Court File and Parties
COURT FILE NO.: CV-22-0436-00 DATE: 2023-07-10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Gary William Craib M. Holervich, for Gary William Craib Applicant
- and -
James Alexander Craib, Michael Thomas Craib and Stanley William Craib R. Lepere, for James Alexander Craib No-one appearing for Michael Thomas Craib and Stanley William Craib Respondents
HEARD: July 6, 2023, via ZOOM at Thunder Bay, Ontario Mr. Justice W. D. Newton
Reasons On Motion
Overview
[1] Gary[^1], James and Michael are Stanley’s sons. Stanley is 95. His wife, Anne, also the mother of the sons, died in May 2022.
[2] Anne’s will named Stanley as Estate Trustee and left all of her property to him.
[3] Stanley has a continuing Power of Attorney for Personal Care, dated June 16, 2020, which names his three sons as his attorney for property. The instrument provides that they may act jointly or by majority.
[4] Gary commenced this application in November 2022, seeking: a. an Order for directions with respect to the duties and responsibilities of Gary and, Michael and James as attorneys for property for Stanley and b. such further and other Order as may be necessary or appropriate.
[5] Gary brought this motion, originally returnable June 1, 2023, for:
- An interim Order prohibiting, James from exercising any authority or otherwise acting as an attorney for property for his Stanley pending further Order of this Court;
- An interim Order prohibiting James from engaging in any transaction involving any of the bank accounts or other financial assets in which the estate of the late Anne Elizabeth Craib has an interest, including but not limited to the three (3) bank accounts;
- An interim Order prohibiting James from otherwise managing any money or asset of the estate of the late Anne Elizabeth Craib, or otherwise acting in any capacity as a trustee of the estate of the late Anne Elizabeth Craib, pending further Order of this Court;
- An interim Order providing such directions as will prevent any continuing or other dissipation of the assets of Stanley and including any assets of the estate of the late Anne Elizabeth Craib, pending further Order of this Court.
[6] That motion was adjourned until July 6, 2023 and, in his Confirmation form, Gary indicated that he was only seeking an interim order restraining James from accessing a bank account.
[7] James opposes the motion arguing that Gary has no standing to seek such an order and that the only party with standing is Stanley.
The Facts
[8] In his affidavit sworn May 6, 2023, Gary deposes that: a. since 2019, he has lived with his parents to provide personal care; b. his father, Stanley, is 95, “partially death and somewhat senile, but otherwise he is generally coherent.”; c. prior to his mother’s death in May 2022 she had substantial monies in bank accounts and investments: Scotia Bank chequing – balance March 2022 - $113,810 Scotia Bank investment – balance Dec 2022 - $153,893 TD Canada Trust – savings – balance May 2022 - $10,137 TD Canada Trust – chequing – balance May 2022 - $11,247 TD Canada Trust -RIF – balance May 2022 - $27,000 d. James was added to his mother’s bank accounts in 2018 and 2020; e. he overheard James telling his father that his mother gave all her bank accounts to him (James); f. James has transferred monies from his mother’s account to him prior to her death and, after her death, has used her mother’s bank accounts to pay his personal bills; g. as such, his mother’s estate needs to be properly administered; h. James is not cooperating; i. the other brother, Michael, is unwilling to help with his father’s care and is rarely in contact with Gary although Gary believes that Michael communicates with James regularly.
[9] In a subsequent affidavit sworn June 22, 2023 Gary deposes that: a. after the motion record was served on James on May 19, 2023, James closed the mother’s TD Canada Trust chequing account on May 26, 2023, with transfers out of $10,306.84; b. James has now depleted and closed both of his mother’s savings account in addition to the TD Canada trust chequing account; and c. he is concerned that James will deplete the Scotia Bank chequing account that had a balance of over 100,000 in March of 2022.
[10] James has not filed any affidavit despite being served.
[11] There is no indication in the material before me that Michael or Stanley, the other responding parties, have been served.
Position of the Parties
[12] Gary submits that the action of James, particularly in closing out TD Canada Trust account, shortly after being served with motion material, justifies the making of the interim order.
[13] James, without submitting any affidavit evidence, argues that Gary has no standing to seek such an order. He submits that Gary has no right to commence litigation on behalf of Stanley as attorney for property or litigation guardian. The assertion made in James’ factum, not in an affidavit, is that his mother’s bank accounts passed to him by right of survivorship and did not form part of his mother’s estate.
[14] In his factum, James states that “Stanley does suffer from some cognitive impairment, but it is unknown whether he is capable of managing his property in any respect.
Discussion and Disposition
[15] I am sympathetic to the position of Gary that something needs to be done. The question is what and how.
[16] The positions of two of the attorneys is known. The position of the third, Michael, is not known. I have no material in front of me indicating that he has been served with either the application or the motion.
[17] Absence service on Michael, I cannot determine that directions are required because two of three attorneys cannot agree to act. It may be that there is consensus. It may be that there is not. In this case, I cannot accept only Gary’s assertions as to Michael’s inability or unwillingness to act. I note James’s silence on this point.
[18] The mother’s estate needs to be properly administered. As Stanley is the Estate Trustee that is his responsibility. Whether he lacks capacity to act is not known.
[19] Section 3(1)(a) of the Substitute Decisions Act[^2] (SDA) empowers the court to direct that the Public Guardian and Trustee arrange for legal representation to be provided for a person if the capacity of the person in a proceeding who does not have legal representation is in issue.
[20] If after service, Michael does not appear or resiles from his appointment as attorney, the court can, on motion, give directions.
[21] Similarly, legal representation for Stanley should be arranged under the SDA so that his capacity can be assessed. Accordingly, I direct the PGT to arrange for legal representation to be provided for Stanley so the issues relating to the mother’s estate and the power of attorney for property can be determined.
[22] I decline to make the order sought by Gary finding that he lacks standing and that the motion is premature.
“Original signed by”
The Hon. Mr. Justice W.D. Newton
Released: July 10, 2023
[^1]: The first names of the family members are used to avoid confusion and to simplify these reasons. No disrespect is intended to any of the parties. [^2]: Substitute Decisions Act, 1992, S.O. 1992, C. 30.