Public Guardian and Trustee v. Dodson, 2015 ONSC 1927
CITATION: Public Guardian and Trustee v. Dodson, 2015 ONSC 1927
COURT FILE NO.: 14 – 50697
DATE: 2015-03-25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
The Public Guardian and Trustee Applicant
– and –
Jennie Dodson Respondent
COUNSEL:
Jael Marques de Sousa, for the Applicant
Jennie Dodson, appearing in person
HEARD: March 18, 2015
THE HONOURABLE MR. JUSTICE G.E. TAYLOR
REASONS FOR JUDGMENT
Introduction
[1] On February 7, 2014, the Public Guardian and Trustee became the Statutory Guardian of Property for Stella Sobies, in accordance with the provisions of the Substitute Decisions Act, 1992. Stella Sobies was born on October 25, 1925. She is 86 years old. She has been diagnosed with schizophrenia since early adulthood. On February 19, 2014, Jennie Dodson submitted an Application to Replace the PG&T as the Statutory Guardian of Property for Stella Sobies. Jennie Dodson is Stella Sobies’ sister. The PG&T reviewed the application of Jennie Dodson and rejected her as a suitable guardian for Stella Sobies. Jennie Dodson has disputed the decision of the PG&T.
[2] This is an application by the PG&T to confirm its refusal to issue a Certificate of Statutory Guardianship for Stella Sobies to Jennie Dodson.
Facts
[3] Stella Sobies was married to Ed Sobies, who passed away on August 7, 2013. Stella Sobies had no children. Jennie Dodson has two children; Bernadette Dodson and Tosia Malone. Louis Zavagno is a nephew of Stella Sobies by marriage.
[4] The last Will and Testament of Ed Sobies is dated August 8, 2006. He also executed a Codicil which is dated August 12, 2010. The Will appoints William Bennie as executor and Louis Zavagno as alternate executor. The Will was prepared by, and executed in the presence of, a lawyer, Harry Zahoruk. As William Bennie predeceased Ed Sobies, Louis Zavagno is acting as executor of the estate. The estate assets are estimated to have a value of approximately $1,500,000.
[5] The Will provides that Stella Sobies is to receive the proceeds of a RRIF and one half of the residue of the estate, to be held in trust for her benefit. The other half of the residue is to be divided between Louis Zavagno and the children of William Bennie. There is a provision in the Will which states:
I have specifically chosen not to name my spouse’s sister, Jennie Dodson, nor my spouse’s niece, Bernadette Dodson, as residual beneficiaries as my enjoyment of life has been diminished by their manipulative ways, interference and negative comments. It is my express wish that I do not wish them to benefit from my estate.
[6] The Will also contains the following clause:
Prior to executing this my Will, I have obtained opinions from Hamilton Health Science (Dr. Christopher J. S. Patterson and from Cheryl L. Allaby with respect to an assessment on the Complex Medical Rehabilitation Unit at Henderson Hospital in January of 2006) and I will arrange an appointment with Dr. Michael Silberfeld to confirm my testamentary capacity to make this Will.
[7] Jennie Dodson has filed a Notice of Objection to the issuance of a certificate of appointment of estate trustee on the basis that:
a) Ed Sobies lacked testamentary capacity;
b) Ed Sobies did not have knowledge of and approve the content of the Will;
c) Ed Sobies was subject to undue influence; and,
d) there are suspicious circumstances in respect of the execution of the Will.
[8] By way of a letter dated August 14, 2014, the PG&T advised Jennie Dodson that her Application to become Statutory Guardian of Property for Stella Sobies had been refused. The letter explained the reasons for the refusal. Jennie Dodson filed a notice disputing the decision of the PG&T, which was received on August 31, 2014.
[9] The PG&T has given three reasons for refusing the Application of Jennie Dodson to become Statutory Guardian of Property for Stella Sobies. Those reasons are:
the PG&T is not satisfied that Jennie Dodson understands the role of a Guardian of Property;
Jennie Dodson has repeatedly made statements or allegations which are not grounded in fact; and
the PG&T does not believe that Jennie Dodson can objectively manage Stella Sobies’ property because she is fixated on attacking the Will of Ed Sobies.
[10] In the Management Plan which accompanied Jennie Dodson’s Application to become Statutory Guardian of Property for Stella Sobies she states her intention to move Stella Sobies from the apartment where she is living into a long-term care facility. The PG & T has advised Jennie Dodson that as Guardian of Property, she does not have the authority to make decisions regarding living arrangements for Stella Sobies. During the course of oral submissions, Jennie Dodson withdrew this aspect of the Management Plan.
[11] Jennie Dodson asserts that she is the only living blood relative of Stella Sobies. Jennie Dodson has two daughters who are nieces of Stella Sobies.
[12] Jennie Dodson has alleged that Stella Sobies lives in unsuitable accommodation which is a fire risk and a safety hazard to herself and other residents living in the same apartment building. This allegation has been investigated by the PG&T and found to be incorrect. An investigator with the PG&T visited Stella Sobies at her apartment on March 12, 2014. He found her to be appropriately dressed in clean clothing and he had no concerns about her personal hygiene. The investigator spoke to the building manager who advised that there is no concern about Stella Sobies’ apartment being a fire risk. The building manager also advised that Jennie Dodson causes problems when she visits and for that reason is no longer allowed into the building.
[13] Jennie Dodson has alleged that Jim MacKenzie, an investigator formerly employed by the PG&T, told her she should be made Guardian of Property for Stella Sobies. In a note of a telephone conversation with Jennie Dodson on April 19, 2006, Jim MacKenzie recorded:
Still going on with fears about her sister being left with nothing… I told her that her best option is to pursue guardianship via the court process…. If her sister is not capable and she will not give or is not capable of giving the caller a power of attorney.
There is no note or other record of Jim MacKenzie ever telling Jennie Dodson that she should apply to be appointed Guardian of Property for Stella Sobies.
[14] Jennie Dodson has alleged that Stella Sobies is afraid of Louis Zavagno. Caroline Lack, a Senior Client Representative with the PG&T was present at Stella Sobies’ apartment when Louis Zavagno attended for a visit. Caroline Lack did not observe any fear on the part of Stella Sobies but rather noted that she appeared to be happy to see Louis Zavagno.
[15] There is a significant conflict between Jennie Dodson and Louis Zavagno and Tosia Malone with respect to the Will of Ed Sobies. Since at least 2006, Jennie Dodson has been alleging that William Bennie, Louis Zavagno and others are attempting to gain control of Ed Sobies’ assets to the prejudice of Stella and Ed Sobies. She has alleged that William Bennie arranged to have the marital property of Stella and Ed Sobies transferred to himself, with the assistance of lawyer Harry Zahoruk. She has alleged that the bank accounts of Stella and Ed Sobies are being depleted and their property is being sold without their knowledge. She has repeatedly referred to Louis Zavagno and William Bennie with the assistance of Harry Zahoruk and others, as committing the “the crime of the century”. None of these allegations have been found by the PG&T to have any merit.
Discussion
[16] As a relative of Stella Sobies, Jennie Dodson is within the category of persons specified by section 17(1) of the Substitute Decisions Act who may apply to replace the PG&T as the Guardian of Property for Stella Sobies. As the PG&T has refused Jennie Dodson’s Application to be appointed the Guardian of Property for Stella Sobies, section 18(3) of the Substitute Decisions Act requires this court to make a determination as to whether Jennie Dodson should replace the PG&T as Guardian of Property for Stella Sobies.
[17] Section 32(1) of the Substitute Decisions Act provides that a guardian of property is a fiduciary. Because of what I find to be Jennie Dodson’s obsession about the execution of Ed Sobies’ Will and the subsequent administration of his estate, I am satisfied that Jennie Dodson would not be able to objectively manage the property of Stella Sobies. Further, I find that Jennie Dodson would not be able to foster regular personal contact between Stella Sobies and Louis Zavagno and Tosia Malone as required by section 32(4) of the Substitute Decisions Act because of her irrational belief that they have stolen or are attempting to steal assets and money from Stella Sobies. For the same reason, I find that Jennie Dodson would not consult with Louis Zavagno and Tosia Malone as required by section 32(5) of the Substitute Decisions Act.
[18] It is incumbent upon Jennie Dodson to satisfy the court that she has the qualities that would enable her to discharge the duties and powers of a guardian of property in order to be appointed to replace the PG&T (Waffle (Public Guardian and Trustee of) v. Duggan, 1998 CanLII 14929 (ON SC), [1998] O.J. No. 3938). Jennie Dodson has failed to satisfy this burden.
Conclusion
[19] For these reasons, there will be an order confirming the refusal of the PG&T to issue a Certificate of Guardianship to Jennie Dodson to be the Statutory Guardian of Property for Stella Sobies.
Costs
[20] If the PG&T is seeking costs of this Application, it shall deliver Written Submissions, not to exceed three pages in length, within two weeks of the release of these Reasons. The Written Submissions should be accompanied by a Costs Outline and a Bill of Costs. Jennie Dodson shall respond with her Written Submissions, not to exceed three pages in length, within four weeks of the release of these Reasons.
“G.E. Taylor”
G.E. Taylor J.
Released: March 25, 2015
CITATION: Public Guardian and Trustee v. Dodson, 2015 ONSC 1927
COURT FILE NO.: 14 – 50697
DATE: 2015-03-25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
The Public Guardian and Trustee Applicant
- and -
Jennie Dodson Respondent
REASONS FOR JUDGMENT
G.E. Taylor J.
Released: March 25, 2015