Brlekovich v. Brlekovich, 2017 ABQB 333

Court of Queen’s Bench of Alberta Citation: Brlekovich v. Brlekovich, 2017 ABQB 333 Date: 20170518 Docket: 1603 19372; 1603 20818 Registry: Edmonton Between: 1603 19372 Shannon Lynn Brlekovich Applicant - and - Donna Brlekovich Respondent And Between: 1603 20818 Donna Brlekovich Applicant - and - Joseph Dale Brlekovich Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice B.R.

Burrows _______________________________________________________ [ 1 ] Two applications were heard together. [ 2 ] In the first, which was commenced on November 2, 2016, Shannon Brlekovich seeks, amongst other things, an order: a. terminating the enduring power of attorney appointing Donna Brlekovich, her father’s spouse, as attorney for her father, Joseph Brlekovich,

b. appointing herself “interim trustee” for Joseph until she can make an application to be appointed Guardian and Trustee of Joseph, and c. varying the personal directive by which Joseph appointed Donna his agent. [ 3 ] In the second, which was commenced on November 24, 2016, Donna Brlekovich seeks an order declaring that she and her husband, Joseph Brlekovich, are entitled to vacant possession of a condominium they own as joint tenants and which is occupied by Joseph Dale Brlekovich, the son of Joseph and the brother of Shannon. [ 4 ] Joseph and Donna were married in 1986.

Joseph had children by a previous relationship: Shannon, Joseph Dale and Pamela Brlekovich. Enduring Power of Attorney [ 5 ] On November 14, 2006, Joseph signed an enduring power of attorney appointing Donna as his attorney.

The enduring power of attorney provided that it would not have any effect unless and until, by reason of mental or physical infirmity, Joseph was not capable of making reasonable judgments in respect of matters relating to all or any part of his estate. [ 6 ] The enduring power of attorney named Shannon, Pamela and Joseph Dale as attorneys in the event that Donna refused or was unable to act or to continue to act as attorney. [ 7 ] On November 22, 2012, two medical practitioners signed a declaration that Joseph was mentally incapable of making reasonable judgments in respect of his estate and that the contingency specified in the enduring power of attorney had occurred.

This brought the enduring power of attorney into effect. Donna’s Accounting [ 8 ] In the context of the first application, Donna has provided a very basic accounting for her administration of Joseph’s estate. It indicates that Joseph’s assets consist of a R.I.F., a L.I.F. two G.I.C.’s and two joint bank accounts. The total of these assets, as of November 14, 2016, was $218,383.69. [ 9 ] As I understand it, Joseph also has an interest as joint tenant in three condominiums. Donna lives in one of them. Joseph’s son, Joseph Dale, lives in the second. Joseph’s daughter, Pamela, lives in the third.

I understand that the arrangement with both Joseph Dale and Pamela is that neither pays rent. The materials do not include any information as to the value of any of the three condominiums. [ 10 ] The accounting indicates that as of November 2016, Joseph has net monthly income of $4,268.50. This is from the R.I.F, the L.I.F, O.A.P. and C.P.P. Donna’s affidavit indicates that this is “My and Joseph’s monthly income”. There are indications elsewhere in the materials that Donna has independent income but the amount is not disclosed.

Neither is there any information as to whether Donna owns assets independently of Joseph, except for her joint tenancy interest in the three condominiums. [ 11 ] The accounting shows that the monthly expenses for Joseph alone are $3375.

Of this, the accounting indicates that $650 per month is spent on “Bingo, casino, lunch”. [ 12 ] The accounting also shows that Donna’s monthly expenses are $3485 which includes $500.00 for entertainment and $400 for “miscellaneous”. [ 13 ] The total monthly expenses for both Joseph and Donna are shown to be $6860.10. [ 14 ] The accounting indicates that the monthly shortfall in 2012 was $4,300, that in 2013 it was $4500 and that as of November 14, 2016, it was about $2500. Donna provides no explanation as to how she has been covering this monthly shortfall.

Some of it may have been covered from the net proceeds of $25,000 produced when the house in which Joseph Dale was originally living was sold and a replacement condo was purchased. Also, it is likely that Donna’s undisclosed independent income is used to cover these expenses. [ 15 ] To be clear, I do not say that Donna is obliged to account for her own income or for how she spends it or for her assets. However, her representation that the difference between Joseph’s income and their joint expenses is a shortfall appears not to be entirely accurate.

In any event, if there is a shortfall, somehow it has been covered to date. The Condo Occupied by Joseph Dale [ 16 ] On August 16, 2016, Donna, on behalf of herself and Joseph, served Joseph Dale with notice to vacate the condo in which he lives. As noted, Donna and Joseph own that condo as joint tenants. Donna’s intention is to sell the condo once Joseph Dale has vacated it. She believes the proceeds are required for the continued maintenance of Joseph and herself.

Shannon, on Joseph’s behalf, takes the position that the eviction of Joseph and the sale of the condo is a betrayal of Joseph’s intention that he and Donna would provide Joseph with a residence. [ 17 ] When Joseph Dale did not vacate as required by the notice, Donna brought the second application mentioned above. Shannon’s Concern [ 18 ] Shannon requested production of the records upon which the basic accounting which Donna provided was presumably based. Donna provided bank statements for Shannon’s inspection. These showed a great many cash withdrawals.

The use to which the withdrawn funds were put was not apparent. [ 19 ] The frequency of the withdrawals and the proximity of the location where the withdrawals were made to gambling

establishments made Shannon suspect that Donna was gambling with the withdrawn cash and thereby dissipating Joseph’s limited assets in an unnecessary and irresponsible manner. [ 20 ] In her responding affidavit, Donna swore: I take Joseph to bingo and the casino on occasion for entertainment. I believe that Joseph enjoys getting out and meeting new people when we go.

Donna’s Supplementary Affidavit [ 21 ] At the hearing of this application, I expressed concern that the materials did not permit me to determine whether or not there was merit to Shannon’s concern that Donna was unnecessarily and irresponsibly dissipating Joseph’s funds. I required Donna to file a further affidavit addressing the purpose of the many cash withdrawals. [ 22 ] Donna filed the affidavit I directed on April 13, 2017.

It purports to explain the uses to which 153 cash withdrawals from the joint bank account of Donna and Joseph, totalling $34,049.75, and made between March 29, 2016 and March 27, 2017, were put. [ 23 ] The affidavit indicates the following: - In the one year period, Donna and Joseph attended Bingo together 21 times. Donna spent on average $294.35 on each occasion, usually for “Lunch and Bingo”. A total of $6181.25 was spent in this way in the year. - In the year, Donna attended Bingo without Joseph 25 times. Donna spent on average $255.44 each time.

The total spent in the year was $6383.00.” - In the year, Donna and Joseph attended the casino 33 times. Donna spent an average of $240.91 each time. The total spent at the casino was $7950.00 - In the year Donna withdrew funds for other purposes, usually described in her affidavit as “Cash on hand, lottery and beer for Joseph and I”, 76 times. The average withdrawal was $178.06.

The total withdrawn was $13,532.50. [ 24 ] The average monthly expenditure on “Bingo Casino and Lunch” for Joseph and for “Entertainment” for Donna according to the information in the supplementary affidavit was just over $1700 which is significantly more than the $1150 indicated in the original accounting Donna provided. It said $650 for Bingo, Casino and Lunch for Joseph and $500 for “Entertainment” for Donna.

Further, it seems likely to me that a significant amount of the $13,532.50 which Donna withdrew for “Cash on hand, lottery, and beer for Joseph and I” should be added to the total actually spent on entertainment. [ 25 ] The total amount Donna spent on gambling entertainment in the year was over $20,000. Joseph’s annual income was just over $50,000. Expenditure on gambling was significantly more than a third of Joseph’s income.

I realize that this does not take into account Donna’s independent income but it is not possible to take it into account given that Donna has not disclosed it. [ 26 ] The Power of Attorney Act , RSA.2000, c P-20 , provides: 11(1) Any interested person may apply to the Court for an order terminating the enduring power of attorney.

(2) A copy of the application and any order granted in respect of the application shall, unless the Court provides otherwise, be served on the donor and the attorney.

(3) On hearing an application under subsection (1), the Court may grant an order terminating the enduring power of attorney if the Court considers that this would be in the best interests of the donor.

(4) On granting an order terminating an enduring power of attorney, the Court shall not appoint a substitute attorney but may do one or both of the following: (

a) direct that the applicant bring an application forthwith for a trusteeship order in respect of the donor’s estate. (

b) pending the application referred to in clause (a), appoint an interim trustee of the donor’s estate with such powers as the Court considers appropriate. [ 27 ] Given Joseph’s limited income and the need to ensure it is responsibly administered, I have reluctantly concluded that Shannon’s concerns are justified. I accept that it is good for Donna to take Joseph from the assisted living home where he resides for entertainment excursions. However, I do not accept that the funds Donna has spent on gambling in Joseph’s company can be justified as the cost of entertainment for Joseph.

Spending over a third of Joseph’s income on gambling entertainment is patently unreasonable and irresponsible. [ 28 ] The materials satisfy me that Donna has not properly administered Joseph’s estate pursuant to the enduring power of attorney and that it is in the Joseph’s best interests that she be required to withdraw from that role. [ 29 ] I grant an order terminating the enduring power of attorney. I appoint Shannon as interim trustee of Joseph’s estate. I order

that her powers as interim trustee, and the conditions of her appointment, will be as follows: 1. As interim trustee she will have power to receive Joseph’s income and to pay his living expenses. 2. She will also pay such portion of Joseph’s income as is available and necessary for Donna’s maintenance to Donna. She shall advise Donna of the amount she intends to pay to Donna for her maintenance by June 30, 2017. 3.

If necessary, that is if Donna does not agree to the amount Shannon proposes to pay to Donna for her maintenance, she shall apply to the Court, on notice to Donna, for the determination of the amount to be paid to Donna for her maintenance by no later than July 31, 2017. 4. In her capacity as interim trustee, she shall not sell or otherwise dispose of any asset owned by Joseph without court approval being obtained in advance. 5. She shall give Donna notice of any application she brings to the court in connection with her role as interim trustee. 6.

She shall maintain full and complete records of each transaction she undertakes in respect of Joseph’s estate. 7. She shall prepare a report of all receipts and disbursements she has made as interim trustee within 3 weeks of the end of the month in which the receipt or disbursement is made and shall provide a copy to Donna before the end of the month following the month to which the report relates. 8. She shall apply under the Adult Guardianship and Trusteeship Act for an order appointing herself as trustee of Joseph’s estate by no later than January 15, 2018.

She shall serve Donna with her application for such appointment. 9. She shall file a full accounting for her administration as interim trustee to the court every 6 months, in this action and in her application for a trusteeship order. The first such accounting shall be in respect of the period starting at the date of this decision and ending on November 30, 2017 and shall be filed by no later than December 31, 2017. 10. She shall serve Donna with a copy of the accounting she files with the court. Personal Directive [ 30 ] On November 14, 2006, Joseph signed a personal directive appointing Donna as his agent.

It was brought into force on June 20, 2013. Since then, Joseph has resided in assisted living facilities. [ 31 ] Shannon seeks an order under the Personal Directives Act , RSA 2000, c P-6, s 27(1)(d.1) revoking Donna’s authority under the personal directive. The evidence she relies upon in support of that application is largely hearsay and in at least one case is not confirmed by the source of the hearsay, Pamela, who has also sworn an affidavit filed in these proceedings.

Donna also expressly denies that the “facts” Shannon swears to are true. [ 32 ] Shannon has provided no independent evidence that Donna has not acted in Joseph’s best interests as his agent. There is no foundation in the evidence provided for the conclusion that Joseph is not being properly cared for in assisted living home which Donna, as his agent, has arranged for him. [ 33 ] Shannon’s application under s. 27 of the Personal Directives Act is dismissed. Her applications for various other orders relating to the personal directive are also dismissed.

Application for Vacant Possession [ 34 ] Shannon deposes that her Dad, in Donna’s presence, promised his son Joseph Dale and his daughter Pamela, that he would provide each with accommodation. His reasons for doing so were apparent and known to all. She refers to the arrangement with Joseph Dale as a “contract” though there is no evidence of a document in writing.

Joseph Dale, who presumably was a party to the alleged contract, has filed no evidence. [ 35 ] The absence of writing is probably sufficient to dispose of the suggestion of a contract. [ 36 ] But in any event, while Joseph clearly had an intention to provide Joseph Dale with a residence because he did so, there is no evidence that Joseph had an unchangeable commitment to that arrangement, or that its continuation would have priority over any need of Joseph and Donna to use the value of the condo for their own maintenance.

The fact that title to the condo was not transferred to Joseph Dale as a gift is inconsistent with Joseph and Donna having bound themselves to a perpetual obligation to provide Joseph Dale with accommodation. [ 37 ] Pamela, for whom a similar arrangement was put in place swears in an affidavit filed in this application as follows: Dale and I each live in separate condos that are owned by Joseph and Donna.

I understand that in the future, Joseph and Donna may need to sell the condo in which I live in order to free up cash to cover their ongoing expenses. [ 38 ] Nevertheless, Donna’s decision to require Joseph Dale to vacate the condo provided to him so that it can be sold appears to have been founded on a need for the proceeds of its sale, created, if it existed at all, by Donna’s maladministration of Joseph’s estate as discussed previously. In my view, whether or not the condo needs to be sold should be determined when the burden of the inappropriate uses of Joseph’s funds has been removed from the picture.

[ 39 ] I therefore decline to order Joseph Dale to vacate the condo at this time. [ 40 ] I recognize that as the condo in question is owned by Joseph and Donna as joint tenants, a decision to sell it would, in the circumstances, require the agreement of Donna and Shannon, assuming she is appointed Joseph’s trustee, unless an application for partition is made pursuant to the Law of Property Act, RSA 2000, c L-7, s 15. [ 41 ] I dismiss Donna’s application, the second application described at the beginning of these reasons. Heard on the 24 th day of March, 2017.

Dated at the City of Edmonton, Alberta this 18 th day of May, 2017. B.R. Burrows J.C.Q.B.A. Appearances: Randall Osgood for Shannon Lynn Brlekovich and Joseph Dale Brlekovich Ryan Henriques for Donna Brlekovich