James v Belanger, 2023 ABKB 34

Court of King’s Bench of Alberta Citation: James v Belanger, 2023 ABKB 34 Date: 20230118 Docket: 2001 14287 Registry: Calgary Between: Lee James, in her capacity as attorney for Elsie Slywka Plaintiff - and - Marcel Belanger Defendant _______________________________________________________ Memorandum of Decision of the Honourable Justice D.V.

Hartigan _______________________________________________________ Introduction [ 1 ] At issue in this matter is whether Elsie Slywka lacked capacity to execute a transfer of property and thereby create a joint tenancy with her long-time partner, Marcel Belanger, the Defendant or, in the alternative, whether Ms. Slywka intentions were such that the Defendant is holding the property in trust for Ms. Slywka and her estate. [ 2 ] Ms. James, Ms. Slywka’s daughter, brings this action in her capacity as her attorney.

Background [ 3 ] Ms. Slywka and the Defendant were in an interdependent relationship since 1988. In 2004, Ms. Slywka sold the home she had purchased with her late husband and bought a condominium located in the Southwest of Calgary, Alberta (the “Property”). She and the Defendant had previously lived together in her former matrimonial home. In a Will dated October 1, 2014 (the “2014 Will”), she left her estate, including the Property, to her children. The Defendant was not left anything in that 2014 Will. [ 4 ] In the summer of 2016, the Defendant expressed concerns to Ms. Slywka’s children about her memory.

As a consequence, the Defendant and Ms. Slywka’s children took Ms. Slywka to an appointment with her family physician, Dr. Emma Beeharry. Dr. Beeharry, advised them that she believed Ms. Slywka was suffering from either Multi-Infar Dementia or Vascular Dementia. [ 5 ] Dr. Beeharry referred Ms. Slywka to the Geriatric Assessment and Support Clinic. A report dated December 14, 2016 by Dr. Henrietta Van Rooi at that clinic contained a diagnosis of “Dementia Vascular or mixed”. [ 6 ] In March of 2017, the Defendant instructed a solicitor to prepare a transfer of title on the Property.

On April 12, 2017, the Defendant and Ms. Slywka attend the solicitor’s office and executed the transfer, creating a joint tenancy in the property between Ms. Slywka and Mr. Belanger. [ 7 ] Ms. Slywka’s family did not become aware of the transfer until April of 2020, when they were advised by the Defendant. Issues Issue One: Did Ms. Slywka have the capacity to execute the transfer?

a) The positions of the parties [ 8 ] The Defendant contends that the only evidence before the Court as to Ms. Slywka’s competency on April 12, 2017 is that of the solicitor, Lonny Balbi, K.C., who assisted in the execution of the transfer. At the time of the transfer, Mr. Balbi did not have any concerns with respect to Ms. Slywka’s capacity. [ 9 ] The Plaintiff argues that the expert medical evidence demonstrates that Ms. Slywka lacked the requisite capacity to understand the nature and effect of making the transfer. Further, Ms.

Slywka did not understand the extent of all her property and was unable to understand the claims of individuals who would normally benefit under the 2014 Will. The Plaintiff therefore argues the transfer is void.

b) Capacity: Onus and standard [ 10 ] The onus of establishing whether an individual has the capacity to make a transfer of land lies with the party alleging incapacity. Therefore, the Plaintiff must establish, to the Court’s satisfaction, that Ms. Slywka did not understand the nature and effect of the transaction at the time she signed the transfer of land placing the Property in joint tenancy with Mr. Belanger: Archer v St.

John , 2008 ABQB 9 , at paras 22 , 24, and 25. [ 11 ] The level of mental capacity required to give effect to an inter vivos transfer is the same as that for the execution of a will where the gift is significant relative to the donor’s overall estate: Petrowski v Petrowski Estate , 2009 ABQB 196 , citing Lynch Estate v Lynch Estate , [1993] AJ No 187 (QB) . [ 12 ] The legal standard for testamentary capacity, and therefore the standard for capacity in relation to the transfer of land in this case, was established in Banks v Goodfellow , (1870), L.R. 5 Q.B. 549 (Eng. Q.B.) [ Banks ].

The test in Banks was summarized in Scramstad v Stannard , [1996] AJ No 640 at para 130 (QB) : i. the testator must understand the nature of the act and its effect; ii. the testator must understand the extent of the property of which he/she is disposing; iii. the testator must be able to comprehend and appreciate the claims to which he or she ought to give effect; iv. the testator must not be suffering from a disorder of the mind or an insane delusion which would influence his or her Will in disposing of his or her property and bring about a disposal, which, if the mind had been sound, would not have been made.

c) The evidence of Lee James [ 13 ] Ms. James testified that her mother, Ms. Slywka, is now 88 years old and is residing in a memory care unit of an assisted living facility. Ms. James has been acting as delegate for her mother under her Enduring Power of Attorney since spring 2020. Ms. James’s evidence can be broken down into the following categories: i. Ms. Slywka’s declining health [ 14 ] Ms. James testified that she first became concerned about her mother’s cognitive issues in summer 2015, when she observed her mother having memory problems, such as not remembering what she had for lunch or if she had gone for a walk. By November

2015, her concerns were such that she wrote to her mother’s family physician, Dr. Emma Beeharry, requesting a meeting to discuss her mother’s memory issues, among other things. [ 15 ] Over the course of the period from 2015 to her ultimately invoking the Power of Attorney in 2020, the following events and observations contributed to her concerns regarding her mother’s cognitive state: • In August of 2016, the family met for an annual summer dinner. The family used this opportunity to advise Ms. Slywka that they had concerns about her memory. Ms. Slywka was upset by the conversation. • Several days later, Ms.

James met privately with Mr. Belanger to discuss the matter. He expressed concerns that Ms. Slywka could not remember what day or season it was. • On September 1, 2016, Ms. James attended an appointment with her mother and Dr. Beeharry. Ms. James took contemporaneous notes during the appointment. Dr. Beeharry advised Ms. Slywka might have Multi-Infarc Dementia or Vascular Dementia, and referred her to a geriatric clinic for further tests. • In October 2016, the Defendant’s sisters came for a visit and stayed at the Property with Mr. Belanger and Ms. Slywka. Mr.

Belanger asked the Plaintiff and her sister to take care of their mother for a weekend, so that he and his sisters could take a trip to Banff. Throughout the weekend her daughters noticed Ms. Slywka was anxious, pacing through the house, asking where Mr. Belanger was. She forgot to eat her lunch and was unable to select her own clothes. When Mr. Belanger returned from the trip with his sisters, Ms.

Slywka was very angry, and demanded to know “Where did you pick up these ladies?”, not recognizing his sisters despite having met them several times before and having them as houseguests only days earlier. • On December 14, 2016, Ms. Slywka was examined by Dr. Henrietta Van Rooi at the Geriatric Assessment and Support Clinic in Calgary. A number of cognitive tests were performed. In a report dated December 14, 2016, Dr. Van Rooi’s diagnosis was “Dementia Vascular or mixed”. Dr. Van Rooi advised she wanted Ms. Slywka to have a CT scan, and recommended home care and contacting the Alzheimer’s Society for support.

The Defendant was ill and unable to attend the appointment, so Ms. James advised him of what the Dr. Van Rooi had said, and that a report from the doctor would be sent. • In January 2017, Ms. James was at the Property and saw Dr. Van Rooi’s report on the dining room table. Mr. Belanger said to Ms. James that the report “doesn’t look very good.” • On January 23, 2017, Ms. James received an email from the Defendant, wherein he provided an update on her mother’s state of health. In the email, he stated, “I talked to Dr. Emma [Dr. Beeharry] also because I’m concerned about mom [sic] lack of appetite.

She does eat but very little. Dr. Emma [Dr. Beeharry] mentioned that it’s part of the dementia also…I hope the geriatric appointment will be scheduled very soon so we can all together come up with ways to help mom.” • In February 2017, Ms. Slywka started home care twice a week for two hours per visit to allow the Defendant some respite. • In March 2017, Ms. Slywka’s son died. Her daughters informed her of his death. The funeral was scheduled about a week later. On the drive down to the Crowsnest Pass, Ms.

Slywka repeatedly asked the Defendant and her daughters where they were going and had to be repeatedly reminded that her son had passed away. • On March 28, 2017, Ms. Slywka underwent a CT scan. At a post-scan medical appointment on April 26, 2017, in the presence of Ms. James and Mr. Belanger, the doctor advised that the CT scan confirmed dementia. • In November of 2019, a family meeting was held at Ms. Slywka’s home. Present were the Plaintiff, the Defendant and the Defendant’s sister. Ms. Slywka sat in the living area, while the others discussed matters at the dining table.

They discussed the fact that one of the nurses who did memory tests on Ms. Slywka had said they should start thinking about looking into a care facility due to Ms. Slywka’s declining condition. • In January 2020, a Declaration of Incapacity for Enduring Power of Attorney was executed. • On February 4, 2020, Ms. Slywka was admitted to hospital with a urinary tract infection. After her stay in hospital, she became a resident of a full-time care facility. [ 16 ] Ms.

James testified she waited until 2020 to activate her Power of Attorney with respect to her mother because she trusted the Defendant and his ability to care for her mother. ii. Ms. Slywka’s intention regarding the Property [ 17 ] Ms. James testified that her mother had told her she was intending to leave the Property to her family, and not to Mr. Belanger. Ms. James stated that she was advised by her mother that the reason for this position was the Property was purchased with the proceeds of the sale of her former matrimonial home, and that original mortgage was satisfied by her late husband’s [Ms.

James’s father] life insurance proceeds. Effectively, Ms. Slywka viewed The Property as her children’s inheritance from their father. [ 18 ] Counsel for the Defendant raised an objection to this part of Ms. James’s testimony, as he argued it was self-serving. However, Ms. James’s position is corroborated by the following: • Ms. Slywka never added the Defendant to the title of the original matrimonial home while they lived together there for 16 years. • When Ms. Slywka purchased the Property, she registered it in her name alone. • Ms.

Slywka did not add the Defendant to the title until 2017, some 13 years after purchasing that property.

• Ms. Slywka executed the 2014 Will in October, therein her estate was to go to her children or her grandchildren. The 2014 Will expressly stated, in a clause titled “Marcel Belanger”, as follows: At the time of signing this Will, I have a common law partner (“partner”), Marcel Belanger. I do not wish for my partner to share in my estate, but wish my estate to pass to my children and grandchildren as designated in this Will. My partner was self-supporting when our relationship commenced and continues to be self-supporting.

I have explained to my partner that I wish for my children and grandchildren to share in my estate, and my partner has acknowledged and agreed to this understanding. My partner lives with me in my home situated at […] Calgary, Alberta (“home”). I purchased my home from the proceeds of the sale of my previous house, which I shared with my then husband, who has since died. When my husband died, the mortgage on my previous house was fully paid for, out of mortgage life insurance proceeds. I then sold that house and bought my new home, in which I and my partner now reside. [ 19 ] Dr.

Arlin Pachet, a neuropsychologist engaged by the Plaintiff to complete a retrospective capacity assessment of Ms. Slywka, interviewed Ms. Slywka in her care home on June 7, 2021. Ms. Slywka’s mental state had declined significantly by the time of that interview. Nonetheless, when asked about whom she intended to give her condominium, she stated she wanted her children to have the property. Dr. Pachet testified that deeply held beliefs often stay with people when other faculties have faded or failed. [ 20 ] With respect to Ms. James’s testimony, I find her to be a very credible witness.

Her recollections were often supported by contemporaneous notes she made at her mother’s medical appointments. She recognized and gave Mr. Belanger credit for his devotion to her mother and the care he gave her. She conceded she should not have restricted Mr. Belanger’s access to her mother for approximately a week at the care home, which she did when she first discovered the transfer on title to the Property.

d) Dr. Pachet’s Capacity Assessment [ 21 ] The Court heard evidence from Dr. Arlin Pachet. Dr. Pachet was qualified to give evidence in the areas of capacity, capacity assessment, and retrospective capacity assessment. Also placed in evidence was Dr. Pachet’s “Retrospective Capacity Assessment of Ms. Elsie Slywka”, dated June 28, 2021. Dr. Pachet testified that he had performed over 2000 capacity assessments, and around 325 retrospective capacity assessments. [ 22 ] Dr. Pachet readily conceded that a contemporaneous semi-structured clinical interview is the “gold standard” when making a capacity determination.

Therefore, such an assessment on or around the time of the land transfer would have been preferable to the retrospective one in this case, necessitated by the fact the transfer was not discovered until 2020. Nonetheless, Dr. Pachet testified that he was able to make an assessment as to Ms. Slywka’s cognitive capacity in April 2017. There was significant medical information on Ms. Slywka’s condition prior to the transfer of land, as well as the results of cognitive tests administered by physicians and nurses between 2016 and the transfer. Furthermore, Dr.

Pachet was able to review medical records and assessment results subsequent to the transfer. These include an assessment by Dr. Smart, a geriatric psychiatrist, on October 25, 2017; an assessment by Ms. O. Lewis, a geriatric nurse consultant, on April 26, 2018, and follow-up assessments by her in January and November of 2019; and other records pertaining to her hospitalization and Declaration of Incapacity. [ 23 ] Dr. Pachet emphasized Ms.

Slywka’s scores on commonly administered cognitive tests, which various medical professionals performed on her, particularly, her scores on the Montreal Cognitive Assessment, which he testified is preferable to other tests performed when assessing decision-making capacity, executive function and judgement. [ 24 ] Dr. Pachet concluded in his report: Based upon the documentation I have reviewed to date, it was apparent that Ms.

Slywka most likely would not have demonstrated an adequate understanding and appreciation of the nature and effect of the transfer dated April 12, 2017, let alone initiate and follow through with the transfer on her own accord. She was clearly struggling with underlying cognitive impairment well before April 2017… It was clear that in April 2017 Ms. Slywka would have presented with quite severe cognitive issues, the degree of which would have drastically impacted her ability to executive [sic] the land transfer on April 12, 2017. Overall, Ms.

Slywka most likely would not have had capacity to execute a land transfer on April 12, 2017…[S]he would not have had an adequate understanding or appreciation of the nature and effect of the transfer[.] [ 25 ] The Defence raised concerns about absence of the “gold standard” contemporaneous clinical interview, both in cross- examination and in argument. The Defence referred the Court to the case of Burby v Ball , 2017 ABQB 300 [ Burby ]. In that case, Dr. Pachet was called as an expert, having done a retrospective capacity assessment.

Justice Tilleman expressed concerns with retrospective reports, and their reliability in the absence of a contemporaneous interview with the subject: Burby , at para 177 . [ 26 ] In the Burby case, Dr. Pachet (and the expert called by the other side) did not have the benefit of the considerable medical information present in this case. In Burby “there was limited background information as the medical documentation was sparse around the time of the land sale” ( Burby , at para 160 ). That is not the case here. Again, as Dr.

Pachet testified, an assessment closer to the time of the transfer would have been preferable. Due to the fact the transfer was not disclosed to the Plaintiff by the Defendant until three years after the fact, such an interview was impossible. [ 27 ] Recognizing the ultimate determination as to Ms. Slywka’s capacity is mine, not Dr. Pachet’s, I nonetheless accept his evidence.

e) The evidence of the transferring solicitor [ 28 ] The solicitor who prepared the joint tenancy transfer, Lonny Balbi, K.C., was not called by the Defence. Rather, his evidence was entered by way of an Affidavit which had his notes of the meeting attached as an exhibit. He was also questioned on his affidavit previously. His notes of the meeting were made the same day, April 12, 2017. [ 29 ] In his notes, he states that he advised them about the potential conflict arising from representing them both. He explained the

purpose of the transfer, and the implications of a joint tenancy upon the death of either party. [ 30 ] He also states that he was shown a draft of the 2014 Will, provided to him by Mr. Belanger. The copy was unsinged, but Ms. Slywka confirmed she signed it “a few years ago.” He goes on to state: I briefly reviewed the Will and indicated that my reading indicates that she does not want to leave any of her estate to Marcel, and that she had a home which she owned outright. The Will does not exactly say that Marcel should not get any of the home, but that seems to be the intention.

I reviewed this idea with both parties. Elsie indicated that it was always her intention that the house should be carved out of her estate. Her children would get the balance of her estate. However, if Marcel were to die first, then she would keep the house and then when she dies, her Will would then deal with the balance of her estate. I felt that both parties were very bright. I think that Elsie said she was 83 years old. She seemed very clear in her thinking, and understood what she was signing. Neither party wanted anyone to challenge either their Wills or this Transfer.

I did not feel that Marcel was doing anything to pressure Elsie into signing this. We even spoke about how they had met on the last day of the Olympics in 1988. They have been together since. Elsie told me she was wondering why she took so long to do this. She said she should have transferred the house years ago. [ 31 ] In his Affidavit, Mr.

Balbi stated, “To ensure that ELSIE SLYWKA was competent and acting on her own free will, I had a discussion with her, separate and apart from MARCEL BELANGER prior to her signing the Transfer and my conclusions are set forth in the memo attached.” [ 32 ] All the communication with the solicitor prior to the appointment was done by Mr. Belanger. The transfer had been prepared prior to the appointment on Mr. Belanger’s instructions. [ 33 ] Mr. Belanger at no time advised Mr. Balbi of Ms. Slywka’s diagnosis with dementia, nor did he advise Mr. Balbi that she had any memory or other cognitive issues. [ 34 ] Dr.

Pachet testified that some people with cognitive scores such as those Ms. Slywka had received around the time of the transfer can present well, and that their cognitive struggles may not be noticeable until the conversation gets into finer detail. If a conversation is cursory, a person might miss them. Sometimes the difficulties only become apparent if questions are asked about orientation, what year it is and similar questions. At that point, he testified the person’s struggles become apparent. [ 35 ] In the absence of any information about Ms.

Slywka’s condition, there was no reason for the solicitor to undertake a more probing questioning of her. Given the absence of that information, and bearing in mind Dr. Pachet’s testimony on point, I find I can give little weight to Mr. Balbi’s observations of Ms. Slywka’s capacity. I would stress that this is primarily due to Mr. Belanger’s failure to advise the solicitor of Ms. Slywka’s condition, not through any fault of Mr. Balbi’s.

f) The evidence of the Defendant, Marcel Belanger [ 36 ] Mr. Belanger testified. He advised he and Ms. Slywka had met and started living together in 1988. He described their relationship as a very good one with little conflict. He advised that Ms. Slywka had retired before him, and that he retired 3 or 4 years ago. [ 37 ] He testified that they split the bills for their residence, groceries and other matters equally. He stated he was not aware of the the 2014 Will of Ms. Slywka. [ 38 ] With respect to the period after 2015, he stated that Ms. Slywka was getting forgetful.

He said he didn’t feel she was going “downhill”. He said little changed in their relationship, and that they still went out for walks and to restaurants. He took her to most of her doctor appointments, as she was suffering from angina, high blood pressure and arthritis. He stated he helped her obtain and take her various medications. [ 39 ] Ms. James had previously testified that after her mother’s memory issues started, she would visit her mother at the condominium once or twice a week. Mr. Belanger denied this, testifying that a generous estimate would be 10 times per year. He said he kept Ms.

Slywka’s children apprised of her health and doctor’s visits by email. [ 40 ] As to the transfer of the Property to a joint tenancy, the Defendant testified that they had discussed the matter prior to 2016. He and Ms. Slywka had begun talking about funerals and other future contingencies. The two of them purchased a niche in a Church. Shortly after her diagnosis of dementia in 2016, Mr. Belanger testified that Ms. Slywka stated that they should do the paperwork to effect the transfer.

He testified she told him she should have done the transfer years ago, that he was a good husband and she wanted him to have the property. Ms. Slywka told him it was her house, and she would do what she wanted with it. [ 41 ] Mr. Belanger repeated that the transfer was done according to Ms. Slywka’s wishes, and everything he did in relation to it was in good faith and for her. He said that Ms. Slywka wanted to get the transfer completed before her condition grew worse. [ 42 ] Mr. Belanger testified as to the circumstances of the solicitor’s appointment. He stated he did not advise the solicitor of Ms.

Slywka’s health and memory problems because it “didn’t cross my mind”. He said he brought an unsigned copy of the 2014 Will to the lawyer’s office. In cross-examination he said he was aware of the 2014 Will, just not that it had been signed. He further stated that Ms. Slywka’s daughters were not told of the transfer because it was a “private matter” between the couple. [ 43 ] In both examination-in-chief and cross-examination, Mr. Belanger was very reluctant to even use the word “dementia” in describing Ms. Slywka’s condition.

He referenced “everyone” saying, “dementia, dementia, dementia,” and claimed never to have seen

any document from a doctor saying Ms. Slywka had dementia. He only referred to Ms. Slywka as “sick” and “forgetful”. [ 44 ] Notwithstanding his contention that Ms. Slywka’s condition was not as bad as others testified, he did testify that he would never leave her alone during this period. Furthermore, in an email from 2018, after the transfer, he advised Ms. James’s sister, “It’s obvious that you don’t know about your mother [sic] disease…Your mom doesn’t remember what was said to her 2 minutes ago.” In an email to Ms.

James the same year, he told her, “Actually Lee, unless you live with someone with dementia every day, nobody and I mean nobody would ever understand as much as I do.” [ 45 ] I also have significant concerns with respect to the timing of the transfer of the title, being so close to the CT scan which would have further clarified Ms. Slywka’s condition. [ 46 ] Clearly things were worse with respect to Ms. Slywka’s condition in 2017 than Mr. Belanger testified. It may well be that Mr. Belanger’s inaccuracies with respect to describing Ms.

Slywka’s state of mind and lack of admission of her dementia are more due to denial than a deliberate attempt to mislead the Court. Nonetheless, given those inconsistencies, where Mr. Belanger’s testimony differs from that of Ms. James’s in relation to Ms. Slywka’s condition at various points in time, I prefer the evidence of Ms. James over his. [ 47 ] The Plaintiff argued that s. 12 of the Alberta Evidence Act should apply to Mr. Belanger’s evidence, as the action is one by a person who from unsoundness of mind is incapable of giving evidence.

As such, he cannot obtain a verdict, judgment or decision on his own evidence unless his evidence is corroborated by other material evidence. [ 48 ] I have already preferred Ms. James’s evidence regarding her mother’s condition. As to his history of the transfer of the title, I find that it is prima facie corroborated by the affidavit evidence and exhibited notes of the transferring solicitor. However, as I previously found, I attach very little weight to that evidence.

Section 12 therefore does not apply to the Defendant’s evidence in these proceedings. [ 49 ] I will add that Mr. Belanger presents as a devoted life partner to the woman he refers to as his wife. It is clear Mr. Belanger provided her with the very best care of which he was capable throughout her illness. I have no doubt their relationship was, and is, a very loving one.

g) Conclusion on Issue One: Did Ms. Slywka have the capacity to execute the transfer? [ 50 ] As stated previously, the onus to establish incapacity to effect a transfer of land lies with the party alleging the incapacity, in this case the Plaintiff. The level of capacity to execute a transfer of land is the same as to execute a will. [ 51 ] Again, as stated previously, the Banks v Goodfellow test for mental capacity in the execution of a will is as follows: 1. The testator must understand the nature of the act and its effect; 2.

The testator must understand the extent of the property of which he/she is disposing 3. The testator must be able to comprehend and appreciate the claims to which he or she ought to give effect; 4. The testator must not be suffering from a disorder of the mind or an insane delusion which would influence his or her will in disposing of his or her property and bring about a disposal, which, if the mind had been sound, would not have been made. [ 52 ] The clear medical evidence both prior to and after the transfer demonstrates Ms. Slywka underwent severe cognitive deterioration. The observations of Ms.

James, and the medical professionals treating Ms. Slywka confirm this conclusion. Ms. Slywka was formally diagnosed with dementia in 2016. [ 53 ] The cognitive tests performed on Ms. Slywka, as interpreted by Dr. Pachet, indicate a serious loss of cognitive ability on her part, particularly as they relate to executive functioning, judgment, and decision-making capacity. No contrary medical or expert interpretive evidence was called by the Defence. Nor is there any medical evidence of temporary lucid periods during the period.

The medical evidence demonstrates an ongoing, more or less consistent, decline. [ 54 ] The transfer at issue in this matter involves Ms. Slywka acting contrary to 33 years of consistent behaviour in relation to her real property. In the 16 years that they lived together in the previous matrimonial home; Ms. Slywka took no steps to add Mr. Belanger to the title. When she purchased the Property, she registered it in her name alone. At no time prior to April 2017 did she take any steps to include Mr. Belanger on the title.

On the contrary, in October 2014, some two and a half years before the transfer, she executed the 2014 Will which expressly excluded Mr. Belanger from the estate, explaining why in context of the insurance monies which both paid the mortgage on the matrimonial residence and for the Property. [ 55 ] Given the observations, medical history and reports, Dr. Pachet’s evidence and the fact that the transfer contradicted 33 years of express and implied evidence of Ms. Slywka’s intentions regarding her property, I find Ms.

Slywka’s dementia brought about the transfer which, had her mind been sound, she would not have made. [ 56 ] I therefore find that Elsie Slywka lacked the requisite capacity to effect the transfer of the Property to a joint tenancy. I therefore declare the transfer void and Ms. Slywka to be the beneficial owner of the property. Issue Two: Is the Defendant holding the property in trust for Ms. Slywka and her estate? [ 57 ] Given my answer to the first question, I do not need to address this question.

Final Matters for Determination Mr. Belanger’s continued tenancy [ 58 ] It was suggested that the Court could direct that Mr. Belanger be permitted to remain as a tenant in the property, so long as he pays fair market rent as per the Ontario Superior Court decision in Gironda v Gironda , 2013 ONSC 4133 . I am not inclined to make such a direction. As I stated before, Mr. Belanger provided excellent and loving care to Ms. Slywka throughout her illness. Ms. James agreed and is grateful for his kindness to her mother.

I have every reason to expect that these reasonable people can come to their own fair resolution of the matter. In the event they cannot, Mr. Belanger will vacate the residence on or before April 30, 2023. Costs [ 59 ] Costs were pleaded but not argued. If the parties cannot agree to costs in this matter, they can arrange to have the matter brought before me, either in written submissions or via WebEx within 60 days of this decision. Heard on the 13 th day of December, 2022 and the 14 th day of December, 2022. Dated at the City of Calgary, Alberta this 18 th day of January, 2023. D.V. Hartigan J.C.K.B.A.

Appearances: Brett Turnquist for the Plaintiff, Lee James Peter A. Crisfield for the Defendant, Marcel Belanger