Danko v. Danko et al, 2024 ONSC 3473

Court File and Parties

COURT FILE NO.: CV-24-26-00 DATE: 2024-06-17

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: STANLEY DANKO v. MICHAEL JOHN DANKO and THE OFFICE OF THE PUBLIC GUARDIAN AND TRUSTEE

HEARD: June 12, 2024 in Chambers

BEFORE: Fregeau J.

COUNSEL: A. Fitzgerald, for the Applicant Michael John Danko, not appearing The Office of the Public Trustee, not appearing

ENDORSEMENT ON APPLICATION

INTRODUCTION

1The applicant, Stanley Danko, seeks an order declaring Michael Danko (“Michael”), his brother, incapable of managing his property and appointing him as the guardian of Michael’s property. The applicant also seeks an order approving the Management Plan filed with the application.

2This application has been served on Michael. The applicant has also advised Michael of the nature of the application and of his right to seek counsel and contest the application.

3The Public Guardian & Trustee (the “PGT”) was served with the application on May 24, 2024. By way of correspondence to counsel for the applicant dated May 24, 2024, and copied to the court, the PGT has commented on certain aspects of the application and of the relief sought, for the benefit of the court. The PGT advises that it will not otherwise be responding to the application.

4Michael’s mother, Katherine Danko, and his other siblings, Mary Warmbier and John Danko, have each signed a Consent confirming that they have reviewed the Application Record and consent to the relief sought.

BACKGROUND

5Michael is 67 years old and a lifelong resident of Kenora. He does not have a spouse or children. He has not been employed since 2008. The applicant is 64 years of age, retired, and living with his spouse in Calgary. Michael and the applicant were close while growing up in Kenora. The applicant was informed by Michael in November 2022 that Michael had designated him as his estate trustee in his will.

6Beginning in August 2023, Michael was repeatedly admitted to the Lake of the Woods District Hospital due to concerns about his physical and mental health and his ability to care for himself. Due to concerns about his cognitive capacity, Michael began to reside at the hospital on November 1, 2023, while awaiting a room in a long-term care facility in Kenora. On February 26, 2024, Michael was moved into Pinecrest Home for the Aged in Kenora where he has resided to date.

7Various medical and psychiatric reports, dated from November 2023 and up to and including January 2024, are attached as exhibits to the applicant’s affidavit. None of these reports expressly opine as to Michael’s ability to manage his property. However, it is reasonable to infer from the contents of these reports that Michael is suffering from rapidly progressive dementia such that he is not able to understand information that is relevant to making decisions as to the management of his finances and that he is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

DISCUSSION

8I find that Michael is incapable of managing his property within the meaning of s. 6 of the Substitute Decisions Act, S.O. 1992, Chapter 30, 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.

9The applicant has filed a draft Management Plan. Michael does not own any real property or personal property (other than savings and investments) of any significant value. Michael owns savings and investments valued at approximately $280,000, all held at local credit unions or chartered banks. His annual income from investments, CPP and OAS is approximately $27,000 and his annual expenses, inclusive of long-term care costs and personal needs, are approximately $33,500.

10The PGT does not object to the proposed Management Plan, on the understanding that an Amended Management Plan is filed for approval by the PGT upon any material change in Michael’s property.

11The applicant is a resident of Alberta. I am satisfied that it is appropriate to appoint the applicant as the guardian of Michael’s property. I am satisfied that it is not necessary that he post security.

12The applicant has filed a draft Judgment. The draft Judgment shall be amended as follows:

a) It is to be referred to as an Order rather than a Judgment;

b) The consents of Michael’s mother and siblings to the relief sought shall be noted in the preamble;

c) The fact that the PGT was served and responded by letter dated May 24, 2024 shall be noted in the preamble;

d) The Management Plan shall be attached as Schedule A to the Judgment;

e) The Order shall include a clause requiring an Amended Management Plan to be filed upon a material change in circumstances; and

f) The clause referencing the passing of accounts shall be amended in accordance with the requirements of the PGT and shall state that the applicant pass his accounts for the period of three years from the date of appointment within six months of the expiry of the three-year period, and thereafter as directed by the court.

13Counsel for the applicant shall file a Bill of Costs in support of the request for full indemnity costs.

14A copy of this Endorsement shall be provided to the PGT, together with a copy of the revised draft Order, for the PGT’s review and approval. A copy of the revised draft Order, endorsed with the PGT’s approval and consent, shall then be filed with the court.