Vrantsidis v. Vrantsidis, 2023 ONSC 321

Court File and Parties

Court File No.: CV-21-00666139-00ES Court File No.: CV-22-00692325-00ES Date: 20230123 Superior Court of Justice - Ontario

Re: BILL VRANTSIDIS and MARY VRANTSIDIS in their capacities as co-attorneys for property and personal care of Alpida Vrantsidis, Applicants

And: JOHN VRANTSIDIS in his capacity as co-attorney for property and personal care of Alpida Vrantsidis, ALPIDA VRANTSIDIS, and THE OFFICE OF THE PUBLIC GUARDIAN AND TRUSTEE, Respondents

– AND –

Re: JOHN VRANTSIDIS in his capacity as co-attorney for property and personal care of Alpida Vrantsidis, Applicant

And: BILL VRANTSIDIS and MARY VRANTSIDIS in their capacities as co-attorneys for property and personal care of Alpida Vrantsidis, ALPIDA VRANTSIDIS, and THE OFFICE OF THE PUBLIC GUARDIAN AND TRUSTEE, Respondents

Before: Dietrich J.

Counsel: Robert Levesque, for the Applicants/Respondents Bill Vrantsidis and Mary Vrantsidis John Vrantsidis, self-representing Matthew Urback, s. 3 counsel for the Respondent Alpida Vrantsidis

Heard: January 10, 2023

Endorsement

1The dispute in these matters arises out of the management of the property and personal care of Alpida Vrantsidis (“Mrs. Vrantsidis”). Mrs. Vrantsidis is the 92-year-old mother of the applicants/respondents, Bill Vrantsidis (“Bill”) and Mary Vrantsidis (“Mary”), and the respondent/applicant John Vrantsidis (“John”).

2In a single document, executed by Mrs. Vrantsidis on April 12, 1995, Mrs. Vrantsidis appointed her attorneys for personal care and her attorneys for property (the “1995 Powers of Attorney”). In the first instance, she appointed her husband, Anastasios Vrantsidis (“Mr. Vrantsidis”) as her attorney for property and her attorney for personal care.

3In the event that Mr. Vrantsidis was unable or unwilling to act, Mrs. Vrantsidis appointed Bill, Mary, and John, jointly and severally, on the condition that at least two of them agreed to any decision.

4Mr. Vrantsidis predeceased Mrs. Vrantsidis in 2012. As time went on, Mrs. Vrantsidis experienced some cognitive decline. Bill, Mary, and John did not agree on whether Mrs. Vrantsidis needed to have decisions regarding her property and her personal care made on her behalf. John asserted that Mrs. Vrantsidis was capable of making such decisions for herself. Mary and Bill believed that she was not, and that the alternative attorneys named under the 1995 Powers of Attorney should rely on the 1995 Powers of Attorney to make decisions on her behalf.

5Though John opposed a capacity assessment for Mrs. Vrantsidis, Mrs. Vrantsidis consented to an assessment. Dr. Fiona Menzies, the head geriatrician at St. Joseph’s Health Centre in Toronto, and a qualified capacity assessor, assessed Mrs. Vrantsidis. In her written report, dated October 4, 2022, Dr. Menzies concluded that Mrs. Vrantsidis was incapable of managing her property and making decisions about her personal care. John does not accept Dr. Menzies’ report and submits that another capacity assessment ought to be undertaken in Mrs. Vrantsidis’ native language, which is Greek or, at a minimum, undertaken with the benefit of an interpreter.

6The differences of opinion as between John, on one hand, and Mary and Bill, on the other, have led to practical difficulties in decision making regarding Mrs. Vrantsidis’ finances and her medical care. This conflict is compromising Mrs. Vrantsidis’ care.

7Because John has openly questioned the validity of the 1995 Powers of Attorney, banks and medical professionals have declined to rely on the Powers of Attorney. They seek the comfort of a declaration by the court regarding who has substitute-decision making authority for Mrs. Vrantsidis.

8In their application, among other relief, Bill and Mary seek a declaration that the 1995 Powers of Attorney are operative, Bill, Mary, and John are co-attorneys for property and personal care, and thus Mrs. Vrantsidis’ substitute decision makers, and in the event of a disagreement, two of the co-attorneys are authorized to make a decision. Bill and Mary also seek an order requiring John to account for the $61,000 he received from Mrs. Vrantsidis, which they assert he holds on a resulting trust for her (“Bill and Mary’s Application”).

9John has not formally responded to Bill and Mary’s Application directly, and he seeks an adjournment of it.

10For the reasons that follow, I decline to grant an adjournment of Bill and Mary’s Application. I find that the 1995 Powers of Attorney are valid and operative. Bill, Mary, and John are Mrs. Vrantsidis’ co-attorneys for property and personal care and, therefore, her substitute decision makers. In the event of a disagreement among them, any two of them may make a decision regarding Mrs. Vrantsidis’ property or personal care, as the case may be, on her behalf. John shall account for the $61,000 that he received from Mrs. Vrantsidis.

John’s Request for an Adjournment

11John sought an adjournment of Bill and Mary’s Application to allow him time to properly respond to it and to advance his own application. John submitted that he wished to file a longer affidavit, and to include evidence from a geriatrician who offered a favourable opinion on Mrs. Vrantsidis’ cognitive state. John also sought an order for further production of medical records, which he said would show, among other things, that Mary was trying to move Mrs. Vrantsidis into a nursing home, which he submits is contrary to the way Greek families look after aging relatives. John also submitted that an adjournment would allow for a subsequent capacity assessment to be conducted in Mrs. Vrantsidis’ native language. John offered no evidence in support of these submissions. In addition to his request for an adjournment of Bill and Mary’s Application, John asked the court to make interim orders regarding acupuncture and physiotherapy treatments for Mrs. Vrantsidis.

12John served his own application just six business days prior to this hearing of Bill and Mary’s Application. In his application, among other relief, John seeks an order removing Bill and Mary as co-attorneys under the 1995 Powers of Attorney and appointing himself as guardian of Mrs. Vrantsidis’ property and personal care. In the alternative, he seeks an order setting aside or invalidating the 1995 Powers of Attorney (“John’s Application”). John first advised the court on September 22, 2022 that he was thinking about bringing this application. My endorsement made on that date states that if John brought such an application it would be heard at the same time as Bill and Mary’s Application, and the parties were to agree to a timetable for cross-examinations, if any. My endorsement also stated that the hearing of Bill and Mary’s Application would be limited to certain relief, not including guardianship appointments.

13John consented to the hearing date for both applications over three months ago. Within that time, he could have brought a motion for additional production, or a fresh capacity assessment, but he did not.

14John offered no excuse for his failure to respond directly to Bill and Mary’s Application or to bring John’s Application on a timely basis, which would have allowed Bill and Mary to cross-examine John on his affidavit. John failed to file a Confirmation Form in accordance with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and the Estates List Practice Direction. Normally, this failure would result in John’s Application being struck from the hearing list. Though John is self-representing now, he was represented by counsel at least until December 30, 2022.

15The litigation among Mrs. Vrantsidis’ children, which has spanned more than 18 months, has left Mrs. Vrantsidis without a substitute decision maker with whom third parties will deal. An adjournment is not fair to her and, in my view, not an option. John has had more than three months to bring John’s Application, and even longer to properly respond to Bill and Mary’s Application. Mrs. Vrantsidis is 92 years of age, she has been found by a qualified capacity assessor to be incapable of managing her property and her personal care, and she is not receiving the care she needs because third party care providers will not rely on the 1995 Powers of Attorney, the enforceability of which John questions.

16I decline to grant John’s request for an adjournment. Any further delay would operate to prejudice Mrs. Vrantsidis, who has been found to be incapable of managing her property and personal care, and who is in need of care that is not currently being provided. Section 3 counsel for Mrs. Vrantsidis confirmed that Mrs. Vrantsidis wants this litigation to come to an end. Section 3 counsel also advised the court that while Mrs. Vrantsidis consented to the first capacity assessment, she is not interested in having a second.

Background Facts and Evidence

17Mrs. Vrantsidis owns her residence and a rental property, both located in the City of Toronto. Mrs. Vrantsidis leads a simple life, and her income is more than enough to support herself.

18John has been residing with Mrs. Vrantsidis in her home since 2000. John was a lawyer but is no longer practicing law or otherwise employed.

19Since the early 2000s, Bill has managed the maintenance and financial aspects of the rental property. Since Mr. Vrantsidis’ death, Bill has been a joint owner of Mrs. Vrantsidis’ bank accounts. His evidence is that this joint ownership is for administrative purposes only, and that he has provided an accounting to Mrs. Vrantsidis’ s. 3 counsel. Section 3 counsel confirmed at this hearing that Bill’s accounting is satisfactory.

20In 2018, Bill and Mary perceived that Mrs. Vrantsidis’ cognitive function was in decline. Her driver’s licence was revoked following an incident in which she had become lost and confused while driving. She then began to rely more heavily on her children, especially John, to assist with daily living and arranging medical appointments.

21On August 2, 2018, John took Mrs. Vrantsidis to the TD Bank where she cashed out a maturing GIC, and a $10,000 bank draft was made out to John. On June 13, 2019, a second GIC was cashed out, and a $15,000 bank draft was made out to John.

22Bill’s evidence is that when he discovered the withdrawals, he asked Mrs. Vrantsidis about them, but she could not recall anything about them. He then asked his siblings about them. Eventually, John admitted that he received the drafts and said that they were gifts.

23Bill’s evidence is that, in January 2021, John took possession of Mrs. Vrantsidis’ cheques, and secretly had made an ATM card for her TD account. At this point, Bill transferred $19,000 from a joint account held by Mrs. Vrantsidis and Bill to a separate account that could not be accessed by John.

24John’s evidence is that when he discovered the $19,000 withdrawal and told Mrs. Vrantsidis about it, she was upset about Bill having taken this money; and she decided to make a gift to John consisting of proceeds of bonds worth $36,000. John’s evidence is that Mrs. Vrantsidis gave him this money and told him to “keep it handy.”

25The evidence of Mrs. Vrantsidis’ s. 3 counsel is that Mrs. Vrantsidis does not believe that she made these three gifts of cash totaling $61,000 to John.

26Bill’s evidence is that following the alleged gifts, the relationship between John and his siblings turned sour. John began badmouthing his siblings to his mother and posting signs around her house reinforcing John’s narrative about Bill wrongfully taking money from Mrs. Vrantsidis, and Bill telling the bank that Mrs. Vrantsidis was stupid and senile. Bill’s evidence is that Mrs. Vrantsidis did not seem to pay any attention to these signs, and that once a social worker cautioned the siblings that negative messaging about one another, including the posting of signs around the home, was a form of elder abuse, John stopped posting such signs in Mrs. Vrantsidis’ home. However, Bill’s evidence is that John continued to tell Mrs. Vrantsidis that Bill and Mary were plotting to sell her home and institutionalize her against her will.

27Prior to this litigation, through their lawyer, Bill and Mary sent a letter to John. In that letter, they confirmed that their guiding principles for any care plan for Mrs. Vrantsidis included facilitating her wish to remain in her home so long as she had adequate supports, and it was safe for her to stay there.

28John’s response to their letter was a 30-page letter in which he insisted that Bill and Mary were focused on selling Mrs. Vrantsidis’ properties and placing her in an old age home.

29Bill and Mary’s evidence is that they have not consulted Mrs. Vrantsidis’ doctors about placing her in an old age home or placed her name on a waiting list for such a home.

30In April 2021, John changed the locks on Mrs. Vrantsidis’ home. As a result of this action, Bill and Mary had to seek the assistance of the police in order to visit their mother. John also suggested that Bill and Mary have “multiple overlapping psychiatric disorders” and that they undergo an assessment by a specialist before being permitted private access to their mother. John also refuses to acknowledge that Mrs. Vrantsidis suffers from serious cognitive decline.

31Section 3 counsel twice confirmed that Mrs. Vrantsidis consented to undergo a capacity assessment. However, John took the position that Mrs. Vrantsidis told him that she would not undergo a capacity assessment.

32John insisted that Mrs. Vrantsidis’ “memory medication” be adjusted prior to her capacity assessment. However, Mrs. Vrantsidis’ geriatrician was unequivocal in stating that no such adjustment was necessary. John then reverted to his position that Mrs. Vrantsidis did not consent to being assessed.

33At a case conference on June 22, 2022, relating to Mrs. Vrantsidis’ capacity assessment, Justice Conway ordered the parties to be more cooperative in this matter and not to interfere with the independent conduct of the assessment process.

34In her report, Dr. Menzies, confirmed Mrs. Vrantsidis’ willingness to be assessed, and she conducted the assessment. Dr. Menzies also reported that Mrs. Vrantsidis was not capable of managing her property or capable of managing her personal care. Specifically, Mrs. Vrantsidis was not capable of making decisions regarding her health care, nutrition, shelter, clothing, hygiene or safety.

35Dr. Menzies also addressed the fact that arrangements had been made to have a Greek-speaking interpreter at the assessment, but the interpreter was unable to attend. Dr. Menzies noted that Mrs. Vrantsidis “adamantly stated that she did not want an interpreter that she was fluent in English. She did not at any time during the assessment show any difficulty understanding my questions. I also had no difficulty understanding her answers.” Dr. Menzies further reported that her work as a geriatric medicine physician at St. Joseph’s Health Centre in Toronto is such that the vast majority of her patients do not speak English as their primary language. Accordingly, she stated that she is “very familiar with assessing the need for an interpreter”. Dr. Menzies opined that Mrs. Vrantsidis was able to understand the questions posed to her in English during the capacity assessment.

Bill and Mary’s Application

Issues

36The issues in Bill and Mary’s Application are as follows:

1. Is each of the Power of Attorney for Personal Care and the Continuing Power of Attorney for Property contained in the 1995 Powers of Attorney operative, and does each provide that in the event of a disagreement among the Attorneys, the agreement of two attorneys is effective and binding?
2. Is Mrs. Vrantsidis a person who is incapable of managing her property per s. 6 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”); and is Mrs. Vrantsidis a person who is incapable of making decisions concerning her own health care, nutrition, shelter, clothing, hygiene and safety within the meaning of s. 45 of the SDA?
3. Does John Vrantsidis hold the sum of $61,000 on a resulting trust for Mrs. Vrantsidis?

Enforceability of the Powers of Attorney

37Bill and Mary submit that each of the Power of Attorney for Personal Care and the Continuing Power of Attorney for Property contained in the 1995 Powers of Attorney is operative.

38John argues that the 1995 Powers of Attorney are “patently defective and invalid and are being exploited by Bill and Mary to act as the ‘majority’ which is against Alpida’s best interests.”

39John also argues that the 1995 Powers of Attorney are defective because the document does not show that Mrs. Vrantsidis specifically signed the Power of Attorney for Personal Care, as distinct from signing her name under the section of the document that dealt with the Continuing Power of Attorney for Property. John contends that a power of attorney can only be executed for an exact purpose, and the 1995 Powers of Attorney cannot be considered valid because it is uncertain which Power of Attorney Mrs. Vrantsidis was executing. John cites no legal authority for his position.

40Further, as submitted by Bill and Mary, the SDA specifically provides at s. 7(7.1) that “[T]he continuing power of attorney need not be in any particular form.” There is nothing in the SDA to suggest that a power of attorney for property and a power of attorney for personal care must be separate and cannot be combined into one document. Further, the SDA contains a “substantial compliance” provision at s. 10(4), which would allow the court to validate powers of attorney in the event of an irregular execution. Reliance on this section is not required in this case. I do not accept John’s assertion that the 1995 Powers of Attorney are defective for lack of due execution.

41John also argues that the 1995 Powers of Attorney are invalid because Mrs. Vrantsidis was not aware of the contents when she signed them. John raises this point for the first time in his affidavit sworn December 30, 2022. His only evidence in support of this assertion is an email written by Bill to his siblings in which Bill mistakenly states that Mrs. Vrantsidis has a “medical” power of attorney but not a “legal” one. Bill’s evidence is that he subsequently corrected his misunderstanding and discussed it with his siblings. Even if Bill were mistaken about the Powers of Attorney signed Mrs. Vrantsidis, there is no evidence to suggest that Mrs. Vrantsidis also shared this belief. Mrs. Vrantsidis made a new will in 2014, but she did not sign new powers of attorney. The inference is that Mrs. Vrantsidis recalled having prepared powers of attorney in 1995 and that she did not need to prepare new ones.

42John also asserts that Bill’s email shows that Mrs. Vrantsidis wanted to make a power of attorney until Bill convinced her, or unduly influenced to believe, that she had one. John further asserts that Bill wanted Mrs. Vrantsidis to keep the power of attorney she had so that he could exploit it by relying on the “2 out of 3 voting mechanism.” For this argument to succeed, one would have to conclude that Bill convinced Mrs. Vrantsidis to appoint all three children as her alternative attorneys in the belief that, some 30 years later, Mary would align with Bill on every decision, and they would outvote John. I am not persuaded by this assertion, and I do not find that Bill exerted any undue influence over Mrs. Vrantsidis in the making of her powers of attorney. I acknowledge that Bill referred Mrs. Vrantsidis to the lawyer who advised her on the preparation of the powers of attorney. There is, however, no evidence to show that Bill had any involvement beyond the initial referral.

43I reject John’s arguments that the 1995 Powers of Attorney are defective or that they were procured through undue influence.

44Pursuant to ss. 39 and 68 of the SDA, the court may give directions on any question in connection with the exercise of powers of attorney for property and personal care, and the court may give such directions as it considers to be for the benefit of the person whose property or personal care is being managed by the attorney(s). Accordingly, I declare that the 1995 Powers of Attorney are valid. I further declare that the 1995 Powers of Attorney clearly state that in the event of a disagreement among the three named attorneys, Bill, Mary, and John, the agreement of any two is effective and binding. These declarations are respectful of Mrs. Vrantsidis’ autonomy as they affirm the substitute decision making plan that she put in place.

Mrs. Vrantsidis’ Capacity to Manage her Property and Personal Care

45Given that I have found that the 1995 Powers of Attorney are valid, a determination of Mrs. Vrantsidis’ capacity to manage property should not be necessary. Mrs. Vrantsidis executed a “Continuing” Power of Attorney for Property, which permits her attorneys for property to act, irrespective of her capacity to manage property. However, because John has expressed doubt about Mrs. Vrantsidis’ incapacity to manage her property and personal care, without a declaration, it is likely that the attorneys for property and personal care will continue to have difficulty engaging third parties and instructing them regarding Mrs. Vrantsidis’ property and personal care.

46Section 3 counsel arranged for Dr. Menzies to assess Mrs. Vrantsidis’ capacity to manage her property and make personal care decisions. On September 21, 2022, Dr. Menzies visited Mrs. Vrantsidis at her home for the purposes of the assessment. Mrs. Vrantsidis agreed to be assessed.

47In coming to her conclusion that Mrs. Vrantsidis was not capable of managing her property or personal care, Dr. Menzies relied on the following in respect of Mrs. Vrantsidis’ capacity to manage her property: Mrs. Vrantsidis believed that she was managing her own finances, when she was not; Mrs. Vrantsidis could not estimate the value of her residence or rental property; Mrs. Vrantsidis grossly underestimated the income from her rental property; Mrs. Vrantsidis denied receiving the Canada Pension Plan benefits that she was receiving; Mrs. Vrantsidis could not list any expenses other than taxes and groceries, and she could not estimate the amounts of her expenses; Mrs. Vrantsidis was unable to take steps towards making a monthly budget.

48Regarding Mrs. Vrantsidis’ capacity to manage personal care, Dr. Menzies found that Mrs. Vrantsidis could not describe her current care needs; Mrs. Vrantsidis denied that she received any assistance with cooking, buying groceries, or dressing herself, which was untrue; Mrs. Vrantsidis could not describe any of the 12 medications prescribed for her; and she was unaware of her limitations and could not make a plan to carry out tasks like shopping.

49Bill and Mary accept Dr. Menzies’ findings. John asserts that Mrs. Vrantsidis should undergo another capacity assessment by an assessor who speaks Greek, or with the benefit of an interpreter. John also argues, without the benefit of any expert or other evidence, that there are technical flaws in Dr. Menzies’ report. For example, he states that Dr. Menzies ought to have adjusted Mrs. Vrantsidis’ MMSE (Mini-Mental State Examination) score for language and education, and he states that Dr. Menzies overstates Mrs. Vrantsidis’ weaknesses.

50I decline to order another capacity assessment for Mrs. Vrantsidis. John has had several months to arrange for another capacity assessment for Mrs. Vrantsidis if he thought such an assessment was necessary. He has not done so. Further, based on the submissions of s. 3 counsel, Mrs. Vrantsidis is anxious for this litigation to come to an end, and she is not interested in undergoing another capacity assessment. Mrs. Vrantsidis’ wishes in this regard should be respected. Another capacity assessment would needlessly cause further intrusion into Mrs. Vrantsidis’ privacy.

51Based on Dr. Menzies’ report, I am satisfied that Dr. Menzies properly assessed and documented Mrs. Vrantsidis’ ability to understand the questions put to her in English during the assessment. Mrs. Vrantsidis was able to answer in English such that Dr. Menzies had no difficulty understanding Mrs. Vrantsidis.

52Based on the evidentiary record, I am satisfied that Mrs. Vrantsidis is incapable of managing her property because she is not able to understand information that is relevant to making a decision in the management of her property, or she is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision (per s. 6 of the SDA). I am also satisfied that Mrs. Vrantsidis is not able to understand information that is relevant to making a decision concerning her own health care, nutrition, shelter, clothing, hygiene or safety, or she is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision (per s. 45 of the SDA).

The $61,000 Paid to John

53During the hearing, John admitted that he received the $61,000 sum from his mother. Initially, he stated that it was a gift, but he adduced no documentary or other evidence to support this claim. Subsequently, he submitted that he is using the $61,000 for the benefit of Mrs. Vrantsidis, but he offered no documentary evidence to support this claim. I am satisfied that John understands that he needs to account for these funds.

54In Pecore v. Pecore, 2007 SCC 17, 279 D.L.R. (4th) 513, the Supreme Court of Canada held that where property is transferred gratuitously from one person to another, there is a presumption that the transferee holds the property on a resulting trust for the transferor. The presumption applies equally in the case of a transfer from a parent to an adult child.

55Section 3 counsel submits that Mrs. Vrantsidis told him that she did not believe that she made a gift of $61,000 to John.

56Based on the evidentiary record, I am not satisfied that John has rebutted the presumption of resulting trust. Accordingly, he is required to fully account for the use of these funds for Mrs. Vrantsidis’ benefit, if any, and remit the balance, which he holds on resulting trust for Mrs. Vrantsidis, to her.

John’s Application

57In John’s Application, John seeks the court’s direction, and an order removing Bill and Mary as attorneys for property and personal care. In the alternative, he seeks an order declaring the 1995 Powers of Attorney invalid or setting them aside.

58As noted, on an application for directions, s. 39(4) of the SDA provides the court with the authority to give such directions as it considers to be for the benefit of the person and his or her dependants and consistent with the SDA.

59In Seepa v. Seepa, 2017 ONSC 5368, at para. 49, Myers J. stated: “The court should be very reluctant to consign estates and beneficiaries to intrusive, expansive, expensive, slow, standard form fishing expeditions that do not seem to be planned to achieve the goals of civil justice for the parties.”

60In my view, the same principle ought to apply to disputes regarding powers of attorney. Bill and Mary submit that it is not proportional, efficient or cost effective, and it would not be in Mrs. Vrantsidis’ best interest to permit John to pursue John’s Application for directions given the weakness of his evidence. Bill and Mary seek an order that John’s Application be dismissed as having no merit.

61Based on the record in support of John’s Application, I find that he has not demonstrated that there is any merit to his claims that the 1995 Powers of Attorney are invalid or that Bill and Mary have conducted themselves in a way that warrants their removal as attorneys.

62As detailed above, for the reasons given, I have found that 1995 Powers of Attorney are valid and enforceable.

63I also find that John has not met his onus to show that Bill and Mary have conducted themselves in a way that warrants their removal as attorneys for property or as attorney for personal care. John has not raised any of the strong and compelling evidence of misconduct or neglect that is necessary to remove an attorney for property or personal care. John refers to Bill’s removal of $21,500 from Mrs. Vrantsidis’ account. This withdrawal took place at a time when it appeared to Bill that John was withdrawing significant amounts from Mrs. Vrantsidis’ account. Bill’s evidence is that he made the withdrawal to protect those funds for Mrs. Vrantsidis at a time when he believed she lacked capacity to manage her property. Bill has also accounted to s. 3 counsel regarding these funds, and s. 3 counsel has confirmed Bill’s accounting to be satisfactory. I accept that Bill was acting in Mrs. Vrantsidis’ interest when he took this step.

64Regarding Mary’s conduct, John alleges that Mary is in a conflict of interest because she is receiving financial assistance from Mrs. Vrantsidis in the amount of $150 per month, and those payments are being made to her by Bill. Neither Bill nor Mary disputes the fact that Bill is paying Mary $150 per month from Mrs. Vrantsidis’ property. Bill’s evidence is that, while Mr. Vrantsidis was alive, he and Mrs. Vrantsidis had been providing Mary with this modest stipend because of her low income. Following the death of Mr. Vrantsidis, Bill has continued that payment out of Mrs. Vrantsidis’ property. Section 3 counsel confirmed that Mrs. Vrantsidis is aware of this regular payment to Mary and has confirmed that she would like it to continue. Based on the record, this payment to Mary meets the criteria for a gift of an incapable person’s property by an attorney for property as set out in ss. 37(3)-(4) of the SDA.

65These examples of Bill’s conduct and Mary’s conduct do not rise to the level of the strong and compelling evidence of misconduct or neglect that is necessary to remove an attorney for property or personal care.

66I find that John’s attempts to show Bill and Mary as having neglected Mrs. Vrantsidis’ personal care also fail. Recall that John denied Bill and Mary access to Mrs. Vrantsidis by changing the locks to her home for which they had keys. Bill and Mary were forced to obtain a court order to permit them to visit Mrs. Vrantsidis. Unlike John, who lives with Mrs. Vrantsidis, Bill and Mary spend less time with her and have fewer occasions to assist with her personal care.

67I find that it is more likely than not that John’s Application is designed to delay a resolution of the important matter of substitute decision making for Mrs. Vrantsidis, who in turn would be unduly prejudiced by the delay. Time is of the essence in this matter. John has received $61,000 of Mrs. Vrantsidis’ savings for which he has not accounted. Based on the record, John is also withholding information from Bill and Mary regarding Mrs. Vrantsidis’ recent hospitalizations. Critically, Mrs. Vrantsidis is being denied health care services because health care providers are wary of taking any instruction from attorneys for property and personal care who are pursuing litigation against each other.

68For these reasons, John’s Application is dismissed.

Disposition

69The following orders shall issue:

1. A declaration that the 1995 Powers of Attorney are valid and enforceable.
2. A declaration that Bill, Mary, and John are co-attorneys under the 1995 Powers of Attorney and, as such, are Mrs. Vrantsidis’ designated substitute decision makers regarding her property and her person.
3. A declaration that, in the event of a disagreement between the co-attorneys, a decision of any two of them is binding.
4. John shall account for the $61,000 that he received from Mrs. Vrantsidis on the basis that he holds those funds on a resulting trust for Mrs. Vrantsidis. Subject to his accounting, any amount John continues to hold on resulting trust for Mrs. Vrantsidis shall be returned to her forthwith.
5. John’s Application is dismissed.

Costs

70Counsel to Bill and Mary has submitted a costs outline, as has s. 3 counsel. John has not submitted a costs outline. John submits that offers have been made. Any party seeking costs in these matters may serve and file written costs submissions not exceeding three pages (double spaced), excluding a costs outline and offers to settle, if any). Such submissions shall be served and filed within fourteen days of these reasons. Written reply submissions may be served and filed fourteen days thereafter. Reply submissions shall not exceed two pages (double spaced).

Dietrich J.