Court File and Parties
COURT FILE NO.: CV-16-549224 DATE: 20160804 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Elizabeth Fillippo by her Litigation Guardian Beverly Buchler-Ernst, Applicant AND: Sherri Fillippo, Respondent
BEFORE: Carole J. Brown, J.
COUNSEL: Maurice W. Pilon, for the Applicant Sherri Fillippo, Representing herself
HEARD: July 29, 2016
Endorsement
[1] This matter first came before Stinson J. for a hearing on March 11, 2016. At that time, the respondent was granted an adjournment to obtain counsel. The application was adjourned to be heard July 21, 2016 for two hours and a timetable was propounded requiring, inter alia, that the respondent file responding materials by June 15 and that facta be exchanged pursuant to the rules.
[2] Ms. Fillippo appeared today on her own behalf. She had not retained counsel nor complied with the timetable ordered by Stinson J. She had not prepared or delivered any responding materials. She wished to give oral submissions, which was permitted.
[3] The applicant, Beverly Buchler-Ernst, who is the power of attorney of her 95-year-old mother, Elizabeth, brings this application for an order entitling her to possession of her mother's property, located at 92 George Henry Boulevard, #35, Toronto M2J 1E7 and for leave to issue a writ of possession for the said property.
[4] Based on the evidence before me, the respondent, Sherri Fillippo, also one of the five children of Elizabeth, lived in the United States until she was evicted from her home in September of 2014, when she moved into her mother's home in Toronto. The respondent's position was that her mother asked her to come to Toronto to live with her.
[5] In 2015, Elizabeth's health significantly deteriorated. She was admitted to hospital in September 2015 and was assessed at that time as suffering from significant cognitive impairment. Thereafter, she suffered a broken hip in November of 2015 and subsequent numerous falls. It was decided that she could not safely return to her home and she is now a resident in an assisted living facility.
[6] The applicant, in her sworn affidavit, indicates that the mother's income is not sufficient to permit her to continue living in the home on a long-term basis, unless her house is sold. The other siblings are in agreement that the home should be sold. However, the respondent refused to vacate the home to ready it for sale.
[7] Based on the applicant's affidavit, it appears that the respondent has not contributed financially toward the cost of her mother's home while she has resided there, and may have taken advantage financially of her mother.
[8] The applicant, the power of attorney for her mother, owes her mother a duty of care. She submits that vacant possession to ready Elizabeth's home for sale, and ultimate sale of the home, will permit Elizabeth to continue to live at the assisted-living facility.
[9] At the hearing of this application, in her submissions to the court, the respondent stated that she would be willing to vacate the house, but requested at least 30 days to do so. Unfortunately, she had not communicated such agreement to her siblings prior to her submissions on the motion, necessitating this legal application.
[10] In all of the circumstances, and based on the evidence before me, I grant the applicant possession of the subject property for purposes of readying it for sale, and grant leave to issue a writ of possession as regards the said property, said writ to be effective after August 20.
[11] This motion should not have had to be brought. The mother's money should not have had to be depleted in such legal costs. In the circumstances, and as the applicant has been successful, the applicant is entitled to costs paid forthwith by the respondent in the amount of $7,000.