Court File and Parties

Court File No.: 252/09 Released: 20090610

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Re: Deborah Bennett and Alexandra Mercer v. Irene Gotlibowicz, Risha Gotlieb, and the Public Guardian and Trustee

Before: Karakatsanis J.

Counsel: C. Ticker for the Moving Party Irene Gotlibowicz Margaret Rintoul for Risha Gotlieb Jerry Herszkopf for Deborah Bennett, Alexandra Mercer, Responding Parties (Archie Rabinowitz for BMO Trust Co.)

Heard at Toronto: June 3, 2009

ENDORSEMENT

[1] The moving party (respondent in the application) seeks leave to appeal the interlocutory decision of Brown J. dated April 9, 2009 appointing BMO Trust Company as her interim guardian of property pending determination of an application brought by her two daughters, Deborah Bennett and Alexandra Mercer, seeking to be appointed as guardians for Irene Gotlibowicz.

[2] A court ordered assessment dated September 2008 concluded that Irene Gotlibowicz (the mother) was incapable of independently managing her property but that she was capable of instructing counsel and executing a Power of Attorney. In October 2009, the mother executed a Power of Attorney appointing her daughter Risha Gotlieb as attorney for both property and personal care.

[3] It was conceded in the motion that the mother was incapable of managing her own property. Brown J. determined that it was in the mother’s best interest that BMO Trust Company be appointed guardian of property.

[4] While counsel for BMO Trust Company attended to advise the court that it was proceeding with necessary action, I disregarded any of its submissions made with respect to this motion.

[5] The applicant relies upon both Rule 62.02(4) (a) and (b). Under Rule 62.02(4), the applicant must show that either (a) there is a conflicting decision by another judge or court in Ontario or elsewhere and it is desirable that leave to appeal be granted; or (b) there is good reason to doubt the correctness of the decision in question and the proposed appeal involves matters of such importance that leave to appeal should be granted.

[6] The applicant submits both that the decision is contrary to other decisions and that the motions judge erred in failing to consider s. 24(5) of the Substitute Decisions Act, S.O. 1992, c. 30 (SDA); failing to consider whether there was strong or compelling evidence of misconduct or neglect on the part of the Attorney appointed pursuant to Power of Attorney; and considering only the “best interests” of the person found to be incapable.

[7] In appointing a guardian for property under s. 24(5) of the SDA, the court shall consider whether the proposed guardian is the Attorney under a continuing Power of Attorney; the incapable person’s current wishes, and the closeness of the applicant’s relationship to the incapable person. Where there is an ongoing valid Power of Attorney, cases in Ontario and elsewhere have held that the court must first determine whether there is strong evidence of misconduct or neglect on the part of the Attorney before the court should ignore the wishes of the donor (see Glen v. Brennan, [2006] CarswellOnt 93 at paras. 8-10 (S.C.J) with respect to a Power of Attorney for personal care; Teffer v. Schaefers (2008), 93 O.R. (3d) 447 at paras. 21-25 (S.C.J.).

[8] The motions judge in this case stated that in determining the interim arrangements to manage the mother’s property, he was to be guided by the over-arching principle that the arrangements be in the mother’s best interests, and take into account the factors set out in s. 24(5) of the SDA. He noted both that there was a Power of Attorney and that the mother’s wishes were clear that Risha manage her affairs and that an institution not be appointed.

[9] However, the motions judge held that it was not in the best interests of the mother to have Risha act as Attorney or as interim guardian. While he did not specifically refer to the issue of whether there was evidence of misconduct or neglect by the Attorney, the motions judge referred in para. 10 to the fact that there were allegations that one or all of the daughters may have engaged in self-dealing with respect to the mother’s property and may be required to account for their past conduct. He further found in paras. 20-21 that it would be unworkable for Risha to manage the property in the circumstances of this case.

[10] The motions judge did not explicitly make findings of misconduct or neglect on the part of the Attorney in this case and to this extent there is a conflict with the other cases. However, he noted the relevant considerations - including the Power of Attorney, the mother’s wishes, and allegations of misconduct - and found that it was not in the mother’s best interests that Risha manage her property pending the outcome of the proceedings. I am not satisfied in these circumstances that the decision itself conflicts with other decisions or that there is good reason to doubt the correctness of the decision on this basis.

[11] In any event, I am not satisfied that this interim order raises issues that are of importance beyond the interests of the parties and in my opinion it is not desirable that leave be granted.

[12] It was submitted that there was no explicit authority to grant an interim guardian of property in the SDA (other than to the Public Guardian and Trustee in limited urgent circumstances) and that this issue merits appellate attention. The Public Guardian and Trustee was given notice of this motion but chose not to attend. No authority was provided for the proposition that the court does not have authority to make an appointment pending final determination of the application. The court made a finding of incapacity to manage property. Clearly the court has jurisdiction under s. 25(2)(b) to make an order appointing a guardian of property for a limited period as the court considers appropriate and under s. 25 (2)(c) to impose such other conditions as the court considers appropriate. Furthermore, the court has jurisdiction under s.26 to vary the appointment order or substitute another person as guardian of property. I am not satisfied that there is good reason to doubt the jurisdiction of the court to make an order appointing a guardian of property pending the hearing of the application in these circumstances.

[13] Leave to appeal is denied. The moving party shall pay costs of $2,500 to the responding parties.

Karakatsanis J.

Released: June , 2009