Davis (Re), 2014 BCSC 1140

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Davis (Re), 2014 BCSC 1140 Date: 20140620 Docket: 11-3579 Registry: Victoria In the Matter of the Patients Property Act , R.S.B.C. 1996

Chapter 349 and Amendments Thereto Between: Re Judith Anne Davis The Patient And: John Bowers The Petitioner - and - Docket: 13-3495 Registry: Victoria Between: Judith Anne Davis, by her litigation guardian, The Public Guardian and Trustee Petitioner And: John Libon and Bank of Montreal Respondents Before: The Honourable Madam Justice Dorgan Reasons for Judgment (In Chambers) Counsel for the Public Guardian and Trustee of British Columbia: H. Fisher Counsel for the Applicant/Respondent John Libon: C. Gordon Counsel for Kenneth Davis: J. Campbell Place and Date of Trial/Hearing: Victoria, B.C.

December 3, 2013 and February 7, 2014 Place and Date of Judgment: Victoria, B.C. June 20, 2014 [ 1 ] There are two actions before the court: an application involving a dispute regarding the standard of conduct imposed upon a committee pursuant to the Patients Property Act , R.S.B.C. 1996, c. 349; and a Petition seeking an order for the sale of property by a tenant in common under the Partition of Property Act , R.S.B.C. 1996, c. 347. [ 2 ] In the application, Mr. John Leslie Libon, the common-law spouse of Ms.

Judith Anne Davis who has been declared incapable of managing herself and her affairs, makes an application for an order rescinding the appointment of the Public Guardian and Trustee (“PGT”) as committee of Ms. Davis’ estate, and an order rescinding the appointment of Mr. John Bowers as committee of Ms. Davis’ person. In their place, Mr. Libon seeks an order appointing him the committee of both Ms. Davis’ person and estate. [ 3 ] Mr. Bowers, Ms.

Davis’ brother and current committee of her person, wishes to be relieved of his duties and responsibilities as committee of her person, citing his own poor health exacerbated by his obligations as committee.

[ 4 ] Ms. Davis’ son, Kenneth Davis, wants to be appointed committee of the person and alternatively of the person and the estate. He submits that if he is appointed as committee of the estate, he agrees that the Orillia Street home should be sold. [ 5 ] The PGT opposes Mr. Libon’s application to be appointed committee of both person and estate, and opposes Mr.

Davis’ “application” (an application not formally filed, but no objection was taken) and submits that if the appointment of John Bowers as committee of person is rescinded, the PGT agrees to act in that capacity. [ 6 ] In the Petition, the PGT (as the litigation guardian of Ms. Davis) seeks an order for the sale of a property located on Orillia Street in Victoria, an order giving it sole conduct of the sale of the property, and an order for the equal division of all proceeds of sale between Mr. Libon and Ms. Davis. [ 7 ] Mr.

Libon’s response to the Petition is that “forcing a vulnerable person, such as an elderly man of limited financial means, to give up his residence amounts to serious hardship”. He submits that pursuant to ss. 2 and 6 of the Partition of Property Act , the court should exercise its discretion and refuse the order. Background [ 8 ] Judith Davis was born January 7, 1943; she is 71 years old. John Libon was born October 27, 1948; he is 65 years old. In October 1970, Ms. Davis and Mr. Libon began to live together as a common-law couple and they never married. [ 9 ] Ms. Davis and Mr.

Libon raised three “children” together (those children are now over 40 years old). Ms. Davis’ children of a previous relationship, Kenneth Davis and Tanya Davis, were very young when Ms. Davis and Mr. Libon began living together. The third child, James Davis (born in 1973), is the biological child of Ms. Davis and Mr. Libon. All three grew up in the Davis/Libon household. The children assert that Mr. Libon was abusive towards them and towards Ms. Davis. [ 10 ] In their years together, both Ms. Davis and Mr. Libon were employed outside the home. In 1977, Ms. Davis and Mr.

Libon purchased a home at 2942 Orillia Street. It was registered in joint tenancy. Their household was managed through the use of a joint account into which both of their incomes were deposited and from which all of the common expenses were paid. [ 11 ] In the late 1990’s, Ms. Davis began to exhibit dementia-like behaviour. [ 12 ] On March 2, 2004, Ms. Davis signed a general power of attorney appointing Mr. Libon and the three children as attorneys on condition that any two and no less than two of the persons named have power to act except that her spouse, Mr. Libon, was empowered to act alone. Eventually, Ms.

Davis was diagnosed with dementia of an Alzheimer’s-type. [ 13 ] According to Mr. Libon’s evidence, he retired from his work at the dockyard in 2008 “… because I needed to stay home and care for Judith”. However, starting sometime in 2009, or perhaps earlier, Ms. Davis was cared for in the family home by Mr. Libon as well as by the son James Davis and daughter Tanya Davis. Apparently at that time, Mr. Libon was arthritic, not robustly healthy and was unable to care for her on his own. [ 14 ] In December 2009, Mr. Libon took Ms. Davis to the emergency department of the Royal Jubilee Hospital.

She was diagnosed with increased edema exhibited by lower leg swelling and a condition which, according to her general physician, Dr. Winsby, predisposes the skin to bruising. Apparently, some concern was raised regarding the extent of her bruising when Ms. Davis was first brought to the Jubilee Hospital, particularly the bruising on her upper body. Ms. Davis never returned to the family home. From the ER at the Jubilee, Ms. Davis was transferred to a care facility, the Glenwarren Lodge, where she still resides.

In addition to the dementia, she is visually impaired and has cardiac problems, all of which are of a permanent nature. [ 15 ] Within a month or two of her admission to hospital, Mr. Libon was charged criminally with the assault of Ms. Davis. In January 2011, Mr. Libon was acquitted of those charges. [ 16 ] In addition to the criminal charge of assault of Ms. Davis, Mr. Libon was subsequently charged with threatening their son James Davis and with offences relating to the unsafe storage of a firearm in the Orillia Street home. At some point he was convicted of the charge of threatening as well as an offence(

s) arising from his unsafe storage of the firearms. Mr. Libon was placed on probation. One of the terms of that order was that he was to have no contact with Ms. Davis except on a limited basis at the Glenwarren Lodge. That probation order expired, I believe, near the end of 2013. [ 17 ] At this time, Mr. Libon’s access to Ms. Davis is limited only by the opinions of her caregivers relating to her needs. As I understand it, Mr. Libon presently sees Ms. Davis at the Lodge three days per week for two hours each time.

Previous Legal Proceedings [ 18 ] The family has a history of turmoil and it is apparent that this turmoil is continuing. As previously stated, in 2004 Ms. Davis provided power of attorney to her children and Mr. Libon subject to the conditions earlier described. On February 5, 2010, Tanya Davis and James Davis exercised the power of attorney in Ms. Davis’ name, and they sued Mr. Libon for spousal support, unjust enrichment in respect of assets in his name, claims under the Partition of Property Act , and damages for assault and intentional infliction of nervous shock.

The allegations and counter-allegations between Mr. Libon and the three children in the pleadings (and outside of the pleadings) include that Mr. Libon abused Ms. Davis and a child (or children) and that two of the children abused or misused the power of attorney granted them by Ms. Davis. The Appointment of the PGT as Committee [ 19 ] While the record is not entirely clear, it appears that based on Ms.

Davis’ deteriorating mental health and sometime in 2011, John Bowers commenced a proceeding seeking a declaration that she was incapable of managing herself and her affairs and for an order appointing him as committee of her estate and person.

[ 20 ] Subsequently, both the PGT and Mr. Libon filed an application seeking to be appointed the committee of Ms. Davis’ estate; Mr. Libon also sought appointment as the committee of her person. [ 21 ] On January 26, 2012, all of the applications came before Mr. Justice Johnston who declared Ms. Davis was no longer capable of managing her affairs and appointed the PGT as interim committee of her estate for a period of six months, while adjourning generally Mr.

Libon’s application for appointment as committee of the person. [ 22 ] On the expiry of that order and on July 30, 2012, the applications were brought before Mr. Justice Williams who declared Ms. Davis was no longer capable of managing herself and her affairs. He appointed the PGT as committee of estate and appointed Mr. Bowers as committee of person. According to the reasons for judgment of Williams J., paras. 10 -15: [10] The factual background in this matter is complicated and could fairly be described as unfortunate. There is significant discord, indeed hostility, between two camps.

One camp is comprised of the three adult children of Ms. Davis and in the other camp is Mr. Libon. [11] … The children have made allegations of a long history of abusive conduct by Mr. Libon against Ms. Davis and against them as children. In fact, tow of the children have initiated legal action against Mr. Libon, alleging abuses - physical, psychological, and monetary - committed against them and their mother. That action remains outstanding and unproven. [12] Another aspect of the background is that Mr. Libon was charged with certain criminal offences. That was at around the time that Ms.

Davis was taken to hospital and then subsequently to the care facility. He was charged with assault with respect to Ms. Davis, threatening against their son, and a firearms storage offence. The allegation of assault against Ms. Davis was evidently dismissed by the court on a no evidence application. The other two offences resulted in convictions. The sentence imposed by the court included a probation order; one condition of the order is that Mr. Libon would have no contact with Ms. Davis, with the exception that he is permitted to be in her presence at the Glenwarren facility.

That is my understanding of the matter at any rate. [13] In support of his application Mr. Libon says that he is the appropriate person to be named as committee. He points to the long relationship with Ms. Davis and says that since 2008 he has been fully responsible for her care and finances. [14] Having considered both his application and the circumstances of Mr. Bowers, it is my view that the appropriate order will be that Mr. Bowers should be named as committee of Ms. Davis's person and the Public Guardian and Trustee will be named as committee of her estate.

To my mind, and without judging how these allegations will ultimately be resolved, those are the most sensible orders in the circumstances. The intensity of the familial discord and strife that exists between Mr. Libon and the three children would be exacerbated by an order appointing him as committee. Given the current court order limiting his conduct, an order that named him committee would, in my view, also have an unfortunate incongruity about it. [15] Mr. Bowers has indicated his willingness to act.

He is not an immediate party to the disputes and so it appears to me that he would be the most suitable person to act. My view that the Public Guardian and Trustee is best situated to take responsibility for Ms. Davis's estate is based on the representations that I have heard here today and the concerns that I have just voiced. [ 23 ] One result of the appointment of the PGT as the committee of Ms. Davis’ estate is that the suit begun by Tanya Davis and James Davis has been discontinued and the CPL filed against the Orillia Street home has been removed.

The Assets of the Relationship [ 24 ] As a result of their employment, both Ms. Davis and Mr. Libon have retirement income from an employment-related pension, CPP and OAS. Specifically, Mr. Libon’s income consists of pension income of approximately $3,500 per month, CPP payments of $500 per month and Old Age Security benefits. Ms. Davis’ income consists of a Public Service Pension of $1,123 per month, CPP of $917.99 and Old Age Security benefits of $516.96 per month. [ 25 ] The only meaningful capital asset of the parties is the Orillia St. property, in which Mr. Libon currently resides.

I am told it is worth approximately $400,000 and has a clear title, although it is charged with a Bank of Montreal judgment against Ms. Davis in the amount of $25,537.17. The property was registered in the joint names of Mr. Libon and Ms. Davis until June 8, 2010 when the jointure was severed through the efforts of two of the children acting under their authority as Ms. Davis’ power of attorney. [ 26 ] I note that between 2007 and 2010, when Mr. Libon was the self-appointed manager of the household finances and debt obligations (because Ms. Davis was apparently incapacitated), Ms.

Davis’ Bank of Montreal credit card outstanding balance increased by over $9,000 from approximately $9,842.97 (in December 2007) to $18,466.58 (in January 2010). The Bank of Montreal judgment earlier referred to arises from this unpaid credit card account. Issue 1: Rescinding the PGT as the Committee of the Estate of Ms. Davis [ 27 ] The first order sought by Mr. Libon is to rescind the appointment of the PGT as the committee of the estate of Ms. Davis. The PGT was appointed as the committee of the estate of Ms. Davis, pursuant to a final order made by Williams J., in 2012.

Therefore, it “is dispositive as to who should be committee”, James (Re) , 2013 BCSC 3 , para. 55 . [ 28 ] Consequently, in order to grant the order Mr. Libon seeks, there must be proof that the PGT is “not acting in accordance with [their] obligations as a committee”, Ng v. Ng , 2013 BCSC 97 , para. 58 . The deliberation regarding whether a committee appointment should be rescinded “relates only to the committee’s ability to discharge [its] duties in the future”, James (Re) , para. 56 .

However, this deliberation must necessarily and should, take into account a committee’s previous actions. [ 29 ] It is important to specify that while the court should take into account the previous actions of a committee, the application to remove a committee is a new proceeding that is distinct from the order that appointed it (in this situation the 2012 order of Justice Williams). Therefore, a simple assertion that a change in circumstance allows the court to reconsider, or consider afresh, the

appointment of a committee is not quite accurate. What is relevant to the determination of whether a committee appointment should be rescinded, is evidence regarding the ability of the committee to act in accordance with the obligations imposed by the Patients Property Act . [ 30 ] The standard upon which to assess whether the conduct of the committee is in accordance with its responsibilities is found in s. 18 of the Act , Ng at para. 58 . [ 31 ]

Section 18 of the Act reads: Exercise of powers A committee must exercise the committee's powers for the benefit of the patient and the patient's family, having regard to the nature and value of the property of the patient and the circumstances and needs of the patient and the patient's family. [ 32 ] In order to meet its obligations, the actions of the committee, both past and future, must demonstrate that the “patient’s own interests, present and future, [are] given paramount importance ”, O’Hagan v. O’Hagan , 2000 BCCA 79 , para. 25 (emphasis added).

These actions must reflect “realistic considerations of cost and benefit” taking into account the contingency that the patient may “recover [their faculties]” as well as the opposite, that the patient’s condition will get worse and require “considerably greater funds for [their] personal care”, O’Hagan , para. 25. [ 33 ] Consequently, the assessment of a committee’s ability to discharge its duties is not based on a “subjective test”; it is an assessment requiring a determination of whether the committee can act as a “reasonable and prudent [person] of business, O’Hagan , para. 24. [ 34 ] Furthermore, it is incumbent on Mr.

Libon, as the party seeking the rescission, to satisfy the court that the PGT is not acting appropriately. The PGT is not required to prove that it is acting appropriately; to impose a reverse onus on the PGT “would be unwieldy and cause the position of the trustee to be constantly insecure”, Ng at para. 66 . [ 35 ] Mr. Libon makes a number of arguments regarding both the current circumstances and the past conduct of the PGT in its capacity of committee for Ms. Davis’ estate. [ 36 ] His arguments regarding the current circumstance relate primarily to his active role in caring for Ms.

Davis in Glenwarren Lodge and the evidence that his presence is of some benefit to her. While I appreciate that he is caring for Ms. Davis I do not consider this in any way relevant to whether the PGT is acting appropriately as the committee of Ms. Davis’ estate. [ 37 ] In addition, he alleges that the PGT did not act appropriately when it refused to attempt to trace and seek an accounting of money removed from Ms. Davis’ bank account and the cashing-in or the collapsing of her RSP after she provided power of attorney to her children. The value of the RSP, after deduction of the withholding tax, was $1,374.70.

It was redeemed on February 25, 2010 by the children using the power of attorney. On the same day, $2,557.65 was withdrawn from an account at the Bank of Montreal (which included $500 of overdraft). These events occurred before the PGT was appointed as committee. They were carried out pursuant to a valid power of attorney, and while Mr. Libon was in charge of the household finances. In my view, the argument that the PGT, by not taking steps to trace the funds, is acting inappropriately, is not compelling in all of the circumstances. [ 38 ] Mr.

Libon also points to the refusal of the PGT to agree to file joint tax returns for both him and Ms. Davis as evidence that it is unable to act in the best interests of Ms. Davis and her family. It is clear that Mr. Libon’s solicitors raised the issue of joint filing with the PGT on several occasions. However, after having raised the issue, neither Mr. Libon nor the PGT took the requisite pro-active steps to file the joint tax return. I take that as a matter of poor communication rather than a breach of the PGT’s obligations under s. 18 of the Patient’s Property Act .

It should be noted that when the PGT was initially appointed in January 2012, Ms. Davis’ tax return for the prior year had not yet been filed by Mr. Libon nor anyone else on her behalf. The PGT, in accordance with its obligations as committee of the estate, filed Ms. Davis’ tax return for that year. [ 39 ] The PGT filed Ms. Davis’ tax return the following taxation year in the same fashion. Mr. Libon does not present evidence to the court of what, if any, benefit was lost to the patient and the patient’s family (namely Mr. Libon) by not filing a joint tax return.

In any event, supplemental tax returns can still be filed if there is a benefit to Ms. Davis and Mr. Libon in doing so. [ 40 ] Mr. Libon makes a similar argument regarding the payment of property taxes on the Orillia Street property. Mr. Libon complains that the PGT paid the property taxes without communicating with him and says that this lack of communication is further evidence that the PGT is incapable of acting in the interests of Ms. Davis and her family. [ 41 ] The evidence supports a somewhat different story.

It appears that when the PGT was appointed as committee of the estate, the property taxes were in arrears and a penalty had been assessed. Consequently, the PGT paid the property taxes, and did so the following year, so as to avoid a penalty assessment. It appears that the problem is that Mr. Libon paid one-half of the property taxes for that same year (as he was obligated to do) which resulted in an overpayment. [ 42 ] I am satisfied that this evidence does not support Mr. Libon’s submission that the PGT, by dealing with the property taxes in the way it did, has not acted in the interests of Ms. Davis’ family.

Instead, it appears that it acted as a reasonable and prudent person of business would and assumed, absent communication to the contrary, that Mr. Libon would not pay his portion of the property tax as had been the case in the prior year. As far as any allegation that the actions of the PGT have disadvantaged the family, surely any overpayment to the tax account can be refunded. [ 43 ] Finally, Mr.

Libon points to the refusal of the PGT to agree that he be allowed to arrange mortgage financing on the Orillia Street property and to restore the title to joint tenancy as further evidence that the PGT is not acting in the best interests of Ms. Davis and her family. This line of reasoning presumes that it would be appropriate for the property to be mortgaged in order to satisfy the debts of both Mr. Libon (of approximately $100,000) and Ms. Davis (of approximately $25,000). Furthermore, it is not clear to me whether Mr.

Libon requires some or all of Ms. Davis’ income to be considered in order for him to qualify for mortgage financing. However, it is clearthat the PGT must place ‘paramount importance’ on Ms. Davis’ interests and I do not accept that it is in her best interest to, as the PGTputs it, “encumber her interest in the property so as to pay out Mr. Libon’s debts”. The refusal to allow Mr. Libon to take out a mortgageon the property for the purpose stated, with no evidence that he would be able to pay it back within Ms. Davis’ lifetime, does notconstitute a failure of the PGT to act in the best interests of Ms.

Davis and clearly does not support rescinding its appointment ascommittee of her estate. [44] In

summary, I dismiss the application to rescind the appointment of the PGT as the committee of Ms. Davis estate. Issue 2: The Appointment of a Committee of the Person [45] It is clear that John Bowers wishes to be relieved of his appointment as committee of the person. There are options for hisreplacement. I have no hesitation in rescinding Mr. Bowers’ appointment. [46] However, the appointment of Mr. Libon as his replacement is more troublesome. There is ample evidence that the turmoilwithin the family has not subsided since the order of Williams J. and to appoint Mr. Libon as committee of Ms.

Davis person would be toinvite yet more dissention. Clearly, this cannot be in the best interests of Ms. Davis or of her family. Furthermore, Mr. Libon hasprovided no compelling evidence that he could act in a manner that is appropriate, that is, as a reasonable and prudent person of business. And there is no compelling evidence that his relationship with Ms. Davis will be adversely affected absent his appointment. Consequently, I dismiss the application to appoint Mr. Libon as the committee of the person of Ms. Davis. [47] During the proceedings, Mr.

Kenneth Davis indicated that he would accept appointment as the committee of the person of Ms.Davis. In my view, at this juncture, the situation is too unsettled and complex to involve a family member in this capacity. Accordingly,I decline to appoint Mr. Davis to this position. This is not to be interpreted as a finding that he would be either an inappropriate or anappropriate committee for Ms. Davis at some future time. My order does not preclude Mr.

Davis from applying for appointment as Ms.Davis’ committee of the person in the future, if circumstances should warrant such a course of action. [48] In considering whether it is appropriate to appoint the PGT as the committee of the person of Ms. Davis, I have reviewed thehistory of communication between the PGT and Ms. Davis’ family. While I have some concerns about the failure of the PGT toconsistently make its intentions clear to the family, and in particular to Mr. Libon and his counsel, I conclude that the PGT is anappropriate choice for appointment as Ms.

Davis’ committee of the person in the current circumstances. [49] Consequently, I make order that the PGT be appointed the committee of the person of Ms. Davis. Issue 3: The Order of Sale of the Property [50] At the outset, I make the declaration that Ms. Davis has an undivided legal and equitable one-half interest in the lands andpremises situated at 2942 Orillia Street, Victoria, British Columbia, and legally described as: Municipality of Saanich PID: 008-344-370 Lot 10, Block F,

Section 12 Victoria District, Plan 860 [51] In its Petition, the PGT additionally seeks an order for the sale of the property and an order that it be granted exclusive conductof sale. [52] It is clear that Ms. Davis, as a tenant in common has a prima facie right to compel the sale of the property. This right is affirmedin Bradwell v. Scott, 2000 BCCA 576, para. 29, which quoted and affirmed this statement from Harmeling v.

Harmeling (1978), (BC CA), 90 D.L.R. (3d) 208 (B.C.C.A.): I think that we ought to accept without qualification the general statement that there is a prima facie right of a joint tenant to partition orsale and that the Court will compel such partition or sale unless justice requires that such an order should not be made. [53] While this passage from Harmeling deals specifically with a joint tenant, s. 2 of the Partition of Property Act provides the samelegal rights to joint tenants and tenants in common. That

section states that all joint tenants or tenants in common “may be compelled topartition or sell the land”. The Court of Appeal has stated that while this means there is a presumption that an order to sell should begranted, the courts retain “a discretion to refuse an order where ‘justice requires that such an order should not be made’”, Bradwell, atpara. 43. [54] Similarly, s. 6 of the Act states that when interested parties have a 50% (or greater) interest in a property, unless there is “goodreason to the contrary”, a court “must” order a sale of the property.

However, the reference to a good reason to the contrary indicatesthat there is some discretion to refuse the order. [55] In order for me to exercise this discretion, Mr. Libon, as the party opposing the application, has the burden of proving either that“justice requires” the court or that there is “good reason” for the court, to not order the sale of the property, Martin v. Chidley, 2008BCSC 329, para. 5. [56] In this regard, Mr. Libon says that the property was intended to be his and Ms.

Davis’ retirement home, that he has lived therefor some 35 years, that the proceeds of sale he receives will be insufficient to enable him to purchase another home, and that thesefactors are a good reason to not order the sale of the property.

[ 57 ] While I can sympathize with Mr. Libon’s desire to stay in his home, I must consider the hardship that he may experience against the hardship that Ms. Davis may experience. [ 58 ] To start, it is clear to me that ordering a sale of only the portion of the property owned by Ms. Davis is not a viable option. Not only would this significantly reduce the value of her asset, but it may prove impossible to find a purchaser for half of a property that cannot be purchased with vacant possession. It is clear that Ms. Davis does not have the resources to satisfy the Bank of Montreal judgment.

The Bank of Montreal is moving to sell Ms. Davis’ share of the property and has an order as a judgment creditor to do so. [ 59 ] Furthermore, I have to consider the requirement for Ms. Davis to be able to make use of the value inherent in her ownership of the property. The evidence shows that Ms. Davis’ current level of income can barely cover the monthly expenses associated with her care in the Glenwarren Lodge and that the chance of her recovering is infinitesimal. Far more likely, unfortunately, is that her condition will deteriorate or that the cost of her care will increase.

If either of these contingencies occurs, it is possible that her income will not cover her expenses. This likelihood is made more real given that her care costs at Glenwarren Lodge have increased substantially as of January 1, 2014. I am satisfied that her capital is required to satisfy her likely future needs. [ 60 ] Consequently, I have determined that it is appropriate to grant the relief sought in the Petition and I order that the property be sold. However, this order does not preclude Mr. Libon from making a solid offer to purchase Ms.

Davis’ interest in the property and if he does so it will be incumbent on the PGT to consider it in good faith which I expect will be the case. [ 61 ] With regard to the order for conduct of sale, I order that the PGT have sole conduct of sale of the property. Conclusion [ 62 ] In the application Mr. Libon sought:

a) An order rescinding the appointment of the PGT as the committee of the estate of Ms. Davis;

b) An order rescinding the appointment of John Bowers as the committee of the person of Ms. Davis;

c) The appointment of Mr. Libon as the committee of the estate and of the person of Ms. Davis; and

d) Costs. [ 63 ] I dismiss the application to rescind the appointment of the PGT as the committee of the estate of Ms. Davis. [ 64 ] I rescind, with the consent of Mr. Bowers, the appointment of Mr. Bowers as the committee of the person of Ms. Davis and appoint the PGT as his replacement. In so doing, I deny Kenneth Davis’ request to be appointed. [ 65 ] I dismiss the application to appoint Mr. Libon as the committee of the estate and of the person of Ms. Davis. [ 66 ] On the Petition the PGT sought:

a) A declaration that Ms. Davis had an undivided one-half interest in the property;

b) An order for the sale of the property;

c) An order that the net proceeds of the sale of the property be divided equally between Ms. Davis and Mr. Libon;

d) An order granting the PGT sole conduct of the sale.

e) Costs. [ 67 ] I make the orders sought by the PGT except costs. [ 68 ] The parties are at liberty to argue costs on the application and on the Petition now that they have the result. I will hear them by telephone if required or in court. I expect 30 minutes will suffice and ask that counsel arrange a convenient date through the Supreme Court Scheduling Manager. “J. L. Dorgan, J.” The Honourable Madam Justice Dorgan