December 27, 2013

Cariello v. Father Michele Perrella 2013 ONSC 7605, a guardianship proceeding heard by Justice Mesbur, is a poignant read, particularly at this time of year when people oft-express a desire to go “home for the holidays”.

Born in Italy in 1933, Fr. Perrella became an ordained priest in the Roman Catholic Church and he was “incardinated” (incardinated means to transfer to the jurisdiction of a new Bishop) to a Diocese in Italy. When he was in his thirties, Fr. Perrella came to Canada to minister to the Italian-Canadian community and he was “excardinated” from the Italian Diocese and incardinated by the Archdiocese of Toronto. He later became a Canadian citizen, but also retained his Italian citizenship.

Upon his retirement in 2001 after serving parishes in Toronto and Mississauga, Fr. Perrella moved to Australia. Prior to moving, he executed a Consular Declaration stating that it was his intention to move “permanently to Italy with the intention to establish his domicile in the City of Bojano [Italy]…”

During his retirement, Fr. Perrella ministered unofficially in Australia for several years, but remained incardinated to the Archdiocese of Toronto. He travelled extensively during his retirement, on both his Italian and Canadian passports, until November 2010 when he returned to Italy.  At that time, he registered himself with the City of Bojano, Italy.

The precipitating event for the purposes of the application before Justice Mesbur occurred in April 2011.  That month, Fr. Perrella purchased a round-trip ticket for travel from Italy to Toronto. He left Italy in early April, and planned to return to Italy two and a half weeks later.

Unfortunately, his return to Italy was not in the stars.  Fr. Perrella suffered a seizure while in Toronto, and the airline refused to allow him to board the plane for his return flight due to his agitated state.  He mental capacity appeared to decline significantly thereafter and he was hospitalized in Toronto.

One of the respondents (who was an old friend of his and a co-ordinator for retired diocesan priests), found him a room at a Toronto retirement residence following his discharge from hospital and it was there that he remained until the application hearing.

While these events were taking place in Toronto, a court in Italy was dealing with Fr. Perrella’s status: a couple of months after Fr. Perrella’s seizure, an Italian court appointed a  lawyer, Maria Cariello, as Fr. Perrella’s interim guardian of property and person.  Ms. Cariello then sought to try to move Fr. Perrella back to Italy. However, the respondents claimed that Ontario, and not Italy, had jurisdiction over Fr. Perrella.

In the face of the difficulty she encountered, Ms. Cariello then commenced an application in Ontario for an Order that Ontario decline jurisdiction over Fr. Perrella on the grounds that Fr. Perrella’s domicile was Italy.

But where was Fr. Perrella domiciled?  As Justice Mesbur held, everyone has a domicile at birth – a “domicile of origin” –  but a person can change one’s domicile to a “domicile of choice”. A domicile of choice is acquired by a person moving to another jurisdiction and intending to remain there indefinitely. However, a domicile of choice may be lost by “abandonment” – and if that happens, a person’s domicile of origin will revive, unless some other domicile is acquired.

Justice Mesbur found that Fr. Perrella was incapable of changing his domicile since around April 2011. In determining his domicile prior to his loss of capacity, Justice Mesbur found that while Fr. Perrella acquired Canada as his domicile of choice when he was incardinated to the Archidiocese of Toronto, when he left Canada in 2001, he “clearly indicated his intention to leave Canada permanently and re-establish himself elsewhere, namely, repatriating himself to Italy.”

Justice Mesbur concluded that since there was no evidence that he acquired another domicile of choice in any other jurisdiction after he left Canada, Fr. Perrella retained his domicile of origin in Italy. Returning to Canada in April 2011 on a round-trip ticket to Italy did not evidence an intention to change his domicile of choice, particularly when he retained property and family in Italy.

Accordingly, having found that the Italian court had jurisdiction over Fr. Perrella, Justice Mesbur’s final concluding paragraphs express her wish that Fr. Perrella’s interim guardian and the Italian court seek out the assistance of someone in Toronto to assist with determining whether Fr. Perrella can and should move back to Italy. For what it was worth, Justice Mesbur stated that one of her grounds for finding that Italy was Fr. Perrella’s domicile was his statement to a Community Care Access Worker –  even after he had lost capacity –  that he “had to go to his home in Italy tonight, he has tickets…”

Wishing everyone trying to get home a safe journey, wherever that journey leads.