CITATION: Mancino v. Killoran, 2017 ONSC 4515
COURT FILE NO.: 3793/17
DATE: 2017-07-25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
OLGA MANCINO
Applicant
– and –
ALLAN KILLORAN in his representative capacity as attorney for MICHAEL G. KILLORAN
Respondents
Counsel:
Benjamin F. Pritchard, for the Applicant
Heather-Ann Mendes, for the Respondents
HEARD: July 24, 2017
GAREAU J.
ENDORSEMENT
[1] Before the court are motions at Tabs 9 and 13 of the continuing record. The respondent Michael G. Killoran is a patient at F.J. Davey Home and suffers from Alzheimer’s disease. Michael G. Killoran is a special party as contemplated by Rule 4(2) of the Family Law Rules. Under Rule 4(2), the court is authorized to appoint an appropriate person to represent a special party. There are completing claims brought by Colleen Bruni and Allan Killoran to represent Michael G. Killoran in the action commenced by his spouse, Olga Mancino.
[2] The nature of Ms. Mancino’s action is that she is essentially seeking spousal support and an interest in the house the parties occupied at 112 McNeice Street, Sault Ste. Marie, Ontario, which is a home solely in the name of Michael G. Killoran and subject to a cohabitation agreement between the parties.
[3] Both Colleen Bruni, as the sister of Michael G. Killoran, and Allan Killoran, as the son of Michael G. Killoran feel that they are the appropriate person to represent Michael G. Killoran, a special party, in the litigation before the court.
[4] Both Colleen Bruni and Allan Killoran have filed affidavits setting out their respective positions and I have reviewed and considered that affidavit material.
[5] At a time when he had capacity, Michael G. Killoran executed legal documents, including a power of attorney over property, a power of attorney over personal care and a last will and testament. These documents were prepared by legal counsel presumably on the instructions of Michael G. Killoran and with his authority.
[6] The power of attorney for the management of property is dated July 23, 2008. It was prepared by Elaine Pitcher, Barrister and Solicitor, and witnessed by her and Teresa Palmer. In this document, Michael G. Killoran names his son Allan Killoran as his attorney, to manage his property pursuant to the Substitute Decisions Act.
[7] IN a power of attorney for personal care executed on July 29, 2008, prepared by Elaine Pitcher and witnessed by her and Teresa Palmer, Michael G. Killoran names “his wife”, Olga Mancino and his son Allan Killoran jointly to be his attorneys for personal care pursuant to the Substitute Decisions Act. If there is difficulty reaching agreement between those two, Michael G. Killoran adds his daughter Maureen Deluco and authorizes that the decision of any two of them is sufficient.
[8] In a last will and testament dated March 11, 2005, Michael G. Killoran appoints his son Allan Killoran as his sole executor and trustee. In the alternative, Michael G. Killoran appoints his daughter Nancy Piraino.
[9] Interestingly, Michael G. Killoran specifically provides for Olga Mancino as a beneficiary in his will and specifically provides for the disposition of his residence at 121 McNeice Street, Sault Ste. Marie, Ontario as it relates to Olga Mancino. The contents of that will was confirmed by codicil dated July 23, 2008, which is when Michael G. Killoran executed his powers of attorney.
[10] Originally the applicant was content that Allan Killoran represent Michael G. Killoran in this proceeding and in fact brought a motion for that relief that was dealt with by Kurke J. on March 15, 2017, who ruled that there was insufficient material before him and did not rule on the merits of the motion. In assessing the competing positions of Colleen Bruni and Allan Killoran, I am of the view that the interests of Allan Killoran are most aligned with the interests of Michael G. Killoran.
[11] The fact that Michael G. Killoran, at a time when he had capacity, placed Allan Killoran in a position of trust over his personal property and the administration of his estate indicates that he had confidence in Allan Killoran to represent his best interests. No such confidence was placed in Colleen Bruni by Michael G. Killoran in any of the testamentary documents that he entered into. This is a powerful and persuasive fact. There is nothing in the affidavit material filed that would persuade me that the express wishes of Michael G. Killoran, as represented in the legal document he executed to provide specifically for the management of his property upon his capacity, should be displaced or that Allan Killoran is incapable of representing his father in this litigation. I do not accept the view advanced by the applicant that the past actions of Allan Killoran indicate that he is adverse in interest to Michael G. Killoran. There is nothing in the past actions of Allan Killoran that are so concerning or egregious to persuade this court that he is not an appropriate person to represent Michael G. Killoran in this litigation.
[12] Accordingly, the motion at Tab 9 of the continuing record is dismissed and the motion at Tab 13 of the continuing record is granted. An order will issue that Allan Killoran is authorized to represent the respondent, Michael G. Killoran, as a special party in these proceedings.
[13] This matter would benefit from a settlement conference and accordingly a date of November 1, 2017 at 1:00 p.m. is set for that purpose.
[14] Each party had the best intentions with respect to the motions at Tabs 9 and 13 of the continuing record, and accordingly, there shall be no costs with respect to both motions.
Gareau J.
Released: July 25, 2017
CITATION: Mancino v. Killoran, 2017 ONSC 4515
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
OLGA MANCINO
- AND –
ALLAN KILLORAN in his representative capacity as attorney for MICHAEL G. KILLORAN
endorsement
Gareau J.
Released: July 25, 2017