Court File and Parties

COURT FILE NO.: FS-17-21568 DATE: 20181005 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Joanne Chuvalo, Applicant AND: Vanessa Chuvalo, Mitchell Chuvalo and George Chuvalo, Respondents

BEFORE: Kiteley J.

COUNSEL: Christopher M.B. Graham, for the Applicant Rahul Shastri for Vanessa Chuvalo and Mitchell Chuvalo, Respondents Suzana Popovic-Montag, Section 3 counsel for George Chuvalo

HEARD: September 27, 2018

Endorsement on Motion for Directions

[1] This is a motion for directions in a guardianship application launched by Joanne Chuvalo.

Background

[2] My endorsement dated November 8, 2017 [1] provides the detailed background. On November 20, 2015, application FS-15-406705 was issued in which the Applicant was shown as George Chuvalo “by way of his Guardians ad Litem Vanessa Chuvalo and Mitchell Chuvalo”. The claims included a divorce, disclosure, spousal support, an unequal division of net family property and other financial relief. On the same date, Joanne Chuvalo issued application FS-15-20548 in which she claimed financial relief but not a divorce.

[3] Joanne Chuvalo issued a Notice of Application 03-007/16 dated February 1, 2016 naming as respondents George Chuvalo and Mitchell and Vanessa, (George’s adult children), and the Public Guardian and Trustee. She asked for an order declaring that George Chuvalo is incapable of managing his property and an order appointing a financial institution as guardian of his property. She also asked for an order declaring any purported powers of attorney for George to be invalid, or in the alternative, declaring them to be revoked. She also asked for an order that Mitchell and Vanessa commence an application to pass their accounts for their administration of George’s assets. Joanne Chuvalo asked for disclosure orders including that Mitchell and Vanessa Chuvalo deliver copies of any documents purporting to be testamentary instruments, powers of attorney or the like; for production of legal, medical and financial files relating to George Chuvalo including the files of any person, professional or institution providing services to or on behalf of George Chuvalo or his purported attorneys. She asked for an order, if necessary, for the production of police files and occurrence reports. Joanne Chuvalo also asked for a declaration that George Chuvalo is capable of personal care with respect to his own health care, nutrition, shelter, clothing, hygiene and safety.

[4] As a result of her request for an order directing the Public Guardian and Trustee to appoint counsel for George Chuvalo, Ms. Popovic-Montag has been retained by the PGT as counsel pursuant to s. 3 of the Substitute Decisions Act.

[5] In the guardianship application, in an endorsement dated July 25, 2017, Justice Wilton-Siegel sitting in the Commercial List, directed that a case management judge should be appointed in the family law proceeding and a case conference should be convened “to determine whether these parties intend to proceed with the divorce proceedings”.

[6] In FS-15-406705, at the outset of the trial of an issue on January 8, 2018, counsel for Joanne Chuvalo conceded that Mr. Chuvalo did not have capacity to instruct counsel. On that date I made an order appointing the Public Guardian and Trustee as representative of George Chuvalo pursuant to rule 4(3) of the Family Law Rules who has all the powers of a Litigation Guardian under rule 7 of the Rules of Civil Procedure. The PGT retained Mr. Fogelman.

[7] In the endorsement dated January 12, 2018 [2] I made a declaration that George Chuvalo did not have the capacity to decide whether to reconcile with Joanne Chuvalo.

[8] In the endorsement dated March 15, 2018 I established a timetable for the pursuit of the guardianship application that required counsel for Joanne Chuvalo to requisition the transfer of 16CV-3007 ES to Family Law. That has been done and is now referred to as FS-17-21568. Joanne Chuvalo also served and filed an amended application in which she sought an order that she be appointed guardian of personal care for George Chuvalo. She added further requests for relief including a request for an order revoking any powers of attorney for personal care. Her affidavit in support of the amended application is dated April 29, 2018.

[9] As I had directed, Mitchell Chuvalo delivered an affidavit dated May 30, 2018 in which he indicated that he and his sister opposed the request for guardianship of property by a financial institution and opposed the request by Joanne Chuvalo that she be appointed guardian of the person.

[10] Consistent with the timetable I had established, Joanne Chuvalo delivered a reply record that included her affidavit sworn June 8, 2018.

[11] As indicated in the endorsement dated March 15, 2018, I scheduled the hearing of the guardianship application for August 24, 2018. And I directed counsel in both proceedings to attend a case conference on June 27, 2018 for a status report as to compliance with the timetable.

[12] On June 27, 2018, counsel for Joanne Chuvalo asked that I postpone the hearing of the guardianship application. I set the date of September 20, 2018 and I directed counsel in both proceedings to attend on August 24, 2018 for a brief case conference for a status report on progress in both proceedings and to confirm readiness for the hearing on September 20, 2018.

[13] At the case conference on August 24, 2018, counsel for Joanne Chuvalo asked that the date for the hearing of the guardianship application be postponed so that he could bring a motion for directions. In the August 29 endorsement I vacated the September 20 date and did not schedule another hearing date. I made a disclosure order without notice to a lawyer who had been involved in respect of powers of attorney signed by George Chuvalo on or about June 16, 2016. [3] And I scheduled the motion for directions for September 27, 2018.

[14] In the family law proceeding FS-15-00406705 in the endorsement dated August 29, 2018, I granted leave to Joanne Chuvalo to bring a regular motion for an order pursuant to rule 25(19)(b) and I directed her to attend for questioning and serve and file a form 13.1 financial statement.

Motion for Directions

[15] In the guardianship proceeding, on September 13, 2018, counsel for Joanne Chuvalo delivered a Notice of Motion and an affidavit of Joanne Chuvalo sworn September 12, 2018. In addition, counsel served the affidavit of Ms. W. sworn August 28, 2018. Based on the affidavit of Ms. W., the allegations made by Joanne Chuvalo expanded to include a claim that is described in the factum as follows:

Joanne recently discovered the existence of a conspiracy among Mitchell, Vanessa and two lawyers (names omitted) [4] , hatched in 2012, to convince George to grant powers of attorney to Mitchell. Mitchell would then use these powers to break up George’s marriage with Joanne, then start a divorce proceeding to financially destroy Joanne.

[16] Based on this allegation and on the lack of trust by Joanne Chuvalo that Mitchell or Vanessa will comply with court orders for disclosure, counsel brought to the hearing a further draft order in which Joanne Chuvalo asks for an order for the following:

1. Each of the parties is entitled to compel production of extensive “Medical Records”. [The draft order does not have a time restriction. In submissions, counsel took the position that such disclosure should cover the period January 1, 2012 to the date of the motion.]
2. Each of the parties is entitled to compel production of “Financial Records” and information.
3. The Applicant is entitled to compel production of any and all records and files from Mitchell Chuvalo, Vanessa Chuvalo and Mr. D. or any other person involved in any business with George Chuvalo.
4. Each party is entitled to compel production of “Legal Records” including wills, powers of attorney, testamentary or tax planning and the registration of applications designating three properties as “matrimonial homes”.
5. Any party is granted leave to examine three named lawyers and any other solicitor who prepared any other document purporting to be a testamentary instrument or power of attorney.
6. Any financial institutions, accountants, medical professionals and/or solicitors are released from any duty of confidentiality and/or solicitor and client privilege and/or any doctor and patient privilege.
7. Any person affected by this order made without notice is granted leave to set aside the parts of the order that are without notice.
8. The parties shall arrange a case conference before me once counsel for Joanne Chuvalo has obtained the productions and has examined the lawyers named, in order to schedule the hearing of, or next steps in this application.

[17] With respect to production of the “Medical Records”, the “Financial Records” and the “Legal Records”, the draft order provides that the charges for production shall be paid to the law firm of the party obtaining the records from the Fidelity Account (from which funds are advanced monthly to each of Joanne and George) with the final determination as to payment reserved for the judge hearing a motion.

[18] On behalf of Mitchell and Vanessa Chuvalo, Mr. Shastri takes the position that much of the disclosure sought was produced in the family law proceeding FS-15-406705. He challenges the submission that such broad disclosure is required in the guardianship proceeding because Joanne Chuvalo says that she cannot rely on Mitchell to produce what is required. To the extent that Joanne Chuvalo is now asking for financial and testamentary documents in order to make a management plan, he asserts that that is way down the road and therefore premature.

[19] Mr. Shastri and Ms. Popovic-Montag both take the position that the key issues are the validity of the 2014 powers of attorney and the 2016 powers of attorney; and if valid, should they be revoked. Furthermore, they argue that it will only be necessary to complete the guardianship plan if the powers of attorney are revoked by order of the court. Both counsel took the position that the recent conspiracy theory is irrelevant to the motion for directions.

[20] Mr. Fogelman attended the hearing because he was involved in the motion in the family law proceeding FS-15-406705 with respect to rule 25(19)(b). He made a brief submission that he had not been served with the material but the orders sought with respect to confidentiality and privilege and costs had an impact on his client in the family law proceeding.

Analysis

[21] In the guardianship records, counsel have provided the following:

(a) Continuing power of attorney for property dated March 26, 2014 given by George Chuvalo in favour of Mitchell and Vanessa Chuvalo; (b) Power of attorney for personal care dated March 26, 2014 by George Chuvalo in favour of Mitchell and Vanessa Chuvalo; (c) Continuing power of attorney for property dated June 16, 2016 by George Chuvalo in favour of Mitchell Chuvalo and Vanessa Chuvalo; (d) Power of attorney for personal care dated June 16, 2016 by George Chuvalo in favour of Mitchell Chuvalo and Vanessa Chuvalo.

[22] For purposes of this motion for directions, the key issues are: (a) the validity of the 2016 powers of attorney and, if valid, whether they ought to be revoked; and (b) if the 2016 powers of attorney are found not valid or are revoked, then the question of the validity of the 2014 powers of attorney and whether they ought to be revoked. I agree with counsel for the respondents that the completion of the management plan either for property or personal care is not essential at this time.

[23] For this motion I have read all of the amending application record, the responding record, the reply record and the motion record including the transcript of the cross-examination of Mitchell Chuvalo held on August 22, 2018. The level of conflict between Joanne on the one hand and Mitchell on the other hand is palpable, particularly in the transcript.

[24] On the subject of “Medical Records”, Mitchell Chuvalo had little specific information at his cross-examination. I disagree that Joanne Chuvalo is entitled to Medical Records covering the period January 1, 2012 to September 2018. Given the focus at this time on the powers of attorney, the production to which she is entitled reflects the periods surrounding the creation of the two sets of powers of attorney. It may be that Joanne Chuvalo is better informed as to which medical professionals George Chuvalo consulted and for what purposes. Given that the evidence on August 22, 2018 was uninformative, I agree that her counsel ought to be able to obtain those records from the source for the periods indicated in the order set out below.

[25] In his evidence at the cross-examination, Mitchell Chuvalo had little information with respect to “Financial Records” and he brought none with him notwithstanding the service of the appointment requiring him to do so. He gave an undertaking, the text of which is not clear from the transcript. Nor is the period of time covered by the undertaking clear. By September 27, 2018, he had not fulfilled any undertakings nor clarified his position on the questions under advisement. It is premature to make any further order until he has complied with his undertakings and taken a position on the questions under advisement. I will impose a deadline for him to do so.

[26] As for the “Legal Records” I am not persuaded that, at this time, the Applicant should be entitled to compel production of the records sought. Nor should George Chuvalo’s lawyers be required to attend for questioning as a result of which he would lose his solicitor and client privilege or his litigation privilege. Other than the request for the production of the file in relation to the 2014 powers of attorney, which is not opposed by Mr. Shastri or Ms. Popovic-Montag, the request is excessive in relation to the claims being asserted.

[27] The broad disclosure requested is not proportionate to the key issues, is not relevant at this stage, if at all, and will only serve to enhance the conflict. I intend to make an order that will restrict disclosure to what is required for purposes of the key issues. I will limit the period of disclosure to a time frame relevant to the key issues. I consider the recent conspiracy theory to be irrelevant for purposes of deciding this motion. I will not require that the assets of George Chuvalo, and particularly the Fidelity Account be accessed for payment of expenses on account of production of the documents covered by the order. If this order is largely motivated by a lack of trust in Mitchell Chuvalo to comply with disclosure obligations, then the applicant should be required to pay for production, subject to the judge on the guardianship hearing making a different order.

[28] Within that framework, I have made amendments to the draft order submitted at the hearing as follows:

1. Allow production of “Medical Records” for the period March 1, 2014 to and including March 31, 2014; and for the period June 1, 2016 to June 30, 2016.
2. Dismiss the request for production of “Financial Records” from persons other than Mitchell Chuvalo. Dismiss the request for production of “Financial Records” from Mitchell Chuvalo pending fulfillment of undertakings and clarification of questions taken under advisement.
3. Dismiss the request for production from those not named as parties.
4. Dismiss the request for “Legal Records” except with respect to the 2014 powers of attorney.
5. Dismiss the request for leave to examine three specified lawyers and any other solicitor.
6. Modify the release of the duty of confidentiality and/or doctor and patient privilege to accord with the time periods above.
7. Modify the request for leave to set aside the without notice order to reflect the order only against Mitchell Worsoff.
8. Schedule a case conference as indicated in a separate endorsement.

[29] I reserved decision but asked for submissions as to costs. Mr. Graham took the position that, if successful on the motion, his client would be satisfied with an order that she was entitled to costs and leave it to the application judge in the guardianship proceeding to decide how much. The Applicant achieved some success in this motion but modest in comparison to what she sought. I am not satisfied that she is entitled to an order for costs.

[30] Mr. Shastri and Ms. Popovic-Montag asked that costs of the motion for directions be reserved to the judge hearing the guardianship application. I agree with counsel for the Respondents.

Order

ORDER TO GO AS FOLLOWS:

[31] This court orders that the parties are separately entitled, and their respective lawyers, for the period from March 1, 2014 to and including March 31, 2014 and for the period June 1, 2016 to and including June 30, 2016 to compel the production of George Chuvalo’s OHIP records and medical information and reports, notes, charts, files, hospital records (“Medical Records”) from any person or institution in possession of such Medical Records with respect to George Chuvalo, with copies of same to be produced to all other parties, at the expense of those parties, immediately upon receipt.

[32] This court orders that any medical professionals are hereby released from any duty of confidentiality and/or any doctor and patient privilege or other privilege owing by them to the extent of the documents asked to be produced pursuant to paragraph 31 above.

[33] This court orders that the parties are separately entitled, and their respective lawyers, to compel the production from Mitchell Worsoff of all his records, notes, correspondence and files relating to the power of attorney for property and the power of attorney for personal care both dated March 26, 2014. This order does not include any other records, notes, correspondence and files and specifically does not include testamentary instruments.

[34] Mitchell Worsoff is granted leave to bring a motion before me to set aside this without notice order, within 14 days of any demand made pursuant to this order.

[35] The motion for production of “Financial Records” from persons other than Mitchell Chuvalo is dismissed.

[36] The motion for production of “Financial Records” from Mitchell Chuvalo is dismissed without prejudice to being brought back on before me after Mitchell Chuvalo has responded to his undertakings and clarified the questions under advisement. Mitchell Chuvalo shall do so no later than November 5, 2018.

[37] The charges for the production of records referred to above shall be paid by the law firm of the party obtaining the records provided that the judge hearing the guardianship proceeding shall make the final determination as to payment of same.

[38] All other requests in this motion for directions are dismissed.

[39] Costs of this motion are reserved to the judge hearing the guardianship application.

Kiteley J. Date: October 5, 2018

Footnotes:

[1] 2017 ONSC 6687 [2] 2018 ONSC 311 [3] The August 29, 2018 order limited disclosure by the lawyer with respect to powers of attorney signed on or about June 16, 2016. However, the lawyer also provided a copy of a will. [4] I have omitted the names of persons mentioned in the draft order who are not parties to the guardianship application.