Superior Court of Justice - Ontario
CITATION: Taticek v. Zeisig, 2016 ONSC 772
COURT FILE NO.: 11-52030
DATE: 2016/01/29
RE: Ronald Taticek and Peter Taticek, Applicants
AND:
Sonya Zeisig, Annemarie Taticek and The Public Guardian and Trustee, Respondents
BEFORE: Justice Patrick Smith
COUNSEL: Miriam Vale Peters, Counsel for the Applicants
Philippa Geddie, Counsel for the Public Guardian and Trustee
HEARD: November 27, 2015
ENDORSEMENT
Overview
[1] This motion brought by the Applicant is for:
An Order removing Ronald Taticek as guardian for property and guardian for personal care of Annemarie Taticek and that the title of proceedings in all documents issued, filed or served after the date of this Order be as listed therein;
An Order appointing the Applicant the sole guardian of the property and personal care for Annemarie Taticek;
An Order approving an amended the management plan dated September 4, 2012;
Costs.
[2] The grounds for the motion are as follows. Peter Taticek and Ronald Taticek were appointed joint guardians for property and joint guardians for personal care for Annemarie Taticek by Order of Justice Annis dated September 20, 20 12. Ronald Taticek passed away on April 23, 2014.
[3] Annemarie Taticek is a joint owner of 1528 Gagnon Road, Limoges, Ontario with her children Peter and Sonya Taticek.
[4] Ronald Taticek was also a joint owner before his death whereupon his share passed to the surviving joint tenants by right of survivorship.
[5] The Applicant is the sole estate trustee of Ronald Taticek and trustee of the Ronald Taticek Family Trust which was created for the benefit of Ronald’s children who reside in the State of Florida.
[6] Justice Annis approved the original guardianship order including a plan for management of the Farm which requires Ronald Taticek to pay all ongoing carrying costs for the property.
[7] The approved Management Plan provided that the operating costs of the Farm would be paid for in equal shares by Ronald, Sonya and Peter Taticek. The Plan also provided that Peter Taticek would make his contribution in kind and that Ronald Taticek would pay Sonya’s share of the expenses at the first instance.
[8] This application is not a passing of accounts. The Applicant, Peter Taticek seeks to amend the management plan to sever the joint tenancy of the property. Annemarie Taticek, Sonja Taticek and Peter Taticek would then become tenants in common, each with a 1/3 interest.
[9] The Ronald Taticek 2014 Family Trust (the Trust) wishes to purchase Annemarie Taticek's 1/3 interest in the farm property (the Farm) at fair market value. Annemarie Taticek's sale proceeds will be invested in the Investment Account RBC Embrun, Ontario.
[10] The Office of the Public Guardian and Trustee (PGT) opposes this application and maintains that the management plan contains serious deficiencies most notably that it proposes that the Applicant, in his capacity as sole estate trustee for his brother Ronald Taticek, purchase real estate from Annemarie Taticek which creates a conflict of interest that the proposed plan does not resolve.
[11] It is the position of the PGT that the Applicant must establish that he is not in a conflict of interest, failing which, the office of the PGT should be appointed as Annemarie Taticek’s guardian of property.
Discussion
The Position of the Applicant
[12] The Applicant maintains that, on or about March 17, 2014 he and his brother Ronald brought an application of pass their accounts with respect to the management of the property of Annemarie Taticek in full compliance with the order of Annis J. dated September 20, 2012. Although the PGT initially objected to the accounts, the Applicant states that the objections have been withdrawn and the PGT informed him that the accounts could be passed unopposed, and further that it supported the sale of the property but that it has since unreasonably altered its position and opposes the plan and this application.
[13] Since his brother Ronald has passed away in 2014 the Applicant argues that he has acted in Annemarie Taticek’s best interests, in compliance with the order of Justice Annis and is not in a conflict of interest since the property will be sold after appraisals have been received for fair market value and Annemarie Taticek’s share of the sale proceeds will be put in her investment account for her benefit.
[14] Regarding the sale of Annemarie Taticek’s interest in the property, the Applicant states that the amended management plan continues to be in accordance with the wishes of Annemarie Taticek and is in her best interests.
The Position of the PGT
[15] The PGT submits that there are several deficiencies that need to be addressed before the amended management plan can be approved including:
The Applicant has not provided details of how the carrying costs of the Farm have been funded since his brother Ronald passed away in 2014;
There is no information with respect to the terms of the Trust or the position of the beneficiaries about the proposed purchase;
A conflict of interest arises because the Applicant must determine whether Annemarie Taticek must repay any of the money loaned to her by Ronald Taticek, there is no details provided explaining how the debt will be addressed nor are there any details provide about the nature of the Applicant’s obligations towards the Trust;
The Applicant is in a conflict of interest when determining whether Annemarie Taticek’s share of the Farm should be sold to the Trust or to an arm length’s purchaser because he has personally benefitted from the retention and use of the Farm and will likely continue to continue to do so if Annemarie Taticek’s share of the Farm is sold to the Trust;
The Applicant is in a conflict of interest when determining the value of Annemarie Taticek’s share of the Farm for the purpose of a sale because his duty to obtain the highest value for her share conflicts with his duty to purchase the Farm at the lowest price for the Trust.
Ruling
[16] I am not convinced that the application should be dismissed or that an order should be issued appointing the PGT as sole guardian of the property of Annemarie Taticek.
[17] Any deficiencies expressed by the PGT are capable of being satisfied by the Applicant providing further and better details and a further amended management plan. Both the Applicant and the PGT agree that additional appraisals will be helpful and firm up some of the vagaries of the current plan.
[18] It is also my view that the Applicant should also not be ruled out as an appropriate person to be appointed the sole guardian of the property of Annemarie Taticek. There is no evidence before the court to suggest that, to date, the Applicant has not acted in the best interests of Annemarie Taticek. To the contrary, the evidence supports the view that he has acted fairly and has the best interests of Annemarie Taticek at heart.
[19] Leave is granted to the Applicant to provide further and better details to the PGT and to file a further amended management plan within 60 days from the release of this decision.
[20] In the event that the PGT continues to oppose the application it may be brought back before me on short notice.
[21] Costs incurred to date are reserved.
Justice Patrick Smith
Date: January 29, 2016
CITATION: Taticek v. Zeisig, 2016 ONSC 772
COURT FILE NO.: 11-52030
DATE: 2016/01/29
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Ronald Taticek and Peter Taticek, Applicants
AND:
Sonya Zeisig, Annemarie Taticek and The Public Guardian and Trustee, Respondents
BEFORE: Mr. Justice Patrick Smith
COUNSEL: Miriam Vale Peters, Counsel for the Applicants
Philippa Geddie, Counsel for the Public Guardian and Trustee
ENDORSEMENT
P. Smith J.
Released: January 29, 2016