COURT FILE NO.: 14-46010
DATE: 2015-07-30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Christine Korczak, Applicant
AND:
Edward Soltyka, Bernard Soltyka,
The Office of the Public Guardian and Trustee, Respondents
BEFORE: The Honourable Mr. Justice D.J. Gordon
COUNSEL:
H.B. Hogan, Counsel for Christine Korczak
A.M. Hill, Counsel for Edward Soltyka
J.J. Bergart, Counse for Bernard Soltyka
HEARD: July 20, 2015
ENDORSEMENT
[1] In this proceeding, questions are raised concerning the execution of several Powers of Attorney, the management of the grantor’s property and with decisions pertaining to his personal care. The underlying theme is the animosity between the grantor’s two children, succinctly described by the grantor as “they both hate each other’s guts”.
MOTION
[2] In her motion, dated May 21, 2015, Christine Korczak (“Christine”) seeks an order as follows:
(a) An Order that Edward Soltyka shall, within 30 days of the date of this order, commence an application to pass his attorney accounts respecting the management of property of Bernard Soltyka for the period beginning July 4, 2013, to the date of the issuing Order;
(b) An Order that the application to pass accounts be made on notice to Bernard Soltyka, Christine Korczak, and the Public Guardian and Trustee;
(c) An Order that the within guardianship proceeding be adjourned to a date following the resolution of the accounting application;
(d) An Order appointing the Royal Bank of Canada Trust Company, or any other suitable entity or individual, as the interim guardian of the property of Bernard Soltyka until further Order of this Court;
(e) A further interim Order directing a timetable for examinations, the filing of court materials, and directing the issues to be tried, if not otherwise agreed to by counsel.
[3] Edward Soltyka (“Edward”) opposes the motion. To the extent he is able to do so, Bernard Soltyka (“Mr. Soltyka”) is not in favour of court intervention.
APPLICATION
[4] Christine commenced this proceeding by notice of application issued March 5, 2014. She requests the following relief:
Property
(a) An Order terminating any Power of Attorney for Property granted by the Respondent Bernard Soltyka (“Bernard”) and appointing the Respondent, Edward Soltyka;
(b) A declaration that Bernard is incapable of managing property and that, as a result, it is necessary for decisions to be made on his behalf by a person who is authorized to do so;
(c) An Order appointing the Applicant, Christine Korczak (the “Applicant”), as the guardian of property for Bernard;
(d) In the alternative, an Order appointing the Bank of Nova Scotia Trust Company as guardian of property for Bernard;
(e) An Order that the Management Plan for the Applicant is approved and that the guardian of property shall act in accordance with the Management Plan;
(f) An Order dispensing with the requirement of the guardian of property to post a bond;
Care of the Person
(g) An Order terminating any Power of Attorney for Personal Care granted by Bernard and appointing the Respondent Edward Soltyka;
(h) A declaration that Bernard is incapable of personal care and specifically in respect of his own health care, nutrition, shelter, clothing, hygiene and safety, and that, as a result, it is necessary for decisions to be made on his behalf by a person who is authorized to do so;
(i) An Order appointing the Applicant as the guardian of personal care of Bernard;
(j) An Order that the Guardianship Plan of the Applicant is approved and that the Guardian of Personal Care shall act in accordance with the Guardianship Plan;
(k) An Order that the Applicant, as guardian of the person for Bernard, may exercise custodial powers over Bernard, determine his living arrangements and provide for his shelter and safety;
(l) An Order that the Applicant, as guardian of the person for Bernard, may, if necessary, act as his litigation guardian, except in respect of litigation that relates to her status or powers as guardian of Bernard’s person and property;
(m) An Order abridging the time prescribed by the Rules of Civil Procedure for service of the within application, if necessary;
(n) An Order validating service of the within application, if necessary;
(o) An Order that the Applicant’s costs of this proceeding shall be paid by the Respondent Edward Soltyka on a full indemnity basis;
(p) Such further and other relief as counsel may request and this Honourable Court may seem just.
[5] The application is opposed in the same manner as the motion.
BACKGROUND
[6] Mr. Soltyka is 84 years of age. He currently resides at Willowgrove Long Term Care Residence in Ancaster. Mr. Soltyka retired from Stelco many years ago. His wife died in 1991. There are two children, Christine and Edward.
[7] On June 30, 2013, Mr. Soltyka suffered a stroke and was hospitalized for two months. He returned to his residence with 24 hour care. In November 2013, Mr. Soltyka moved to Willowgrove. His residence remains vacant.
[8] There are two sets of Powers of Attorney for property and for personal care. On July 4, 2013, Mr. Soltyka appointed Christine as his attorney. On September 16, 2013 he appointed Edward.
[9] A capacity assessment of Mr. Soltyka was conducted by Coco Johnson on January 26, 2014, at the request of Christine. Ms. Johnson concluded that Mr. Soltyka was incapable of managing property and making decisions regarding his personal care.
[10] Christine was involved in managing her father’s property from July 4, 2013 until being notified of the replacement Powers of Attorney on or after September 16, 2013. Edward has been managing his father’s property since that latter date. Christine and Edward each complain about the other’s management of property.
INTERIM ORDERS
[11] The application was first returnable on April 3, 2014. On that date, Broad J. granted an order, on consent, on the following terms:
THIS COURT ORDERS that the within application be and is hereby adjourned sine die returnable on fourteen (14) days’ notice, subject to the terms of this Order.
THIS COURT ORDERS that the investments in the name of Bernard Soltyka at RBC Dominion Securities shall remain invested with that institution for the benefit of Bernard Soltyka, no party to be at liberty to withdraw any of the funds.
THIS COURT ORDERS that, pending further Order of the court, all other bank accounts or financial instruments, if any, held by Bernard Soltyka, by Christine Korczak in care of Bernard Soltyka, jointly between Bernard Soltyka and Edward Soltyka, or jointly between Bernard Soltyka and Christine Korczak are to be depleted only to fund the care and well-being of Bernard Soltyka or the maintenance of expenses associated with real property in his name.
THIS COURT ORDERS that the Applicant shall deliver any original documents of Bernard Soltyka in her possession to Edward Soltyka’s lawyers Evans Sweeny Bordin LLP within fourteen (14) days of the date of this Order.
THIS COURT ORDERS that the Applicant and the Respondent Edward Soltyka shall continue to have the right to visit with Bernard Soltyka at Chartwell Willowgrove Long Term Care Residence without interference from the other.
THIS COURT ORDERS that Edward Soltyka shall serve and file any responding affidavit evidence by May 8, 2014.
THIS COURT ORDERS that the issue of the capacity of Bernard Soltyka and any other issues referenced in the Notice of Application shall be adjourned to the next return date.
THIS COURT ORDERS that the costs of the parties shall be adjourned to be considered at the next appearance.
[12] Pursuant to para. 4 of this order, Christine’s solicitor delivered a number of documents to Edward’s solicitor on April 16, 2014. Edward says there are more documents yet to be produced.
[13] On August 19, 2014, Milanetti J. granted a further order on the following terms:
THIS COURT ORDERS that any supplemental affidavits of any party shall be served and filed no later than September 30, 2014.
THIS COURT ORDERS that cross-examinations shall take place no later than October 30, 2014.
THIS COURT ORDERS that Edward Soltyka’s lawyers shall forthwith advertise for any Wills or Powers of Attorney made by Bernard Soltyka, the disbursement for so doing to be paid from the property of Bernard Soltyka.
THIS COURT ORDERS that the Public Guardian and Trustee be and is hereby directed to appoint counsel pursuant to section 3 of the Substitute Decisions Act effective October 1, 2014 unless counsel for Edward Soltyka advises in writing that Edward Soltyka opposes this appointment. If such is the case, this matter shall return to be argued on October 9, 2014. This motion should be limited to 40 minutes as it is a discreet issue dealing with whether or not counsel should be appointed to represent Bernard Soltyka.
[14] Cross-examinations of Christine and Edward have not yet occurred. Each side blames the other regarding scheduling attempts in the Fall of 2014. Nothing is said as to why such did not take place in 2015. In result, the evidentiary record is incomplete and untested.
MR. SOLTYKA
[15] Pursuant to the order of Milanetti J., The Public Guardian and Trustee appointed Jerome Bergart as section 3 counsel for Mr. Soltyka. Mr. Bergart interviewed Mr. Soltyka on October 20, 2014, December 23, 2014 and June 8, 2015. Mr. Bergart has provided comprehensive reports to counsel and the court.
[16] Mr. Bergart is satisfied that Mr. Soltyka is able to provide instructions. He does not opine on the issue of capacity but suggests there may be an improvement in Mr. Sotyka’s mental status since the assessment in January 2014. Mr. Soltya provided his views and preferences to Mr. Bergart regarding this litigation and related matters.
[17] Mr. Soltyka is upset with the conflict between his children. He says they are perfectly good people but they just hate each other. Mr. Soltyka believes Christine and Edward are arguing over money. He is aware of this litigation. He wants it resolved.
[18] Of some interest, Mr. Soltyka has a good personal relationship with each of his children. He enjoys spending time with them separately.
[19] Mr. Bergart summarized Mr. Soltyka’s views and preferences in his first report dated October 24, 2014, saying:
Mr. Soltyka appears to have cognitive deficits particularly with respect to his memory. He clearly did not appear to me to have a grasp of his finances. He does appear to be very vulnerable in regard to his finances. However, he is clear that his preference is that Edward should control his finances, be his power of attorney for property and be his power of attorney for personal care.
I have reviewed the material filed on behalf of the parties. Some of the “missing monies” and “unusual expenses” give me pause for concern as to whether or not the payments have been made for Mr. Soltyka’s benefits.
It is reasonable to conclude that Mr. Soltyka is vulnerable and could be subject to exploitation, although he appears to be happy in his present situation. I see my role as protecting the vulnerable person, insuring that he is treated by the court with dignity and insuring that he receives proper legal representation. To the extent that I can ascertain his wishes and preferences, I have set these out above. I acknowledge that these may at times appear to conflict.
[20] Mr. Soltyka’s views and preferences have not changed. Although appointment of a corporate guardian was initially acceptable to him as a solution, he rejected that in the last meeting with Mr. Bergart. Mr. Bergart, in his report of June 16, 2015 said:
I spoke with him again about the issue of guardianship of his property and utilizing a third party such as a bank or trust company. His response was, “I don’t like a corporation or a bank being imposed on me. It just should be me.” He then said he wanted Edward appointed, not Christine or a bank or trust company.
[21] While Mr. Soltyka would prefer to return to his residence, manage his own property and make health care decisions, it appears he is resigned to living at Willowgrove, his resident being sold and decisions being made by his attorney. I did, however, raise with counsel as to whether Mr. Soltyka ought be moved to assisted living residence given his present abilities.
MR. SOLTYKA’S FINANCES
[22] Although the evidence was less than clear, it appears Mr. Soltyka’s assets consist of his residence and investments having a total value of approximately $735,000. There is no debt. Mr. Soltyka has fixed income from a Stelco pension, C.P.P. and O.A.S. There is investment income as well. Mr. Soltyka’s ongoing expenses involve the monthly account at Willowgrove and maintaining his residence.
THE DISPUTE
[23] The dispute between Christine and Edward is personal and historical, according to their father. In terms of this litigation, each complains about what the other has done, or not done, as Mr. Soltyka’s attorney.
[24] Edward says Christine has not delivered all of the documents as required by the order granted April 3, 2014. In result, he reports Canada Revenue Agency advising him that the 2013 income tax return was incomplete. Edward also claims Christine has not provided a detailed accounting of her management of Mr. Soltyka’s property. He raises concerns regarding withdrawals from bank accounts and certain expenditures, said to be in excess of $10,000.
[25] Similarly, Christine is concerned with Edward’s management, his failure to file tax returns, not responding to investment recommendations from the bank officials and whether he is using father’s money to finance this litigation. She seeks an accounting from Edward. Promises from him to do so, as set out in correspondence, have not been kept.
[26] Christine and Edward each deny the allegations presented by the other. Little detail is provided in their affidavits.
DISCUSSION AND ANALYSIS
[27] An attorney is a fiduciary who must keep accurate records and provide an accounting when properly called upon to do so. This has long been a principle in our legal system, now codified in section 32, Substitute Decisions Act.
[28] The court may give directions on any questions arising in connection with a power of attorney and may order an attorney to pass his or her accounts, as provided in sections 39 and 42. There is no dispute that Christine has standing to make a request. The remedies available, however, are discretionary.
[29] In my view, the motion, at best, is premature. The evidentiary record is incomplete. Positions are taken based on “concern”. Documentary disclosure remains outstanding. Cross-examinations have not taken place.
[30] Given the capacity assessment in January 2014, there may well be an issue as to the validity of the Powers of Attorney executed on July 4, 2013 and September 16, 2013. The report, however, does not address those time periods.
[31] I am not persuaded on this evidence that Mr. Soltyka remains incapable. A re-assessment is required for such a determination, preferably by a qualified physician. It appears there has been improvement since January 2014.
[32] Nevertheless, it may well be that Mr. Soltyka is unable to manage his property given physical limitations. He appears to accept the need for an attorney. He prefers Edward.
[33] Despite the sibling dispute, I am also not persuaded a corporate guardian is warranted. The expense would be excessive given the straightforward nature of managing the property.
[34] The residence should be sold and monies properly invested. Thereafter, management of property would be minimal. Presumably, income is deposited directly to Mr. Soltyka’s bank account. Expenses can be handled in like manner with automatic debit. Minimal, if any, management expense would result.
[35] Personal care decisions are not complicated. Christine and Edward obviously want the best for their father.
[36] If the sibling dispute is so personal as to be insurmountable, an intermediary could assist, comparable to a parenting co-ordinator in custody cases. Mediation, case management and other proposed solutions, in my view, are not necessary. Christine and Edward need to realize they are, in essence, spending their own money to carry on this dispute having regard to the terms of the father’s Will.
[37] In result, an order is granted on the following terms:
(i) Christine and Edward shall produce to the other, and to Mr. Bergart, copies of all financial banking records pertaining to their involvement in Mr. Soltyka’s financial affairs, including an explanation for each item, within 45 days;
(ii) cross-examinations on the affidavits and financial and banking records shall occur within 90 days;
(iii) any of the parties may apply for further directions; and
(iv) the motion is otherwise dismissed without prejudice to seeking similar relief following completion of the cross-examinations.
[38] If the parties are unable to resolve the issue of costs, counsel shall exchange written submissions within 30 days and immediately thereafter deliver same to my chambers in Cayuga.
D.J. Gordon J.
Date: July 30, 2015