May 27, 2014

In 1998, Ms. Tollis was declared incapable of managing her property.  In the same year, the Public Guardian and Trustee (the “PGT”) became her statutory guardian of property.  Ms. Tollis held an interest in a house along with her brother, Mr. Tollis.  The interest in the house was Ms. Tollis’ primary financial asset.

Shortly before his death in 2010, Ms. Tollis’ brother invited a neighbour, Mr. Stronach, to live with him and his sister on a temporary basis.  However, after Mr. Tollis’ death, Mr. Stronach remained living in the house, never paying rent or contributing to the house expenses.

In its capacity as guardian of property for Ms. Tollis, the PGT brought an application to force Mr. Stronach to vacate Ms. Tollis’ house.  The PGT was concerned with the declining condition of Ms. Tollis’ main asset, the house, and the increased utility bills caused by Mr. Stronach’s presence.  Additionally, Mr. Stronach used Ms. Tollis’ bank card to make purchases, possibly for himself, including the purchase of alcohol.  More troubling were accusations by a family friend that Mr. Stronach intimidated Ms. Tollis into letting him remain in the house and spend her money.

Mr. Stronach provided evidence that he was Ms. Tollis’ primary caregiver. He cooked for her on a daily basis, helped her with her eye drops, and did the shopping for her.  He suggested that while he did not pay rent or contribute to the utilities, he did look after the house by making various repairs.  He submitted  that Ms. Tollis could not live alone.

The PGT filed additional evidence that Ms. Tollis did not require around the clock care.  If Mr. Stronach did leave the house,  care workers from the Canadian Mental Health Association would provide assistance to Ms. Tollis by buying groceries, preparing meals, and helping with her other daily needs.

The court found that the PGT, as guardian of property, has the statutory powers to deal with the residence in the best interests of Ms. Tollis.  The court shared the PGT’s view that it was in Ms. Tollis’ best interests that Mr. Stronach leave her home.  The court granted leave pursuant to Rules 60.03 and 60.10 of the Rules of Civil Procedure for the issuance of a writ of possession in favour of Ms. Tollis.

Writ of possession can be a useful remedy to enforce vacant possession. While the court considered what was in the incapable person’s best interests in protecting her property, they also had to take into account how Ms. Tollis’ personal care needs would be met if vacant possession was granted.

Thanks for reading.