Court File and Parties

COURT FILE NO.: 03-73/17 DATE: 20180709 SUPERIOR COURT OF JUSTICE – ONTARIO

B E T W E E N:

ROBERT DAVID ERLICH, in his capacity as named substitute attorney for property and named substitute attorney for personal care of Srul Erlich, and Trustee of The Erlich Family Trust (2008) Applicant

- And -

SRUL ERLICH, personally, and as Trustee of The Erlich Family Trust (2008), TAMARA ERLICH, personally, and as Trustee of The Erlich Family Trust (2008), JEFFREY STANLEY ERLICH, HARVEY ERLICH, EDWARD ERLICH, and THE PUBLICH GUARDIAN AND TRUSTEE Respondents

- And -

B E T W E E N:

ROBERT DAVID ERLICH, in his capacity as named substitute attorney for property and named substitute attorney for personal care of Tamara Erlich, and Trustee of The Erlich Family Trust (2008) Applicant

- And -

TAMARA ERLICH, personally, and as Trustee of The Erlich Family Trust (2008), SRUL ERICH, personally, and as Trustee of the Erlich Family Trust (2008), JEFFREY STANLEY ERLICH, HARVEY ERLICH, EDWARD ERLICH and THE PUBLIC GUARDIAN AND TRUSTEE Respondents

BEFORE: L. A. Pattillo J.

COUNSEL: Jan Goddard, for the Applicant Jonathan M. Keslassy, for the Respondent, Srul Erlich Alexander Procope, for the Respondent, Tamara Erlich

HEARD: April 13, 2018

Endorsement

[1] The applicant, Robert Erlich (“Robert”), seeks, among other things, orders requiring the Respondents, Srul Erlich (“Srul”) and Tamara Erlich (“Tamara”), to undergo capacity assessments and that they not dissipate or dispose of Trust property or their cottage.

[2] Srul and Tamara are opposed to Robert’s request.

[3] For the reasons that follow, the application is dismissed. Based on the evidence, I am not satisfied that there are reasonable grounds to believe that either Srul or Tamara are incapable or that assessments are required.

[4] Srul is 93 and Tamara is 95. They were married in 1972. Tamara was previously married to Srul’s brother Jack, who had died. Tamara and Jack had four children, Robert, Jeffrey, Harvey and Edward, all of whom were raised by Srul and Tamara.

[5] Srul and Tamara live at Constantia, a retirement home which they selected and moved into in the fall of 2016 when they moved out of their house. Their house is owned by an irrevocable trust (the “Trust”) which was established in 2008 by Srul and Tamara. The Trustees are Robert, Srul and Tamara. The house or its sale proceeds are to be maintained for Srul and Tamara’s benefit while they are alive. On their passing, Edward becomes the income beneficiary and on his death, his siblings and their issue (Edward has no issue) are the beneficiaries. Apart from bank deposits (approximately $250,000) the only other asset belonging to Srul and Tamara is their cottage which they own indirectly through share ownership.

[6] Srul and Tamara each have Powers of Attorney for personal care and property executed on November 18, 2008, naming each other as attorney with Robert as the alternate.

[7] The Application is supported by affidavits from Robert, Jeffrey and Edward and Frances Budden, Jeffrey’s wife and an M.D., specializing in internal medicine and geriatrics. They raise a number of issues which Robert submits indicate collectively that neither Srul nor Tamara is mentally capable of managing their property or person. In particular, Robert points to:

• the decline over the last few years of Srul and Tamara’s cognitive status and Tamara’s physical health;
• issues concerning Srul’s care of Tamara;
• Srul’s contradiction in his evidence in this Application and a later application he has commenced concerning the validity of the Trust;
• Srul’s inability to manage his property (the house and the cottage);
• Srul’s behaviour change to paranoia, suspicion and anger towards Robert and Jeffrey in particular;
• Srul and Tamara’s exclusion of Dr. Budden from their health care last spring;
• their choice of retirement homes.

[8] In response, Srul has filed an affidavit opposing Robert’s request that both he and Tamara undergo capacity assessments or be restricted in dealing with the Trust or their cottage. In addition to the numerous medical records concerning Tamara, and records from Constantia, Srul has filed three assessments by Dr. Michel Silberfeld dealing with his capacity to instruct counsel (June 18, 2017), his capacity to make a will (June 24, 2017) and his capacity to manage property and give a Power of Attorney for Property and Personal Care (June 24, 2017). Srul voluntarily agreed to the Silberfeld capacity assessments following the commencement of this application. In addition, Srul has filed a letter dated June 14, 2017 with an addendum dated December 14, 2017 from Dr. Faith Feinberg, his family physician for almost 30 years.

[9] In reply, Robert has filed, among other things, a report from Dr. Richard Shulman, dated November 18, 2017, responding to Dr. Silberfeld’s assessments and strongly criticizing them.

[10] Section 2 of the Substitute Decisions Act, 1992, S.O. 1992, C. 30 (“SDA”) provides that a person is presumed to have capacity. The court’s authority for ordering a capacity assessment is set out in s. 79 of the SDA. The capacity of the person sought to be assessed must be in issue and there must be reasonable grounds to believe the person is incapable.

[11] The parties agree that the factors that the court should consider in determining whether to order a capacity assessment are set out in Abrams v. Abrams, [2008] O.J. No. 5207 (S.C.J.). Apart from the terms of s. 79 of the SDA, the court should consider and balance the following factors:

a) the nature and circumstances of the proceedings in which the issue is raised; b) the nature and quality of the evidence before the court as to the person’s capacity and vulnerability to exploitation; c) if there has been any previous assessment, the qualifications of the assessor, the comprehensiveness of the report and the conclusions reached; d) whether there are flaws on the previous report, evidence of bias or lack of objectivity, a failure to consider relevant evidence, the consideration of irrelevant evidence and the application of the proper criteria; e) whether the assessment will be necessary in order to decide the issue before the court; f) whether any harm will be done if an assessment does not take place; g) whether there is any urgency to the assessment; and h) the wishes of the person sought to be examined, taking into account his or her capacity.

[12] In considering whether to order an assessment, a court must balance the affected person’s fundamental rights to dignity, privacy and legal rights against the court’s duty to protect the vulnerable: Abrams, para. 48-50.

[13] Dr. Silberfeld has been a specialist in Psychiatry since 1976 and has been in private practice since 2002. He has written extensively and given numerous presentations on the issue of mental capacity to perform legal tasks. He successfully completed training from the Capacity Assessors Office of the Public Guardian and Trustee and remained on the assessors’ roster from its outset until December, 2007. He continues to perform capacity assessments for proceedings under the SDA.

[14] As noted, Dr. Silberfeld provided three separate opinions regarding Srul’s mental capacity. All three opinions are interconnected and address Srul’s mental capacity. Dr. Silberfeld saw Srul on two separate occasions in his office. He put him through a number of simple tests, most of which Srul accomplished. He notes that Srul knew his assets and expenses which were simple since he moved into the retirement home and all his bills were paid by automatic withdrawal. Further, he concluded that Srul was able to detect errors and omissions and to take steps to remedy them. Dr. Silberfeld’s conclusion was that Srul was capable of managing his property. He noted: “He is able to understand information that is relevant to making a decision in the management of his property. He is able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision.”

[15] In addition, Dr. Faith Feinberg, who has been Srul’s family physician since 1988, provided a letter dated June 14, 2017 which states that based on a Montreal Cognitive Assessment test performed on April 26, 2017, which was normal, and based on her examination of Srul in her office and knowing him for many years, it was her opinion that Srul “is competent to manage his decisions and personal care.”

[16] Dr. Shulman is a Psychiatrist with a specialty in Geriatric Psychiatry. He has extensive experience in mental health problems and crises in seniors. He has also been extensively involved in capacity assessments.

[17] It is important to note that Dr. Shulman has not seen or met with Srul. His role was to review Dr. Silberfeld’s reports and critique them. In doing so, he takes issue with the form of Dr. Silberfeld’s reports. Although he agrees with some parts of the reports, he specifically criticizes Dr. Silberfeld’s failure to state the grounds for his opinion.

[18] In respect of Dr. Silberfeld’s opinion concerning Srul’s capacity to manage property, Dr. Shulman states that in his clinical opinion “it is not a reliable proposition that another similarly-qualified expert would come to the same conclusion as Dr. Silberfeld from his own report. I am not in agreement with Dr. Silberfeld’s conclusions that Srul is capable to manage property because I found that Dr. Silberfeld did not describe Srul’s ability to understand the relevant information in regards to acting as a trustee of the Family Trust nor did he examine Srul’s ability to appreciate the potential consequences of a decision or lack of decision in regards to acting as a trustee of the Family Trust.”

[19] I accept Dr. Silberfeld’s opinions concerning Srul’s capacity. He is clearly well qualified both by education and experience to give those opinions. Robert takes issue with what he submits is Dr. Silberfeld’s “lackadaisical approach” to both his examination of Srul and his written opinions. He criticizes that Dr. Silberfeld only met with Srul for two hours and failed to explore several issues such as the Trust or other issues in the application or spend further time on other issues such as Srul’s short term memory loss. Robert also relies on Dr. Shulman’s report criticizing Dr. Silberfeld.

[20] As noted, Dr. Silberfeld has many years of experience dealing with mental capacity and particularly capacity assessments. It is also clear that he is very familiar with and understands the definition of capacity to manage property. I am satisfied that the time he spent with Srul, the questions he asked and the tests he performed were sufficient to enable him to come to his opinion.

[21] While I respect the expertise of Dr. Shulman, I am not prepared to discount or disregard Dr. Silberfeld’s opinions on the basis of his criticisms of the way in which Dr. Silberfeld conducted his assessments. As noted, Dr. Silberfeld is clearly a qualified expert in mental capacity issues.

[22] Further, and while his reports may not be as comprehensive as Dr. Shulman feels is necessary, they are sufficient, in my view, to set out his qualifications, his interaction with Srul, the various tests performed, Srul’s responses and his opinions arising therefrom.

[23] I also give considerable weight to Dr. Feinberg’s opinion as Srul’s family physician. While she is not an expert in capacity issues, she has been his doctor for many, many years and is in many ways, in the best position to address whether Srul is capable mentally of managing his property or looking after himself.

[24] Srul says that he does not want to undergo a further assessment. As a result of the application, he agreed to submit to one but that is enough. His medical records show that he has been exhibiting signs of mild cognitive impairment dating back to September 2015. In addition, he has memory issues.

[25] Robert relies on the fact that Srul has contradicted himself regarding his evidence in the applications that have been commenced as indications of incapacity. Specifically he points to Srul’s allegation that the Trust agreement regarding the house was forged and his later affidavit, in a different but related proceeding, where he agrees that it’s his signature on the trust deed. In my view, contradictions in evidence may effect credibility, but they are not sufficient to indicate lack of capacity.

[26] Dr. Silberfeld addresses the question of Srul’s allegation of forgery in his opinion regarding capacity to make a will. He states:

Srul Erlich did not appear to be delusional in the psychiatric meaning of the word. His allegations may be wrong but they are not based in an illness of the mind that produces psychotic delusions.

After referring to Srul’s problems with memory loss, Dr. Silberfeld continues:

It is possible, but not certain, that his narrative of forgery is suited to hide those deficits of memory and are a direct product of such. However, based on this examination alone it is also possible that the forgery, fraud, did take place. Only a court ruling can distinguish the facts of the matter that would seem to call for an investigation beyond Srul Erlich’s capacity alone.

[27] Robert points to Srul’s change in behaviour to one of paranoia, suspicion and anger towards him in particular. Srul does not deny it. He submits that it arose in 2016 at the time they were leaving their home and moving to the retirement residence. He was concerned with what would happen to the house and was reminded of the Trust. He was upset by it which in turn gave rise to his change in behaviour towards Robert. He is reacting to what he views as Robert’s controlling behaviour.

[28] With respect to the allegation that Srul failed to look after the house or the cottage, Srul admits that he failed to pay the insurance on the house but he did it on purpose to get back at Robert who would not agree to sell the house. At the hearing, Srul produced evidence that the insurance on the property had been paid. With respect to the cottage, Srul has instructed the caretaker concerning the issues that need to be dealt with.

[29] Robert also submits there are problems with Srul’s decision making involving Tamara. He points to the evidence concerning problems with Srul managing Tamara’s medication. I am satisfied from the evidence that those incidents were isolated and that Srul can and does give Tamara her medication regularly. The staff notes at Constantia indicate that Srul is assessed from time to time to ensure he is capable of self-medicating, the latest assessment being October 2017.

[30] Finally, Robert raises concerns over Srul and Tamara’s choice of retirement home. In my view, those concerns relate more to Robert’s issues such as the location of the residence than to any concerns for the welfare of Srul and Tamara. Srul and Tamara are happy living at Constantia and do not want to move.

[31] The evidence establishes that Tamara’s physical health has declined in recent years. In 2014 she suffered a series of mini-strokes. She has vision issues, is partially deaf and is frail. She relies on Srul to assist her and he does. While she previously experienced psychosis, it is in remission. Although she has exhibited cognitive impairment, confusion and memory loss since 2016, there is no evidence that her doctors require a substitute decision maker for treatment.

[32] In my view, the evidence does not establish that she has capacity issues. There is nothing in either her medical records or the retirement home’s records which indicate such a condition. Her deferral to her husband is understandable given her physical issues.

[33] Tamara has also made it clear that she does not want to be assessed. Further, she wants Srul to make decisions for her.

[34] Nor do I consider that any harm will come to either Srul or Tamara if the requested assessments do not take place. They are both happy and well looked after at Constantia. Srul’s management of his assets and expenses is straightforward and structured in a way to cover their needs. Tamara is checked by the Constantia staff regularly and is under the care of a number of physicians.

[35] In my view, Robert’s real concern is that he does not want Srul and Tamara to dissipate or dispose of either the Trust property (the house) or the cottage. In the absence of a finding of incapacity, however, they are entitled to both deal with Trust property (in accordance with the terms of the Trust) and the cottage as majority trustees and owners respectively.

[36] Considering the evidence and balancing all of the factors, I am satisfied that neither Srul nor Tamara should be required to undergo a capacity assessment or be restrained from dealing with either Trust property or the cottage. Accordingly, the application is dismissed.

[37] Both Srul and Tamara are entitled to theirs costs of the application. They shall submit brief written submissions limited to three pages together with a Cost Outline on or before July 18, 2018. Robert shall submit responding submissions, also limited to three pages, together with a Cost Outline by July 25, 2018.

L. A. Pattillo J. Released: July 9, 2018