



COURT OF APPEAL FOR ONTARIO

CITATION: Tarantino v. Galvano, 2019 ONCA 699

DATE: 20190906

DOCKET: C64144

Strathy C.J.O., MacPherson and Tulloch JJ.A.

BETWEEN

Tecla Tarantino and Rosa
    Pignatelli

Plaintiffs (Appellants)

and

Nellie Galvano also known as Leonarda Galvano

Defendant (Respondent)

Nicholas C. Tibollo, for the appellants

Cameron R.B. Fiske, for the respondent

Heard: September 3, 2019

On appeal from the
    judgment of Justice Freya Kristjanson of the Superior Court of Justice, dated July
    4, 2017, with reasons reported at 2017 ONSC 3535.

REASONS FOR DECISION

[1]

The appellants Tecla Tarantino and Rose Pignatelli are the
    granddaughters of the deceased, Rosa Galvano. The respondent Nellie Galvano is
    the deceaseds daughter. A second daughter, Giuseppina, who died in 2007, was
    Teclas and Roses mother.

[2]

All three of the parties (Tecla, Rosa and Nellie) were beneficiaries
    under Rosas will. Unfortunately, after Rosas death the parties were unable to
    agree on the interpretation of some of the terms of the will.

[3]

At the conclusion of a six-day trial, Kristjanson J. of the Superior
    Court of Justice decided,
inter alia
,
    at paras. 93, 114, 131 and 141
:

·

Nellies conveyance, exercising her power of attorney with
    respondent to Rosas property, of Rosas 80.39 per cent interest in the family
    home to herself was a nullity; and

·

Nellie was entitled to a payment of $273,039.54 from Rosas
    estate for Nellies personal care of Rosa from December 6, 2007 to Rosas death
    on February 20, 2012.

[4]

The appellants appeal from the second of these components of the trial
    judges decision. They do so on three bases.

[5]

First, the appellants contend that the trial judge erred by not deciding
    that the respondent had to pay occupation rent once the respondent, and her son
    Claudio, decided to continue living in the house after Rosas death. Rosas
    will provided that Nellie was entitled to stay in the house for six months
    after her death. The house was then to be sold, with Nellie having a right of
    first offer/first refusal. Nellie and Claudio did not leave the house after six
    months following Rosas death, nor did they put it up for sale. They continued
    to live in it, seven years after Rosas death. The appellants contend that Nellie
    and Claudio should pay occupation rent for this entire time and that the amount
    of occupation rent should be set off against the award in favour of Nellie for
    her long-time personal care of Rosa prior to her death.

[6]

We do not accept this submission. The core of the trial judges
    reasoning on this issue was:

[148] In November, 2014, the granddaughters sought and obtained
    an undertaking that Nellie would not sell the house or deal with the property
    until this litigation was completed. This, in effect, prevented the sale of the
    house. It would be wrong to have Nellie pay rent to now when she was prevented
    from selling the house by the granddaughters themselves. Importantly, Nellie
    was prevented from exercising her right to purchase the house under the Will by
    virtue of the undertaking, and under the Will, Nellie is beneficial owner of
    59.81% of the house. Given that the litigation between the parties left the
    Estate unable to deal with the house during the time period Nellie was in
    occupation, it would be unfair now to charge Nellie for "rent" that
    accrued during that time period and I do not so order. At the same time, given
    that she did have the benefit of occupancy in this period, the expenses incurred
    by Nellie such as property taxes and maintenance expenses will be borne by
    Nellie.

We agree with this reasoning. It reflects the trial
    judges approval of Nellies honest, but mistaken, belief in her legal rights,
    her sacrifice of her own interests for Rosas care, and the complex and
    challenging relationship between Nellie and her nieces both before and after
    Rosas death. We cannot say that the trial judge erred in declining to grant
    the appellants equitable relief.

[7]

Second, the appellants submit that the trial judge erred in her
    calculation of the occupancy costs relating to the house. Nellie and Claudio
    lived in the house with Rosa for many years before her death. During most of
    those years they shared occupancy costs. However, the trial judge determined
    that in the final five years of their shared life together, the occupancy costs
    of the house should be attributed entirely to Rosa because of her desperate
    health situation and the extreme burden this imposed on her caregivers,
    especially Nellie. Referring to an expert report commissioned by the appellants
    (the Mak Report), the trial judge said:

[94] Mak made an occupancy cost assumption, which I reject.
    In Maks evidence, all utilities are subject to an occupancy cost allocation
    (1/3 to Rosa, 2/3 to Nellie and Claudio). I find that Rosa required 24 hour a
    day care. Nellie and Claudio, and later Meth Garcia, lived in the house and
    provided care to Rosa 24 hours a day. In order to be cared for by a caregiver
    team, it was essential that the water tank held hot water, that the lights were
    turned on, and the home was heated. Since the decision was properly made to
    provide care to Rosa in her home, those costs are allocated to Rosa. In each
    case, I accept the expenses commencing after December 6, 2007, to the most recent
    bill following Rosas death on February 20, 2012. Therefore, I accept Mr. Maks
    calculations on Schedules 5 and 5.1 for the period December 17, 2007 to March
    12, 2012, except that no occupancy cost assumption is to be applied, and I find
    all the costs are Rosa-related.

[8]

The appellants say that this analysis and conclusion are wrong because
    there was no good reason for a change in the long-time, and mutually accepted,
    allocation of occupancy costs in the household.

[9]

We are not persuaded by this submission. The reality is that in late
    2007 Rosas health began a catastrophic descent and this descent lasted for
    more than five years, until her death in February 2012. This fundamentally
    changed the dynamic in the household and introduced a very different role for
    Nellie and Claudio as full-time caregivers. Accordingly, we agree with the
    trial judges ultimate conclusion on this issue:

[96] I attribute all of the occupancy costs in Mr. Maks
    schedules to the personal care of Rosa. Having accepted that Rosa's wish was to
    be looked after at home, and having accepted that in her capacity as attorney
    for personal care it was appropriate for Nellie to make arrangements for Rosa
    to be looked after in the home, those expenses are properly attributable to the
    care of Rosa.

[10]

Third,
    the appellants raise a very minor issue, namely, that Rosas estate is owed
    either $5,041 or $4,818 for income that has not been accounted for against
    expenses.

[11]

We
    do not accept this submission. On this minor issue, the trial judge did not fix
    a specific number to the relevant expenses. She said at para. 106: The income
    and expenses require adjustment, pursuant to my findings. The parties may
    request a case conference if they need to clarify the schedules and amounts.
    The appellants have not availed themselves of this route.

[12]

The
    appeal is dismissed. The respondent is entitled to her costs of the appeal
    fixed at $15,000, inclusive of HST and disbursements.

G.R. Strathy C.J.O.

J.C. MacPherson J.A.

M. Tulloch J.A.


