court. The weight to be given to Michel’s affidavit evidence given his capacity issues is, however, a determination for the court to make.

[22] For the purposes of this motion, I accept that Michel objects to the relief requested. I need not assess his evidence further at this time. The bulk of the evidence set out in his affidavits is not necessary to determine the issues on this motion. I will therefore leave it to the application judge, who will have a more fulsome record, to determine the weight to be given to Michel’s affidavit evidence.

Michel’s Capacity to Make or Revoke a Power of Attorney

[23] No assessment has been done to determine if Michel has capacity to make or revoke a POA. It is undisputed that Michel’s capacity in this respect is in issue in this proceeding.

[24] The crux of the application is the validity of the 2023 POA. If the 2023 POA is found to be valid, it will remain in effect. If, however, it is found to be invalid, the 2021 POA appointing Nicholas would, subject to any further relief requested, remain in effect.

[25] The validity of the 2023 POA depends on Michel’s capacity at the time it was made. His current capacity or incapacity is irrelevant to that determination. His current capacity is only an issue if the 2023 POA is found to be invalid or set aside for other reasons.

[26] I accept that there are reasonable grounds to believe Michel may have been incapable when the 2023 POA was created. Michel suffers from cognitive impairments, which have fluctuated over time. More specifically:

a. Michel was hospitalized in February 2023 for confusion. He was found wandering around a community centre in the cold. The hospital records indicate reports of spousal abuse that appear to have emanated from Nicholas and/or Michel. Ghada denies these allegations and submits that the February 2023 incident was an isolated incident.

b. Nicholas brought Michel to see his family physician, Dr. Oozeer on February 28, 2023. Dr. Oozeer wrote a note indicating it is his opinion that Michel is “incapacitated to make a legal decision based on his medical condition. He cannot presently give consent legally”. Michel scored 16 out of 30 on the Montreal Cognitive Assessment (“MoCA”).

c. Michel was assessed by Sara Cecile, a Care Coordinator with Community Care Support Services at Erie St. Clair in March 2023. She concluded that Michel lacked an appreciation regarding his current circumstances and insight regarding the potential benefits of long-term care. She also noted the risks of Michel returning home with Ghada if his needs were not being met. Ghada did not participate in this assessment.

d. On May 30, 2023, Michel was assessed by Nurse Practitioner Stephanie Duval as part of the Geriatric Assessment Program (“GAP”). Ghada was present for this assessment. Ms. Duval notes decline in Michel’s cognitive functioning. He scored 10 out of 30 on the MoCA administered. Ms. Duval concluded, however, that Michel did not require any GAP allied health services. No follow-up appointment was deemed necessary.

e. In October 2023, Certified Capacity Assessor Judy Bartol found Michel to lack capacity to manage his property and aspects of his personal care. It is accepted since at least that assessment that Michel is incapable of managing his property and aspects of his personal care.

[27] I make no finding as to the veracity of the information contained within these records, assessments, and findings or the weight to be given to them. I simply find that the evidence produced on the motion raises reasonable concerns with respect to Michel’s capacity at or around the time the 2023 POA was created. The ultimate determination of Michel’s capacity and the weight to be given to these records shall be made at the hearing of the application on a more fulsome record.

[28] Nicholas has raised concerns with Ghada’s and/or Michel’s handling of Michel’s property and finances since the 2023 POA was created, including changes made to Michel’s beneficiary designation to the benefit of Ghada, funds being removed from Michel’s account, and plans to take Michel to Lebanon where he has substantial additional funds.

[29] Ghada and Michel raise concerns with respect to Nicholas’ conduct, including moving Michel into a long-term care home without informing Ghada, freezing his accounts, and attending at his and Ghada’s home with police to conduct a warrantless search for a firearm that was never located.

[30] Despite these concerns, none of the parties requested an interim order to address the management of Michel’s affairs pending resolution of this application. The parties appear to be managing at the present time.

[31] The 2023 POA is being held in trust by Nicholas’ counsel pending the outcome of this application. No evidence has been tendered that Michel has created a new or other POA. I therefore do not see how any harm would come to Michel if the assessment does not take place.

[32] I also do not see how the requested assessment is necessary to decide the issues on this application. Nicholas submits that s. 3 counsel previously requested an assessment to determine Michel’s capacity to grant and revoke a POA and that Michel withdrew his consent following Ms. Bartol’s October 2023 capacity assessments.

[33] This may be so, but it does not make the assessment necessary. The 2023 POA was created nearly two years ago. Any assessment conducted today would only be effective as of today’s date and therefore would not have significant probative value as to Michel’s capacity in 2023 when the disputed POA was created. The evidence is also clear that Michel’s condition has fluctuated over time.

[34] Accordingly, I decline to order a capacity assessment to determine Michel’s capacity to make or revoke a POA.

Michel’s Capacity to Create a Will

[35] No assessment has been conducted with respect to Michel’s ability to make a will or other testamentary document.

[36] Michel’s capacity to create a will is not specifically in issue in this proceeding, although it is related to his capacity to make a POA and manage his property.

[37] Nicholas expressed concern that Michel may be making, or may have already made, a new will. The only evidence in support of this concern is Nicholas’ evidence that solicitor Gary Klein met with Ghada and Michel in 2023.

[38] Neither Mr. Klein’s file, nor affidavit evidence from Mr. Klein, was tendered on this motion. Ghada has not provided any evidence with respect to this meeting.

[39] Based on the evidence provided, it is unclear what, if anything, of significance transpired at the meeting with Mr. Klein or if the meeting even occurred.

[40] Accordingly, I do not see how the assessment is necessary to decide the issues on this application or how any harm would come if the assessment does not take place. Insufficient evidence has been provided to warrant this assessment and it is therefore denied.

Michel’s Capacity to Instruct Counsel

[41] No assessment has been conducted with respect to Michel’s ability to instruct counsel.

[42] Nicholas claims Michel’s capacity to instruct counsel is in issue. Michel and the PGT disagree. Per s. 3(1)(b) of the SDA, Michel is deemed to have capacity to retain and instruct counsel. Further, s. 3 counsel maintains that she has no concerns with her ability to obtain instructions from Michel.

[43] Incapacity in the SDA is focused on personal care and property. There is no test in the SDA for capacity to instruct legal counsel, nor does the SDA provide for such an assessment. Nicholas submits that the factors to be considered are set out in Bajwa v. Singh, 2022 ONSC 3720, para 14, and that Michel falls well short of these factors.

[44] Nicholas further submits that per the decisions in Calvert (Litigation Guardian of) v. Calvert, Calvert (Litigation Guardian of) v. Calvert, Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, and Gefen v. Gefen, 2022 ONSC 6259, capacity to instruct counsel involves the ability to understand financial and legal issues and therefore puts it significantly higher on the competency hierarchy. Because Michel lacks capacity to manage his property, it therefore follows that he likely lacks capacity to instruct counsel, warranting an assessment.

[45] The Bajwa factors are not determinative. As held by Chown J. in Bajwa, at para. 14, there is no single definitive test to be applied to determine capacity to instruct counsel; the question is case specific.

[46] The cases relied upon by Nicholas do not involve s. 3 counsel and are therefore distinguishable. The ability to instruct s. 3 counsel is different than capacity to instruct counsel generally. Section 3 counsel is an important legislative safeguard necessary to protect the dignity, autonomy, privacy and legal rights of a vulnerable person.

[47] I adopt the findings of Raikes J. in Sylvester v. Britton, 2018 ONSC 6620, paras 71-72, 75, which is factually similar and involves the ability to instruct s. 3 counsel:

[71] 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 very strong views 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.

[72] Dementia is an insidious and terrible disease. It does not, however, follow a uniform timetable or pattern for every person. 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. The determination of capacity to instruct is best made by counsel cognizant of the matters in issue and his or her responsibilities to the client and court.

[75] The court should only intrude on that determination by counsel with great reluctance and where the evidence demonstrates a strong likelihood that counsel has strayed from his or her obligations to the client and to the court. In that case, the Court will be acting to protect the vulnerable party and the integrity of the court process.

[48] The primary purpose of s. 3 counsel is to advise Michel of his rights and to relay his wishes and preferences to the court. He need not fully understand or appreciate his finances and property to be able to relay his wishes and preferences to the court. As put by s. 3 counsel, the fact that Michel cannot manage his finances or care for himself does not mean he cannot tell the court who he wants to manage them for him.

[49] It is important for the court to respect an incapable person’s wishes to ensure they are not stripped of their right to meaningful involvement in the litigation: Lazaroff v. Lazaroff, para 24. In fact, s. 24(5) of the SDA specifically requires the court to consider the incapable person’s wishes, if they can be ascertained, before appointing a guardian of property.

[50] It is unfortunate that the parties are back before me rehashing many of the same issues previously dealt with in January 2024. I find that there has been no material change in s. 3 counsel’s ability to obtain instructions to warrant this further motion.

[51] The only thing arguably new is evidence from Michel’s long-time family doctor, Dr. Oozeer. In Dr. Oozeer’s March 31, 2024 letter, he states:

It is my medical opinion that Michel is completely incapable of making any decisions for himself on his own. Specifically, I do not believe Michel has the capacity to make decisions as it pertains to managing property, managing finances, making consent to be treated medically, as well as giving legal directive for documents and instructing counsel such as power of attorney and wills. Given how advanced Michel’s dementia is, it is not expected that he would have any ability moving forward to regain his capacity to make any of the decisions I mentioned above.

[52] I have significant concerns with the reliability of Dr. Oozeer’s evidence. First, it was prepared at the request of Nicholas who is an adverse party. No evidence has been provided as to how the letter came to be or the discussions between Nicholas and/or his counsel and Dr. Oozeer, if any, regarding the letter.

[53] Almost immediately after my January 10, 2024 Ruling was released, Nicholas claimed there are “concerns” with Michel’s ability to instruct counsel and threatened a further motion if he did not submit to a capacity assessment.

[54] My reference in my prior endorsement to s. 3 counsel arranging a capacity assessment if concerns arose related to s. 3 counsel having concerns. It was not a wedge for an opposing party, such as Nicholas, to take another kick at the can. There was an appeal route available to Nicholas if he felt my decision was improperly decided. No appeal was brought.

[55] Second, I do not accept that Dr. Oozeer is qualified to assess Michel’s capacity or ability to instruct s. 3 counsel. The only qualifications put forth are his long-time practice as a family physician and his knowledge of Michel. Without minimizing his experience or relationship with Michel, Dr. Oozeer is not a certified capacity assessor and I have no evidence as to his understanding of the circumstances of this application. His evidence cannot therefore be determinative of this issue.

[56] Third, I am not satisfied that Dr. Oozeer appreciates the role of s. 3 counsel or considered the ability of Michel to provide his wishes and preferences. I agree with the PGT that it is not helpful for Dr. Oozeer to make a blanket statement regarding Michel’s capacity without a detailed explanation and without addressing Michel’s ability to relay his wishes and preferences to counsel.

[57] Nicholas’ efforts to remove s. 3 counsel appear to relate, at least in part, to his allegations of abuse by Ghada. During oral arguments, Nicholas’ counsel referred to a photograph of Ghada and Michel purportedly taken outside Ghada’s lawyer’s office, seemingly claiming impropriety on the part of Ghada and/or her lawyer.

[58] The evidentiary record does not support Nicholas’ claims of impropriety in this respect. Ghada and Michel’s positions are aligned on this motion. They both seek to have the 2023 POA deemed valid. Further, and per Ghada’s factum filed on the motion, she adopts the arguments and position submitted by Michel.

[59] Michel is represented by s. 3 counsel. It is her role to advise him of his rights and to ensure that legal, procedural, and evidentiary requirements are tested. She has not raised any concerns with respect to Ghada or her counsel’s conduct on this application.

[60] There is also no evidence that s. 3 counsel has acted inappropriately or in a manner inconsistent with her duty to Michel or the court. Ms. Kodsi expresses no concerns with respect to Michel’s ability to provide her with instructions. While affidavit evidence in this respect may be preferable, I do not find it to be required here. I have no concerns with respect to Ms. Kodsi’s conduct in this litigation and am satisfied that she is best positioned to determine Michel’s capacity to provide instructions.

[61] Michel’s legal interests and dignity would be seriously undermined if there was no representation to put forward his wishes: Sylvester v. Britton, 2018 ONSC 6620, para 64; Dawson v. Dawson, 2020 ONSC 6724, paras 28, 29, 31.

[62] I remind Nicholas that per r. 7.01 of the Rules of Civil Procedure, the court has discretion as to whether to appoint a litigation guardian. There exists no requirement that a guardian be appointed. I previously detailed the guiding principles with respect to the appointment of a litigation guardian versus s. 3 counsel at para. 7 of my January 10, 2024 Ruling and will not repeat them here. I find there to be no harm to the administration of justice in having s. 3 counsel represent Michel on this application.

[63] For the reasons set out in my January 10, 2024 Ruling and set out herein, I am not satisfied that the evidence justifies an intrusion into the relationship between Michel and his counsel or that Ms. Kodsi has failed in her duties as s. 3 counsel. I therefore decline to order a capacity assessment of Michel’s ability to instruct counsel.

InterRAI Assessment with Home and Community Care Support Services

[64] Per r. 33.01 of the Rules of Civil Procedure, an adverse party may bring a motion for an order under s. 105 of the Courts of Justice Act, for the physical or mental examination of a party whose physical or mental condition is in question in a proceeding.

[65] Section 105(3) of the Courts of Justice Act provides that where a party’s physical or mental condition is first raised by another party, an order under this section shall not be made unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe that there is substance to the allegation.

[66] Nicholas submits that Michel and Ghada’s home is not safe for Michel because of the animosity between them, which he submits includes physical violence and the withholding of food. He also submits that there may be a firearm in the home given comments Michel made to hospital staff on February 3, 2023 when asked if he has a gun at his house, which are as follows: “I used to have one but I don’t use it, its available. I know where it is”.

[67] Nicholas further submits that per the March 2023 Community Care Support Services assessment done by Ms. Cecile, Michel was found to be incapable of determining where to live and placed into long-term care.

[68] Michel and Ghada submit that there is no compelling evidence Michel is in danger or to warrant questioning his care and comfort in his home. They have lived together for more than a decade. There exists no evidence of further incidents or issues with respect to Michel’s care since February 3, 2023. The Home and Community Care Support Services assessments performed contemporaneously to Michel’s time in hospital are not indicative of the current status quo or the circumstances since then.

[69] Nicholas bears the burden of establishing the need for the assessment. I find that he has not met this burden.

[70] First, I agree with Michel and Ghada that no compelling evidence has been tendered to establish a concern with Michel’s current living situation. While the February 3, 2023 incident is concerning, no further incidents have occurred in the nearly two years that have passed since that time.

[71] Second, Michel has made clear that he wishes to remain living with Ghada, his spouse, with whom he has lived for more than a decade.

[72] And finally, I have significant concerns with the reliability of the March 2023 assessment and claims of abuse. Ghada did not participate in the March 2023 assessment, and it appears that the claims of spousal abuse were not investigated but were rather taken at face-value. Michel was in a confused state when he was hospitalized in February 2023. Any statements he made regarding abuse or possessing a firearm are not reliable.

[73] Further, Nicholas and the police searched Michel and Ghada’s home in June 2024. No firearm was recovered.

[74] An isolated incident that occurred nearly two years ago when Michel was in a confused state is not, in my view, sufficient evidence to warrant the requested assessment. I find that there is no crisis at this time to warrant questioning Michel’s care or removing him from the home he has resided in with his spouse for more than a decade. The assessment is therefore denied.

Disposition

[75] For these reasons, I decline to order the requested assessments. Nicholas’ motion is dismissed.

[76] If the parties are unable to agree upon costs, they may each provide written cost submissions, not to exceed three pages in length, along with a Costs Outline and copies of any offers to settle made with respect to the motion within 30 days of this Ruling.

Original signed by “Jennifer E. Bezaire”
Jennifer E. Bezaire
Justice

Released: January 13, 2025