Ere the Son Rises
What is an adult child to do when his or her parent is no longer capable of managing their property? They may, for one, consider applying to the Ontario Superior Court of Justice for the appointment of a Guardian of Property. In Ballinger v. Marshall, 2018 ONSC 3020 (CanLII), a devoted son was compelled to do just that.
Background
Ivana Marshall (“Ms. Marshall”) is 57 years old.
Stephen Ballinger (“Mr. Ballinger”) is 26 years old. He is one of Ms. Marshall’s two sons.
Ms. Marshall began experiencing problems which greatly distressed Mr. Ballinger and other members of Ms. Marshall’s family. In the preceding few years, Ms. Marshall had
1. Not paid the municipal property taxes on her home for almost three years with a mortgage that was in arrears;
2. Incurred significant credit card debt by having the floor in her home removed and replaced out of unfounded fears that it was toxic;
3. Suffered from what her family believed to be an ongoing and debilitating mental illness;
4. Claimed that she was suffering from some sort of undiagnosed infection and that she had been blacklisted by the medical community as a result; and
5. Refused her family’s offer to help her downsize her current home.
In the wake of these problems, Mr. Ballinger brought an application before the Court to appoint a temporary Guardian of Property under the Substitute Decisions Act, 1992, S.0. 1992, c. 30 (“SDA”).
Throughout the following weeks and months, the Court repeatedly ordered Ms. Marshall to submit to a capacity assessment. On each occasion, Ms. Marshall refused.
Things came to a head in April of this year when the Court again directed Ms. Marshall to submit to a capacity assessment. This time, however, the Court directed that Mr. Ballinger was authorised to request the assistance of the Hamilton Police Service if need be.
Mr. Ballinger attended once more at Ms. Marshall’s house to assist her in arranging an assessment. Ms. Marshall, however, was not there. A neighbour advised Mr. Ballinger that Ms. Marshall had left her home earlier, appearing quite flustered, and pausing only to ask that the neighbour take care of her cats.
Analysis
Section 25 of the SDA provides in part that:
1. An order appointing a guardian of property for a person shall include a finding that the person is incapable of managing property and that, as a result, it is necessary for decisions to be made on his or her behalf by a person who is authorised to do so. 1992, c. 30, s. 25 (1).
It is necessary, then, and before the Court can appoint a Guardian of Property, that it be satisfied that there is indeed evidence of incapacity on the part of an individual.
At the hearing of this motion, however, there was no direct medical evidence that Ms. Marshall was incapable of managing her property. Instead, the Court was asked to rely on Mr. Ballinger’s testimony.
Ms. Marshall, however, was not without someone in her corner. In an earlier proceeding in this matter, the Court had ordered the Public Guardian and Trustee to arrange for legal representation for Ms. Marshall under section 3 of the SDA (“Section 3 Counsel”). Section 3 of the SDA provides in part that:
1. If the capacity of a person who does not have legal representation is in issue in a proceeding under this Act,
– the court may direct that the Public Guardian and Trustee arrange for legal representation to be provided for the person; and
– the person shall be deemed to have capacity to retain and instruct counsel. 1992, c. 30, s. 3 (1).
Section 3 Counsel was asked by the Court to make submissions on behalf of Ms. Marshall based on Section 3 Counsel’s review of the file and knowledge of the applicable law. In its submissions, Section 3 Counsel highlighted the fact that there was no significant evidence of incapacity on the part of Ms. Marshall before the Court and that incurring debt and not paying one’s bills was not the same thing as being incapable of managing property.
All told, however, and on a review of the matter in its entirety, the Court was convinced on a balance of probabilities that Ms. Marshall lacked capacity to manage her property. The Court observed at paragraph 25 that:
“It is inconceivable…that someone who is in good health would “run away” from her family, her financial problems and the court process. Those who know her best…all feel that a Guardian of Property needs to be appointed.”
Mr. Ballinger was therefore appointed as the Temporary Guardian of Property of Ms. Marshall until either Ms. Marshall submits to a capacity assessment as earlier directed, the matter is returned to court, or November 15, 2018.
Conclusion
If a parent loses their ability to manage their property there is recourse available through the Court. Though undeniably not ideal, an appointed Guardian of Property is a reasonable response to a difficult situation.
