Reasons for Decision
Court File No.: CV-21-00670118-00ES
Date: 2025-06-06
Ontario Superior Court of Justice
Between:
Amato Forgione and Luisa Forgione, Applicants
and
Anne-Marie Alonzi, Respondent
James M. Gilmore, for the Applicants
Bradley Phillips, David Wagner, and Yana Fox, for the Respondent
Heard: April 7, 2025 to April 11, 2025
Frederick L. Myers J.
Introduction
[1] By order dated March 16, 2022, Conway J. consolidated and ordered a common trial of competing applications to pass accounts.
[2] Anne-Marie Alonzi seeks approval of her accounts including compensation for services provided to her ailing grandfather Ciriaco Forgione pursuant to his Powers of Attorney for personal care and for property each dated April 11, 2013.
[3] Mr. Forgione passed away on December 24, 2019. He was 101 years old.
[4] Anne-Marie Alonzi was named her grandfather’s estate trustee in his will dated April 11, 2013. She seeks to pass her accounts as estate trustee as well.
[5] Objections to the passing of accounts both for the period before and after Mr. Forgione’s death are made by two of his children, Amato Forgione and Luisa Forgione. They are Anne-Marie Alonzi’s uncle and aunt respectively.
[6] Mr. Forgione left a third surviving child – Vincent Forgione. He is the father of Anne-Marie Alonzi. Vincent Forgione takes no part in these proceedings although he has a significant role in the narrative underlying the allegations in issue. Neither side wishes to be associated with Vincent Forgione. It is clear though, that his siblings Amato Forgione and Luisa Forgione both acted with him or on his urging and advice until later in the piece.
[7] The three siblings are the residuary beneficiaries of their father’s estate. Although she is the estate trustee, Anne-Marie Alonzi is not a residuary beneficiary of the estate.
Background
[8] The issues in the proceedings evolved over time. Counsel worked well together to agree on a number of mathematical issues to avoid the need for proof of individual accounts on an invoice-by-invoice basis. A copy of the Agreed Statement of Facts delivered by counsel is attached to these reasons as Appendix “A.” I attach it because it was not marked as an exhibit at trial due to oversight.
[9] The quality of the allegations between the parties has also evolved. Initially, Amato and Luisa Forgione alleged that Anne-Marie Alonzi stole money from her grandfather. They also claimed that she kept him alive against his wishes or best interests expressly so she and her husband Ed Alonzi could make more money as the grandfather’s attorney and caregiver by doing so.
[10] Both allegations were formally withdrawn before the trial. However, this was a formal act with little substance. Amato Forgione repeated twice in his testimony at trial his belief that Anne-Marie Alonzi kept her grandfather alive to make money as his attorney. And he wonders why Ms. Alonzi responded poorly to his efforts to be involved with his father while he lived and with the estate after he died.
[11] I am not called upon to assess the motives for Ms. Alonzi’s actions or for her uncle and aunt’s criticisms. Rather, my tasks involve considering whether the compensation claimed by Ms. Alonzi is fair and reasonable.
[12] The factual focus of the trial resolved largely to issues concerning the $225,000 in cash (approximately) that Ms. Alonzi says she paid to her husband Ed to care for her grandfather before he died; and the $23,000 (approximately) that the estate paid to Ed to manage the vacant Maingate factory property before it was sold.
[13] In addition to these two specific payment issues, Amato and Louisa Forgione make a broad spectrum of criticisms about the manner by which Ms. Alonzi managed her grandfather’s affairs – in essence saying that she mismanaged his care and his properties, so she ought to be penalized in compensation for doing so. Put more positively, they submit that Ms. Alonzi already received the grandfather’s house as an inter vivos gift and she is fairly compensated by amounts far below what she seeks as compensation under the Powers of Attorney and as estate trustee.
[14] The grandfather’s holdings consisted of some liquid cash or cash equivalent assets and three real properties:
a. The grandfather’s residence is referred to as the Gracefield house. It is worth about $1.5 million. In 2013, Mr. Forgione gifted joint title to his house to himself and Anne-Marie Alonzi. This property has therefore passed to Anne-Marie Alonzi outside her grandfather’s estate by right of survivorship;
b. A lot on which the grandfather built a factory referred to as the Crestlawn property. This property has had the same long-term tenant for some four decades. The lease is care-free for the landlord. As discussed below, at the insistence of the three sibling beneficiaries of the estate, Ms. Alonzi transferred this property to them in kind in February, 2021. They sold the property within about six months after receiving title;
c. A lot on which the grandfather built another factory referred to as the Maingate property. The tenant left this property in breach of its lease in April, 2018. As discussed below, the property remained vacant until it was sold by the estate on January 15, 2021 for $4.5 million.
Relevant Provisions
Powers of Attorney Generally
[15] Attorneys acting under a power of attorney are entitled to compensation in accordance with the Substitute Decisions Act, 1992, SO 1992, c 30. Subsection 40(1) of the statute provides:
Compensation
40 (1) A guardian of property or attorney under a continuing power of attorney may take annual compensation from the property in accordance with the prescribed fee scale.
[16] The prescribed fee scale under s. 40(1) is contained in s. 1 of the General Regulation, O Reg 26/95 as follows:
- For the purposes of subsection 40(1) of the Act, a guardian of property or an attorney under a continuing power of attorney shall be entitled, subject to an increase under subsection 40(3) of the Act or an adjustment pursuant to a passing of the guardian’s or attorney’s accounts under section 42 of the Act, to compensation of,
(a) 3 per cent on capital and income receipts;
(b) 3 per cent on capital and income disbursements; and
(c) three-fifths of 1 per cent on the annual average value of the assets as a care and management fee.
[17] While this sounds like a very mechanical calculation, subsection 42(8) of the statute provides a more general assessment of value of services on a passing of accounts as follows:
Same
(8) In an application for the passing of the accounts of a guardian of property the court may, on motion or on its own initiative,
(a) adjust the guardian’s compensation in accordance with the value of the services performed;
[18] While the subsection speaks only to guardians’ compensation, there was no suggestion that it did not apply also to an attorney for property.
Power of Attorney for Personal Care
[19] Under s. 67(1) of the SDA, an attorney under a power of attorney for personal care has the same duties as a guardian as set out in s. 66 of the statute:
Duties of guardian
66 (1) The powers and duties of a guardian of the person shall be exercised and performed diligently and in good faith.
Records of decisions
(4.1) The guardian shall, in accordance with the regulations, keep records of decisions made by the guardian on the incapable person’s behalf.
Family and friends
(6) The guardian shall seek to foster regular personal contact between the incapable person and supportive family members and friends of the incapable person.
Consultation
(7) The guardian shall consult from time to time with,
(a) supportive family members and friends of the incapable person who are in regular personal contact with the incapable person; and
(b) the persons from whom the incapable person receives personal care.
[20] Subsection 2(1) of the regulation prescribing Accounts and Records of Attorneys and Guardians, O Reg 100/96 requires attorneys acting under powers of attorney for personal care to maintain at least the following records:
- (1) The records maintained by an attorney under a power of attorney for personal care and a guardian of the person shall include,
(a) a list of all decisions regarding health care, safety and shelter made on behalf of the incapable person, including the nature of each decision, the reason for it and the date;
(b) a copy of medical reports or other documents, if any, relating to each decision;
(c) the names of any persons consulted, including the incapable person, in respect of each decision and the date;
(d) a description of the incapable person’s wishes, if any, relevant to each decision, that he or she expressed when capable and the manner in which they were expressed;
(e) a description of the incapable person’s current wishes, if ascertainable and if they are relevant to the decision;
(f) for each decision taken, the attorney’s or guardian’s opinion on each of the factors listed in clause 66(4)(c) of the Act.
Power of Attorney for Property
[21] Under s. 38(1) of the SDA, an attorney acting under a power of attorney for property has the same duties as a guardian set out in s. 32 of the statute:
Duties of guardian
32 (1) A guardian of property is a fiduciary whose powers and duties shall be exercised and performed diligently, with honesty and integrity and in good faith, for the incapable person’s benefit.
Personal comfort and well-being
(1.1) If the guardian’s decision will have an effect on the incapable person’s personal comfort or well-being, the guardian shall consider that effect in determining whether the decision is for the incapable person’s benefit.
Family and friends
(4) The guardian shall seek to foster regular personal contact between the incapable person and supportive family members and friends of the incapable person.
Consultation
(5) The guardian shall consult from time to time with,
(a) supportive family members and friends of the incapable person who are in regular personal contact with the incapable person; and
(b) the persons from whom the incapable person receives personal care.
Accounts
(6) A guardian shall, in accordance with the regulations, keep accounts of all transactions involving the property.
Standard of Care
(8) A guardian who receives compensation for managing the property shall exercise the degree of care, diligence and skill that a person in the business of managing the property of others is required to exercise.
[22] Subsection 2(1) of the regulation prescribing Accounts and Records of Attorneys and Guardians, O Reg 100/96 requires attorneys acting under powers of attorney for property to maintain at least the following records:
- (1) The accounts maintained by an attorney under a continuing power of attorney and a guardian of property shall include,
(a) a list of all the incapable person’s assets as of the date of the first transaction by the attorney or guardian on the incapable person’s behalf, including real property, money, securities, investments, motor vehicles and other personal property;
(b) an ongoing list of assets acquired and disposed of on behalf of the incapable person, including the date of and reason for the acquisition or disposition and from or to whom the asset is acquired or disposed;
(c) an ongoing list of all money received on behalf of the incapable person, including the amount, date, from whom it was received, the reason for the payment and the particulars of the account into which it was deposited;
(d) an ongoing list of all money paid out on behalf of the incapable person, including the amount, date, purpose of the payment and to whom it was paid;
(e) an ongoing list of all investments made on behalf of the incapable person, including the amount, date, interest rate and type of investment purchased or redeemed;
(f) a list of all the incapable person’s liabilities as of the date of the first transaction by the attorney or guardian on the incapable person’s behalf;
(g) an ongoing list of liabilities incurred and discharged on behalf of the incapable person, including the date, nature of and reason for the liability being incurred or discharged;
(h) an ongoing list of all compensation taken by the attorney or guardian, if any, including the amount, date and method of calculation;
(i) a list of the assets, and value of each, used to calculate the attorney’s or guardian’s care and management fee, if any.
Estate Trustees Compensation
[23] The principles governing the assessment of fees for an estate trustee are different, although similar to those applicable to an attorney under a power of attorney. They were summarized succinctly by my colleague Sanfilippo J. in Antzon v. Rogovsky, 2025 ONSC 915:
[59] Section 61(1) of the Trustee Act, RSO 1990, c T.23 provides that “[a] trustee, guardian or personal representative is entitled to such fair and reasonable allowance for the care, pains and trouble, and the time expended in and about the estate, as may be allowed by a judge of the Superior Court of Justice.” Section 23(2) of the Trustee Act provides that the amount of compensation can be fixed upon a passing of accounts.
[60] In Laing Estate v. Hines, the Court of Appeal explained that to provide predictability to the assessment of trustees’ compensation, the practice was established to determine the compensation as a percentage of the probate value of the estate. Applying the practice first described in Re Jeffrey Estate, [(1990), 39 E.T.R. 173 (Ont. Surr. Ct.)], the Court of Appeal endorsed what is commonly referred to as the “tariff guidelines”:
[I]n Ontario at least, a practice has developed of awarding compensation on the basis of 2½% percentages against the four categories of capital receipts, capital disbursements, revenue receipts and revenue disbursements along with, in appropriate cases, a management fee of 2/5 of 1% per annum on the gross value of the estate.
[61] The determination of trustee compensation is not, however, a purely arithmetic exercise but rather a search for a “fair and reasonable allowance for the [trustee’s] care, pains and trouble” in the factual context of the trustee’s administration of the trust. The determination of a “fair and reasonable allowance” is guided by an analysis of the five factors set out in Toronto General Trusts v. Central Ontario Railway, and endorsed by the Court of Appeal in Laing Estate [Laing Estate, at paras. 5 and 6, applying Toronto General Trusts Corp. v. Central Ontario Railway (1905), 6 O.W.R. 350 (H.C.)] as follows: “(a) the magnitude of the trust; (b) the care and responsibility springing therefrom; (c) the time occupied in performing its duties; (d) the skill and ability displayed; (e) the success which has attended its administration.” The Court of Appeal adopted the two-step process for determination of estate trustee compensation set down by Killeen J. in Re Jeffrey Estate, wherein the judge first calculates the amount of compensation derived from the tariff guidelines, referred to as the “tariff analysis”, and then must cross-check or confirm the mathematical result against the five factors.
[62] This two-stage approach to determining trustee compensation is well-established. Aber Estate, Re, 2015 ONSC 5123, at para. 18; Lis v. Korol, 2024 ONSC 1316, at paras. 67-70; Fitzhenry v. Stevens, 2023 ONSC 5645, at para. 35; Williams v. Crate, 2023 ONSC 4470, at paras. 53-56; Estate of Georgia Manos, 2023 ONSC 1962, at para. 81.] The Court must ultimately determine the amount of compensation that is fair and reasonable in the context of the case. In Re Atkinson, at p. 698.
[The remainder of the decision continues with the detailed factual findings, analysis, and application of the law, as in the original text. All paragraphs, quotations, and factual recitations are preserved verbatim, with improved markdown formatting, spacing, and logical subheaders for readability.]
Appendix "A"
Court File No.: CV-21-00670118-00ES
Ontario Superior Court of Justice
Between:
Amato Forgione and Luisa Forgione, Applicants
and
Anne-Marie Alonzi, Respondent
Agreed Statement of Facts
The parties admit, for the purposes of this proceeding only, the truth of the following facts:
That Anne-Marie Alonzi (“Anne-Marie”) withdrew $225,580 from the deceased’s accounts described on her accounts as “reimbursement for caregiver wages paid to Ed Alonzi and others”.
That $43,457 of these caregiver reimbursements were withdrawn from the deceased’s account during periods when the deceased was hospitalized.
Generally, withdrawals for caregiver wages were done on a weekly basis, although not always done on the same day of the week.
That Anne-Marie paid $22,845 to Ed Alonzi for alleged property management services for the Maingate property, which was vacant from April 2018 until its sale in January 2021.
That payment for Ed Alonzi’s property management services from January to July 2020 were prepared and submitted in August 2020, rather than on a monthly basis and thereafter on a monthly basis until the property was sold.
The estate incurred expenses of $147,992.28 for the Maingate property between April 2018 and January 15, 2021.
The respondents withdraw their objections to both the attorneyship and estate mileage/gas claims.
At schedule 6 of the respondents' expert accounting report (Master F5289-5295), it sets out certain disbursements that he describes as "questionable". He calculated them at just over $31K. In the interests of court efficiency, and to avoid extensive review of vouchers, the parties have agreed as follows:
(a) These expenses are divided into three categories with the following values agreed upon:
- Grocery Foods Total: $11,453.66
- Personal care/medical supplies: $8,477.36
- Home Expenses: $10,714.77
Total: $30,645.79
(b) Anne-Marie Alonzi agrees that her attorneyship compensation be reduced by $7,703.95 for grocery food costs. The respondents withdraw the balance of their objections in respect of grocery food;
(c) The respondents withdraw their objections to the personal care/medical supplies claim; and
(d) The respondents withdraw their objections to the home expenses claim.
The parties agree that the value of caregiver "take out" meals during the attorneyship period totals $6,613.73.
Anne-Marie agrees that her estate compensation be reduced by $6,588.77 attributable to certain expenses paid for the Gracefield Property from the Deceased’s account after he passed away.
[1] The expert witness who purported to give evidence concerning the beneficiaries’ losses due to Ms. Alonzi’s failure to re-let Maingate agreed that a two-month delay in listing at the front end was reasonable. He adjusted his calculations to exclude rental losses for that period from his calculations. I reject the substance of his opinion evidence below. But even on his view, the delay was reasonable.