The motions in Volk v. Volk, 2020 ONCA 256, arose from an appeal of an order to, inter alia, sell a property owned, in part, by Doris Volk, who is incapable of managing her own property, and to pay the net proceeds of sale to Doris’ husband, George. This case is instructive for how matters are currently proceeding before the Court of Appeal and in general for the scope of examinations under SDA matters.
George is not Doris’ attorney for property. The attorneys for property are Doris’ daughter, Darlene, and Doris’ sister, Lisa. George brought an application under the Substitute Decisions Act, 1992 because he claimed that the property was improperly transferred by the attorneys from Doris, as the sole owner, to Doris and Darlene’s daughter, Felicia, as tenants in common. At the time of the application, the property was registered with a 1% interest in Doris’ name and the rest was registered in Felicia’s name. Furthermore, the property was occupied by Darlene but George claimed that the carrying costs of the property were paid from Doris’ money in further breach of trust.
George’s application was granted on January 7, 2020 on the consent of Lisa. Darlene, Felicia, and the Public Guardian and Trustee did not appear or file opposing materials. The house was sold with a closing date of May 16, 2020.
Darlene and Felicia appeals the order of January 7th on ground that they were not properly served or provided with adequate notice of the application. They also brought a stay motion with a supporting affidavit from Felicia. Felicia was cross-examined on her affidavit and she refused a number of questions on the advice of her counsel. This led George to bring a refusals motion and an request for an adjournment of the motion for a stay pending appeal.
Both the refusals motion and the stay motion were scheduled to be heard before Justice Paciocco on April 14, 2020. Justice Paciocco noted that the agreement for purchase and sale gave the stay motion added urgency. The matter proceed on April 14th with counsel for Darlene and Felicia appearing by phone and counsel for George appearing by videoconference. George’s refusals motion was allowed in part. Justice Paciocco clarified that the proper scope of a cross-examination on an affidavit is governed by the issues that are relevant to motion. It includes questions that are relevant to credibility so long as it within the competence of the motions judge to determine (para. 10). He then goes on to give reasons for why certain categories of questions ought to be answered and why other categories were found to be irrelevant or unfair. Of note, questions about Doris’ state of mind were properly refused because it was unfair for Felicia to speak for Doris (para. 19).
Since counsel for George acknowledged that further examinations were not feasible as a result of COVID-19, Justice Paciocco ordered a timetable for answers and follow up questions in writing. The stay motion was adjourned to May 1st.
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It is commonly understood that an Attorney for Property can do anything that the grantor of the Power of Attorney could do other than make a Will. Indeed, s. 7(2) of the Substitute Decisions Act provides: “The continuing power of attorney may authorize the person named as attorney to do on the grantor’s behalf anything in respect of the property that the grantor could do if capable, except make a will.”
In practice, “will” has been expanded to mean testamentary dispositions. Accordingly, as an example, beneficiary designations under RRSPs and life insurance policies cannot be changed by an attorney on behalf of the incapable grantor.
The unpredictable onset of incapacity can make for some unintended consequences. And the choice of attorney can create situations of inevitable conflict of interest that challenge the limitations of the statute.
An example would be a situation in which a separated but not divorced spouse is appointed under a Power of Attorney for Property. What if an application for divorce was jointly initiated by the grantor and his spouse and the grantor then becomes incapable before the divorce is finalized and before the Power of Attorney is revoked?
In such a situation, the Attorney for Property/separated spouse is in a curious predicament: on the one hand, the grantor would presumably (but not as a certainty) have wanted to complete the steps required to conclude the divorce. On the other hand, the separated spouse clearly has a competing interest: he or she would presumably financially benefit from the divorce not being finalized. To complicate matters further, if the grantor/incapable spouse chose to maintain his separated spouse as his attorney for property, he or she may been seen as wanting to trust that person to act in his or her best interests despite the conflict.
The reality is that there can be no certainty that the grantor would have as a matter of indisputable fact performed the additional steps required to conclude a divorce. While the surviving spouse in this scenario would have a conflict of interest which raises a question of whether there would be a motive to avoid concluding the divorce, it would seen that, in addition to not being able to make a Will, an Attorney for Property, could not necessarily conclude a divorce on behalf of an incapable Grantor.
There are surprisingly few cases on point. One such case is O.(M.K.) (Litigation Guardian of) v. C.(M.E.) in which the British Columbia Supreme Court decided against allowing a Divorce to proceed at the behest of a Committee for an incapable husband where the Court found, on a balance of probabilities, that no intention to divorce had been demonstrated before the incapacity.
Of course, it is a nice question as to whether intent to separate is the same as intent to divorce….
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Estate planning and planning for the future are sometimes difficult tasks, particularly when it comes to end-of-life planning. When forced to confront their own mortality, many people are hesitant to dive in and make a plan. Unfortunately, this may result in their wishes being unknown if an emergency situation arises.
In Ontario, when a person is incapable of making their own decisions with respect to their care, the Health Care Consent Act (the “HCCA”) and the Substitute Decisions Act (the “SDA”) allow others to make decisions on the incapable person’s behalf. Section 20 of the HCCA sets out a list of persons who may give or refuse consent to treatment on behalf of someone who is incapable to give their own consent at the time. The list of people who may make decisions is as follows:
- The incapable person’s guardian of the person, if the guardian has authority to give or refuse consent to the treatment.
- The incapable person’s attorney for personal care, if the power of attorney confers authority to give or refuse consent to the treatment.
- The incapable person’s representative appointed by the Board under section 33, if the representative has authority to give or refuse consent to the treatment.
- The incapable person’s spouse or partner.
- A child or parent of the incapable person, or a children’s aid society or other person who is lawfully entitled to give or refuse consent to the treatment in the place of the parent. This paragraph does not include a parent who has only a right of access. If a children’s aid society or other person is lawfully entitled to give or refuse consent to the treatment in the place of the parent, this paragraph does not include the parent.
- A parent of the incapable person who has only a right of access.
- A brother or sister of the incapable person.
- Any other relative of the incapable person.
A person included in this list may give or refuse consent only if no person described in an earlier paragraph is willing or available to do so. The SDA, in turn, deals with Powers of Attorney and Guardians.
If you have not taken the time to think through your wishes with respect to treatment and communicate them to others, it is difficult to know whether your substitute decision maker under the HCCA or SDA will make the choice that you would have made yourself, had you been capable. One way of dealing with this issue is by clearly expressing your wishes, such as with a “living will”. The Ministry of the Attorney General describes a “living will” as an expression that is “sometimes used to refer to a document in which you write down what you want to happen if you become ill and can’t communicate your wishes about treatment…[t]he term ‘advance directive’ is also frequently used to refer to such a document.” The Ministry of the Attorney General also notes that you can include your treatment wishes in a Power of Attorney document to ensure that your attorney is aware of them.
Pursuant to the SDA s. 66(3), guardians of the person and attorneys for personal care have a duty to make decisions on an incapable person’s behalf in accordance with the incapable person’s wishes, if known. The guardian or attorney must also use reasonable diligence to ascertain whether the incapable has set out such wishes. Accordingly, it is important to consider including your wishes in your Power of Attorney for personal care and communicating them to your attorney, to ensure that your wishes are known.
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A recent decision by Brown, J. heralded good news for the Estates Bar.
The applicant wished to issue a guardianship application under sections 22 and 55 of the SDA in the Toronto Region Estates Office. The guardianship application was in respect of her son who was injured in a car accident in 1997. The applicant and her son lived together in Bradford, Ontario. The applicant’s counsel wrote to Brown J. asking for directions as to whether the application could be commenced in Toronto.
In his Endorsement [not yet reported], Brown, J. noted that an informal policy existed in the Toronto Region Estates Office that it would only accept applications under the SDA where the supposed incapable person resided in Toronto notwithstanding the fact that no statute or rule imposed such a limitation. In fact, Rule 13.1.01 of the Rules of Civil Procedure provides that a “proceeding may be commenced in any court office in any county named in the originating process” unless a “statue or rule requires the proceeding to be commenced, brought, tried or heard in a particular county.”
Brown, J. noted that neither the SDA nor any statute or rule specified the place of commencement for an application under the SDA. Brown, J. therefore held that the applicant was permitted to commence her guardianship application in Toronto and directed the Toronto Region Estates Office to accept her application for issuance.
With this decision in hand, it is now possible for counsel to commence a guardianship application where they see fit and as appropriate. This is good news indeed.