ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: Zigrovic v. Zigrovic, 2025 ONSC 602

COURT FILE NO.: CV-24-00730473-00ES

DATE: 20250128

BETWEEN:

CHRISTOPHER ZIGROVIC, IN HIS

CAPACITY AS POWER OF

ATTORNEY FOR PERSONAL CARE AND PROPERTY FOR SHARON

ELIZABETH LEVICK

Applicant/Moving Party

– and –

SHARON ELIZABETH ZIGROVIC AND

ELIZABETH TOBY ZIGROVIC

Respondents/Responding Party

Daniel Walker, for the Applicant/Moving Party

Peter Neufeld, for the Respondents/Responding Party

HEARD: November 28, 2024

b. dietrich J.

REASONS FOR DECISION

Background

1This motion arises out of a bitter dispute between two siblings, the applicant, Christopher Zigrovic (the “Applicant”), and the respondent, Elizabeth Toby Zigrovic (the “Respondent”). The dispute concerns the management of the property and personal care of their mother, Sharon Elizabeth Levick (“Ms. Levick”). Ms. Levick is 85 years of age. She owns a residence in Hamilton, Ontario, and she is now living with the Respondent at an undisclosed location in Toronto, Ontario.

2The Applicant and the Respondent have a stepbrother, Carlos Zigrovic (“Carlos”), who is Ms. Levick’s stepson. Ms. Levick executed a power of attorney for property and a power of attorney for personal care (collectively, the “2020 Powers of Attorney”) on June 23, 2020. In the 2020 Powers of Attorney, she named Carlos as her attorney for property and her attorney for personal care, and she named the Applicant, as the alternative attorney in each document. Carlos resigned all duties arising out of the 2020 Powers of Attorney on September 7, 2024, and the Applicant assumed those duties.

The Applicant’s Position and Evidence

3In the within Application, the Applicant alleges that, in July 2024, the Respondent removed Ms. Levick from her home and relocated her, without notice to the Applicant or Carlos. The Applicant also submits that the Respondent then took steps to have Applicant sign new powers of attorney appointing the Applicant as her attorney for property and her attorney for personal care, even though one lawyer, Irit Gertzbein, had declined to prepare powers of attorney for Ms. Levick.

4The Applicant asserts that Ms. Levick is incapable of managing her property. In support of this assertion, he has attached to his affidavits in support of this motion letters and clinical notes from Dr. Sharon Duff, Geriatric Psychiatrist at St. Joseph’s Healthcare Hamilton. In a letter dated September 24, 2024, Dr. Duff confirmed that Ms. Levick had been diagnosed with Major Neurocognitive Disorder, Due to Multiple Etiologies, with Behavioural Disturbance (Psychosis) on April 22, 2024. Dr. Duff described the disorder as “previously known as Dementia” and stated that it “causes impairments in memory, thinking, language, function and judgment.” Dr. Duff noted that at the time of the initial appointment, Ms. Levick was requiring support for finances, transportation, and communication. Dr. Duff reported that in a follow-up appointment on June 3, 2024, Ms. Levick demonstrated significant impairments in cognition (was not recognizing her son at times), language (profound difficulty communicating her thoughts), and function. Dr. Duff expressed concern about Ms. Levick’s vulnerability to being taken advantage of or abused financially or otherwise.

5The Applicant also adduced Dr. Duff’s clinical notes from a meeting she had with Ms. Levick and the Respondent on November 5, 2024. The notes stated that Ms. Levick and the Respondent attended at the outpatient clinic, without an appointment, asking to see Dr. Duff.

6According to Dr. Duff’s notes from that meeting:

• the Respondent reported that Ms. Levick’s bank account had been “frozen” and demanded that Dr. Duff call the bank to rectify the situation;

• Dr. Duff invited Ms. Levick to complete cognitive screening, but the Respondent refused to allow Ms. Levick to complete the screening;

• Dr. Duff requested hospital security to be present while the staff talked to Ms. Levick and the Applicant because Dr. Duff understood that the Respondent was presenting in an irritable and agitated manner;

• During the meeting, the Respondent asked three times if Dr. Duff had written to the bank;

• The Respondent insisted that Dr. Duff had written a letter, which her brother (the Applicant) was “weaponizing” against Ms. Levick and her, and that Ms. Levick had no access to funds; and

• The Respondent declined to provide Dr. Duff with copies of the 2024 Powers of Attorney but said she would send them.

7The Applicant also adduced his own anecdotal evidence of Ms. Levick’s alleged paranoid delusions and hallucinations, in which he claimed that Ms. Levick sees and hears things that are not there, and she is easily convinced of any sort of conspiracy against her.

8The Applicant alleges that the Respondent is in favour of Ms. Levick selling her residence and buying a condominium in Toronto, where Ms. Levick and the Applicant would live. The Applicant asserts that the Respondent is motivated by her own need for accommodation in proposing this plan and not by the needs of Ms. Levick. The Applicant submits that Ms. Levick should be living in an assisted living facility. He recommends Ressam Gardens in Hamilton, which specializes in memory care, and he submits that it can accommodate Ms. Levick immediately.

9The Applicant further alleges that the Respondent has taken financial advantage of Ms. Levick and arranged for Ms. Levick to cash out a GIC in the amount of $95,000, and that the Respondent arranged for the transfer of Ms. Levick’s monthly pension to another account. The Applicant has placed a restrictive covenant on the title to Ms. Levick’s residence in Hamilton as a precautionary measure, and he has put Ms. Levick’s bank, the Canadian Imperial Bank of Commerce (the “CIBC”), on notice of his concerns about the Respondent’s conduct. Consequently, the CIBC has denied access to Ms. Levick’s CIBC accounts by any attorney for property for Ms. Levick.

10The Applicant further alleges that the Respondent refuses to disclose where Ms. Levick is residing, and she refuses to facilitate any communication between Ms. Levick and her sons, Carlos and him.

11In October 2024, the Applicant brought the within application, in which he seeks an order declaring Ms. Levick incapable of managing her property and her personal care; an order declaring that any power of attorney made after January 1, 2024 be found to be invalid on grounds of lack of capacity or undue influence, or both, and terminating such powers of attorney, or alternatively, appointing the Applicant as Ms. Levick’s guardian of property and person; orders for production of medical records and legal files; orders to search for and remove Ms. Levick from her current place of residence; orders for the preservation and tracing of Ms. Levick’s assets and accounts; and an order directing a capacity assessment of Ms. Levick, among other orders.

12The Applicant brings this motion for an order for directions pursuant to s. 68 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”), including following orders:

• an order that the Respondent produce the powers of attorney executed by Ms. Levick while under the control and supervision of the Respondent¹;

• an order for the disclosure, in writing, of Ms. Levick’s current location;

• an order permitting the Applicant, with the assistance of the police, to apprehend Ms. Levick;

• an order for production of all medical records relating to Ms. Levick;

• an order for production of the solicitor’s file of each of Irit Gertzbein and Mona Jitendra Vora regarding Ms. Levick’s powers of attorney;

• an order permitting the parties to examine Irit Gertzbein and Mona Jitendra Vora;

• an order for the transfer of Ms. Levick to Ressam Gardens in Hamilton;

• an order for protective measures regarding Ms. Levick at Ressam Gardens;

• an order directing the Public Guardian and Trustee (the “PGT”) to arrange for the legal representation of Ms. Levick²;

• an order for the preservation and tracing of Ms. Levick’s assets; and

• an order that Ms. Levick submit to a capacity assessment to assess her capacity to manage her property and her personal care.

The Respondent’s Position and Evidence

13The Respondent’s response to the Applicant’s motion focusses principally on the Applicant’s request for disclosure of Ms. Levick’s location, but she also seeks certain orders.

14The Respondent submits that she has brought Ms. Levick into a caring and supporting environment with herself, where Ms. Levick no longer lives in fear, and she regularly socializes with her family and friends. The Respondent submits that Ms. Levick has, with the assistance of the Respondent, regained her ability to function almost normally.

15The Respondent alleges that the Applicant is a violent and abusive man, who is facing criminal charges for assault. She also submits that when Ms. Levick was in the care of the Applicant and his partner, they ignored her needs, and they kept her isolated from her family and friends. Also Ms. Levick lost weight at that time and was allowed to deteriorate mentally and physically to the point of being unable to carry on conversations.

16The assault to which the Respondent refers in her affidavit relates to an assault by the Applicant on the Respondent at Ms. Levick’s residence. The Release Order, dated September 10, 2024, attached to the Respondent’s affidavit as an exhibit shows charges of “Assault – Level 1” and “Forcible Confinement”. The terms of the Applicant’s release on bail include a restraining order in respect of the Respondent. The Respondent asserts that the Applicant has a history of violence, and that he has shown signs of being mentally unstable.

17Ms. Kristal swore an affidavit dated November 26, 2024, in which she deposed that the Applicant is a “violent and dangerous man”, who should not learn the location of Ms. Levick.

18The Respondent does not allege that the Applicant has acted violently towards Ms. Levick. The Respondent submits that it is out of concern for the safety of herself and her mother that their location should not be disclosed to the Applicant. The Respondent submits that the location is known to the police.

19The Toronto Police Services (the “TPS”) have completed a wellness check on Ms. Levick. They did so at the request of the Applicant when he filed a missing person report. The TPS concluded that Ms. Levick was not being physically harmed.

20The Respondent submits that while her mother is living with her, she has had numerous visits from family members, including Ms. Kristal, who speaks with her daily and has dinner with her often. The Respondent submits that her mother’s mental health and cognition have improved since she started living with the Respondent. Ms. Kristal also stated that Ms. Levick’s mental health has improved since the Respondent began caring for Ms. Levick.

21Regarding the $95,000 (which the Respondent stated is actually $96,000), the Respondent admits that these funds and her mother’s pension were transferred to another account. She stated that this was done to ensure that the Applicant did not control the funds. The Respondent submits that she has not and does not intend to use the funds for personal use. The Respondent asks that she be permitted to transfer these funds to her lawyer’s trust account.

22The Respondent submits that she will be commencing her own application to be appointed as Ms. Levick’s attorney for property and personal care. However, she submits that she will not be able to afford to fund the application. In her affidavit, she asks the court to direct that her legal fees relating to the guardianship application be paid by Ms. Levick at first instance. The Respondent also asks that the court permit her to fund her mother’s living expenses using Ms. Levick’s pension or the $96,000 from the GIC that was cashed in.

23In her affidavit, the Respondent raised doubt about the validity of the 2020 Powers of Attorney, but she has not brought any proceeding in which she seeks a declaration that they are invalid.

24Carla Taylor, a cousin of the Applicant and the Respondent, also swore an affidavit, in which she attested to the Applicant’s alleged anger management issues and to the improvement in Ms. Levick’s overall health since the Respondent has taken over Ms. Levick’s care.

Analysis

25The Applicant and the Respondent take opposing positions regarding their mother’s capacity to manage her property and personal care and regarding who, as between them, should be appointed as her guardian of property and her guardian of her person, if a guardian is required.

26The Applicant challenges the validity of the 2024 Powers of Attorney and the Respondent challenges the validity of the 2020 Powers of Attorney.

27Both the Applicant and the Respondent make serious allegations regarding the other’s conduct relating to Ms. Levick and the management of her property and her person. None of their evidence, or the evidence of any other affiant, has been tested on cross-examination. The Respondent has not yet brought her own application to be appointed as Ms. Levick’s guardian of property or guardian of person, and for related relief, though she stated that she intends to do so.

28The Applicant and the Respondent agree that the PGT should be asked to arrange for legal representation to be provided to Ms. Levick pursuant to s. 3 of the SDA (“s. 3 counsel”). Section 3 of the SDA permits a court to direct the PGT to arrange for legal representation for a person whose capacity is in issue in a proceeding under the SDA, and who does not have legal representation. Such an order is appropriate in this case.

29The Applicant also seeks an order that Ms. Levick submit to a capacity assessment to assess her ability to manage her property and her personal care. The Respondent submits that, latterly, there has been an improvement in Ms. Levick’s cognition and mental health. However, the Respondent declined to permit Dr. Duff to undertake cognitive testing on Ms. Levick in November 2024.

30Section 79 of the SDA provides that the court may order a capacity assessment if it is satisfied that there are reasonable grounds to believe that the person is incapable. Bearing in mind that the purpose of the SDA is to protect the vulnerable, and having considered the relevant factors in determining whether an assessment should be ordered, I find that it is appropriate to order a capacity assessment of Ms. Levick. Based on the evidentiary record, including the reports of Dr. Duff, I find that Ms. Levick’s capacity is in issue, and there are reasonable grounds to believe that Ms. Levick is incapable. The Applicant has commenced a guardianship application, and the Respondent has stated that she intends to bring a guardianship application. A capacity assessment will be necessary for the court to make a declaration regarding Ms. Levick’s capacity in the context of the guardianship application(s). The assessment process is a valuable tool available to the court in the discharge of its responsibility to protect the vulnerable. It enables the court to obtain an objective, independent, and expert assessment of the individual’s capacity, free from partisan and subjective perceptions of the parties: Kischer v. Kischer, 2009 ONSC 495, at para. 10. For these reasons, an order should issue directing a capacity assessment of Ms. Levick.

31In the absence of a declaration that Ms. Levick is incapable of managing her property and her personal care, I decline to make orders for production of Ms. Levick’s medical records, Irit Gertzbein’s files and records regarding Ms. Levick’s powers of attorney, Mona Jitendra Vora’s files and records regarding Ms. Levick’s powers of attorney, and I decline to order any examination of Mr. Gertzbein or Ms. Vora at this time. Production of these records would be a significant invasion into Ms. Levick’s privacy at a time when there has been no finding of her incapacity. Such production and examination would also compromise solicitor-client privilege.

32I accept that some of Ms. Levick’s medical records could be relevant to a capacity assessor in the assessment of her capacity to manage her property and person. To the extent that Ms. Levick’s s. 3 counsel is unable to obtain such medical records, s. 3 counsel may seek an order for the production of Ms. Levick’s medical records sought by the capacity assessor. Production of any such records shall, at this juncture, be limited to production to s. 3 counsel and the capacity assessor.

33I also decline to order that the Respondent disclose the location of Ms. Levick. Once s. 3 counsel has been appointed and has had an opportunity to meet with Ms. Levick and to report to the court on Ms. Levick’s wishes, the court will likely be in a better position to assess the risk, if any, in disclosing Ms. Levick’s current location. In the meantime, the Respondent has not adduced compelling evidence to suggest that there would be risk to Ms. Levick in having telephone calls with the Applicant or Carlos. Based on the Applicant’s evidence, he is concerned about his mother and would like to resume communication with her. An order should issue directing the Respondent to facilitate telephone communication between Ms. Levick and each of the Applicant and Carlos.

34I decline to make any order permitting the Applicant to apprehend Ms. Levick or to direct the Respondent to deliver Ms. Levick to Ressam Gardens, in Hamilton, Ontario. I also decline to make any preservation or tracing orders regarding Ms. Levick’s property at this time.

35The Respondent has brought no application or cross-motion in support of the funding she seeks in her affidavit to pursue a guardianship application or to pay for Ms. Levick’s expenses. I decline to grant any such relief on the Applicant’s motion.

Disposition

36On the Applicant’s motion, an Order shall issue:

1. directing the PGT to arrange for legal representation to be provided to Ms. Levick pursuant to s. 3 of the SDA and declaring that Ms. Levick shall be deemed to have capacity to retain and instruct counsel;

2. directing that Ms. Levick’s reasonable legal fees and disbursements shall be paid from her property unless a Legal Aid Certificate is issued in connection with this proceeding;

3. directing that s. 3 counsel shall be entitled, upon request to the parties, to production and delivery of copies of any and all documents filed in these proceedings;

4. directing that all parties shall make all reasonable and necessary accommodations to allow Ms. Levick’s s. 3 counsel to have unfettered and unsupervised access to Ms. Levick by telephone, virtually, and/or in person;

5. directing that Ms. Levick submit to a capacity assessment by a designated capacity assessor within 30 days, which assessment shall take place at Ms. Levick’s current residence, and if that is not possible, at another place convenient to Ms. Levick;

6. directing that any party, such party’s agent or assign, or person acting on his or her behalf is restrained from hindering, obstructing, or unduly influencing Ms. Levick in respect of the capacity assessment;

7. directing that the capacity assessment of Ms. Levick shall include an assessment of a) whether Ms. Levick is capable of managing property within the meaning of s. 6 of the SDA; and b) whether Ms. Levick is capable of managing personal care within the meaning of s. 45 of the SDA;

8. directing that s. 3 counsel shall be entitled to compel those of Ms. Levick’s medical records sought by the capacity assessor for the purposes of conducting the capacity assessment of Ms. Levick, and that such medical records may only be disclosed to s. 3 counsel and the capacity assessor; and

9. directing the parties to return to a case conference before me on a date to be arranged with the trial co-ordinator as soon as practicable following the meeting(s) between Ms. Levick and her s. 3 counsel, at which conference s. 3 counsel shall report to the court, and next steps in the application shall be timetabled.

Costs

37Any party seeking costs of this motion may make written submissions, not exceeding three pages in length (excluding offers to settle and a costs outline) by February 14, 2025. Responding submissions, not exceeding three pages in length, shall follow by February 21, 2025. Reply submissions, not exceeding one page in length, if any, shall follow by February 28, 2025.

B. Dietrich J.

Released: January 28, 2025

CITATION: Zigrovic v. Zigrovic, 2025 ONSC 602

Footnotes

1. 1Prior to the hearing of the motion, the Respondent delivered to the Applicant copies of a Continuing Power of Attorney for Property and a Power of Attorney for Personal Care, dated August 19, 2024 (the “2024 Powers of Attorney”). In each of the 2024 Powers of Attorney, Ms. Levick appointed the Respondent as her attorney for property and her attorney for personal care, and she appointed her sister, Colleen Kristal (“Ms. Kristal”), as her alternative attorney for property and attorney for personal care. The 2024 Powers of Attorney were prepared by a lawyer, Mona Jitendra Vora.
2. 2This relief is not sought in the Applicant’s notice of application.