Robinson v. Robinson, 2022 ONSC 1901

COURT FILE NO.: CV21 - 2074 DATE: 2022/03/25 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MARLENE ROBINSON, Applicant AND: KENNETH ROBINSON and THE OFFICE OF THE PUBLIC GUARDIAN AND TRUSTEE, Respondents

BEFORE: Justice I.F. Leach

COUNSEL: Catherin M. Patterson, for the Applicant No one participating for the Respondent Kenneth Robinson Yeon-Tae Donald Kim, for the Respondent Office of the Public Guardian and Trustee

HEARD: In writing

Endorsement

1Before me is an application brought in writing by Marlene Robinson, seeking an order declaring that her husband Kenneth Robinson is incapable of making decisions regarding his property, appointing her as his guardian of property pursuant to the Substitute Decisions Act, S.O. 1992, c.30 (“the SDA”), and other consequential relief.

Parties

2The material filed by the Applicant includes an affidavit indicating that Mr Robinson was served with the application, as a respondent thereto, but he has not formally responded.

3The application also was served on the respondent Office of the Public Guardian and Trustee, (“the PGT”), whose counsel reviewed the initial application material and sent a letter outlining the views and position of the PGT in that regard; correspondence which the Applicant has filed with the court along with her supplementary affidavit addressing some of the concerns raised therein.

4As noted above, the Applicant is Mr Robinson’s spouse. The material filed indicates that he was an only child, and that his two adult children, (Darrell Robinson and Natasha Danychuk), have consented formally in writing via sworn affidavits to the relief being sought by their mother.

Finding of incapacity in relation to management of property

5Having reviewed the material filed by the Applicant, I find, in accordance with subsection 25(1) of the SDA, that Mr Robinson is incapable of managing property and that, as a result, it is necessary for decisions to be made on his behalf by a person who is authorized to do so.

6My reasons in that regard include but are not limited to the following:

a. Mr Robinson is currently 87 years old, and a retired sales associated. Until recently, he lived with his wife of more than 65 years, (the Applicant), in their jointly owned matrimonial home at a specified municipal address in Tara, Ontario; a village located in Bruce County.

b. However, Mr Robinson has experienced a progressive decline in his mental capacity. His family physician made a formal diagnosis of dementia in 2018, and a qualified capacity assessor, after conducting an assessment of Mr Robinson on November 11, 2021, prepared a formal statement dated November 22, 2021, supported by her attached Assessment Report, indicting/confirming her opinion that Mr Robinson is incapable of managing property, and that it is necessary for decisions in that regard to be made on his behalf. That incapacity is supported by the observations and anecdotal evidence provided by Mr Robinson’s wife and children in their respective affidavits, indicating that Mr Robinson generally is unable to follow financial discussions and becomes stressed whenever attempts are made in that regard.

c. Mr Robinson’s situation has recently deteriorated to the point where he can no longer continue residing in the matrimonial home, and he has relocated to a specified long term care home where his ongoing needs are being managed.

d. Unfortunately, it seems that Mr Robinson never executed any form of power of attorney, authorizing anyone to formally look after his property and financial affairs during any period of incapacity. The absence of such authorization has become a more pressing concern of late, as such authority is needed to formally direct Mr Robinson’s income, (limited to entitlements pursuant to the Canada Pension Plan and Old Age Security), to his long-term care. Arrangements also need to be formalized in relation to a loan arrangement, whereby a family friend has offered to extend a loan enabling Mr and Mrs Robinson to retain the jointly owned matrimonial home, with the loan remaining interest free until such time as the home is sold.

Appointment of Applicant as guardian of property

7I also find it appropriate to appoint Mrs Robinson as the required guardian of property, pursuant to s.22(1) of the SDA. There is nothing to suggest any incapacity or other disqualification on her part, and she has been devotedly looking after Mr Robinson’s interests since his dementia diagnosis. The management plan that she has filed is appropriate for the time being; i.e., at least until there is a further significant change in Mr Robinson’s circumstances, and/or until a sale of the jointly owned matrimonial home is contemplated.

Order provisions

8I have reviewed the draft Order submitted with the application material, which includes standard provisions usually included with the granting of such relief, including appropriate provisions addressing the costs of the PGT for reviewing and commenting on the application material.

9While I generally find the draft Order to be acceptable, I have included an additional paragraph, (paragraph “9A”), making it clear that the Application should file a proposed amended Management Plan, in accordance with the provisions of the SDA, prior to any contemplated sale of the matrimonial home. At that time, more specific consideration needs to be given to how Mr Robinson’s equity in the matrimonial home should be dealt with, if he and his interest therein survive at the time of the contemplated sale.

10Although the correspondence of counsel for the PGT observed that bond security is often requested and appropriate in relation to such applications, I am satisfied that is not the case here. In particular, security effectively is provided by the Applicant’s duty to keep and pass accounts, her own interest in the jointly owned matrimonial home, and the added requirement requiring her to file a further/amended management plan prior to any contemplated sale of the matrimonial home. The material filed also makes it clear that Mr and Mrs Robinson have been struggling financially to make ends meet, on their fixed and limited incomes. In my view, the circumstances do not warrant the imposition of a further bond security expense that would need to be addressed.

11Counsel for the PGT also raised the issue of occupation rent; i.e., to reflect the fact that the Application will continue to live on in the matrimonial home, at least for the time being, while Mr Robinson has been moved into a long-term care facility. However, I see no need for the Order to implement that added complication at present. In that regard, and without limiting the generality of the foregoing:

a. The material before me indicates that Mr Robinson has no immediate need for any such additional “income”, as the costs of his long-term care are being fully covered by subsidization and his other sources of income.

b. In my view, if any need for such income arises, that would constitute a significant change in his circumstances requiring the filing of an amended Management Plan pursuant to the provisions of the order, at which time arrangements can be made to address such needs through various alternatives, including retroactive imputation of occupation rent and/or arrangements to secure and address such financial needs through Mr Robinson’s equity in the matrimonial home.

c. While I was not presented with any evidence concerning Mr Robinson’s estate arrangements, (if any), it seems unlikely, having regard to the extremely long and apparently happy marriage he has enjoyed with the Applicant, that the Applicant will be the primary beneficiary of that estate if she survives Mr Robinson; e.g., through any will he has made, or through a dependency claim. In the circumstances, the practical effect of implementing any formal arrangement requiring the Applicant to pay occupation rent surplus to Mr Robinson’s current financial needs almost certainly would be the formal accumulation of unspent income, retained on Mr Robinson’s behalf, that would simply return to the Applicant upon Mr Robinson’s death -- with her having been obliged, in the meantime, to cover an additional expense when she is already struggling financially.

12The draft Order, with the additional inserted paragraph “9A” noted above, has been reviewed, finalized and signed accordingly.

Further court filings and proceedings

13Finally, I note that I am not seized of this matter. If and when the Applicant or any other party files further material with the court in relation to Mr Robinson and/or his property, (e.g., a request for directions, an amended Management Plan, or other court process), the matter may be placed before any judge of the court.