Court File and Parties

Court of Appeal for Ontario Date: 20200508 Docket: M51316 (C67918)

Before: Miller J.A. (Motions Judge)

Between: George Volk, Responding Party, Applicant (Respondent)

And: Doris Volk, Darlene Mussato, Lisa Volk, Felicia Mussato and Public Guardian and Trustee, Moving Parties, Respondents (Appellants)

Counsel: Jerry W. Switzer, for the moving parties Ellen Ann Brohm, for the responding party George Volk

Heard: May 6, 2020, by combination of Teleconference and Videoconference

Reasons for Decision

Overview

[1] The moving parties bring this motion for a stay of an order for the sale of real property, pending appeal to this court of an order of McCarthy J. dated January 7, 2020. The order under appeal provides a suite of remedies in an application under the Substitute Decisions Act, R.S.O., 1990 c. 30, brought by the respondent, George Volk, primarily against his daughter, Darlene Mussato, and granddaughter Felicia Mussato. For the reasons given below, the motion for a stay is dismissed.

[2] The litigation arises out of a dispute over the alleged mismanagement by the moving parties of the financial affairs of Doris Volk, the wife of George Volk and mother of Darlene Mussato. Doris Volk is incapable of managing her own affairs, and had executed a power of attorney for property and personal care, appointing her daughters Darlene Mussato and Lisa Volk.

[3] The attorneys sold the matrimonial home in which George and Doris Volk resided. The application disputes their authority to have done so, and seeks an accounting of the proceeds of sale and other assets.

[4] Some of the proceeds of sale are alleged to have been used by the moving parties to purchase, improve, and maintain the real property that is the subject of this motion – 4 Rose Cottage Lane, Schomberg – supplying the down payment, the continuing mortgage payments, and other expenses.

[5] Felicia Mussato is the registered owner as to 99% of the property, with Doris Volk the registered owner as to 1%. There is a dispute as to whether Doris Volk intended to gift the down payment and continuing mortgage payments to Felicia.

[6] George Volk and Doris Volk had been living at the property with Darlene Mussato and her partner. The arrangement has not been a happy one.

[7] George Volk brought the present application as a dependant of Doris Volk under the Substitute Decisions Act, R.S.O. 1990, C. 30, seeking, among other things, guardianship for Doris Volk’s financial and personal care, and a passing of accounts. He also sought the sale of the property, which George Volk argues is depleting the resources of Doris Volk to her detriment (and to his, as her dependant) and to the benefit of the moving parties.

[8] George Volk brought a motion for interim relief, in which he sought – among other things – an order that Darlene Mussato and her partner vacate the property, that the property be listed for sale, and that the proceeds of sale be paid to George Volk in trust for Doris Volk. This relief was granted in the order under appeal and the moving parties have appealed to this court. A court ordered timetable remains in place to address the balance of the application.

Analysis

[9] The question whether a stay should be ordered is governed by the three inquiries set out in RJR-Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. The moving party must show that:

a) There is a serious question to be tried;

b) The moving party will suffer irreparable harm if the stay were refused; and

c) The balance of convenience favours granting the stay.

[10] As to the first inquiry, there is little likelihood that the appeal could succeed. The moving parties have not identified a plausible ground of appeal. There is no serious dispute that they were validly served. Furthermore, it was evident from the materials they received, and the correspondence they had with counsel for the respondent, their previous attendances in court, and their answers to undertakings that they knew what was in issue. They chose not to attend. They did not move under Rule 37.14 of the Rules of Civil Procedure to have the order set aside in Superior Court on the basis of “accident, mistake, or insufficient notice”. Nor could they have done so, on the evidence before me. The moving party Felicia Mussato objects that counsel for George Volk “did not advise myself or my mother that it would be in our best interest for us to attend the court on January 7, 2020.” Counsel had no obligation to persuade the moving parties to attend. Their failure to appear does not provide a ground to appeal the order.

[11] The second ground of appeal identified by the moving parties is that it was an error to order the sale of the property at the application of George Volk, when George Volk is not an owner of the property and is not the attorney for property of a registered owner. This cannot succeed. The application was brought under the Substitute Decision Act. The moving parties needed to engage with the powers of the court under the Substitute Decision Act, and explain how those powers were exercised in error. They have not an argument in this regard.

[12] The moving parties have not met their onus on the first branch of RJR-Macdonald.

[13] In my view, that is sufficient to dispose of the motion. I will, however, briefly consider the other factors.

[14] The moving parties do not face irreparable harm from the sale of the property. Neither of them resides at the property, and neither appear to have more than a minimal financial investment in it, if anything at all. There appears to be no concern that the proceeds of sale would be dissipated. The moving parties have not met their onus under the second factor.

[15] With respect to balance of convenience, there is no harm to the moving parties. As noted above, they do not currently reside in the property (albeit because of court order) and have no financial stake in it. There is, however, potential harm to George Volk, who attests to the ongoing depletion of the assets of Doris Volk in maintaining a house that is larger and more expensive than what they require. The balance of convenience favours George Volk.

Disposition

[16] The motion is dismissed. Costs of this motion, and costs of the motion before Paciocco J.A. on April 14, 2020 that were reserved to this motion, are awarded to George Volk in the amount of $15,000 inclusive of disbursements and HST, payable forthwith.

“B.W. Miller J.A.”