CITATION: Paletta v. Paletta et al., 2026 ONSC 4724
COURT FILE NO.: CV-26-94708
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Renzo Paletta
Applicant
– and –
Diana Paletta, Vincent Paletta, Melinda Paletta, and Adriana Paletta
Respondents
L. Grimaldi for the Applicant Renzo Paletta
J. Figliomeni for the Respondents Adriana and Melinda Paletta
HEARD: August 10, 2026
M. Bordin J.
Overview
[1] There is much that is troubling about the motion before me on this application.
[2] Diana Paletta (“Diana”) is 85 and has six children, including the applicant Renzo Paletta (“Renzo”), the Respondents, Adriana Paletta (“Adrianna”), Melinda Paletta (“Melinda”), and Vincent Paletta (“Vincent”).
[3] The matter before me is a motion brought by Adriana and Melinda within Renzo’s application for the following relief:
a. to dismiss the application;
b. for leave under s. 42(4) of the Substitute Decisions Act, 1992, SO 1992, c 30 (the “SDA”) to bring a motion to compel Renzo to account for his management and administration of Diana’s Property;
c. for an order requiring Renzo to vacate 5080 White Church Road, Mount Hope (the “Property”); and
d. for an order requiring Renzo to produce Six Bears’ corporate records.
[4] The relief sought by Renzo in the application issued April 17, 2026, can be summarized as follows:
a. orders regarding Diana’s power of attorney dated May 12, 2023, appointing Renzo as her power of attorney, including orders for direction;
b. orders seeking to have Diana assessed by a capacity assessor and related relief;
c. requiring Adriana, Melinda and Vincent to deliver all of Diana’s property and assets;
d. preventing Adriana, Melinda and Vincent from removing Diana’s funds and preventing Renzo from seeing or speaking to Diana and making decisions for her pursuant to the powers of attorney.
[5] Neither Diana nor Vincent appeared at the motion.
[6] The other parties have filed and rely on voluminous materials on this motion. The applicant relies on three factums for this one motion. There is no authority in the rules or applicable practice directions to do so. Parties are to file one factum for a motion unless the court grants leave.
[7] Similarly, the respondents have filed and rely on a factum and a reply factum for the motion, although these are not referred to in the respondents’ motion confirmation form as required. The Rules of Civil Procedure, R.R.O. 1990, Reg. 194 do not provide for the filing of a reply factum, except on a motion for leave to appeal to the Court of Appeal: Goberdhan v. Knights of Columbus, 2023 ONCA 269, at para. 4. As noted by Nordheimer J. in Goberdhan¸ “[i]f the main facta leave any doubt on how the parties join issue, that is the … reason we provide for oral argument.” Further, the reply factum was filed late for the hearing of the motion and the two factums exceeded the allowable page limits for a factum set out in the Central South Practice Direction.
[8] The facts which do not seem to be in dispute include:
a. The Property is owned by Six Bears Investments Limited (“Six Bears”). Renzo moved into the Property in October 2022. Diana’s husband (the other parties’ father) died shortly after Renzo moved into the Property. Until March 26, 2026, Diana lived with Renzo at the Property. Since that time, she has lived with Melinda in Burlington. Renzo continues to reside at the Property and does not pay rent.
b. Diana granted Renzo a Continuing Power of Attorney for Property and a Power of Attorney for Personal Care on May 12, 2023. The POA for personal care requires a capacity assessment to be completed.
c. Diana’s primary and corporate wills distribute the residue of her estate between her six children. A codicil in November 2021 changed one of the trustees and included a gift to a niece, but did not change the residual gifts.
d. On June 2, 2026, Goodman J. dismissed Renzo’s request to visit Diana and instead ordered that Section 3 counsel be appointed on limited terms.
e. On June 29, 2026, Section 3 counsel, Mr. Wiseman, met with Diana and reported that Diana:
i. does not wish to visit or speak with Renzo and is afraid of Renzo;
ii. does not wish to submit to a capacity assessment;
iii. does not want Renzo to act as her attorney for property;
iv. wanted Renzo to vacate her property as she wished to sell it.
f. Diana and Renzo are the sole directors and officers of Six Bears. Renzo was appointed director in June 2025;
g. Renzo has reimbursed himself for the cost of a golf cart from funds otherwise available to Diana or the family corporations.
h. Renzo has received $55,000 from Six Bears by way of cheques marked “gift” which appear to have been signed by Diana;
[9] Renzo, Adriana and Vincent differ on virtually everything else.
Position of the Parties
[10] In summary, Adriana and Melinda’s position is that the application should be dismissed because:
a. Section 3 counsel has determined Diana’s wishes and that she does not want to submit to a capacity assessment;
b. Section 3 counsel’s report confirms Diana’s affidavit evidence sworn 6 weeks earlier;
c. There is no longer a legal basis for Renzo to seek a capacity assessment of Diana as the POAs given by Diana to Renzo have been rescinded by her and there is no longer a proceeding under the SDA; and
d. There is no evidence of lack of capacity and Renzo’s evidence is contradictory as to whether Diana lacked capacity.
[11] In summary, Renzo’s position is that:
a. There is a legal foundation for the relief he seeks;
b. The court need not determine whether a capacity assessment is required, only whether the application should be allowed to proceed; and
c. There is sufficient evidence of lack of capacity for the application to proceed;
[12] I address the parties’ position on the additional relief sought by Melinda and Adriana separately below.
The issues with the evidence
[13] In addition to his own affidavits, Renzo has tendered two affidavits from Ms. Macrory who states she is one of Diana’s closest friends and has known Diana for over 50 years. Ms. Macrory stayed with Diana for two weeks in February 2026. Ms. Macrory’s affidavits also contain statements about what Diana said to her.
[14] Andriana and Melinda have filed affidavits.
[15] Diana is not represented. However, through Adriana and Melinda, Diana has filed an extremely brief 7-paragraph affidavit. It was drafted by Adriana and Melinda’s lawyers. Six of the paragraphs are one-line sentences. The other two are one-and-a-half lines. The affidavit is consistent with what Mr. Wiseman reported six weeks later. Diana also states in her affidavit that she wants Renzo to account for everything he has done with her property. The brevity of the affidavit and the faintness of the signature are notable.
[16] The parties’ affidavits contain numerous statements made by persons who have not sworn an affidavit. They also contain numerous statements allegedly made by Diana, who, in her affidavit, does not make the statements attributed to her by others.
[17] Rule 39.01(4) provides that an affidavit for use on a motion may contain statements of the deponent’s information and belief if the source of the information and the fact of the belief are specified in the affidavit. In some instances, this has not been complied with, as the source of the information is not made apparent, nor is the affiant’s belief. More importantly, this is a motion to dismiss an application, in which the affidavits filed on the application are relied upon. Rule 39.04(5) provides that statements of information and belief in affidavits filed on an application are limited to facts which are not contentious. The hearsay evidence in the affidavits concerns facts central to the dispute and which are contentious. Finally, I note that the rules cited are permissive, not mandatory.
[18] Diana’s affidavit comes nowhere near setting out the detailed statements attributed to her in Adriana's affidavits or, to a lesser extent, Melinda’s affidavit. Before the hearsay evidence of Diana can be admitted, it must be determined whether the evidence is necessary (and reliable). Necessity requires a determination of Diana’s ability to testify. Diana and Melinda say she is capable. If so, the necessity requirement is not met and Diana’s hearsay statements are not admissible. For the purposes of this motion, I do not accept the statements attributed to Diana by the other respondents, given that Diana has sworn an affidavit and has not included them in her affidavit.
[19] In addition, the parties have tendered statements from Victor, a forensic accountant, and Melissa for the truth of their contents. There is no explanation for why Victor could not tender an affidavit. Melissa tendered her own affidavit. The evidence of the forensic accountant, tendered for its truth, is inadmissible hearsay, and no basis for its admission has been tendered. I do not give this evidence any consideration or weight.
[20] Adriana and Melinda rely on notes and statements made by Diana’s family doctor, Dr. Samarasingh, to support their position that there are no concerns with Diana’s capacity. This evidence is hearsay as it is relied on for the truth of its contents. A party properly invoking s. 35 of the Evidence Act is entitled to introduce certain limited forms of hearsay in business records: Bruno v. Dacosta, 2020 ONCA 602, para. 61. No s. 35 notice has been served with respect to Dr. Samarasingh’s notes and records. However, given that Renzo, Adriana, and Melinda all rely on the notes, I consider Dr. Samarasingh's notes. However, I do not consider for the truth of their contents any statements allegedly made by Dr. Samarasingh that are not in the notes and records and which are conveyed by the parties in their affidavits.
[21] There is some evidence that corroborates portions of the evidence of Diana, Renzo, Melinda and Adriana.
Competing allegations
[22] Renzo says that there were issues between Adriana, Vincent and Diana. Renzo makes numerous allegations against Vincent. Much of it is hearsay as it is tendered for the truth of its contents. Adriana says that Renzo was the problem.
[23] Adriana questions the validity of the powers of attorney granted to Renzo for reasons set out in her affidavit. Diana did not address this in her affidavit. Adriana considers it suspicious that the powers of attorney were signed about six months after Renzo moved in with Diana and Diana’s husband died. Yet, through counsel, she tenders a revocation of power of attorney dated April 7, 2026, purportedly signed less than a month after Diana moved in with Melinda. The signing of this revocation is not addressed in Diana’s affidavit sworn six weeks later. Based on handwriting samples, Renzo questions whether Diana actually signed the revocation. Further revocations dated July 17, 2026, are attached to Adriana’s July 29, 2026, affidavit, not to an affidavit from Diana.
[24] Renzo says that he cared for Diana day in and day out when he lived with her. He says he is better at caring for her. Ms. Macrory saw Renzo provide care for Diana. For example, she saw him comb Diana’s hair, help her get dressed, help her wash, give her medication, feed her, and put her shoes and coat on, and observed that Diana was comfortable being cared for by Renzo. Diana does not address this in her affidavit.
[25] Melinda and Adriana question the caregiving Renzo provided to Diana. They say Renzo did not properly care for Diana when he lived with her. They say he did not take her to a doctor for two years. Diana does not address this in her affidavit.
[26] Renzo says the home on the Property is better than Melinda’s house, which has too many stairs and lacks a proper bedroom for Diana. Diana does not address this in her affidavit.
[27] Renzo alleges there was conflict between Adriana and Diana in the past. He says there was an incident between Diana and Melinda some months ago. Melinda did not see Diana for about seven months until Diana moved in with her. Renzo says that Adriana had not seen Diana much over the past four years and recounts an incident that precipitated this. Diana does not address this in her affidavit.
[28] Melinda refers to events between Renzo and Diana that appear to be hearsay, as she does not indicate that she witnessed them or how she learned of them. Diana does say in her affidavit that she left the Property because she was upset with Renzo and did not want to continue living with him. However, by the time she swore her affidavit, she had been living with Melinda for two months. Diana’s evidence on this point conflicts with the evidence of Ms. Macrory.
[29] Adriana asserts that Diana is the sole shareholder of Six Bears. Diana does not say this. Diana is a director and would know. Adriana raises issues with transactions on Diana’s bank accounts and money paid to Renzo. Again, none of this is in Diana’s affidavit.
[30] There is evidence that while she lived with Renzo, Diana did not want to see Adriana and Melissa. Since she has lived with Melissa, Diana does not want to see Renzo. Diana, Adriana, Melinda and Vincent attended at Diana’s bank together and froze Diana’s bank accounts. Among other issues, this resulted in the insurance on the Property lapsing.
A proceeding under the SDA
[31] A person is presumed capable: SDA, ss. 2(1), 2(2); Palichuk v Palichuk, 2023 ONCA 116, at para. 47. The onus to prove incapacity rests with the party alleging it.
[32] In part, Renzo proceeds under s. 79 of the Substitute Decisions Act, S.O. 1992, c. 30. For an assessment order to be made, two conditions must be satisfied: (a) a proceeding under the SDA must be pending in which a person’s capacity is in issue; and (b) the court must be satisfied that there are reasonable grounds to believe that the person is incapable: Neill v. Pellolio, 2001 CanLII 6452 (ON CA), at para. 14.
[33] Melinda and Adriana submit that now that the powers of attorney have purportedly been revoked, there is no proceeding under the SDA upon which a capacity assessment could be ordered. I do not agree. The application seeks a declaration that the powers of attorney given to Renzo are Diana’s sole powers of attorney, directions from the court, and a capacity assessment. The validity of the powers of attorney was brought into issue by the application before their purported revocation. Diana’s capacity was also called into question before the powers of attorney were purportedly revoked.
[34] Of course, if Diana is capable, she can revoke the powers of attorney she granted to Renzo. If she is not capable, she cannot revoke the powers of attorney. This begs the question of capacity.
[35] I find that there is an existing proceeding under the SDA.
Reasonable grounds to believe that Diana is incapable
[36] I am not called upon to determine whether there are in fact reasonable grounds to believe that Diana is incapable. This is a motion to dismiss the application for lack of standing, because it is asserted that Section 3 Counsel’s determination is conclusive, and that there is no evidence of lack of capacity. In my view, on this motion I need only determine whether there is no basis for ordering a capacity assessment. If there is, then the motion should be dismissed and the matter should proceed to next steps.
[37] Section 3 Counsel was not asked to make a capacity determination. His letter does not directly address Diana’s capacity. However, he does not indicate that he had any concerns about Diana’s ability to understand him and answer questions or that he had any concerns about Diana’s capacity. However, this does not necessarily engage the same test as required to determine capacity for various purposes under the SDA.
[38] In Abrams v. Abrams, 2008 CanLII 67884, Strathy J. (as he then was) set out a helpful list of factors to consider when deciding whether to order a capacity assessment, which requires a consideration of the public interest and Diana’s interests and the intrusion into her privacy that would result from a capacity assessment including:
a. the purpose of the SDA;
b. the nature and circumstances of the proceedings in which the issue is raised;
c. the nature and quality of the evidence before the court as to the person’s capacity and vulnerability to exploitation;
d. if there has been a previous assessment, the qualifications of the assessor, the comprehensiveness of the report and the conclusions reached and whether there are flaws in 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;
e. whether the assessment will be necessary in order to decide the issue before the court;
f. whether any harm will be done if an assessment does not take place;
g. whether there is any urgency to the assessment; and
h. the wishes of the person sought to be examined, taking into account his or her capacity.
[39] The nature and circumstances of the proceedings are set out above.
[40] Here, unfortunately, there have been no previous assessments. The direct evidence from Diana is extremely limited. Diana’s affidavit suggests capacity, but the circumstances of its drafting and commissioning raise questions. Diana has not appeared on the motion. She has not yet been cross-examined.
[41] There are few medical records. Dr. Samarasingh’s notes and records are equivocal as to capacity. There are notes that suggest no concerns about capacity, and notes that raise questions about capacity. They express concerns about Diana’s ability to manage the activities of daily living, but this is not necessarily evidence of incapacity. The notes are also incomplete.
[42] Section 3 Counsel’s letter is not determinative of the issue, but is evidence as to capacity. It suggests capacity.
[43] The evidence before the court is from two opposing camps. Melinda and Adriana say that Diana is fine and is capable. Melissa states that since Diana has moved in with her, there has been a marked improvement in Diana’s cognition and health. Few examples are given of what Diana does beyond dressing and some washing.
[44] In addition, the fact that Melinda and Adriana, rather than Diana, have sought the additional relief on this motion pertaining to an accounting from Renzo, evicting him from Six Bears’ property, and for production of Six Bears corporate records when Diana is the appropriate person to do so if capable is concerning.
[45] There is evidence of lack of capacity. Ms. Macrory states that in February 2026, she noticed a significant change in Diana from her last visit a year earlier, including Diana's demeanour, functioning, such as speech, her mobility and functional abilities, such as her ability to go to the washroom by herself, and a decline in her health, including her cognitive ability. I note that Ms. Macrory, at this point at least, appears to be an independent person, a longtime friend of Diana with no interest in the proceedings.
[46] Renzo recited a long list of further evidence he submits indicates incapacity. A partial list of that evidence includes:
a. Renzo’s observations of Diana’s conduct;
b. Diana’s signatures on the revocations are initials, whereas her signatures on cheques from a year ago were full signatures;
c. Diana:
i. Does not change clothes or bathe without direction;
ii. Requires assistance with activities of daily living;
iii. Cannot cook for herself or make coffee;
iv. Has trouble hanging up phone calls;
v. Does not drive;
vi. Has trouble with toileting;
vii. Was getting lost within her longtime home;
viii. Tried to climb out of a window;
ix. Was lost outside her home on one occasion;
x. Was disoriented in her own house;
xi. Cannot be left at home alone for safety reasons; and
xii. Is limited in her banking abilities;
d. Ms. Macrory and Renzo observed Diana suffering from delusions.
[47] Much of the above evidence and additional evidence cited by Renzo of incapacity, on its own, is not necessarily evidence of incapacity. But cumulatively, may be evidence of incapacity. I do not say it is determinative of incapacity. But that is not my role on this motion.
[48] To be sure, there are issues with the evidence of Renzo and to a lesser extent, Ms. Macrory. None of the evidence, including the evidence of Adriana and Melinda, has been tested by cross-examination.
[49] The respondents insist that Diana is competent and capable. Yet, other than the extremely brief statements in Diana’s affidavit, none of the allegations made by Adriana and Melinda against Renzo on her behalf are repeated in her affidavit.
[50] While Diana has expressed that she does not want to be subjected to a capacity assessment, in their factum, the respondents concede that in Zagorac v. Zagorac, 2021 ONSC 4448, the court ordered an assessment despite the sworn objection of the person concerned; and in Kischer v. Kischer, 2009 CanLII 495 (ONSC), Strathy J. ordered an assessment over the mother's opposition. Those decisions confirm that a person's wishes are one of several factors to be weighed under s. 79(1) of the SDA. Diana’s wishes are but one of the factors to consider.
[51] Evidence of capacity may be necessary to determine the issues raised regarding the POAs. Melinda and Diana now seek to advance further relief on behalf of Diana. This raises the issue of Diana’s capacity and the exercise of her will.
[52] There is also evidence of, and I have concerns about, Diana’s vulnerability to exploitation. For example, Melinda’s affidavit discloses that there appears to be someone with Diana virtually at all times. Adriana’s affidavit discloses that when Melinda is not home with Diana, Adriana is with her constantly. Although Ms. Macrory spoke regularly with Diana when Diana lived at Renzo’s and has been friends with Diana for over 50 years, she has only been able to speak with Diana once on the phone since Diana moved in with Melinda. Moreover, as noted earlier, for months to years, Diana had little to do with Melinda and Adriana and spent all her time with Renzo. This situation was suddenly reversed a few months ago. I am concerned that Diana is caught between warring factions and that, despite the work of the Section 3 Counsel, her voice is not legitimately being heard.
[53] Balancing the factors to be considered, I conclude that the circumstances and the evidence could lead a court to find reasonable grounds to believe that Diana is incapable. Therefore, the motion to dismiss the application is dismissed. The application should proceed in the ordinary course with cross-examinations to be scheduled prior to hearing so that the issues raised can be determined.
Additional Relief sought by Adriana and Melinda against Renzo
[54] Adriana and Melinda seek leave to bring a motion to compel Renzo to account for his management and administration of Diana’s property, vacate the Property, and for an order requiring Renzo to produce Six Bears’ corporate records. Diana has not sought this relief. No POA has been produced authorizing Adriana and Melinda to seek this relief for Diana.
[55] As summarized in Lewis v. Lewis, 2020 ONCA 56, at para. 4 (citations omitted):
Section 42(1) of the SDA provides that “[t]he court may, on application, order that all or a specified part of the accounts of an attorney or guardian of property be passed”. In turn, s. 42(4) partially sets out who may make an application under s. 42(1). The list includes specified persons and “any other person, with leave of the court”. The jurisprudence suggests that “any other person” will not often be granted leave to bring an application under s. 41(1).
[56] Adriana and Melinda submit they are “any other person” under s. 42(4). The test to be applied in determining whether a person should be granted “leave of the court” under s. 42(4) to make an application under s. 42(1) is that “the court must be convinced that (1) the person or persons seeking leave have a genuine interest in the grantor’s welfare; and, (2) a court hearing the application under s. 42(1) may order the attorney or guardian to pass his or her accounts”: Lewis, at para. 5
[57] Even where a person has standing to apply under s. 42(4), the court retains discretion as to whether to order a passing of accounts under s. 42(1): Lewis, at para. 6. In exercising its discretion, the extent of the attorney’s involvement in the grantor’s financial affairs and whether the applicant has raised a significant concern in respect of the management of the grantor’s affairs to warrant an accounting are among the factors for the court to consider: Lewis, at para. 6.
[58] No doubt Melinda and Adriana have a genuine interest in their mother’s welfare. Certainly the court may order a passing of accounts.
[59] As to “significant concerns” regarding the management of Diana’s affairs, Adriana and Melinda have Diana’s bank statements and point to Renzo reimbursing himself for the purchase of a $4,500 golf cart, which he says was for Diana's use on the large Property. They also point to the cheques to Renzo totalling $55,000 and marked as gifts. Renzo has tendered evidence that he used the funds to pay for work and repairs done at the Property, although there are questions surrounding the timing of the receipts he has produced. I am not persuaded on the evidence that the concerns rise to the level of “significant concern”. In part, this is because Diana has not, in her affidavit, expressed any such concerns.
[60] In response to my inquiries as to why Diana cannot seek an accounting from Renzo if she is capable, Adriana and Melinda say she is old and does not want to be subject to cross-examination. In short, they wish to shelter Diana. And yet Diana swore an affidavit, exposing herself to cross-examination. They also say she is afraid of Renzo. That is not what Diana says in her affidavit. They note that in her affidavit, Diana says she wants Renzo to account for “everything he has done with [her] property”. Diana appears to have no issue stating what she wants if this evidence is accepted. She can also pursue an accounting should she wish.
[61] In my view, none of this is sufficient to grant Adriana and Melinda standing to do what Diana can do if she is competent. Leave is denied.
[62] Adriana and Melinda submit that their requests for Renzo to vacate the Property and produce Six Bears’ corporate records can be brought by them under s. 42(4) of the SDA and sections 39 and 68. I do not agree. In my view, these provisions do not apply to Adriana and Melinda’s request in these circumstances.
[63] Melinda and Adriana assert that the property belongs to Diana, not Six Bears. In my view, they ask the court to ignore both corporate law and the separate identity of corporations, as well as the Land Titles Act, to reach this conclusion. On the evidence before me, I decline to do so. Their best argument is that Renzo repeatedly refers to the Property as Diana’s home in his affidavit, and that Ms. Macrory states that Renzo does not need the Property and that he lived there only to care for Diana, and so Diana is the true owner of the property. No written agreement or evidence from Diana supports this. Six Bears is a distinct entity. Diana is a director and officer. If she is capable, she can take the necessary steps to address this within the corporation.
[64] The same applies to the corporate records. Further, I note that Renzo states the records are with the accounting and banking professionals. If so, as a director and officer, Diana can obtain the records directly.
[65] If Diana is capable, she can seek all the relief that Melinda and Adriana seek. If Diana is not capable, it raises significant concerns about Adriana and Melinda’s conduct.
[66] This is the sixth court appearance for this relatively short-lived application. It is the third appearance which has taken up substantial court time. Today’s appearance was a full-day appearance. The parties are urged to take a sensible approach to the issues and address the substantive issues in a timely and cost-effective manner. Not only is that likely better for Diana and the family relationships involved, but it will also avoid wasting court resources.
[67] If the parties cannot agree on the costs of the motion, the parties may exchange a bill of costs and written submissions consisting of no more than two double-spaced pages, together with any relevant offers to settle. All submissions are to be filed with the court and uploaded to Case Centre. If no submissions or written consent to a reasonable extension are received by the court by September 4, 2026, the matter of costs will be deemed to have been settled.
M. Bordin J.
Released: August 14, 2026
CITATION: Paletta v. Paletta et al., 2026 ONSC 4724
COURT FILE NO.: CV-26-94708
DATE: 2026-08-14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Renzo Paletta
Applicant
– and –
Diana Paletta, Vincent Paletta, Melinda Paletta, and Adriana Paletta
Respondents
REASONS FOR DECISION
M. Bordin J.
Released: August 14, 2026