ONTARIO
SUPERIOR COURT OF JUSTICE
ESTATES LIST
COURT FILE NO.: 03-62/12
DATE: 20130621
IN THE MATTER OF THE PROPERTY AND PERSONAL CARE OF HELENA REIJERS
BETWEEN:
KARIN BLAIR,
Applicant
– and –
HELENA REIJERS and THE PUBLIC GUARDIAN AND TRUSTEE,
Respondents
– and –
HELENE EDWARDS, NICK TAYLOR,
JOHN VERWAY,
Added Parties
Peter A. Grunwald, Counsel for the Applicant
Mara Farmer, Counsel for the Public Guardian and Trustee
Sender Tator, Counsel for Steve Blair
Harvey Ash, Counsel for Helene Edwards, Nick Taylor and John Verway
Andrew Munro, Counsel on a watching brief for Helena Reijers
HEARD: MAY 13, 2013
endorsement: greer J.:
[1] On January 29, 2013, Madam Justice Harvison Young adjourned this Application to today for a three-hour hearing, peremptory to the Applicant, Karin Blair (“Karin”). Karin was required to provide an affidavit setting out the personal property of Helena Reijers (“Helena”), which is in her possession or has been disposed of by her. Other Orders were made respecting Karin’s visiting with her mother, Helena.
[2] The Added Parties, Helene Edwards (“Helene”), Nick Taylor (“Nick”), and John Verway (“John”), the other children of Helena, now seek the following relief before me on Motion:
(a) With respect to a Guardian of Property:
(i) An Order terminating the Public Guardian and Trustee as statutory guardian of the property of Helena, pursuant to S.16.1 of the Substitute Decisions Act, 1992, S.O. 1992, c.30
(ii) An Order removing Karin as Attorney for the property of Helena under Helena’s 2005 Power of Attorney, and appointing Nick Taylor in her place and stead; or in the alternative
(iii) An Order appointing Legacy Private Trust as Helena’s Guardian of the Property.
(b) An Order removing Karin as the interim Guardian of Personal Care of Helena and appointing Helene in her place to act with John, pursuant to Helena’s 2005 Power of Attorney dated February 28, 2005.
(c) An Order requiring Karin and Steve Blair to return to the guardian of property all items removed by them from Helena’s home and to compensate her for items, which they have disposed of.
(d) An Order that Karin, Steve Blair, and the family of Steve Blair be enjoined from calling or visiting with Helena Reijers, thereby varying the Order of Madam Justice Harvison Young.
The Request for an Adjournment
[3] At the beginning of the Motion, Counsel for Karin moved to adjourn the matter, despite the Order of Madam Justice Harvison Young making today’s appearance peremptory to Karin. Steve Blair is the husband of Karin and was listed in the style of cause as an added party. There are no Court Orders adding him as a party so his counsel was not required on this Motion. His counsel was allowed to leave, the Court at that point in time.
[4] There have been 3 appearances in this Application since June 22, 2012. All family members have been in litigation beginning with the “urgent” Application by Karin to have her mother, Helena, declared incapable of managing her property and incapable of personal care to have Karin appointed as the guardian in both instances. None of the other siblings were served, nor was Helena. The Order appointing Karin in the interim was made by Mr. Justice Whitaker on that date but Karin was ordered to serve her siblings and the PGT.
[5] On September 14, 2012, Madam Justice Stewart made an earlier Order. She ordered that Helene, John and Karin be appointed jointly to act as guardians with respect to Helena’s personal care. There are additional Orders as to how these guardians were to act and what they had access to. She further ordered that the Public Guardian and Trustee (“PGT”) continue to act as guardian of property for Helena. The Application was adjourned to November 30, 2012 for two hours.
[6] Madam Justice Harvison Young on January 29, 2013, heard a Motion for Directions. At this point, Mr. Grunwald had just been retained by Karin and she sought the adjournment. Karin was ordered to produce an Affidavit setting out the whereabouts of the missing articles from Helena’s home. Karin was ordered not to visit her mother except in the presence of Mr. Andrew Munro, Helena’s counsel, who was ordered to be compensated for any time he spent on the matter. The Application was adjourned to today, peremptory to Karin.
[7] There is an extensive background to this litigation, much of it surrounding the treatment of Helena by Karin and her husband, Steve Blair (“Steve”), who was not added as a party in that Order. Helene, John and Nick, Helena’s other three children, were added as parties.
[8] Karin’s counsel wanted another adjournment because Karin had not been served with an Affidavit. Mr. Ash, counsel for Helene, Nick and John said it had been faxed on February 15, 2013, and a hard copy had been mailed on February 21, 2013. She therefore was served under the Rules.
[9] It is Karin’s position that the PGT should not have taken the position that Helena’s home be sold. Karin’s counsel says that Karin did not know about the 2005 Power of Attorney when she made her Application. He says he was away from the office from March 27 to May 1, when he learned of the existence of the Power of Attorney. He said the proceeding is not properly constituted and there is a need for an Order for Directions.
[10] I found it was in Helena’s best interest to proceed at this time, and given that all parties knew that the hearing today was peremptory, I refused to grant the Adjournment and ordered the Motion to proceed for the Reasons as set out in my Endorsement of May 13, 2013 delivered to the parties after the lunch break during the Motion.
The Role of the PGT
[11] Ms. Farmer, counsel for the PGT now knows that the Power of Attorney was in existence in 2005 and pointed this out in a letter to Karin when she filed her Application. She says that the PGT was appointed to act as the Guardian of Helena’s property on April 24, 2012, through the Bridgepoint Hospital, when Helena was hospitalized there. Someone at the Hospital asked to have Helena assessed and the guardianship Order was made. The other parties agree that the PGT never put any of Helena’s children on notice of its appointment. Ms. Farmer says the PGT responded to the personal care issues but not property issues in the June 2012 Order.
[12] The PGT is concerned about how this Motion was structured. She points to the fact that there is no Undertaking by the Legacy Trust, which has been suggested might act as guardian of property for Helena. On the other hand, the name was earlier suggested and a draft Management Plan was presented.
[13] The PGT has now entered the house, which has been empty for many months, and it removed the few articles that were left after Karin took many things for herself. The garage has now been torn down since it had a Work Order against it by the City. The PGT is getting appraisals of the house done to list it for sale.
The Motion
[14] At the opening of the Motion, Mr. Grunwald said that his client, Karin, wanted to address the Court, so he was now getting off the Record as her counsel. A Court Reporter was then ordered but Karin was told that on this Motion no viva voce evidence would be received.
[15] I am satisfied on the facts before me that Karin knew about the 2005 Power of Attorney naming her and John as Attorneys and the 2004 one naming her, John and Arthur Verway as attorneys for property. There was nothing in Karin’s Application about this. In the 2005 Power of Attorney, John and Karin are named as Attorneys, so it is evident that Helena always wanted more than one Attorney acting in connection with her property. It is the other children’s position that Karin, on the Return of this Application, should have that Application struck, given the existence of the 2005 Power of Attorney, and then be removed as an attorney in the 2005. They want her replaced by Nick.
[16] In the alternative, Helene, Nick and John would be prepared to have Legacy Trust act, with Helene not doing the actual investing but making suggestions to Legacy about the investments, since she is in that business. They say Helene would charge no fees for the buying and selling of shares and that would save the estate money.
[17] Helene, John and Nick say that Karin is not an appropriate person to be either an attorney for property or for personal care for Helena. They point to the allegations that Karin and Steve abused Helena when she was in their care. There are pictures taken of Helena severely bruised and with a broken wrist, after it is alleged that one of Karin and Steve pushed Helena down the stairs. These allegations were put into an affidavit sworn to by Helene on January 18, 2013, which was served on Karin, who has not denied them.
[18] In para. 12 of her affidavit, Helene says that the police are investigating the abuse allegations. Secondly, Helene and her brothers obtained copies of Helena’s medical records from St. Michael’s Hospital, which Helene says shows the extent of the abuse. There is an ambulance report of August 20, 2012 that Karin said Helena was “…dragged out the front door of the house, down a couple small steps and left outside.”
[19] On September 5, 2012, Dr. Handford’s note says, “Helena advises Dr. Handford that she had been pushed down the stairs by Steve Blair in February 2012, resulting in her fractured pelvis.”
[20] Helena is presently in a nursing home and there is some urgency to regularize the management of her property. The PGT has paid for one month and Nick has been paying for the ongoing care since September 2012. Helene has been paying for Helena’s clothes. They are concerned about the house, which has been vacant for many months and needs to be listed for sale.
[21] The three children, other than Karin, are all responsible persons financially and able to care for Helena. Helene works for Investors Group Financial Services in their wealth management area. John owns four private companies, one being in real estate and another in communications. Nick owns a municipal parking control company. The PGT has no objections to any of them acting.
[22] The PGT says that there was an assessment done of Helena while at Bridgeport. The PGT has now provided a copy of the one it received so it could open the file. When it did contact the children, the PGT says that no one raised the issue of the Power of Attorney. Helena was then sent by Bridgeport to Rayoak nursing home on a temporary basis.
[23] The PGT was aware that the children did not want the house sold. By January 2013, however, the PGT concluded that a sale must take place and began making those arrangements. By May 2013, the PGT had paid $9,166.50 in Helena’s expenses, including the demolition fee for tearing down the garage. In addition, it claims it is owed $10,932.75 in legal fees. She says that Karin knew that the PGT was the guardian of property when she made her Application.
[24] Karin spoke in Court, saying that she does not want to be removed as one of Helena’s attorneys. She says she has been taking care of Helena since she had a stroke in 2000. She sets out in her Application why she thinks she should be appointed the sole guardian. This is now the second time she has acted on her own in these proceedings. Her former counsel got off the record in November 2012.
[25] Karin has never addressed the issue of Helena’s silverware, which is in her possession. She says Helena gave it to her, but this is denied by Helena, herself, in a recent affidavit sworn to by her and drafted for her by Mr. Munro, who says Helena is capable of instructing him. She says she prepared an Affidavit respecting Helena’s personal items and furniture, but never served and filed it.
Analysis
[26] With respect to Karin’s Application issued June 20, 2012, it is dismissed in its entirety, given that Helena has a valid 2005 Power of Attorney. An Order shall go accordingly. Even had the Application gone ahead, I would not have appointed Karin to act, given the elder abuse allegations, and given her taking of Helena’s household goods and silverware without any authority and without the consent of Helena. Karin and her husband left the house empty and not properly cared for. She would therefore not have been a suitable person in either role. Lastly, Karin made the Application without consulting with any of her siblings or the PGT, which was improper.
[27] At the present time, the PGT is Helena’s statutory guardian pursuant to S.15 of the Substitute Decisions Act, 1992, S.O.1992, c.30 as amended (“the Act”). In her 2004 Power of Attorney, a copy of which is an Exhibit to the Affidavit of Karin sworn in favour of her Application, Helena named Arthur Verway, John and Karin as her Attorneys for Property. It is a continuing Power of Attorney pursuant to S.7(1) of the Act, as is her 2005 Power of Attorney appointing Karin and John as her attorneys for property.
[28] Under S.16.1(1) of the Act, a statutory guardianship of property is terminated if,
(a) the incapable person gave a continuing power of attorney before the certificate of incapacity was issued;
(b) the power of attorney gives the attorney authority over all of the incapable person’s property;
(c) the Public Guardian and Trustee receives,
(i) the original power of attorney, or a copy of it that is authenticated in a manner satisfactory to the Public Guardian and Trustee,
(ii) a written undertaking signed by the attorney to act in accordance with the power of attorney, and
(iii) proof satisfactory to the Public Guardian and Trustee of the identity of the person named as the attorney in the power of attorney.
[29] The 2005 Power of Attorney has not technically been activated since the PGT is acting in its statutory capacity. Rule 1.04 says that the rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. Rule 1.04 (1.1) states that in applying the rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.
[30] The three children of Helena have asked to the Court to assist them to activate the 2005 Power of Attorney and to terminate the PGT’s guardianship. In my Endorsement reserving the Motion reasons to come as a written endorsement, I authorized the PGT to obtain the valuations of the property and circulate copies to all 5 children of Helena. I said that the house shall be listed for sale and at a price agreed upon by a majority of the children, failing which the PGT shall return to Court before me to have the listing price determined.
[31] In my view, I have the power under the Rules, and given my findings for saying that Karin would not be an appropriate person to act as a guardian of property or of personal care of Helena, to order that she be removed as John’s co-attorney for property in the 2005 Power of Attorney. In that regard, I order Karin removed as co-attorney. I order that Nick replace Karin as John’s co-attorney upon him signing a Consent to that effect to be filed with the PGT when the steps are taken to terminate its guardianship. I also order that Karin be removed as a co-trustee in Helena’s Power of Attorney for Personal Care and be replaced by Helene, to act with John. She shall also file a Consent to so act.
[32] The steps, as set out in S.16.1(1) then may be taken by the new attorneys to have the PGT’s statutory guardianship terminated.
[33] Helene, John and Nick are aware that if they wish Legacy Trust to act as a guardian of Helena’s property, then an Application must be filed, complete with a plan of Management, and the PGT must be served with it.
[34] Once these Powers of Attorney are activated, nothing prevents the attorneys for property from hiring the Legacy Trust to act as their agent in keeping the attorneys’ accounts, and to hold the assets in trust as their agent. They cannot, however, delegate their powers to it.
[35] With respect to Karin’s taking of certain personalty owned by Helena, she shall have 10 days from the date of this Order to serve each sibling and the PGT with a copy of the Affidavit she says she signed. It shall then be filed with the Court, together with an Affidavit of Service. In addition, Karin shall have 5 days from the date hereof to deliver Helena’s silverware to John, as Helena’s Attorney.
[36] With respect to Karin’s visiting rights with Helena, I am told that she never contacted Mr Munro to accompany her on any such visit after the January 29, 2013 Order of Madam Justice Harvison Young. I adopt paragraphs 2 – 4 of that Order, which shall remain in place until further Order of this Court. Karin’s husband, Steven Blair shall have no visiting rights with Helena.
Costs
[37] In the earlier Orders made by Madam Justice Stewart and Madam Justice Harvison Young, they ordered that the Costs of the attendances before them were reserved to the Judge hearing the Application. Those Costs and the Costs of the Motion before me and the dismissal of the Application Costs shall be determined by me after Written Submissions are made to me by the parties. Since the Added Parties, Helene, John and Nick, were successful on the appearance before me, they shall prepare a Bill of Costs, which is broken down into three sub-headings for each appearance in Court, Written submissions shall be no longer than 3 pages, plus case law and copies of dockets, to be served and filed with me within 30 days of this Order. The Applicant Karin, on the Application and as a Respondent on the Motion, shall have 10 days thereafter to respond in writing to the submissions, with the Added Parties given 5 days thereafter to Reply, if any. These written submissions shall be sent to me at Osgoode Hall.
Greer J.
Released: June 21, 2013
COURT FILE NO.: 03-62/12
DATE: 20130621
ONTARIO
SUPERIOR COURT OF JUSTICE
ESTATES LIST
IN THE MATTER OF THE PROPERTY AND PERSONAL CARE OF HELENA REIJERS
BETWEEN:
KARIN BLAIR,
Applicant
– and –
HELENA REIJERS and THE PUBLIC GUARDIAN AND TRUSTEE,
Respondents
– and –
HELENE EDWARDS, NICK TAYLOR,
JOHN VERWAY,
Added Parties
ENDORSEMENT
Greer J.
Released: June 21, 2013