In the case of Scalia v Scalia 2015 ONCA 492, the Ontario Court of Appeal reversed a decision of the lower court that prevented an attorney for property from seeking partition and sale of property his incapacitated elderly father and father’s wife held jointly.

The Court found that, among other things, the application judge erred both in fact and law by granting the respondent an unrestricted right to deal with the jointly held property to the exclusion of the applicant’s responsibilities as attorney for property. The court set aside the lower court decision and ordered the partition and sale of the property as of the date the application hearing concluded.

By way of background, the deceased “Joe” died in March 2014 and left behind his second wife of over twenty-years “Pina”, and a son, “John”, from his first marriage. When they married in 1993, Joe and Pina lived in a half of Joe’s duplex home while the other half was rented. A year later, they purchased a home together in Florida, held jointly in both of their names.

John was appointed as Joe’s attorney for property and personal care in August 2007, shortly after Joe was diagnosed with Alzheimer’s disease. Joe’s medical condition would later warrant his move to a long-term care facility in 2011, prompting John to perform his duties under power of attorney.

A series of disputes between John and Pina concerning the status and usage of money jointly held in a bank account with Joe eventually led the two to bring court applications against one another. Specifically, John requested, among other orders, for the sale of the Florida property and the division of the net proceeds to be split between the estate and Pina.

Pina sought an order to prohibit John from dealing with the Florida property altogether. She argued that the Florida property was purchased from personal funds. The application judge accepted the respondent’s position that the proceeds used to purchase the Florida property came from the sale of her former home. The application judge further opined that it was unnecessary to sell the property at the time of hearing due to its decreased valuation compared to the date of purchase.

The Court of Appeal concluded that the application judge erred in fact by finding that Pina purchased the home out of her own money. This finding was made without Pina submitting any evidence in support of the position and further failed to consider evidence to the contrary indicating that Joe paid half the purchase price.

The Court further clarified that, despite this error of fact, the Substitute Decisions Act, permitted John to do “anything in respect of property the person could do if capable”, given that Joe’s name was attached to the title to the Florida property. John was not only entitled to deal with the property as attorney but was further supported in his action to partition and sell it pursuant to the Partition Act, that compels the sale of home unless John’s intent was found to be malicious, oppressive or vexation.

The Court of Appeal did not find John’s intent to be as such, and found the proposal to sell the property was in Joe’s best interest.

Thank you for reading.
Mashal Hakimi