ONTARIO
SUPERIOR COURT OF JUSTICE
ESTATES LIST
COURT FILE NO.: 03-34/12
DATE: 20140616
IN THE MATTER OF THE PROPERTY AND CARE OF GLORIA SOBERS
BETWEEN:
MARK SOBERS
Applicant
– and –
ENID AKHTAR, ROSETTA BASIT, SIDNEY KLOTZ, GLORIA SOBERS, GATENAO LOFASO and REAL ESTATE HOMEWARD BROKERAGE
Respondents
Harvey A. Swartz, Counsel for the Applicant
Leroy A. Crosse, Counsel for the Respondents Enid Akhtar and Rosetta Basit
Anna Zachariah, Counsel for Gloria Sobers
Dermot C.G. Moore, Counsel for the Public Guardian and Trustee
HEARD: JUNE 16, 2014
ENDORSEMENT: GREER J.:
1Gloria Sobers is a 76 year old widow, who has been diagnosed with Alzheimer’s. The first such diagnosis was made on August 12, 2010 by Dr. Howard Dombrower, prior to the death of Ms. Sobers' husband. He died on December 20, 2010.
2The second diagnosis was made by Dr. A. Birnbaum on May 16, 2012 at the request of the family doctor, Dr. T. Rose. At that time, Ms. Sobers was accompanied by her friend, Enid Akhtar, who told Dr. Birnbaum that her friend of 25 years had been having problems “for perhaps eight years”. He diagnosed Ms. Sobers as having Alzheimer’s disease.
3A third assessment was made by Dr. Richard J. Stall, on October 24, 2012. Ms. Sobers was extremely delusional at that point, saying that her grandmother managed her affairs, and that she was still attending school, could not name her children and did not understand the nature of a Power of Attorney. At that point, she had been living with Enid for 2 years.
4On January 21, 2013, Justice Pollack ordered a fourth assessment be done but that did not take place.
1. The Powers of Attorney for Property and Personal Care
5Ms. Sobers’ son, Mark Sobers, (“Mark”) was aware of the diagnosis of Dr. Dombrower, and arranged to have Powers of Attorney for Property and Personal Care signed by her on November 25, 2010.
6On June 15, 2011, Ms. Sobers revoked those Powers and named her friend, Rosetta Basit, as her Attorney for Property and Personal Care. Mark opposed this and litigation began.
7Ms. Basit is the sister of Enid Akhtar and has known Ms. Sobers through her. They all attend the same Church.
8Mark wants Ms. Basit removed and she was ordered to Pass her Accounts as Attorney. Ms. Basit’s position and that of Ms. Akhtar, through Affidavits sworn and filed, say that Mark dissipated some of his Mother’s funds for his personal use and created income tax problems for her by redeeming part of a RRIF and transferring it to another carrier. Mark says Ms. Basit has “manipulated” his Mother into getting new Powers of Attorney signed. He says his Mother’s house was sold without any disclosure to the family members, so “they could pay themselves”.
9Mark now asks that the Public Guardian and Trustee (“PGT”) be appointed as interim Guardian of Ms. Sobers.
2. The Accounts of Ms. Basit as Power of Attorney
10Ms. Basit, in her Affidavit, says that Mark appears to have cashed in $144,096 of his Mother’s RRSP (or RIF), as noted in Ms. Sobers’ 2011 Income Tax Return. It shows up on Line 115 as “other pension and superannuation” of $144,096. This triggered significant taxes which remain outstanding. I am told that amount is around $20,276. The Tax Return shows that $70,099 may have been rolled over and re-invested in an RRSP: HOOPP, from which Ms. Sobers receives a monthly pension of $502.98, has stopped paying this amount, because its office had been provided with “multiple powers of attorney documents” and medical evidence that suggests she did not have capacity when these were executed. It wants documents from the PGT as to who has authority to receive the pension.
11Ms. Basit’s Accounts, as filed, cover the period June 11, 2011 to March 27, 2014. They are not in proper form under the Rules and do not have a statement of current assets on hand. The PGT, in its letter of June 12, 2014 to counsel involved, sets out a number of concerns that require proper explanations. They say Ms. Akhtar receives on the average $2,338.00 per month for Ms. Sobers’ shelter and food. They find it “reasonable”.
3. The Accounts of Mark Sobers
12Mark was ordered to provide his Accounts for the period he acted as the Power of Attorney from November 25, 2010 to June 14, 2011. He has not done that. A Statement about funds transferred from the late husband’s Estate to Ms. Sobers, is not an accounting. He remains in breach of that Order and has provided no proper explanation of his administration or what he did with his Mother’s RIF.
4. The role of Ms. Zachariah
13Ms. Zachariah says she represents Ms. Sobers as her counsel. This is in the fall of Mr. Costner resigning as Ms. Sobers’ counsel when he moved by Notice of Motion in December 2013.
14Ms. Zachariah visited with Ms. Sobers at Ms. Akhtar’s home and confirms she is well-fed and taken care of. She says Ms. Sobers likes living there with Enid.
5. The Sale of the House
15Ms. Basit says Ms. Sobers signed the papers for the sale of her house, which took place on September 26, 2011. The sale price on a Bosley listing says it sold for $640,000. There is some issue that it did not sell then and sold later and was involved in litigation. Ms. Akhtar, in her Affidavit sworn May 29, 2012, attached a Trust Ledger Statement of Mr. LoFaso, which shows $629,004.20 being received from the purchasers on Closing. It is dated March 12, 2012. It appears that there were 3 hold-backs of monies due to litigation. It says Ms. Sobers received $486,210.19 on the Closing. No one has produced a Statement of Adjustment or any documentation relating to the $417.58 owed to Mr. Crosse, the $4,000 hold-back and the $15,000 re damages action in that Trust Ledger Statement.
6. Analysis and Conclusions:
16I am satisfied that neither Mark nor Ms. Basit should continue to act under Powers of Attorney for Ms. Sobers. There is a real question on my mind as to whether Ms. Sobers had the capacity in November 2010 or June 2011 to grant a Power of Attorney, given Dr. Dombrower’s assessment. Even if I am wrong in that regard, there is sufficient evidence to say that Mark had not properly acted as an attorney. He thought it would not matter.
17On the other hand, Ms. Sobers’ friends, Ms. Basit and Ms. Akhtar, had their suspicions raised by Mark’s behaviour, and they took care of Ms. Sobers’ property and personal care.
18Under these circumstances, the Public Guardian and Trustee shall be appointed in place of Ms. Basit, who has consented to resign if I think the PGT should be appointed. She shall file a Deed of Resignation.
19Ms. Basit’s Accounts are not in order yet. She shall revise them accordingly and put in a Schedule of Assets on Hand at the date of this Order. She shall serve and file revised Accounts, which shall include a Statement of Compensation. Mark shall prepare his Accounts in proper form and send them to the PGT for review.
20The PGT, as Guardian, shall pay to Ms. Akhtar, the sum of $2,500 per month for Ms. Sobers’ food and board, until further Order of the Court.
21Ms. Sobers’ family members, Mark and his sister Julia (who is not a party) and Ms. Sobers’ friends, Ms. Akhtar and Ms. Basit shall provide the PGT with a Statement on how they see Ms. Sobers’ housing and care should be determined.
22The parties shall prepare Bills of Costs of their attendance before me, no longer than 3 pages in length, plus a Bill of Costs and time dockets of computer entries. These shall be served on each other and sent to me at Osgoode Hall or delivered to Judges’ Administration, 361 University Avenue, Court House, 1st Floor, within 30 days of this Order.
Greer J.
Released: June 16, 2014
TYPED VERSION TO FOLLOW
COURT FILE NO.: 03-34/12
DATE: 20140616
ONTARIO
SUPERIOR COURT OF JUSTICE
ESTATES LIST
IN THE MATTER OF THE PROPERTY AND CARE OF GLORIA SOBERS
BETWEEN:
MARK SOBERS
Applicant
– and –
ENID AKHTAR, ROSETTA BASIT,
SIDNEY KLOTZ, GLORIA SOBERS, GATENAO LOFASO and REAL ESTATE HOMEWARD BROKERAGE
Respondents
ENDORSEMENT
Greer J.
Released: June 16, 2014
TYPED VERSION TO FOLLOW