Court File and Parties
COURT FILE NO.: 18-64076 DATE: 2018/05/14
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Stephan Ballinger Applicant
– and –
Ivana Marshall and The Public Guardian and Trustee
COUNSEL: Jennifer Stebbing, for the Applicant Ivana Marshall, not attending, though served; Paul Riddles appointed by the Public Guardian and Trustee for Ivana Marshall
HEARD: May 8 and 11, 2018
BEFORE: TURNBULL J.
Endorsement
[1] This is a motion to appoint a temporary Guardian of Property under the Substitute Decisions Act[^1] (SDA). Counsel did not urge the appointment of a Guardian of the Person at this interim stage.
[2] In an interim order of April 5, 2018, Skarica J. ordered Ms. Marshall to arrange and submit to a capacity assessment under sections 6 and 45 of the SDA, which she refused to do. He also ordered the Public Guardian and Trustee to arrange for legal representation for Ms. Marshall under section 3 of the SDA. By letter delivered to the court, it confirmed that Mr. Riddles had been appointed counsel to assist Ms. Marshall.
[3] Mr. Riddles had reviewed the rather voluminous file. Despite the absence of Ms. Marshall and his inability to consult with her, he attended on this motion. I asked him to make submissions on behalf of Ms. Marshall based on his review of the file and knowledge of the applicable law. He was of significant assistance to me in concisely and helpfully articulating the reasons militating against the order sought by the applicant on this motion.
[4] When I first considered this matter on May 8, 2018, Ms. Marshall was not present. In his affidavit sworn April 30th, Mr. Ballinger stated that he went to his mother’s home on April 25th to assist her in arranging the capacity assessment. She was not there and he has not seen her since. A neighbour advised him that she had left her home and asked the neighbour to care for her cats. The neighbour noted that she appeared quite flustered at the time. Ms. Marshall has not responded to any text or phone messages from the applicant other than one text requesting money on April 29th. When he asked her where she was, she has not replied since that time.
[5] Because she was not present before the court on May 8th, I asked counsel to resume the motion by conference call on Friday May 11, 2018 in the hope that some contact would be made with Ms. Marshall. That did not occur.
Background Facts:
[6] Ivana Marshall is the 57 year old mother of the applicant. He is 26 and lives in Buffalo, New York. He has served this application on the Public Guardian and Trustee, his brother Adam Ballinger, his maternal grandparents Ivan and Margret Nejkov and their other daughter Alena Sabo (Ms. Marshall’s sister). The family members have not filed any materials in these proceedings but from the materials before the court, it is clear that they support the applicant because they feel distressed by the problems Ms. Marshall has been experiencing.[^2]
History of the Court Proceedings
[7] The application was originally returnable January 30, 2018 and then put over to February 20, 2018. At that time, Parayeski J. adjourned it to a long motions list of May 28th which would presumably have provided ample time for a capacity assessment of the respondent under the SDA. However, she was not willing to participate in the assessment.
[8] As a result, a further motion was brought by the applicant before Skarica J. on April 5, 2018. Ms. Marshall appeared and made submissions. In his endorsement, he wrote:
“I am satisfied that there are legitimate concerns about Ms. Marshall’s capacity”.
[9] He ordered that a capacity assessment be undertaken within 30 days at a place and time to be mutually agreed upon by the capacity assessor and Ms. Marshall. She refused to participate in the assessment. Instead, she filed a lengthy and rambling Notice of Appeal to the Court of Appeal.
[10] On April 24, 2018, the applicant served a further notice of motion which was considered by Parayeski J. His endorsement notes that Ms. Marshall did not attend though duly served. He also determined that the appeal of the order of Skarica J. to the Court of Appeal did not automatically stay the order made April 5th. The order signed by Parayeski J. on April 24th, 2018 again directed Ms. Marshall to arrange for a capacity assessment and further authorized the respondent to request the assistance of the Hamilton Police to apprehend her and take her to an assessment. Leave was granted to the applicant to bring this Application back to the court on five days notice in the event the respondent refused to attend at or complete the assessment.
[11] That is why the matter came before me at motions court on May 8th.
Legal Test to appoint a Guardian of Property or Person
[12] The SDA provides:
S. 25: (1) An order appointing a guardian of property for a person shall include a finding that the person is incapable of managing property and that, as a result, it is necessary for decisions to be made on his or her behalf by a person who is authorized to do so. 1992, c. 30, s. 25 (1).
(2) An order appointing a guardian of property may,
(a) require that the guardian post security in the manner and amount that the court considers appropriate;
(b) make the appointment for a limited period as the court considers appropriate;
(c) impose such other conditions on the appointment as the court considers appropriate. 1992, c. 30, s. 25 (2).
[13] Thus, to make the appointment of a guardian of property or person the Court must be satisfied that there is evidence of the incapacity of Ms. Marshall to manage her property.
[14] I am satisfied that pursuant to the wording of s. 25(2)(b), the court does have jurisdiction to make a temporary order. Re Bennett et al, 2009 CanLII 33031 (ON SCDC).
Evidence of Lack of Capacity
Position of the Applicant:
[15] There is no direct medical evidence before the court of the lack of capacity on the part of Ms. Marshall to manage her property. That is due to her opposition to the application and her refusal to co-operate or follow the order of the court to attend for a capacity assessment. Instead, the applicant relies heavily on his observations of the behaviour of his mother in several respects to support his request to be appointed her Guardian of Property.
[16] Ms. Marshall lives at 89 Ryans Way, Waterdown, Ontario. She owns that property jointly with her brother in law, the uncle of Stephen and Adam Ballinger. He holds his interest in the property in trust for the applicant and his brother Adam.
[17] The applicant estimates the value of the house to be approximately $500,000. Ms. Marshall has not paid the municipal property taxes for almost three years. Ms. Stebbing advised the court that on May 11th, the mortgage was 70 days in arrears and bank officials indicated that it is bank policy to commence enforcement when the mortgage is 75 days in arrears. The arrears of taxes have been paid by the mortgagee, the TD Bank, and added to the mortgage debt.
[18] Ms. Marshall has also incurred a significant credit card debt with Scotiabank. She originally used the proceeds of the card to have the floor in her home removed and replaced because she felt it contained chemicals which were detrimental to her well-being. Not only did she not repay the money borrowed on the card, she allowed the interest to compound at 18 per cent. It appears that there is over $33,000 now owing. The bank obtained judgment in Small Claims Court. In his affidavit sworn December 28, 2017, Mr. Ballinger included at exhibit A numerous documents relating to the legal proceedings taken by the bank to enforce payment. Within those documents is evidence that the process servers attempted to serve Ms. Marshall with a Notice of Examination to enforce a judgment on ten different occasions, many when her vehicle was in the alley of her residence. The affidavit of the process server clearly infers she was evading service, an action consistent in my view with an effort to avoid confronting her problems. She has now disappeared and is avoiding contact with her family as this application proceeds through the courts, exhibiting the same avoidance techniques as in the Small Claims Court proceedings.
[19] Mr. Ballinger swore that he did not think the floor was causing any of her perceived problems and did not pose any danger to her. He also has sworn in his December 28, 2017 affidavit that:
a. His mother suffers from what he and his family believe is a debilitating mental illness which has prevented her from working, maintaining her home and paying the mortgage and taxes.
b. His mother has claimed that she has some sort of infection in her head/mouth since some dental work about seven years ago. Because of her belief she has some sort of infection, she has been taking antibiotics for the past five years and he suspects she has been “doctor shopping” for her anti-biotic prescriptions.
c. She claims that all doctors in Canada have dismissed her as mentally ill and she has been blacklisted in her medical records.
d. She has been looking for a doctor in the state of New York because she claims no doctor in Canada will tell her if she has an infection in her head.
e. She has refused her family’s offer to help her downsize her current home to a more affordable dwelling, claiming she is too sick to work or move.
f. She does not seem to understand that if the mortgage, the municipal taxes or the credit card debt are not paid, interest accrues at a high rate and the property will be sold by the mortgagee.
g. When he initially brought the application, he had not discussed it with her because he and her parents and her sister knew it would upset her. They felt that it would not be good for her stability and paranoia if she knew about it.
h. In various text messages, his mother has accused him of colluding with her parents and her sister against her in trying to convince her to sell her home to pay for her debts and to make her more financially stable.
i. He has the full support of Ms. Marshall’s parents (Mr. and Mrs. Nejkov), her other son Adam, and her sister Alena Sabo in seeking to have a capacity assessment completed for Ms. Marshall.
[20] In his affidavit of April 30th, Mr. Ballinger swore that in his view, his mother’s mental health has deteriorated since this application was commenced in January 2018.
[21] Rena Postoff was requested to attend at Ms. Marshall’s residence to perform the capacity assessment ordered by Skarica J. She wrote a letter dated April 27, 2018 which is affixed as exhibit E to the affidavit of Stephen Ballinger sworn April 30th, 2018. In it, she stated that she went to Ms. Marshall’s residence on April 23, 2018. A car was in the driveway and the curtains were drawn. No-one answered the door. After the court appearance before Parayeski J. on April 24th, she was requested to return to the residence again on April 26th. Ms. Marshall was not there but the applicant was there to meet her. She waited in the house until Stephen’s grandparents and sister arrived. While the house was fairly clean, she saw handwritten notes on papers taped to walls, pictures, and furniture. One piece of furniture had a hole in it which looked as if it had been kicked in. There was a large collection of over the counter drugs and supplements on the counter. The refrigerator was full but an unusual odour was emanating from it. When the family members arrived, she spoke with them and they appeared very distressed by the problems Ms. Marshall was experiencing. She observed that Ms. Marshall’s parents were very anxious about her current state of mental health. Ms. Postoff stated in the last paragraph of her four page letter that “they all agree she needs help or face further adverse effects if decisions are not made on her behalf.” They all wanted her to undergo a capacity assessment but they realized that this may not happen due to her resistance to it.
Submissions of Mr. Riddles Against the Order Sought:
[22] Mr. Riddles argued that there is no significant evidence that Ms. Marshall is financially incapable of managing her property. He noted that she has appealed the order of Skarica J. by handwriting her Notice of Appeal and the Amended Notice of Appeal. I have looked at those documents which are written clearly and with the use of good spelling and good grammar. While the grounds of appeal are largely irrelevant and repetitive, they nevertheless are not indicative of someone who is unable to think logically or whose mental capacity is significantly impaired so as to prevent her from writing and expressing herself.
[23] He further noted that there is no evidence Ms. Marshall has depleted her assets. Most importantly, he submitted that there is no medical evidence that she suffers from any delusional thinking or behaviour. She evidently is cognitively capable enough to be able to add and subtract. As for someone who has incurred debt or not paid bills as they come due, Mr. Riddles argued that such conduct does not mean that she is incapable of managing her own property.
Analysis
[24] On review of this matter in its entirety, I am convinced on a balance of probabilities that Ms. Marshall does not have the capacity to manage her property and that a Temporary Guardian of Property must be appointed in the short term.
[25] It is inconceivable to me that someone who is in good mental health would “run away” from her family, her financial problems and the court process. Those who know her best….her mother and father and sister and her two sons all feel that a Guardian of Property needs to be appointed. She has chosen to ignore the order of Skarica J. and I suspect strongly that it is due to her paranoia of being assessed incapable of managing her property.
The Management Plan:
[26] Mr. Ballinger has filed a management plan as exhibit C to his affidavit of December 28, 2017. In it, he proposes listing and selling Ms. Marshall’s residence at 89 Ryans Way, Waterdown, Ontario and then using some of the proceeds to purchase a small and more affordable condominium for his mother in the Hamilton/Burlington area. The residence is the major asset owned by Ms. Marshall and so is very important to her as she is unemployed and living on ODSP and minimal spousal support from her former common law spouse Stephen Ballinger Sr.
[27] There are really no other assets of significant value to be managed.
[28] I believe it is best that this process proceed slowly.
Conclusion:
[29] It is ordered that Stephen Ballinger be appointed the Temporary Guardian of Property of his mother Ivana Marshall.
[30] It is ordered that Stephen Ballinger is appointed as the Temporary Guardian of Property of Ivana Marshall until:
a. Ivana Marshall participates in a Capacity Assessment as directed by Skarica J. in his order of April 5, 2018 and that Capacity Assessment is returned to the court for consideration of that assessment and the adjudication of the other issues specified in the originating Application; or
b. The matter is returned to the court for further directions of the court, or
c. November 15, 2018.
[31] It is ordered that the Guardian of Property may renovate and otherwise prepare the residence at 89 Ryans Way, Waterdown Ontario to be listed for sale with a real estate brokerage familiar with the Waterdown real estate market and sold. The Guardian of Property is to be repaid his out of pocket expenses incurred in this respect, provided they are reasonable, necessary and clearly documented.
[32] It is ordered that the Guardian of Property may sell the residence located at 89 Ryans Way, Waterdown and sign all documents necessary to effect such closing. It is ordered that the net proceeds of sale shall be held in trust by Ross McBride LLP in an interest bearing account until further order of this court.
[33] It is ordered that the Guardian of Property may pay Scotiabank or its assignee from the proceeds of sale of 89 Ryans Way the amounts necessary to satisfy the Small Claims Court judgment against Ms. Marshall as outlined above.
[34] It is ordered that the reasonable legal costs of the applicant shall be paid from the proceeds of sale after they have been assessed by a judge of this court.
[35] It is ordered that the legal fees of Paul Riddles, which I have assessed at $2,000 plus H.S.T. be paid from the proceeds of sale.
[36] It is ordered that the Guardian of Property be prepared to account for his management of the property of Ivana Marshall upon the return of this matter before the court.
[37] This Application which includes the Applicant’s motion to be appointed Guardian of the Person, which was adjourned to the Long Motions List for the week of May 28th, is adjourned to a date to be fixed by Counsel with the Trial Co-ordinator.
Turnbull, J.
Released: May 14, 2018.
COURT FILE NO.: 18-64076 DATE: 2018/05/14
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Stephan Ballinger Applicant
– and –
Ivana Marshall and The Public Guardian and Trustee
ENDORSEMENT
TURNBULL J.
Released: May 14, 2018.
[^1]: 1992, S.O. 1992, C. 30. [^2]: Affidavit of Stephen Ballinger sworn April 30th, 2018, exhibit E, page 3, last paragraph. This is the letter written by Rena Postoff, MSW, RSW who is a duly qualified capacity assessor.