COURT FILE NO.: CV-20-59422
DATE: 20210305
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF the Substitute Decisions Act, 1992, S.O. 1992 c.30, as amended. Advocacy, Consent and Substitute Decisions Statute Law Amendment Act, 1996, S.O. 1996, sections 17 and 18;
AND IN THE MATTER OF the property of JOANA MARTINS
BETWEEN:
THE PUBLIC GUARDIAN AND TRUSTEE
Applicant
– and –
JOANA MARTINS and ALWYN MARTINS
Respondents
M. Phan, for the Applicant
S. Beeksma, for the Respondent J. Martins
A. Martins self-represented
– and –
MARTYN MARTINS
Non-party
D. Fonseca, for the non-party
HEARD: January 22, 2021
THE HONOURABLE Justice R. B. Reid
REASONS FOR JUDGMENT
[1] The Public Guardian and Trustee (the “PGT”) seeks an order confirming its refusal to issue a certificate of statutory guardianship to Alwyn Martins (“Alwyn”) in respect of his mother, Joana Martins (“Joana”), and a declaration that the PGT should continue to act as the statutory guardian of the property of Joana.[^1]
[2] The non-party, Martyn Martins (“Martyn”), is the brother of Alwyn. He sought an order that a certificate of statutory guardianship in respect of Joana be issued to him, but at the hearing withdrew that request and supported the position of the PGT.
[3] Alwyn seeks an order requiring that the PGT issue him a certificate of statutory guardianship in respect of Joana.
Background:
[4] Joana is 86 years of age. She has been diagnosed with dementia and was found incapable of managing her own financial affairs in a capacity assessment dated April 14, 2019 whereupon the PGT was appointed as the statutory guardian of her property pursuant to section 16 of the Substitute Decisions Act, 1992 as amended (the “SDA”).
[5] Alwyn and Martyn are Joana’s two surviving children. Martyn has power of attorney for her personal care. There is no power of attorney for her property.
[6] In November 2013, Joana sold her home in Mississauga and purchased a residence in Niagara Falls. Two years later, she gifted a half-interest in her new residence to Martyn. They live together and hold title as joint tenants.
[7] The capacity assessment was organized by Niagara Regional Police Detective Jeffrey May of the financial crime unit as part of a criminal investigation into the alleged disappearance of approximately $400,000 of Joana’s savings. The investigation was initiated by a complaint from Alwyn.
[8] In May 2019, Alwyn applied to the PGT to replace it as statutory guardian of property in accordance with provisions of s. 17 of the SDA. The PGT refused in writing, primarily because Joana Martins communicated her strong opposition to that appointment. In response, Alwyn gave written notice on October 16, 2019 that he disputed the PGT’s refusal to issue a certificate of statutory guardianship to him and as a result, the PGT has sought a court order pursuant to s. 18 of the SDA.
Applicable Law:
[9] The court must determine pursuant to s. 18(3) of the SDA whether the PGT should be replaced.
[10] As required by s. 18(4), the court must take into consideration the incapable person’s current wishes, if they can be ascertained, and the closeness of the applicant’s relationship to the person[^2]. An incapable person’s wishes should be accorded significant deference.
[11] In addition to the incapable person’s wishes, it is important for the court to consider the person’s best interests. Best interests were considered, for example, in the matter of Farley v. Farley, (2008) 43 E.T.R. (3d) 138 (S.C.J.) at para. 18.
Analysis:
Wishes of the person and closeness of the applicant’s relationship:
[12] Joana was represented by counsel at the hearing of this motion. Counsel advised that she was still mentally capable of providing instructions and managing her legal affairs, notwithstanding her diagnosis of dementia and Alzheimer’s disease.
[13] She deposed in her affidavit sworn November 18, 2020 that she did not want Alwyn to become her guardian for property.
[14] In May 2019, the PGT wrote to Joana advising that it had received an application from Alwyn requesting appointment as her statutory guardian of property. The letter invited questions or comments and in return, Joana wrote: “Tell Alwyn please, I do not want him to do anything with my life dealings. He has ripped off his father and is now waiting to rip me off.” In a note to the PGT dated June 28, 2019, she wrote: “I would like Alwyn my oldest son to have nothing to do with my financial or medical affairs.”
[15] In her affidavit, Joana stated that the applicant has a history of misappropriating funds, fraud, and abusing his position when he has acted as estate trustee and as an attorney for property for other individuals.
[16] She listed concerns about Alwyn’s handling of her two daughters’ estates and his actions as guardian and power of attorney for property for her late husband Hilary Martins. She deposed that she has felt used and manipulated by Alwyn and that he contacts her only when he needs money or to secure other benefits for himself.
[17] Alwyn disputes his mother’s capacity to instruct counsel. However, based on the evidence before the court, there is no reason to doubt her counsel’s assessment that Joana can give instructions and understand the legal proceedings.
[18] Alwyn categorically denies the alleged history of financial misappropriation, fraud, and abuse of position as trustee or under power of attorney.
[19] To make a finding about Joana’s current wishes, it is unnecessary for me to determine whether her concerns about Alwyn’s actions are justified. Both her affidavit and the responding affidavit of Alwyn are untested and many of the allegations and responses consist of hearsay. However, Joana has consistently opposed Alwyn’s involvement in her affairs since at least May 2019.
[20] In her affidavit, Joana indicated her preference to have Martyn appointed as guardian of her property or in the alternative that the status quo continue. At the hearing, Martyn withdrew his request that he be appointed and he supported the ongoing guardianship of his mother by the PGT. In view of that position, counsel advised that Joana also supported the continued involvement of the PGT.
[21] I agree with the submissions on behalf of the PGT that the appointment of a guardian against the wishes of the incapable person is to be avoided where possible to prevent the imposition of a distressing situation on the person. Whether Joana is justified in her views is not the test. She has the mental competence to form and express her wishes, and those wishes must be considered. Ordering the involvement of Alwyn as statutory guardian, despite the contrary wishes of his mother, is a recipe for long-term conflict. That consideration is exacerbated by her declining mental capacity. Her ability to understand the reasoning behind such a decision and Alwyn’s ongoing involvement would be increasingly limited.
[22] As to the closeness of the relationship between the applicant and the incapable person, Alwyn is obviously a close relative by blood. He lives in Mississauga, which is less than 90 minutes by car from Niagara Falls, and he relates a history of visiting and supporting his mother. For her part, however, Joana has described the relationship as being strained and denies the closeness alleged by her son.
[23] In this case, I consider that reviewing the two statutory considerations under s. 18(4) of the SDA, namely the person’s wishes and the closeness of the applicant’s relationship to the person, draw the court to a similar conclusion: any apparent “closeness” between Alwyn and his mother based on their blood relationship is undercut by her expressed distrust and antipathy to his involvement with her affairs.
Best interests:
[24] It is reasonable to look beyond the statutory language of the SDA in s. 18(4) to consider Joana’s best interests. While the court must consider the person’s wishes and the closeness of the applicant’s relationship to the person, it is not required to make a decision solely on those bases.
[25] By virtue of her incapacity to manage her own property, Joana is vulnerable and in need of protection. It is that vulnerability that makes the decision about management of the person’s financial estate so important. The court, in applying the provisions of the SDA, must determine the proper party to manage her property in her best interests. Ideally, but not necessarily, that decision will be consistent with her own wishes.
[26] The two choices available are either to order that the PGT should continue to act as the statutory guardian of Joana’s property or to require the PGT to issue Alwyn a certificate of statutory guardianship so that he can be her guardian.
[27] The PGT is a safe option. It operates within a statutory and regulatory framework. As set out in s. 31(2) of the SDA, where a person is appointed as guardian, the court must be satisfied that the person will exercise his fiduciary duties diligently, with honesty and integrity and in good faith for the incapable person’s benefit. Those concerns do not arise where the PGT is appointed.
[28] The objections made by Alwyn to the continuing involvement of the PGT are that:
a. he can act more nimbly than the PGT to quickly and effectively respond to Joana’s needs;
b. the PGT has failed to accurately monitor Joana’s income including rental income which is alleged to have been earned from tenants secured by Martyn;
c. the PGT has charged excessive fees for managing Joana’s assets;
d. the PGT has authorized unnecessary expenses not in Joana’s best interests including legal fees to review a finding of incapacity and payment for a further capacity assessment; and
e. the PGT failed to investigate allegations of emotional harm.
[29] An individual acting as guardian may well deal with issues arising more quickly than can the PGT, which must follow its internal processes. Likewise, the PGT may be slower to recognize minor financial issues as they arise. Joana does not disagree with these concerns about the PGT’s involvement. However, the evidence does not support the allegation that the PGT charges excessive fees, especially in that a guardian may also charge fees for services. Nor is there evidence that decisions by the PGT to permit the incurring of legal fees or the costs of further capacity assessments were incorrect or wasteful of Joana’s assets. While Alwyn is entitled to his own view of the expenses incurred, those expenses do not seem to this court to have been unreasonable. As to the allegations of emotional harm, the facts are not borne out by Joana’s own evidence, as deposed with the benefit of counsel. Therefore the PGT cannot be criticized for having failed, at least to date, to conduct a further investigation into her situation.
[30] Turning to the option of appointing Alwyn as guardian, there is dramatically conflicting evidence.
[31] Alwyn deposes to his commitment to make every effort to support his mother’s quality of life by eliminating present sources of stress, both financial and emotional. He proposes that she return to Mississauga to live near him and his family. There, she would have more personal interactions, with better access to community services and respite care. As to the house in Niagara Falls, he proposes in his management plan to “transfer title to Joana Martins solely”, sell the house, and use the proceeds for her continuing maintenance. There is no indication of how he would be able to transfer title, given that it is currently held in joint names with Martyn, and there is no reason to believe that Martyn would co-operate.
[32] A key element of Alwyn’s plan is to remove his mother from the influence of Martyn, of whom he is suspicious. Alwyn believes that his brother has “demonized him with lies” told to their mother, both before and after her move from Mississauga to Niagara Falls. He deposes that his brother controls and emotionally abuses their mother.
[33] It was his impression that the proceeds of sale of the Mississauga property were substantially greater than have been accounted for, thus leading to his complaint to the Niagara Regional Police. I note, however, that the information provided by both Joana and Martyn concerning the real estate transaction appears to answer that concern.
[34] Alwyn objected to the expense of a three-month vacation in early 2016 on which his brother accompanied his mother, presumably at her cost, to Europe and to her ancestral home in India.
[35] Alwyn deposed to a history of financial support from his mother to his brother over a period of more than 25 years. In his view, Martyn is continuing to benefit from their mother’s financial support in that he lives with her and is now co-owner of her house.
[36] By comparison, Joana and Martyn recite a history of inappropriate conduct by Alwyn.
[37] Joana supports her opinion by referring to a five-page handwritten letter signed by her dated May 13, 2015 which has been held by her lawyer with her will. In it, she sets out in detail her reasons for not including Alwyn as a beneficiary of her estate. They include a detailed and lengthy discussion of issues relating to her former husband, herself, Martyn, and her deceased daughters Pearl and Cheryl. She refers to the expenditure of substantial sums of money for Alwyn’s benefit over his lifetime, misappropriation of money by him, his unfair business dealings (to the detriment of his family), inappropriate dealings with his stepmother Gertrude Martins, and his unauthorized use of his father’s credit card. Her summary is that she was “hurt, disappointed, embarrassed, shocked and surprised” at his conduct. Alwyn denies the allegations and notes that they are not substantiated with any direct evidence.
[38] In his affidavit, Martyn echoes many of his mother’s comments and states that Alwyn has shown a consistent pattern of “disputing with family members” or attempting to take control of their assets in order to obtain a financial advantage.
[39] Attached to the affidavits of Martyn and Joana is an unsigned letter dated October 29, 2010 from Hilary Martins to Alwyn which begins: “I have read your letter of Sept. 27/10 and am disgusted by your attitude but not surprised. I am well-aware of your crooked ways.” It then goes on to list various instances of inappropriate conduct on the part of Alwyn.
[40] Joana provided a copy of the last will and testament of her daughter, Cheryl Frances Finlay signed September 7, 1999, shortly before her death. The will states in part: “Under no circumstances should my brother S. Alwyn Martins have anything to do with my Will or the Dispursement [sic] of my Monies.”
[41] Alwyn makes a comprehensive response to the many allegations against him. He denies their truthfulness, notes that they are unproven, alleges undue influence over his mother by his brother, and denies that the letter from his father is authentic.
[42] Joana apparently owes her daughter Cheryl’s estate an uncertain amount of money to which other beneficiaries of the estate including Alwyn would be entitled. As such, the PGT notes that there would be a conflict of interest for Alwyn if he was to be appointed guardian of her property. The amount in question may be modest -- slightly more than $7,000 -- and Alwyn proposes that any repayment of the estate be made pursuant to an independent “fact-finding”.
[43] As I noted in the discussion of Joana’s wishes, all the affidavits are untested and many of the allegations and responses consist of hearsay. It is impossible to determine based on the materials filed which allegations are true. What is apparent is that there has been an ongoing antipathy between Alwyn and Martyn for years, and that Joana is aligned with the position of Martyn. Cheryl Finlay seems to have shared the feeling, as far back as 1999. There is evidence (at least by hearsay) that Hilary Martins was similarly disposed. The financial conflict of interest between Alwyn and Joana as to the estate of Cheryl Finlay is real, even if the amount at stake is not substantial.
Summary and Conclusion:
[44] In summary, the question is how to protect the best interests of Joana who is incapable of managing her own affairs: under the auspices of the PGT or Alwyn.
[45] I have already observed that the PGT is a safe choice, but with the limitations identified. Joana prefers to have the PGT continue in its role rather than have Alwyn appointed guardian. Based on the evidence available, there is no strong likelihood that the allegations against Alwyn are sufficiently untrustworthy (and that his responses are sufficiently trustworthy) to justify his appointment notwithstanding Joana’s own wishes.
[46] The lengthy history of conflict between Alwyn and Martyn is undisputed. Since there is no realistic possibility that Martyn will agree to sell the jointly owned home, and since Joana’s estate is otherwise very modest, it is likely that she will continue to live in the premises with Martyn. Appointing Alwyn as guardian in those circumstances is a recipe for increased conflict between the brothers in which Joana will inevitably be involved.
[47] In this case, the best interests of Joana are aligned with her own wishes: that the PGT rather than Alwyn be confirmed as guardian of her property.
[48] As a result, and for the foregoing reasons, there will be an order confirming the refusal by the PGT to issue a certificate of statutory guardianship to Alwyn in respect of his mother Joana Martins, and there will be a declaration that the PGT continue to act as the statutory guardian of the property of Joana Martins.
Reid J.
Released: March 5, 2021
COURT FILE NO.: CV-20-59422
DATE: 20210305
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE PUBLIC GUARDIAN AND TRUSTEE
Applicant
– and –
JOANA MARTINS and ALWYN MARTINS
Respondents
– and –
MARTYN MARTINS
Non-party
REASONS FOR JUDGMENT
Reid J.
Released: March 5, 2021
[^1]: To avoid confusion as between people who share the same surname, I will refer to them by their given names throughout.
[^2]: The “applicant” under the SDA is the person seeking to replace the PGT even though in this litigation, the PGT is shown as the applicant, and Mr. Alwyn Martins is the respondent. In these reasons, reference to “applicant” refers to Mr. Alwyn Martins.