CITATION: Wadhwani and Dutt v. Wadhwani, 2017 ONSC 6000
COURT FILE NO.: CV-16-3020-00
DATE: 20171010
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SURUJPATTIE WADHWANI & SATWATTIE DUTT
Applicants
v.
KAMENEE KAUSHAL WADHWANI
Respondent
BEFORE: DALEY, RSJ.
COUNSEL: Surujpattie Wadhwani and Satwattie Dutt, in person
Kamenee Kaushal Wadhwani, in person
Heather Hogan, for the Public Guardian and Trustee
HEARD: October 4, 2017
E N D O R S E M E N T
[1] As the case management judge under Rule 37.15, I convened a case conference in this matter with all parties and invited the Office of the Public Guardian and Trustee to have its counsel in attendance.
[2] I am grateful that counsel for the Office of the Public Guardian and Trustee was able to attend at this conference on short notice, and for the assistance she provided to the court in considering the matters in issue on this application.
[3] The reasons for decision of Price J. dated January 20, 2017 set out in great detail the history of this matter.
[4] The principal purpose in convening this case conference was to inquire into the status of the parties’ mother, namely Ramlochan K. Wadhwani, in terms of whether she may have an interest, whether legal or equitable, in the house which is the subject of the present application and further, whether or not she is incapable of managing her property.
[5] Without making a binding determination on the question, for the purposes of this case conference and the court’s determination of the rights of the parties’ mother, as they may be affected by this application, I am satisfied that she appears to have some form of interest, whether legal or equitable, in respect of the house occupied by the respondent, and which the applicants seek to have sold.
[6] Counsel for the Public Guardian and Trustee, at my request, acknowledged that she was of the same view.
[7] In order to allow for the full determination of the issues outlined above, I am satisfied that it is in the interests of the parties’ mother and in the interests of justice that the said Ramlochan K. Wadhwani undergo a capacity assessment as to her capacity to manage her own property.
[8] I have reached this conclusion after having considered the Enduring Power Of Attorney signed by the parties’ mother on November 22, 2013, which is included in the affidavit of the applicant Surujpattie Wadhwani sworn on June 27, 2017. The power of attorney provides that it will become effective on the day the grantor is “unable to make any decisions and the decisions have to be made on my behalf.”
[9] In view of the language of the power of attorney, s. 9 (3) of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 is engaged. That section provides as follows:
Determining incapacity
(3) If the continuing power of attorney provides that it comes into effect when the grantor becomes incapable of managing property but does not provide a method for determining whether that situation has arisen, the power of attorney comes into effect when,
(a) the attorney is notified in the prescribed form by an assessor that the assessor has performed an assessment of the grantor’s capacity and has found that the grantor is incapable of managing property; or
(b) the attorney is notified that a certificate of incapacity has been issued in respect of the grantor under the Mental Health Act. 1996, c. 2, s. 5.
[10] Counsel for the Public Guardian and Trustee undertook to provide to the applicant, who was the grantee of the power of attorney, namely Satwattie Dutt, a list of capacity assessors, which has been approved by the Office of the Public Guardian and Trustee.
[11] As was explained to Ms. Dutt, the power of attorney, during this case conference, I have ordered that a capacity assessment be conducted of the parties’ mother and that Ms. Dutt make the necessary arrangements for that assessment including the selection of the capacity assessor, with the cost of such assessment to be properly paid from any assets in the hands of her mother.
[12] After the capacity assessment has been conducted, Ms. Dutt shall provide a copy of the assessment report to all parties and to counsel for the Public Guardian and Trustee and a copy of the report shall be delivered to me.
[13] If it is determined by the capacity assessor that the parties’ mother is incapable of managing her property, it will then be necessary for the applicants to bring a motion seeking to add Ramlochan K. Wadhwani as a party respondent, and as well naming a litigation guardian to represent her interests in this application.
[14] As was discussed at this case conference, any proposed litigation guardian offered by the applicants, whether it be the applicant Ms. Dutt, or any other party known to the applicants, must have no personal interest in the outcome of this application that would be in any way adverse to the interests of Ramlochan K. Wadhwani.
[15] If the above referenced motion is necessary, further direction will be provided to the parties following receipt of the capacity assessment and during an in court attendance, which will be scheduled approximately two months hence.
[16] In addition to arranging for the capacity assessment referred to, the applicants shall personally serve copies of the application material including the Notice of Application and all supporting affidavits upon Ramlochan K. Wadhwani, and file with the court an affidavit of service, duly executed, confirming service of all of the materials upon her. Proof of service of these documents shall be filed with the court prior to the next attendance on a further case conference.
[17] It is proposed that one of the following dates be scheduled as the next case management conference, at which time the capacity assessment report will have been received, and further decisions and directions can be provided at that time:
December 12, 2017
December 13, 2017
December 14, 2017
December 15, 2017
DALEY, RSJ.
DATE: October 10, 2017
CITATION: Wadhwani and Dutt v. Wadhwani, 2017 ONSC 6000
COURT FILE NO.: CV-16-3020-00
DATE: 20171010
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SURUJPATTIE WADHWANI &
SATWATTIE DUTT
Applicants
v.
KAMENEE KAUSHAL WADHWANI
Respondent
BEFORE: DALEY, RSJ.
COUNSEL: Surujpattie Wadhwani and Satwattie Dutt, in person
Kamenee Kaushal Wadhwani, in person
Heather Hogan, for the Public Guardian and Trustee
HEARD: October 4, 2017
ENDORSEMENT
DALEY, RSJ.
DATE: October 10, 2017