CITATION: Matotek v. Mann, 2016 ONSC 3454
COURT FILE NO.: CV-14-1981-00
DATE: 2016 05 31
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE PERSON AND PROPERTY OF SLAVA MATOTEK
BETWEEN:
Malvin Matotek, Cynthia Mae Farrell and Zenia Kerswill
Applicants
– and –
Helen Mann, Slava Matotek and the Public Guardian and Trustee
Respondents
Danna Fichtenbaum, Counsel for the Moving Party, Cynthia Mae Farrell
Helen Mann, Self-Represented
Cassandra Ball for Shael B. Eisen, Guardian of Property for Slava Matotek
Saara Chetner for the Public Guardian and Trustee
HEARD: May 24, 2016
ENDORSEMENT
TRIMBLE J.
[1] Two motions are before the Court, one brought by each of two siblings. Cynthia Farrell moves to have her mother, Slava Matotek, declared incompetent to care for herself and her property, and have Ms. Farrell appointed as the sole guardian for property. Helen Mann, Ms. Farrell’s sister, moves for an order that the Public Guardian and Trustee (PGT) be appointed as guardian for Mrs. Matotek’s personal care and property, that the Court order certain independent medical examinations, and that restrictions on her ability to visit her mother be lifted.
[2] The PGT does not oppose Ms. Farrell being appointed as guardian for property or personal care. It does not consent to the PGT’s continuing to act as guardian for property as Ms. Mann requests, or to being appointed guardian for personal care.
[3] Ms. Farrell’s other two siblings (Zenia Kerswill and Malvin Matotek) consent to Ms. Farrell being appointed as guardian for Mrs. Matotek’s personal care and property.
[4] This is the second time that the parties have been before the Court. In two applications brought before me Ms. Farrell and Ms. Mann each sought the order that each be declared their mother’s guardian for property and personal care.
[5] By October, 2013, Mrs. Matotek, who had been in declining mental and physical health suffered a stroke and required long term care. She was in hospital. Ms. Mann preferred to care for her mother at her home. Ms. Farrell and her other two siblings preferred that Mrs. Matotek be placed in an institution. Part of the difference in view arises because Ms. Mann lived (and still lives) near Barrie, and the remaining family members in or near Mississauga. Part of the difference in view arises because of squabbles between Mrs. Matotek’s siblings.
[6] The stalemate between the siblings ended when Ms. Mann, unilaterally acted, taking her mother from hospital against medical advice and without consulting her siblings. She denied access to the other siblings and their families. On January 16, 2014, Gray, J. made an access order, which I continued by endorsement dated June 10, 2014.
[7] At my request, the Public Guardian and Trustee appointed counsel under s. 3 of the Substitute Decisions Act, to act for Mrs. Matotek on the motion.
[8] In advance of the re-scheduled August 20, 2014 return of the Applications, I was advised by all counsel that they had almost settled the Applications and that a date should be arranged to bring the settlement on for approval.
[9] The Applications did not settle. Ms. Mann attempted to resile from the settlement after it was reached. Ms. Farrell and her siblings sought to enforce the settlement before me.
[10] In reasons dated October 9, 2014, I enforced the settlement, with modifications. Pursuant to the settlement, I appointed Ms. Farrell as Mrs. Matotek’s attorney for personal care and solicitor Shael Eisen her attorney for property. Mrs. Matotek has Alzheimer’s disease and is not capable of making her own decisions. At the time, Mrs. Matotek was 83. Today, she is almost 85.
[11] In my view, it is in the best interests of Mrs. Matotek that I appoint Ms. Farrell as Mrs. Matotek’s sole guardian for property and personal care. In so doing, I allow Ms. Farrell’s motion and dismiss Ms. Mann’s. My reasons for making this decision and other ancillary decisions are set out below.
FACTS:
[12] The siblings’ squabbling did not end with the settlement in 2014, as I modified it. The squabbling continued, unabated, up to an including on this motion. Almost nothing is agreed on.
[13] After my October 2014 judgment, Ms. Farrell moved Mrs. Matotek to a nursing home, where she has resided since. Mrs. Matotek’s condominium apartment was sold, and the proceeds invested by Mr. Eisen in a GIC, with interest paid to the benefit of Mrs. Matotek, as I ordered.
[14] According to the plan for care Ms. Farrell submitted with her motion materials, Mrs. Matotek’s income is approximately $19,000 p.a., but her care costs are approximately $38,000 p.a. Therefore, Mrs. Matotek’s capital of approximately $205,000 will be eroded annually in order to provide for her care. Part of the reason for ending Mr. Eisen’s role is to save on expense to Mrs. Matotek’s estate. Subject to the supervisory jurisdiction of the Court, Mr. Eisen is entitled to be paid for his services. He has a separate motion to approve his fees. I note that the PGT, if it were appointed, would charge fees according to its schedule of fees which include a 3% fee on all transactions. Mrs. Farrell undertakes that she will take no fee for her services as guardian.
Facts, according to Mrs. Farrell:
[15] According to Ms. Farrell, Mrs. Matotek is well cared for. Her food is good. Her room is clean. She is bathed weekly (sometimes twice a week) and her clothes kept clean. She participates in lots of activities. Family visits frequently. Her family doctor of long standing visits weekly, or more frequently as necessary. He monitors her health and medications. She receives dental care and is taken to see specialists when required or when recommended by Mrs. Matotek’s GP.
[16] All is not perfect. Mrs. Matotek’s possessions, especially clothing, go missing from time to time. Clothing gets lost: the name tags fall out after repeated washings. While Mrs. Matotek is bathed weekly, sometimes they have to request an additional bath, or that they wash her hair between baths. These issues are minor according to Ms. Farrell.
[17] Mrs. Matotek’s health is declining, befitting her age. She now requires a walker and is becoming less active as she ages. She has developed diabetes, which is controlled by diet. Her weight has increased. Her doctor says that all of this is to be expected given her health and medication.
[18] Ms. Mann has caused problems at the nursing home. Consequently, the nursing home has placed restrictions and conditions on her access to Mrs. Matotek. She can only visit her mother in the cafeteria. She is not allowed to take her mother from the building or into her room. The nursing home is aware that Ms. Mann discharged her mother from the hospital in October 2013, against medical advice, and without the consent of the siblings. She brings her dog to the nursing home and does not meet the home’s criteria and conditions for doing so. She has photographed her mother in her underwear (for the purposes of this motion). She sends unending emails to the nursing home requesting information and complaining. The nursing home has demanded that all contact about Mrs. Matotek go through Ms. Farrell.
[19] Ms. Farrell, as I ordered in October, 2014, reports monthly to her siblings about Mrs. Matotek’s health, or more frequently if there is an emergency.
Facts according to Ms. Mann:
[20] Ms. Mann could not disagree more vehemently with her sister. She says that Mrs. Matotek does not receive adequate care. She is in her room 21 hours a day, and goes “months on end” without going outside. The food is not geared to a diabetic diet. She has gained 50 pounds since entering the nursing home. The home has no one on staff specialized in the care of dementia patients. Mrs. Matotek’s medication has been changed 21 times in two years. Implicitly, Ms. Mann thinks this is without reason. Mrs. Matotek is not getting proper medical treatment. Her cataracts and dental condition were not treated in a timely way. The cataract treatment was delayed 8 months. She is not getting exercise. Her drug changes make her dizzy such that she falls and does not want to get out of bed. Her clothes and bed linens smell of urine. She is not bathed properly. As Ms. Mann says “My mother desperately requires a lifestyle change, instead of being bedridden.”
[21] Ms. Mann’s issues extend, still, to Ms. Farrell. Ms. Farrell does not report regularly, and when she reports, it is deficient. Ms. Farrell has instructed the home not to communicate with Ms. Mann, and engineered the limitations the home has placed on her visits. She arranges biased assessments of doctors, and gives them incorrect factual information to obtain the opinion Ms. Farrell desires, which supports Ms. Farrell’s actions and decisions. Ms. Mann says that over $3,000 of clothes and other items that she brought for Mrs. Matotek have disappeared. The inference is that Ms. Farrell or her siblings have removed this material because it was from Ms. Mann. She also accuses Ms. Farrell of using Mrs. Matotek’s finances for her personal gain.
[22] Ms. Mann wants to know her mother’s “prognosis”. She did not define what prognosis she wishes to have. She said that she does not know how long her mother has to live and is not being told.
DECISION:
[23] Ms. Mann’s request to have the PGT act as Mrs. Matotek’s guardian for property and personal care is dismissed. Ms. Farrell shall be the guardian for Mrs. Matotek’s property and personal care. There are several reasons for this.
[24] First, the PGT cannot be appointed. Section 24(2.1) of the Substitute Decisions Act (re guardians of property) and section 57(2.1) (re guardians for personal care) are mandatory. They say that the Court “shall not” appoint the PGT as guardian unless three conditions are met: a) there is an application proposing the PGT act, b) the PGT agrees in writing, and c) there is no other suitable person who is available and willing to be appointed.
[25] Ms. Mann fails to meet two of these tests. The PGT does not consent to act. That, alone, is fatal to Ms. Mann’s motion. Further, there is someone who is suitable, and who is available and willing to act as guardian - Ms. Farrell. She is clearly suitable to serve as guardian for personal property and personal care. She is a nurse who works at Credit Valley Hospital. She lives and works near to Mrs. Matotek’s nursing home. She has volunteered to act. She has filed a reasonable guardianship plan. She has taken care of Mrs. Matotek well, thus far.
[26] Second, Ms. Mann’s concerns are without foundation in evidence before me. She makes statements of fact, without support. She attacks and impugns Mrs. Matotek’s family doctor and other treating physicians, not because of any contrary option, but based on Ms. Mann’s own internet research and her own opinions. She alleges that Ms. Farrell is not looking after Mrs. Matotek’s health notwithstanding the treatment and medical supervision that she is being given, but based solely on her own internet research and her own opinions.
[27] Ms. Mann does not appear to believe that Mrs. Matotek is incompetent, or if so, she thinks that Mrs. Matotek is more competent than her doctors, assessors and other family members think. She questions the assessor’s opinion, without a countervailing opinion. She questions the psychiatrist’s opinion and says that he is not qualified as a “geriatric psychiatrist” without a countervailing opinion. She says that her mother is over-medicated, takes the wrong medication, and does not receive adequate medical attention, all without a countervailing opinion.
[28] Third, as in October, 2014, most of Ms. Mann’s complaints are really personal in nature, aimed at her siblings (predominantly Ms. Farrell) in their treatment of her. For example, she believes that Ms. Farrell is the author of the nursing home’s restrictions on Ms. Mann’s visits. She refuses to accept that the nursing home imposed restrictions based on its own assessment. Further, Ms. Mann does not accept that anyone can care for Mrs. Matotek as she can. Ms. Mann believes that oOpinions contrary her own are engineered by Ms. Farrell. Ms. Mann demands a level of detail in reporting that is unreasonable, and when it is not met, she uses this as a basis of complaint against the nursing home and Ms. Farrell. She says that Ms. Farrell and her siblings have taken money from their mother. I have no doubt that, unless Ms. Mann is made guardian for her mother’s personal care and property, she will continue to make unreasonable demands of, disagree with, and attempt to interfere with the decisions of anyone else appointed as guardian. This is unfortunate, but unavoidable.
[29] It is appropriate and in Ms. Matotek’s best interest that Ms. Farrell act as guardian for property and personal care. Mr. Eisen is discharged from being Mrs. Matotek’s attorney as I ordered in my reasons of October 9, 201.
[30] Further, Ms. Mann’s motion to appoint the PGT is res judicata. That was an option available in October 2014 which she did not pursue. In any event, her motion to appoint the PGT as guardian for personal care is a collateral attack on my order from October, 2014. She did not appeal from that order.
[31] Ms. Mann asks that I order Ms. Farrell to post a bond for the full amount of the $205,000 value of Mrs. Matotek’s estate. She gives specious bases for this such as her accusation that Ms. Farrell has stolen from Mrs. Matotek in the past, and her unsupported claims that Ms. Farrell is insolvent and “may have a criminal record”.
[32] Ms. Mann asks that I order assessments of Mrs. Matotek by a geriatric psychiatrist, dentist, ophthalmologist and general practitioner. She has agreed to pay for the costs. She wants the order to provide how the examination should be done, what records the experts must review, and to whom the expert must speak in conducting his/her investigation.
[33] Ms. Mann accuses Ms. Farrell of controlling other medical examinations by controlling the history she gives to the doctor, and says, therefore, that the opinions are biased. By her request of the terms she wants imposed on the Court appointed experts, however, Ms. Mann wishes to control the information flow to those experts. She cannot provide me with authority for such an order. While I may have authority under s. 105 of the Courts of Justice Act to order an examination, Ms. Mann has not established the necessity of such examinations or the restrictions on their inquiries which she demands.
[34] Finally, Ms. Mann says I should order that the restrictions on her visits to her mother end. I cannot agree to this. This is a decision affecting the nursing home. It was not served with the motion record.
CONCLUSION:
[35] I appoint Ms. Farrell as the guardian for Mrs. Matotek’s property. She is already the attorney her personal care pursuant to the October 2014 settlement, as I amended it. Effective immediately, Ms. Farrell is the guardian for Mrs. Matotek’s personal care. Ms. Farrell’s reporting requirements as attorney for personal care as set out in para. 18 of my October 9 2014 reasons continue to apply in her role as guardian for Mrs. Matotek’s personal care. Ms. Farrell’s monthly reporting shall include a report on income and expenditure on Mrs. Matotek’s behalf. Quarterly, Ms. Farrell will also report to her siblings concerning the status of bank accounts and assets.
COSTS:
[36] Ms. Farrell is successful in this motion, she is presumptively entitled to her costs. I will receive costs submissions in writing addressing who should pay whom costs, and in what amount. Submissions shall not to exceed three double spaced pages (excluding bills of costs and attachments). Ms. Farrell’s submissions shall be served and filed by June 10, 2016. Ms. Mann shall serve and file hers by June 24. All other parties shall file theirs by June 30.
Trimble J.
Released: May 31, 2016
CITATION: Matotek v. Mann, 2016 ONSC 3454
COURT FILE NO.: CV-14-1981-00
DATE: 2016 05 31
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Malvin Matotek, Cynthia Mae Farrell and Zenia Kerswill
Applicants
– and –
Helen Mann, Slava Matotek and the Public Guardian and Trustee
Respondents
ENDORSEMENT
Trimble J.
Released: May 31, 2016