COURT FILE NO.: CV-19-00001899-0000

DATE: 20220721

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ROBERT SINCLAIR WILLIAMS Applicant

– and –

ANN VIRGINIA HARRINGTON aka ANNE VIRGINIA HARRINGTON aka ANNE VIRGINIA WILLIAMS, VALERIE CATHERINE AGUANNO, KRISTEN ELIZABETH AGUANNO and THE PUBLIC GUARDIAN AND TRUSTEE Respondents

J. Korn, for the Applicant K. Lindsay-Skynner, for the Respondent Ann Virginia Harrington D. Guidolin, for the Moving Party Respondents Valerie Catherine Aguanno and Kristen Elizabeth Aguanno Robert Harrington, non-party, self-represented

HEARD: July 13, 2022, in person

REASONS ON MOTION

McCarthy J.

The Motion

[1] The respondents Valerie Aguanno and Kristen Aguanno (“the guardians”) move for an amendment to a previous judgment dated September 23, 2020 (“the judgment”) wherein I found the respondent Ann Virginia Harrington (“Ann”) incapable of managing her property, ordered the appointment of the guardians as joint guardians of Ann’s property, and approved a proposed management plan.

The Proposed Amended Management Plan

[2] The relief sought includes an amended management plan permitting the guardians to change Ann’s place of residence, to obtain vacant possession of 11 Fairside Drive in Bradford (“the Bradford property”) and for that property to be listed and sold. The relief sought involves essentially a judicially ordered sale of the Bradford property of which Ann is a 50% owner as a tenant in common. Robert Harrington (“Harrington”), Ann’s spouse and a non-party to these proceedings, is the other tenant in common.

The Non-Party

[3] The guardians seek relief against Harrington in connection with any judicially ordered sale of the property together with costs against him as a non-party. When this matter was last before me, I granted an adjournment to permit Harrington to obtain legal advice and to file responding materials if necessary.

[4] Harrington has not filed any responding materials. He has not sought to be added as a party. He did, however, appear to state his concerns and to be heard by the court. Ann, on her own behalf, has filed an affidavit dated May 30, 2022, in which she seemingly expressed her preference that the Bradford property not be sold.

Capacity

[5] In my reasons for judgment, I made a number of findings about Ann’s ability to manage her affairs. Those findings remain undisturbed. There was no appeal of my decision and there is no evidence before me which would serve to contradict the conclusions which undergird the judgment. Dr. Valerie Bruto’s opinion expressed in her capacity report remains unchallenged and unchanged. The evidence continues to satisfy me that Ann remains incapable of managing her property.

Discussion

[6] The hearing today featured some viva voce evidence: Ann gave evidence in direct examination and was cross-examined. I ordered this viva voce evidence so that I could evaluate the reliability of Ann’s affidavit and properly weigh her views and preferences in respect of the relief being sought.

[7] I have arrived at the conclusion that the relief sought must be granted and the Bradford property must be sold.

[8] I can afford no weight to Ann’s views and preferences as expressed either in her affidavit or her oral evidence.

[9] It is apparent to me that Ann is generally confused about her circumstances and clearly lacks insight into her situation. She could not for example recall how long her driver’s license has been suspended. She did not know how long her Mustang vehicle had been inoperative or for that matter when the last time she was even inside it. She was strangely reluctant to admit that the boat needed repair. She sheepishly admitted that an individual had been residing in a tent on her property. When pressed, she conceded that she was “not fond of it”. Ann suggested that she wanted to go home to Bradford but could not articulate why. She said that she had not asked her guardians to take her home to Bradford because they did not like Harrington. She then added that this was the entire reason for the court case. She claimed that she would rent out the Bradford property if necessary. This is strangely at odds with her repeated assertion that she wanted to live there. It is also highly unrealistic considering her inability to manage property. The demands and responsibilities of a residential landlord would be well beyond her capabilities. She could not identify why she agreed to move to Barrie in the first place. She simply stated, “That’s a good question.” Ann was very uncertain about the frequency of her contact with Harrington after the move to Barrie. She meekly offered that he does not call her “all the time.” At first, Ann suggested that she had not seen Harrington since moving to Barrie in November 2021. She had to be reminded that she had a visit with him in May 2022. She attempted to trivialize her fall when living at home in Bradford, eventually blaming it on the cat. Ann had no idea how often Harrington had left her alone at the Bradford property. She claims that Harrington loves her children, but this flies in the face of not only their evidence but with common sense. Ann was patently incapable of providing a viable reason why she would continue to own and store a Mustang vehicle which she had not and could not have driven for an undetermined period. Ann was casually dismissive of Harrington’s use of her bank card and access to her account even though the evidence makes it clear that he has taken advantage of her vulnerability in this regard.

[10] With the greatest of respect, Ann’s facial expressions and body language were entirely consistent with a person providing answers that were not genuinely her own. I highly suspect that she felt pressured to exonerate Harrington from any bad behavior or mistreatment towards her. I am persuaded that the affidavit does not contain her true wishes and desires. Her oral evidence, given as it was in a defensive, petulant, naive, and almost childlike manner satisfies me that her presentation is likely the product of external pressure or influence and therefore highly unreliable. Both the tone and content of her evidence are consistent with a person who, in line with both the capacity assessment and the previous findings of this court, does not have the capability to manage her own property.

[11] The evidence put forward by the guardians persuades me that it is in Ann’s best interest that the Bradford property be sold and that she realizes upon her 50% interest in the property in the current market. The evidence also establishes that Ann’s health and safety would be in danger if she were to resume residing at the Bradford property.

[12] The proposed amendments to the management plan would serve to ensure both Ann’s physical safety and her financial security. It is highly unrealistic for Ann to return to independent living at the Bradford property. In short, the sale of the Bradford property is clearly in Ann’s best interests. As well, the proposed sale of the chattels in question is in Ann’s best interests. She could not recall the last time she made use of the boat or the Mustang. She had no insight into the need to repair or maintain those items.

[13] There is no evidence that the guardians have acted or will act in a high-handed, irresponsible, or unreasonable fashion. I am satisfied that they have had regard to Ann’s expressed views and preferences but that those views and preferences are at odds with her best interest given Ann’s present situation. The evidence supports a conclusion that the guardians have been as competent, dutiful, diligent, and trustworthy as guardians as they were as attorneys. Their evidence of what constitutes Ann’s best interests must be given significant weight.

[14] The Public Guardian and Trustee has had input into and has approved the proposed amended management plan. That, too, is of considerable importance to the court.

[15] Finally, Ann’s best interests must be viewed in light of my previous undisturbed findings, which remain both current and relevant, and which include:

i) That she was being financially exploited by Harrington;

ii) That she has been manipulated by Harrington;

iii) That she was extremely vulnerable;

iv) That she had no insight into the financial risks facing her;

v) That she continued to have valuable equity in her home which has been compromised by the actions of Harrington.

[16] There is no basis to rebut the prima facie presumption that a property owned as tenants in common should be listed and sold in these circumstances.

[17] The balance of the relief (i.e., the order for vacant possession of the property and the dispensing of the need for Harrington’s signature on sale documents) are also reasonable and necessary in the circumstances to ensure the smooth unfolding of any sale effectively and seamlessly. Harrington’s interest in the Bradford property will be protected by the proposed distribution of the sale proceeds as well as the court monitoring of the sale.

Costs

i. Who is liable to pay costs?

[18] In respect of costs, each of the moving parties, the applicant Williams, and Ann as respondent to the application and the motion, seek their respective costs from Harrington.

[19] The Court’s inherent jurisdiction to control its own process permits an order for costs against a non-party in situations of gross misconduct, vexatious conduct or conduct by a non-party that undermines the fair administration of justice: see 1318847 Ontario Limited v Laval Tool and Mould Ltd., 2017 ONCA 184 at paras. 65-79.

[20] My reasons dated September 29, 2020, contain findings against Harrington which would constitute the kind of gross misconduct sufficient to warrant costs against a non-party. Exploitation of the vulnerable is always a concerning matter and a despicable practice. It is one that a court should take most seriously.

[21] There is little doubt that Harrington’s exploitation and manipulation of Ann left the power of attorney regime insufficient to safeguard Ann’s physical and financial security.

[22] In all of the circumstances, however, while the Applicant and moving parties are certainly entitled to their costs on a full indemnity basis, I am not persuaded that those costs should be borne solely by Harrington.

[23] One, there is no evidence that Ann’s incapacity, which became apparent to the applicant, her current guardians, her family doctor, Dr. Bruto, the Southlake Geriatric Outreach team and this court, was in any way caused by Harrington. Ann’s frailties, vulnerability and lack of insight would have eventually demanded a guardianship application in any event. Harrington’s exploitation of Ann was a symptom and a by-product of her condition. It was not a cause.

[24] Two, a motion for an amendment to the management plan and for a judicially ordered sale of the Bradford property would have been necessary by operation of the judgment (see paragraph 14 of my reasons).

[25] Three, Harrington was not named as a party to this application even after the last event. He has never formally opposed the relief sought in either the guardianship application or the present motion.

[26] Four, with or without Harrington’s antics in the background, a detailed management plan, the participation and input of the PGT, a capacity assessment, a formal application, and the seeking of directions from this court would have all been necessary. Absent exceptional circumstances, the accompanying costs would have been borne entirely by Ann’s estate.

[27] Finally, to the extent that the present motion has been substantively opposed, it has been opposed by Ann. Indeed, she has retained counsel and swore an affidavit in opposition to the relief being sought. The court was concerned enough with the contents of that affidavit to order an in-person hearing.

[28] Still, I agree with counsel for the guardians that Harrington’s conduct made the power of attorney regime inadequate to protect the interests of Ann. The ongoing specter of spousal exploitation lent the guardianship application and this present motion a measure of urgency. That being the case, Harrington must be held partially responsible for the necessity of the guardianship application, the present motion and the costs associated with those processes.

[29] In all the circumstances, I find that it is just and appropriate that the costs awarded to the applicant and the guardians be a first charge on the proceeds of sale of the Bradford property and be paid directly out of the proceeds of that sale prior to the presumptive equal distribution between the tenants in common. This will have the intended effect of splitting the litigation costs equally between the offending non-party Harrington and the opposing respondent Ann. It will also ensure that Harrington’s share of the costs award is actually paid by him.

[30] There remains the question of Ann’s costs. As the principal subject matter of the litigation, a necessary respondent on the application, but also an unsuccessful party on the present motion, her situation is somewhat unique. There is of course no question that Ann’s legal costs can and should be paid out of her share of sale proceeds. The more challenging question is whether her costs as respondent and as unsuccessful opposer to a motion should be partially borne by Harrington as a non-party. The question must be answered in the affirmative. The present guardians’ perceived need to move for a declaration of incapacity was clearly driven not just by Ann’s condition but also by her situation, which prominently featured exploitation, neglect, and manipulation on the part of Harrington. As well, while Ann herself opposed the present motion, I highly suspect that it was a shared opposition, with Harrington behind the scenes putting Ann up to a position which, as I have already found, was unpersuasive and hardly tenable.

[31] Therefore, the costs of all claiming parties shall be paid out of the proceeds of sale of the Bradford property prior to any distribution to Ann or Harrington.

ii. Quantum

[32] At first blush the amounts sought by the applicant appear excessive. A detailed review of the work performed by applicant’s counsel, however, reveals an involvement that spans more than three years, features multi-layered procedures, and required several court appearances. The preparation of detailed affidavits and management plans was obviously time consuming and painstaking. Coordinating the capacity assessment and the independent legal advice, working with the present guardians, and corresponding with the Public Guardian and Trustee all required time and effort. Applicant’s counsel prepared a detailed factum and book of authorities in advance of the December 10, 2019, court appearance. The interim management plan then had to be put in place, investments managed, and developments monitored. The second court appearance on September 23, 2020, also demanded diligent preparation. Further monitoring and management were necessary in the wake of the court order appointing the guardians and approving the management plan. As it became apparent that a sale of the Bradford property and other relief would be in the best interest of Ann, there was the necessary preparation and attendance for the present motion.

[33] Similarly, the guardians’ bill of costs sets out an extensive and detailed description of the necessary legal work which counsel performed on their behalf. The fees incurred on behalf of the guardians are understandable given that, at a certain point, the guardians carried the ball, so to speak, which included taking the initiative on the present motion.

[34] Ann’s bill of costs is also reasonable. As the subject of a guardianship application, separate representation for her was reasonable and necessary. And although ill-advised and ultimately unsuccessful, Ann’s opposition to the sale of her home and her personal property was within her right.

[35] The total claim for costs is approximately $275,000. I find this reasonably proportionate to the importance of the issues, the complexity of the process and the value of the estate (the market value of the property is close to one million dollars). The applicant and the moving parties were largely successful in all matters before the court. Harrington was afforded the opportunity to retain counsel and oppose the costs award against him. He was aware of the respective bills of costs and the claims against him personally. Harrington must have been impressed with the seriousness of the matter and the potential exposure he faced.

[36] All of these costs are properly payable on a full indemnity basis. There was no evidence to suggest that the either the applicant or the guardians were acting in their own interests. The power of attorney regime, the guardianship, the initial management plan, and the relief sought in the present motion all served the best interests of Ann. It is appropriate that the proceeds of sale of the Bradford property be used to defray the costs incurred on her behalf and for her benefit. For reasons given above, Harrington’s conduct as a non-party warrants him being responsible for an equal share of those costs.

[37] Accordingly, the following amounts for costs on a full indemnity basis inclusive of disbursements and HST shall be paid out of the proceeds of sale of the Bradford property prior to any distribution to the tenants in common in their personal capacities:

1. To Goddard Gamage LLP the sum of $161,924.96;
2. To Epstein and Associates the sum of $88,281.73;
3. To Karen Lindsay-Skynner, L.L.B the sum of $35,032.83.

Disposition

[38] The motion is therefore allowed in part. There shall be an order to go in accordance with the rulings set out above. For greater clarity, the guardians are at liberty to change Ann’s place of residence; Harrington shall vacate the Bradford property on or before August 31, 2022; the proposed amended management plan is approved; the Bradford property is to be listed and sold without the necessity of signatures and consents by Harrington; the chattels in question shall also be sold or disposed of as required; and costs of the parties shall be paid on a full indemnity basis out of the proceeds of disposition of the Bradford property prior to any distribution to the tenants in common.

[39] Any matters not dealt with in this present ruling are to be brought back before me on notice to all affected parties on a date to be assigned by the trial coordinator at Barrie.

[40] Counsel for the moving parties/guardians are asked to prepare a clean version of a draft proposed order reflecting these rulings which shall include a schedule containing the amended management. The proposed shall be approved as to form and content by the parties before being presented to the court for execution through the trial coordinator’s office. The approval as to form and content of the non-party Harrington is dispensed with. The parties are encouraged to file those approved documents during the week of July 25, 2022, to expedite the implementation of the amended management plan and the listing and sale of the Bradford property.

[41] I thank counsel for the excellent presentation of their clients’ respective positions.

McCarthy J.

Released: July 21, 2022