COURT FILE NO.: CV-21-098-00 (Milton)
DATE: 2021 04 30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KRISTEL DIMITROVA
Applicant
Self-Represented
- and -
TANYA DIMITROVA and the PUBLIC GUARDIAN AND TRUSTEE
Respondent
A. Mayeski for the Respondent
R. Coutinho, counsel for Public Guardian & Trustee
HEARD: February 4 and 17, March 18, and April 19, 2021, by video-conference
Emery J.
REASONS FOR DECISION
[1] The respondent, Tanya Dimitrova, is a 51 year old woman who is facing challenges in life. Her daughter, Kristel Dimitova, brings this application to have the court appoint her as guardian of her mother for property and for personal care.
[2] In this decision, I refer to each party and any other member of the Dimitrova family by their first name to avoid repetition of the family name. I also use this naming convention in deference to Tanya, who has indicated a preference that she be recognized by her full name, Tanya Krusteva Milusheva-Dimitova.
[3] On the first return date for this application, I directed counsel for the Public Guardian and Trustee (the “PG&T”) to appoint counsel for Tanya under s. 3 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, (the “SDA”). Ms. Mayeski was appointed soon after, and filed materials on Tanya’s behalf for the hearing scheduled on March 18, 2021.
[4] Ms. Mayeski advocated on Tanya’s behalf that she opposes the Order requested. Under s. 2 of the SDA, she is presumed to be capable to make decisions for herself, and under s. 3 she is deemed to have capacity to retain and instruct counsel. Tanya submits there is no current or credible evidence before the court to show on the balance of probabilities that she is incapable of managing her property, or her own personal care. Tanya therefore asks that the application be dismissed, with costs.
[5] The application was adjourned on March 18, 2021 to allow Kristel to file a further affidavit to provide additional evidence in proper form. On the return of the application on April 19, 2021, Ms. Mayeski advised the court that Tanya did not want her to continue providing legal representation, or to make submissions on her behalf. Ms. Mayeski advised the court that she no longer considered herself retained by Tanya.
[6] Kristel had filed an additional document containing certain facts that she had characterized as an affidavit that was not sworn or affirmed. I therefore directed Kristel to file a proper affidavit if she intended to put those facts in evidence. The PG&T did not oppose the filing of that further affidavit.
[7] For the reasons that follow, the application is granted.
Tanya’s position
[8] Tanya and Krasimir Dimitrova were married on September 1, 1990 in Vidin, Bulgaria. Tanya and Krasimir encountered domestic difficulties after 25 years of marriage, and separated on or about April 27, 2017. They are currently in litigation over family issues, including equalization and support, in a proceeding commenced in the Superior Court of Justice under Court File No. 40074/17.
[9] Justice Coats declared Tanya to be a “special party” in the family case under Rule 2(1) of the Family Law Rules, O. Reg. 114/99. In an Order dated March 27, 2018, Justice Coats appointed the PG&T as her litigation guardian, and her representative with respect to only custody and access issues.
[10] Tanya and Krasimir have three children, Kristel (now age 30), Matias (now age 24) and Piet (now age 16). Justice Coats made a temporary Order on May 10, 2018 awarding sole custody of Piet to Krasimir, with supervised access to Tanya.
[11] Kristel’s affidavit in support of the application refers to the Orders made by Coats J. in 2018, and an affidavit sworn by Krasimir in the family law case dated November 22, 2017. Krasimir’s affidavit details the episodic, yet persistent pattern of disturbing behavior on Tanya’s part from 2015 up to the date it was sworn.
[12] In January 2020, Tanya was evicted from the place she had been living, and left to live in her car for approximately a year and a half.
[13] Tanya currently lives independently in an apartment in Burlington. As Tanya does not have a good credit rating, Krasimir signed the lease as guarantor.
[14] In her factum, Tanya states that she does not have any money because her husband has not provided her with any spousal support. Tanya is currently not working.
[15] Tanya also advises that she does not take or need any medication, except for her blood pressure pills, which she states she takes regularly.
[16] Tanya disputes any allegation that she is incapable, and relies on the burden of proof for Kristel to satisfy the court that she is incapable of managing her property or her personal care. She submits Kristel has provided no evidence to prove that she is incapable in either respect. However, no evidence has been filed by Tanya to answer Kristel’s affidavits.
[17] Tanya does not consent to undergoing a capacity assessment.
Kristel’s position
[18] Kristel relies on evidence filed with the court in the family case, as well as the affidavits she has filed to update evidence for the current application.
[19] In her affidavit filed on the application, Kristel describes how Tanya started to exhibit strange and “psychotic” behavior in or around September 2015. Even though Kristel uses medical or psychiatric terms to describe her mother’s symptoms, Kristel is not a physician and I repeat technical terms she has used only to reflect her evidence.
[20] Kristel states that an early symptom of her mother’s mental health occurred when Tanya began accusing Krasimir of having inappropriate sexual relations with Kristel’s aunt and grandmother.
[21] According to Kristel’s affidavit, Tanya’s mental health continued to decline and she became “delusional.” She would refer to Krasimir as Satan, and claim that she was the Virgin Mary. These incidents and others are described in detail in Krasimir’s affidavit dated November 22, 2017 and filed in the family case.
[22] Kristel also describes an event when Tanya wanted to take her youngest brother, Piet, to the roof of the house so that God “could come take them with a golden carriage with angels around”. She also describes how Tanya attempted to kidnap Piet from school.
[23] Kristel has appended an Application by Physician for Psychiatric Assessment for Tanya as an exhibit to her affidavit. This Application was completed by Dr. Cherian, a physician who examined Tanya in May 2018, as Form 1 under the Mental Health Act, R.S.O. 1990, c. M. 7. Dr. Cherian checked boxes on the Form 1 at the time he examined Tanya on May 17, 2018 indicating he had reasonable cause to believe that she had caused another person to fear bodily harm, and that she had shown or is showing a lack of competence to care for herself. Dr. Cherian also provided the observation at the time that Tanya has “fixed delusions.”
[24] It is clear that Dr. Cherian’s opinion is outdated, and the Form 1 is hearsay as he has not given an affidavit of his opinion of Tanya’s psychiatric condition, then or now. However, I can at least recognize the Form 1 for the statements contained in it, but not for the truth of its contents.
[25] Other exhibits attached to Kristel’s initial affidavit include a Patient -Medication List dated May 21, 2018 from Joseph Brant Hospital in Burlington that shows Tanya was not taking six of the ten medications prescribed for her. She was also banned from attending at the Brant Hills Public School on May 18, 2018 because she had been observed the day before at the school “driving in an unsafe manner in the parking lot, yelling and intimidating staff members and act(ed) in breach of a court order.”
[26] In her most recent affidavit dated April 21, 2021, Kristel gave the following evidence:
My mother calls me and the rest of my family (my brothers the most) every day, sometimes multiple times, and demands we do favors for her, please see Exhibit A (call history of my little brother). If we deny her requests, she becomes aggressive, increases the calls and in extreme situations calls the police claiming untruthful observations regarding us or the house, please see Exhibit B (One police notice for our vehicle and officer information card, which was handed-in upon another signal from my mother to check our backyard and vehicle). Firemen also came to us in Fall, 2020, claiming they were requested to do so, to check our smoke detectors. Our smoke detectors have always worked properly and we became worried without a reason. This whole situation puts additional stress on my brothers, who should focus on school and not have to worry being verbally abused by their mother. Threatening voicemails from her pertaining to me and my father can be provided upon request.
My mother needs urgent dental care as she is missing teeth and cannot chew adequately. She is constantly complaining of high blood pressure and severe headaches, however does not seek medical assessment. I worry she might experience something as severe as stroke. I have informed my legal representative of these points previously, please see Exhibit C. However, this information was not included in my previous Affidavits.
My mother continues to drive without insurance. She is in significant credit card debt and collection agencies have reached to her numerous times to request the money back. We have been giving her the letters manually, as she did not update her address for the past 2 years. Since she did not provide a response to the agencies, they started contacting my father, which is exhausting for my father.
My mother was not only aggressive to us, but also to other members of the society, please see Exhibit D (a letter from RBC bank addressing her inappropriate behavior).
We went to her place in January 2021 to celebrate New Years and she again exhibited psychotic behavior stating in front of me, my brothers and my father that she is convinced my father has slept with my grandma and my aunt and she has seen with her own eyes my father telling her this information. Such thing has never happened, which again serves as an example of auditory and visual hallucinations, representative of the mental disorder schizophrenia. She is also consistently exhibiting paranoid behaviors by claiming that her neighbors are watching her to the point of forcing my father to buy her curtains.
[27] Other members of the Dimitrova family support Kristel’s application for guardianship. Kristel has attached the written consent signed by Krasimir, Matias and Piet to have her appointed as guardian of property for Tanya, and and for her personal care.
[28] Kristel has also filed a Management Plan as part of her application to be appointed guardian to manage her mother’s property. She has also filed a Guardianship Plan to be appointed guardian of Tanya for her personal care. In each document, she describes her objectives as the proposed guardian, and the steps she proposes to take to reach them.
[29] In her affidavit, Kristel also states that she does not know the full extent of Tanya’s liabilities. She states that one reason she has brought this application is that she is concerned her mother’s debts and liabilities may far exceed her resources, a conclusion she bases on evidence of Tanya’s poor credit history.
[30] Kristel describes in her affidavit that the only assets held by her mother that she knows about are land in Bulgaria worth approximately $20,000, a car worth around $15,000 and jewelry worth about $8,000. She expects that Tanya will receive a certain amount of money from the family case. In section M of the Management Plan filed, she estimates there is approximately $250,000 in a trust account to be distributed between her parents in the family case. Kristel expresses the desire to help ensure Tanya does not “squander” that money as she does not believe Tanya is capable of managing her money.
Analysis
[31] The main issue in the application is whether I am satisfied on the evidence that Tanya is incapable of making decisions for herself in respect of her property and personal care. If I am able to make this finding, the court would then have the power under the SDA to appoint Kristel as her guardian to make such decisions on her behalf.
[32] Turnbull J. in Park v. Park, 2010 ONSC 2627 described that the purpose of the Substitute Decisions Act, 1992 is to protect the vulnerable, while at the same time ensuring that “the dignity, privacy, and autonomy of the individual are assiduously protected.” At paragraph 48 in Park, Turnbull J. went on to discuss the role of the court on a guardianship application in the following way:
[48] The court is therefore placed in a position where it must weigh the fundamental rights of each citizen against the danger that that vulnerable person may be taken advantage of due to his/her incapacity to protect or care for her/himself or his/her assets and property. In doing that, the court must be cognizant that the capacity to perform certain functions differs, depending on the nature of the function.
[33] Under s. 2 of the SDA, Tanya is presumed to be capable. Section 22(3) provides that the court shall not appoint a guardian if it is satisfied that the need for decisions to be made will be met by an alternative course of action that does not involve finding a person incapable of managing property, and is less restrictive on the person’s decision-making rights. One alternative course would be to order that Tanya be assessed under s. 79(1) to determine whether she is capable of making the necessary decisions to manage her property or look after her own personal care.
Application to appoint a Guardian
[34] The court in Hunt v. Worrod, 2017 ONSC 7397 spoke of how the capacity of an individual is decision, time and situation specific. A person’s level of capacity can fluctuate from time to time. Specifically, the relevant time period in evaluating an individual’s capacity to make a particular decision is the time at which the decision is made.
[35] Let me first address Tanya’s submission that the evidence put forth by Kristel is completely out of date. The evidence includes, but is not limited to an Order made in the family case three years ago, an affidavit of her husband from whom she is separated in 2017, an affidavit from 2018 from her husband’s lawyer and forms under the Mental Health Act.
[36] I acknowledge that Kristel is not a capacity assessor and therefore is not qualified to make a finding of incapacity. She has put forward her own evidence relating to her belief that her mother is incapable. However, the evidence Kristel has incorporated into her initial affidavit from Krasimir’s affidavit in November 2017 and the evidence she has given herself provide an evidentiary foundation to find that Tanya’s mental health was in decline in 2017 and 2018.
[37] I do not accept any improper characterization of a medical or psychiatric condition that Kristel attributes to her mother in the evidence. However, I find that the further evidence given by Kristel in her three affidavits filed on this application bridge the time since 2017 to show that Tanya’s mental health has continued to deteriorate, and that she is currently incapable of making proper decisions about her property and personal care.
[38] On the evidence before this court, I find as a fact that Tanya is incapable of engaging with third parties to manage her property. I make this finding on the evidence given by Kristel in the form of the letter from Royal Bank dated April 16, 2020 asking her to bank elsewhere because of her behavior, and that she continues to drive without automobile insurance. She has credit card payments she cannot pay, which suggests she cannot meet her debts and liabilities as they become due. This finding implies that, on the balance of probabilities, Tanya is incapable at this time of making decisions to manage the property she has, the income she receives, and any funds she may receive in the family case in a responsible manner and for her own well being.
[39] I also find as a fact that Tanya does not take her medication when required, that she needs immediate dental care, attention to her blood pressure and treatment for any psychiatric issues she is experiencing.
[40] I approve Kristel as the most appropriate person to appoint as guardian of Tanya for both property under s. 22, and for personal care under s. 55 of the SDA. I approve both the Management Plan and the Guardianship Plan, as amended, and accept Kristel’s expressions of good faith to help her mother regain a better quality of life.
The Alternative of a Capacity Assessment
[41] It is significant to observe for the purposes of weighing alternatives to making the guardianship orders that Kristel has not sought an order that Tanya be assessed under Section 79(1) of the SDA. Tanya expressed the view in her submissions that there are no reasonable grounds to believe that she is incapable. Accordingly, she submits that the court should not, on its own initiative, make such order.
[42] In Abrams v. Abrams, 2008 CanLII 67884 (SCJ), Justice Strathy (as he then was) listed a number of factors that the court must consider when making an Order for a capacity assessment under Section 79(1). These factors include the following:
(a) the purpose of the SDA;
(b) the terms of Section 79, namely:
(i) the person’s capacity must be in issue; and
(ii) there are reasonable grounds to believe that the person is incapable;
(c) the nature and circumstances of the proceedings in which the issue is raised;
(d) the nature and quality of the evidence before the Court as to the person’s capacity and vulnerability to exploitation;
(e) if there has been a previous assessment, the qualifications of the assessor, the comprehensiveness of the report and the conclusions reached;
(f) whether there are flaws in 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;
(g) whether the assessment will be necessary in order to decide the issue before the Court;
(h) whether any harm will be done if an assessment does not take place;
(i) whether there is any urgency to the assessment; and
(j) the wishes of the person sought to be examined, taking into account his or her capacity.
[43] The courts have recognized that an assessment ordered under s. 79(1) is an “intrusive and demeaning process.” An assessment has been characterized as essentially a psychiatric examination where there is a substantial intervention into the privacy and security of the individual. See Abrams, at paragraph 50, and Flynn et. al. v. Flynn (December 18, 2007, unreported, Ont.S.C.J., Court file no. 03-66/07).
[44] The court in Zheng v. Zheng, 2012 ONSC 3045 (Div.Court) held that an assessment should not be ordered if the purpose is only to provide certainty to the court that has been asked to order the assessment, or to ease the concerns of guardians or relatives, or to respond to allegations of incapacity.
[45] I have weighed the alternative of ordering an assessment for Tanya with the practical effects on her rights and her person. In the circumstances of this case, ordering an assessment would not strike an appropriate balance between Tanya’s autonomy and the duty of the state to protect the vulnerable. Tanya does not consent to an assessment under s. 78, and the only way to compel an assessment would be to make an order under s. 79, along with an order under section 81.
[46] It is significant that Kristel has removed a request for an Order that her mother be assessed under s. 79(1) of the SDA. Mr. Coutinho has informed the court that the PG&T is also not seeking an order for an assessment. He explained in his submissions that it is clear from the record that Tanya has a combative personality, and will not submit to an assessment voluntarily. The PG&T is reluctant to recommend an Order that Tanya will likely not obey.
[47] Under the circumstances, the court is not inclined to make an order where voluntary compliance is unlikely. The evidence does not support such a drastic measure, and I conclude that ordering an assessment at this time would offend Tanya’s dignity, privacy and autonomy and operate in a manner inconsistent with the purposes of the SDA. Making an Order of this nature would in this case be more restrictive, not less, than making the Orders that Kristel seeks on her mother’s behalf.
Orders made
[48] The application is granted. The court finds that Tanya Krusteva Milusheva-Dimitrova, also known as Tanya Dimitrova is a person who is incapable of managing her property and her personal care. It is therefore necessary to appoint a person as her guardian to make decisions with respect to those matters on her behalf.
[49] Accordingly, Kristel Dimitrova is appointed guardian of property for Tanya Dimitrova under s. 22 of the SDA. Kristel Dimitrova is also appointed guardian of the person for Tanya Dimitrova under s. 55 of the SDA, and is authorized to make decisions on her behalf.
[50] The order appointing Kristel as guardian of the property and of the person for Tanya Dimitrova is subject to the following terms:
a. The appointment is subject to the order of Justice Coats dated March 27, 2018 appointing the Public Guardian and Trustee as litigation guardian for Tanya Milusheva-Dimitrova as a person who has been recognized as a special party in Milton Court File No. 40074/17;
b. An assessment is obtained that Tanya Dimitrova is capable of managing her property and her personal care, if she gives her consent to and cooperates with the assessment of her capabilities under either s. 78 or an order that she be assessed under s. 79 of the SDA; and
c. On application, the court suspends the powers of Kristel Dimitrova as the statutory guardian of Tanya Dimitrova or terminates that guardianship with respect to her property under s. 20.3 of the SDA, or the guardianship for Tanys’s personal care under s. 63 on the motion of any party, or both.
[51] Kristel has requested that the court dispense with the requirement that she obtain a security bond. There was little evidence, if any, filed in support of this request on the application. Out of an abundance of caution, the court requires Kristel to post a bond in the amount of $125,000 with the Accountant of the Superior Court until Tanya’s family law case settles and is approved by the court, or judgment is granted. Any Order or judgment should contain such terms the court considers just and in Tanya’s best interests at the time.
[52] As Kristel seeks no costs for this application, none are awarded.
Emery J.
Released: April 30, 2021
COURT FILE NO.: CV-21-098-00 (Milton)
DATE: 2021 04 30
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KRISTEL DIMITROVA
Applicant
- and -
TANYA DIMITROVA and the PUBLIC GUARDIAN AND TRUSTEE
Respondent
REASONS FOR DECISION
EMERY J.
Released: April 30, 2021