Fair v Fair, 2023 ABKB 556

Court of King’s Bench of Alberta Citation: Fair v Fair, 2023 ABKB 556 Date: 20231004 Docket: DA03 20221 Registry: Edmonton Between: Beverly Ann Fair and Ivan Fair Applicants - and - Scott Robert Fair Respondent _______________________________________________________ Reasons for Judgment of the Honourable Justice Susan L. Bercov _______________________________________________________ I. Introduction [ 1 ] Margaret Fair is 86 years old. She has two adult children, Beverly Fair and Scott Fair. Her nephew is Ivan Fair.

Her two children disagree on who should look after Margaret and what should be done with her condominium. Because all parties have the same last name, to avoid confusion, I refer to the parties by their first names. No disrespect is intended. [ 2 ] In 2017, Margaret executed various power of attorney documents. Margaret had difficulty deciding who should be her Power of Attorney. She went back and forth between her children and grandchildren. [ 3 ] On December 5, 2017, Dr. Wasilenko, at the Grey Nuns Hospital, completed a Capacity Assessment.

He found that Margaret did not have capacity to make decisions about financial matters and legal proceedings. [ 4 ] On December 7, 2017, Scott took Margaret to a lawyer to transfer the title of her condominium by adding Scott as a joint tenant. Margaret executed the transfer of title on December 13, 2017. [ 5 ] Beverly became concerned about Margaret in December 2021, when she was not able to reach her for some period of time. Scott was living with Margaret in the condominium. Beverly called various agencies for assistance in determining whether Margaret was safe.

[6] In January 2022, Beverly and Ivan applied for an emergency order to take Margaret to the hospital. On January 31, 2022,Justice Angotti granted an Order on an urgent basis appointing Beverly and Ivan Guardians and Trustees of Margaret. A review date wasset for April 4, 2022. [7] On April 4, 2022, Justice Fraser granted a Consent Order directing Beverly and Ivan to request the AHS Case Manager assigned to Margaret to provide a completed Capacity Assessment Report by April 18th. The Report was filed with the Court on May 13,2022.

The Consent Order also granted Scott weekly one-hour supervised visits with Margaret. [8] On May 13, 2022, Beverly and Ivan applied for an order that Scott’s name be removed from the title to the condominium,for Scott to vacate the condominium, and that it be sold. [9] After several adjournments, on August 8, 2022, Justice Henderson granted an Oral Hearing Order. That Order directs a two-day hearing to determine whether Margaret had capacity when she signed the transfer of title and whether Scott holds the title to thecondominium in resulting trust for the benefit of Margaret.

The Order directs the parties to file affidavits that will be admissible as theexamination-in-chief of each deponent and that each deponent will be subject to cross-examination. The Order further provides that theCapacity Assessment Reports and medical records of Margaret are deemed admitted without the need to call the doctors who preparedthem. [10] On September 19, 2022, Beverly and Ivan’s application for permanent guardianship and trusteeship of Margaret came beforeJustice Little.

Justice Little adjourned the application and directed that the issue of the appointment of a permanent Guardian and Trusteebe heard at the two-day oral hearing. [11] The two-day oral hearing came before me on September 21 and 22, 2023. All parties were self-represented at the hearing.Beverly argues that Margaret did not have capacity to sign the transfer of title adding Scott as a joint tenant.

She seeks an order thatScott’s name be removed from the title, that the condominium be sold, and the net proceeds be deposited into Margaret’s bank account.Beverly believes that Margaret requires a permanent Guardian and Trustee and that she is the appropriate person to be appointed. [12] At the beginning of the hearing, Ivan indicated he is no longer applying for permanent guardianship and trusteeship ofMargaret. He withdrew his consent to the appointment. [13] Scott disagrees that Margaret lacked capacity to sign the transfer of title. He also disagrees that it is best for Margaret toremain in a care facility.

He argues that it is best for her to live with him in the condominium. He says he can and will look after her withsome supports. [14] The issues I must determine are as follows: 1. Did Margaret have capacity on December 13, 2017 to sign the transfer of title? 2. Does Scott hold his joint title to the condominium in resulting trust for the benefit of Margaret? 3. Should Beverly’s application for permanent guardianship and trusteeship of Margaret be approved? II. Did Margaret Have Capacity to Sign the Transfer ofTitle?

Test For Capacity [15] In Lynch Estate v Lynch Estate (1993), 138 AR 41, 8 Alta LR (3d) 291, (AB QB), the Court consideredand applied the test for capacity first established in Banks v Goodfellow (1870), LR 5 QB 549 at 565: ...a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shallbe able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder ofthe mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusionshall influence his will in disposing of this property and bring about a disposal of it which, if the mind had been sound, would not havebeen made. [16] A more modern description of the test is set out at para 24 of Archer v St John, 2008 ABQB 9: Put another way, what is required is the “capacity to understand substantially the nature and effect of the transaction.” (Royal Trust Co. vDiamant, (1953) (BC SC), 3 D.L.R. 102 (B.C.S.C.) at 111, per Whittaker J.) [17] The onus is on Beverly and Ivan to prove that Margaret did not understand the nature and effect of the transfer when shesigned the transfer of land placing the condominium in joint tenancy with Scott.

Position of the Parties [18] The Affidavit evidence the parties rely on is conflicting. This is the reason Justice Henderson directed an oral hearing. [19] Beverly and Ivan rely on Dr. Wasilenko’s Capacity Assessment Report (“Capacity Report”) dated December 13, 2017. Dr.Wasilenko was not called to testify. The Oral Hearing Order provides that the Capacity Report and medical records are deemed admitted

without the need to call the doctor. [ 20 ] Dr. Wasilenko works at the Grey Nuns Specialized Geriatrics Clinic. He saw Margaret on May 1, 2017. At that time, he diagnosed Margaret with Mild Cognitive Impairment. He directed that Margaret return in six months to reassess her condition. Beverly took Margaret to see Dr. Wasilenko again on December 5, 2017. As indicated immediately above, his Capacity Report is dated December 13, 2017. Dr.

Wasilenko’s assessment is that Margaret does not have capacity to make decisions about financial matters and the carrying on of any legal proceeding that does not relate primarily to the financial matters of the adult. [ 21 ] Scott relies on the Affidavit of Paul Wilton, sworn March 29, 2022. Mr. Wilton is the lawyer who prepared the transfer of title. Mr. Wilton has known Margaret for over fifty years. Margaret attended his office for a meeting. She asked that he transfer the title of her condominium by adding Scott as a joint tenant. [ 22 ] Mr.

Wilton deposes that Margaret told him she had evidence that Beverly had withdrawn money from their joint account without her permission. Margaret brought in numerous bank and financial statements. Margaret told him that these documents evidenced that Beverly was purporting to pay back a loan Margaret gave to Beverly for around $47,000.00. What Beverly was doing was depositing monthly amounts to pay down the loan each month, but then Beverly would also take money out of the account in similar amounts. [ 23 ] Mr.

Wilton also deposes that: • He believes that Margaret loves her children equally, but that she wholeheartedly trusts Scott. • Margaret told him she uncovered Beverly’s financial abuse, and she no longer trusted her daughter. • Margaret told him that Beverly was continuously trying to take her for mental assessments against her will. • Margaret told him that she wanted to leave the condominium to Scott to ensure he had a place to live in the event of her passing. Margaret instructed him to change her will to appoint Scott as her Executor and the residuary beneficiary. [ 24 ] Mr.

Wilton deposes that he assessed Margaret’s capacity when they met on December 7, 2017 and confirmed that she was of sound mind. Analysis [ 25 ] For the reasons that follow, I accept Dr. Wasilenko’s Capacity Report. The Capacity Report, together with events that happened in 2017, persuade me that the Applicants have met their burden of proving that Margaret did not have capacity when she signed the transfer of title on December 13, 2017. For several reasons, discussed below, I place little weight on Mr. Wilton’s evidence. a.

Events in 2017 [ 26 ] The parties gave evidence about several events that happened in 2017 which, in my view, support Dr. Wasilenko’s Capacity Report. [ 27 ] In February, Mr. Wilton wrote to Margaret because he was concerned about the number of times Margaret had changed her Power of Attorney. Her meeting with Mr. Wilton on February 13, 2017 was for the purpose of appointing Beverly, with Scott as the alternate. [ 28 ] Shortly before this meeting, Beverly and her partner met with Margaret to help her understand what a Power of Attorney does.

Margaret prepared a note of her meeting with Beverly on February 10, 2017. In the note, Margaret expresses concerns about Scott’s capability and indicates that she believes Beverly is more capable to act as her Power of Attorney. [ 29 ] In May 2017, Margaret decided to change her Power of Attorney and appoint her grandson, Jordan. Mr. Wilton was not comfortable or prepared to prepare a new Power of Attorney. Accordingly, Margaret saw a lawyer at Felesky Flynn LLP. This lawyer wrote to both Margaret and Mr. Wilton. The letters are hearsay.

However, I am satisfied that they should be admitted for the truth of their contents. Due to Margaret’s condition, she is not able to testify. Therefore, the necessity requirement to admit hearsay is met. I am also satisfied that there is sufficient reliability to admit the hearsay. Felesky Flynn LLP is a mid-sized, reputable law firm located in Edmonton and the letters were sent at the time of the events. [ 30 ] In the letters, Kary Hargreaves indicates he spent considerable time with Margaret discussing her situation and the Power of Attorney she was requesting.

The letter to Margaret strongly recommends that no further changes be made unless Jordan is involved in the process. The letter indicates Margaret is very comfortable with Jordan and has complete trust and faith in him. [ 31 ] Notwithstanding Mr. Hargreaves’ written advice in July 2017, Scott took Margaret to see another lawyer, Mary Heaton, to change the Power of Attorney from Jordan to Scott. Margaret executed the Power of Attorney on July 28, 2017. Unlike the previous Powers of Attorney Margaret executed, the one executed on July 28, 2017 provides that it comes into effect immediately.

When asked why the Power of Attorney came into effect immediately, Scott testified that Margaret wanted this because she believed that it would stop the arguments and bring the decision to an end. There was no evidence that Margaret consulted Jordan prior to signing the new Power of Attorney. [ 32 ] In my view, Margaret’s actions in disregarding Mr. Hargreaves’ advice, and changing and enacting her Power of Attorney without consulting Jordan for reasons that make no sense, supports Dr. Wasilenko’s Capacity Assessment. b. Mr. Wilton’s Evidence

[ 33 ] In his oral testimony, Mr. Wilton acknowledged the following: • Mr. Wilton did not review the documents Margaret brought in to determine if they supported Margaret’s concerns that Beverly withdrew money from their joint account without her permissions. He relied on what Margaret told him. • He did not know whether Margaret was close with Beverly. He relied on what Margaret told him. • He has no personal knowledge of whether Beverly could easily influence Margaret and whether Margaret had always questioned her daughter’s actions and motivations.

The evidence of para 10 is information that Margaret provided. • While he had difficulty remembering, his evidence is that it is likely that Scott was with Margaret. • He was not made aware of the Geriatric Assessment completed on December 5, 2017. • He was not made aware that on July 28 Margaret went to a different lawyer to change the Power of Attorney from Jordan to Scott. • Mr. Wilton did not ask Margaret any questions specifically to determine if she had capacity to execute the transfer. [ 34 ] The July 28, 2017 changes to the Power of Attorney, against Mr.

Hargreaves’ advice and the Capacity Report, are critical pieces of information that should have been provided to Mr. Wilton. [ 35 ] Beverly testified that she called Scott on December 5, the day of the Assessment, to tell him the results. Scott denied this. Scott testified that Mr. Wilton was aware Margaret had a Capacity Assessment because Margaret called Mr. Wilton to book an appointment right after the Assessment.

He acknowledged that he was not on the phone and that he is not sure if Margaret told him that she had undergone a Capacity Assessment. [ 36 ] Scott also testified that it was Margaret’s idea to go to Mr. Wilton to have the land transferred. He said in a previous meeting, this was Mr. Wilton’s suggestion. Mr. Wilton gave no evidence that it was he who suggested the transfer in a previous meeting. [ 37 ] I have considerable difficulty with Scott’s evidence. I find that on this issue, his evidence is not credible. I accept Beverly’s evidence that on December 5, she told Scott the results of the Capacity Assessment.

This makes sense as she was concerned. In any event, Scott acknowledges knowing about the appointment from Margaret when she got home. He did not call Beverly to find out if the Capacity Assessment indicated Margaret had capacity before taking her to Mr. Wilton’s office to execute the new will and transfer of land. [ 38 ] I find as a fact that Mr. Wilton did not know that the doctor who assessed Margaret on December 5 concluded that she was not capable of making financial decisions. I find as a fact that Mr. Wilton did not know about the July 28, 2017 changes to the Power of Attorney.

I am satisfied that Scott did not inform Mr. Wilton of this important information, because he knew it would raise concerns about Margaret’s capacity. [ 39 ] Considering Mr. Wilton did not have important information bearing on Margaret’s capacity and considering Mr. Wilton’s evidence that he did not ask Margaret any questions specifically to determine if she had capacity, I am not able to give Mr. Wilton’s evidence any weight. [ 40 ] If Scott disagreed with the Capacity Report, as he held the Power of Attorney for Margaret, he had the ability to have her assessed by another doctor.

Beverly testified that she took Margaret for her next six-month assessment in the spring of 2018. It was at that time that Beverly learned of the changes to the Power of Attorney when she was told by the hospital that she did not have the right to access information. Scott did not enter the results of the spring 2018 assessment or any other medical evidence suggesting that Dr. Wasilenko’s Capacity Report is not accurate. [ 41 ] In

summary, based on a consideration of all the evidence, Beverly and Ivan have persuaded me that Margaret did not have capacity when she signed the transfer of land on December 13, 2017. Accordingly, I grant an Order directing that Scott be removed from the title to the condominium and that the title be restored to Margaret’s name alone. III. Does Scott Hold his Joint Title to the Condominium in a Resulting Trust in Favour of Margaret? [ 42 ] As I have concluded that Margaret did not have capacity to execute the transfer of title, it is not necessary for me to determine this issue. IV.

Does Beverly Require the Appointment of a Permanent Guardian and Trustee? [ 43 ] On January 31, 2022, on an urgent and temporary basis, Justice Angotti appointed Beverly and Ivan as Joint Guardians and Trustees of Margaret. [ 44 ] Beverly applies for a permanent order. Ivan no longer consents to acting as a Guardian and Trustee for Margaret. His evidence is that he agreed initially because he was concerned about Margaret. After working with Beverly since January 31, 2022, and watching how she has cared for Margaret, he no longer feels it is necessary for him to continue to act.

He has confidence that Beverly will look

after Margaret’s best interests. [ 45 ] Scott opposes the application. He disagrees that Beverly is an appropriate Guardian and Trustee. He disagrees that Beverly’s plan is in Margaret’s best interest. He argues that it is in Margaret’s best interest to return to live with him in the condominium. He says he can care for her with some support. [ 46 ] The requirements for appointing a guardian and trustee are set out in the Adult Guardianship and Trusteeship Act, S.L. 2008, cA-4.2 (“ Act ”).

Does Margaret Lack Capacity? [ 47 ] Before I can grant an order appointing Beverly to be the permanent Guardian and Trustee of Margaret, I must be satisfied that Margaret cannot make personal and financial decisions and that less intrusive and restrictive measures will not likely be effective to meet Margaret’s needs. [ 48 ] Justice Fraser’s Order of April 4, 2022, directs Margaret and Ivan to request Margaret’s AHS Case Manager to provide a Capacity Assessment Report. The Capacity Assessment Report was filed May 13, 2022.

The Capacity Assessment Report indicates that Margaret does not have capacity to deal with financial and personal matters. [ 49 ] Scott does not accept the Capacity Assessment Report because he has not had any access to Margaret. He has not been able to visit or assess her. He believes that he can care for her at the condominium with some help from paid support workers. [ 50 ] The parties dispute events that occurred after December 2017, leading up to the urgent ex parte application on January 31, 2022, before Justice Angotti.

Scott testified that Beverly was repeatedly sending police, social services, and medical services personnel to the condominium, despite being told repeatedly that there were no concerns. Scott argues that the January 31 2022 application should not have been granted on an ex parte basis and that there were no proper grounds to grant the application.

Scott also argues that he is significantly hampered by his inability to obtain the files of the various agencies that Beverly sent to the condominium. [ 51 ] Beverly acknowledged making some calls to various agencies for assistance but denied that there were no concerns. She relies on pictures of the condominium and of Margaret taken after January 31, 2022. [ 52 ] The January 31, 2022 Order was not appealed. The Oral Hearing Order and Justice Little’s Order are clear that the purpose of the oral hearing is not to determine all issues in dispute between the parties.

The purpose is restricted to determining the validity of the land transfer in December 2017 and whether Beverly’s application for permanent guardianship and trusteeship of Margaret should be granted. [ 53 ] In determining Beverly’s application, I must consider Margaret’s condition today. I am not determining her condition on January 31, 2022 and whether the ex parte application on that date was proper.

I agree with Scott that access to the files of the various agencies who attended the condominium after 2017 may be relevant to the parties’ disagreement over whether it was necessary and reasonable for Beverly to continue to contact agencies for assistance and whether the agencies indicated there were no concerns. However, it is not necessary for me to resolve these disagreements to determine the issues directed in Justice Henderson’s and Justice Little’s Orders.

The files of the various agencies might be relevant to the issues I must determine if there was some evidence that any of these agencies assessed Margaret’s capacity to sign the transfer of land. There is no evidence that any individual from any agency attended the condominium after 2017 to assess Margaret’s legal capacity. Therefore, I conclude that Scott is not significantly hampered by his inability to obtain files of the various agencies in dealing with the issues before me. [ 54 ] Beverly testified that Margaret is in a dementia lock down unit at Rutherford Heights Retirement Residence.

A reasonable inference is that her caregivers and medical staff would not place her in this type of unit if she did not require significant care. Beverly’s evidence and the May 13, 2022 Capacity Assessment Report persuades me that Margaret cannot make personal and financial decisions and that an order appointing a permanent Guardian and Trustee is necessary to meet Margaret’s needs. Caring for a loved one with dementia is a difficult and taxing role. Scott suffers from Crohn’s disease. Scott’s plan to care for Margaret at the condominium with support workers will likely not meet her needs.

Is it in Margaret’s Best Interests to Make the Order? [ 55 ] The Act requires me to consider whether the Order is in Margaret’s best interests. There are several factors set out in the Act that I must consider. In addition to the Capacity Report and the Capacity Assessment Report that I have already considered, I must also consider the Review Officer’s Report and the Guardianship and Trusteeship Plan. [ 56 ] The Review Officer’s Report does not raise any concerns. Beverly’s plan is to move Margaret, if possible, to Revera. Margaret was happy when she was at Revera. She enjoyed the music there.

She had a friend there. Unfortunately, Margaret could not stay at Revera because she could not afford it. Beverly estimates that the value of the condominium is between $185,000.00 - $200,000.00. There is a $90,000.00 line of credit that must be repaid. There are some repairs necessary to sell, and there will be real estate commission and legal fees.

Beverly is hopeful that the equity from the sale of the condominium will provide sufficient funds that will allow Margaret to return to Revera and be placed in priority for a subsidized unit. [ 57 ] The evidence satisfies me that Beverly’s Guardianship and Trusteeship Plan is in Margaret’s best interests. [ 58 ] Margaret is not able to provide her views today. She did grant a Power of Attorney to Scott in July 2017, appointing Scott to manage her financial affairs on her behalf. This is a factor I must consider.

I am not persuaded that it is in Margaret’s best interests to have Scott care for her financial needs under the Power of Attorney.

Is Beverly a Suitable Guardian and Trustee? [ 59 ] The Act requires me to consider whether Beverly is a suitable Guardian and Trustee and that she will act in Margaret’s best interests. The Act sets out several factors I must consider. [ 60 ] Scott argues that Beverly is not suitable.

Scott alleges that Beverly did not pay back the loan Margaret gave her. [ 61 ] In her July 24, 2023 Affidavit, Beverly sets out a detailed accounting of the loan repayment funds she has given to Margaret over the years and evidence she argues demonstrates that Scott has used Margaret’s funds for his own personal use and made poor financial decisions. [ 62 ] During cross-examination, Scott was asked whether he disagreed with the accounting attached to Beverly’s Affidavit. His response was that he does not have the records to check.

When asked about questionable withdrawals he made for personal expenses, he testified that he repaid any funds used for personal expenses. He did not produce any records supporting his repayments. His evidence was that he does not have access to Margaret’s records. However, he does have access to his own records that should show transfers or payments for reimbursement. [ 63 ] I am not deciding in this hearing whether Scott made inappropriate withdrawals or poor financial decisions on Margaret’s behalf. That is not the purpose of this hearing.

It is necessary for me to consider whether Beverly can act in the financial best interests of Margaret. This requires me to consider whether Beverly made any inappropriate withdrawals, including repayment of the loan. A detailed accounting of the transactions is set out in Beverly’s Affidavit. The evidence persuades me that not only did Beverly repay the loan, but she also gifted Margaret additional funds to assist her.

The evidence satisfies me that Beverly is capable and will act in Margaret’s best interests. [ 64 ] I must also consider that Beverly is a relative and a potential beneficiary under Margaret’s will. As well, it is clear to me from listening to the parties that there is considerable conflict between Scott and Beverly that dates back many years. I make no findings on the reasons for the conflict or who is to blame if anyone. This is not for me to decide.

The issue for me to decide is whether these factors will impact Beverly’s ability to act in the best interests of Margaret. [ 65 ] On this issue, I find that Ivan’s evidence is helpful. He testified that he became involved in January 2022, as a neutral third party, to ensure Margaret received appropriate care. At the time, he was not convinced that Beverly was capable. However, his involvement since January 2022 has addressed his concerns. He has watched the effort Beverly has taken to find appropriate care for Margaret. He watched the decisions she made regarding care options and agreed with those decisions.

He reviewed her accounting and testified that because Margaret’s monthly income does not meet her expenses, Beverly has paid the monthly shortfall. [ 66 ] I find Ivan to be a credible witness. His evidence was fair to both parties. He acknowledged in cross-examination when he was not aware of matters and when he had no personal information. He did not attempt to exaggerate or bolster his evidence. One example of this relates to the Order that Scott be allowed one supervised visit per week. Initially, Ivan agreed to be the supervisor at no cost.

Ivan testified that during some visits Scott made negative remarks to Margaret about Beverly and her father. These remarks upset Margaret. When this happened, Ivan ended the visit and took Margaret back to her room. While she seemed troubled, often Margaret would have no recollection of the visit. [ 67 ] In emails, Ivan reminded Scott of the agreement that conversations during his visits must stay positive. Scott then sent emails to Ivan’s employer making serious allegations against Ivan. As a result, Ivan became unwilling to interact with Scott, and Beverly offered Scott a professional supervisor.

The emails are in evidence. Having read the emails, I understand Ivan’s reluctance to continue to supervise Scott’s visits. [ 68 ] The evidence persuades me that notwithstanding Beverly is a relative, a potential beneficiary under Margaret’s will, and there is significant conflict between Scott and Beverly, Beverly is an appropriate Guardian and Trustee, and will act in Margaret’s best interests. Beverly Should Be Appointed as Margaret’s Permanent Guardian and Trustee [ 69 ] In

summary, having considered all the evidence and the factors I am required to consider under the Act, I am satisfied that Beverly’s application to be appointed the permanent Guardian and Trustee of Margaret should be granted. [ 70 ] Beverly’s plan is to sell the condominium, so that Margaret has the funds necessary to pay the costs of her current residence and, hopefully, enable Beverly to move Margaret to Revera. I agree that it is necessary to sell the condominium to meet Margaret’s needs. [ 71 ] Scott resides in the condominium. It will be necessary for him to vacate the condominium.

Beverly suggested 30 days would allow Scott sufficient time to move. I disagree. I appreciate that it is in Margaret’s best interests to sell the condominium as soon as possible as there is currently insufficient funds to cover her expenses. However, Scott is on AISH and has limited funds. It may be challenging for him to find other accommodations. I direct that Scott vacate the condominium no later than November 30, 2023. Scott shall not remove or sell any furniture in the condominium without the written consent of Beverly, nor shall he damage any furniture. The condominium shall be sold after December 1, 2023.

Any funds remaining from the sale, after repayment of the line of credit and any closing costs, shall be deposited into Margaret’s Plan 60 account with TD Bank ending in 661 or 709, the selection of the Plan 60 account to be at Beverly’s sole discretion. [ 72 ] Pursuant to paragraph 3 of the Consent Order of Justice Fraser, Scott is currently entitled to have a weekly one hour supervised visit with Margaret. As he cannot afford a paid supervisor, Scott has not seen his mother for months.

[ 73 ] The visitation term set out in Justice Fraser’s Consent Order was made with the consent of the parties. I am unaware of any provision in the Act or in any other legislation that expressly grants this Court the authority to make a visitation order between any person and the “adult” who is the subject of the guardianship order. [ 74 ] As part of the Order appointing Beverly to be the Guardian of Margaret, I am giving her the authority to act and to make decisions pertaining to with whom Margaret may associate. As a result, I leave it to Beverly to discuss with Scott when he can visit with Margaret.

That said, I recommend that Scott be allowed one visit per week for one hour. He should provide Beverly with 24 hours’ written notice of when he would like to visit Margaret. The visits can be supervised by Beverly or another family member, at no cost to Scott, or they can be unsupervised at Beverly’s sole discretion. [ 75 ] I am hopeful that this decision will end the disagreements about who should care for Margaret and what should happen with the condominium. I am hopeful that Scott now understands there is no point in talking to Margaret about these issues and that doing so only upsets her.

I recommend that Scott not discuss this litigation with Margaret, nor make disparaging remarks to Margaret about other family members. If Scott does not comply with these recommendations, and his conduct causes emotional distress to Margaret, Beverly may wish to insist that his visits be professionally supervised or consider temporarily terminating Scott’s visits. [ 76 ] As Ivan no longer consents to acting as Guardian and Trustee, the January 31, 2022 Order of Justice Angotti is terminated.

Ivan is not appointed as a joint Guardian and Trustee of Margaret. [ 77 ] I am dispensing with the requirement to pass accounts and review the Order by a certain date. I am satisfied from the evidence that this is not necessary and will only increase expenses and conflict that is not in the best interests of anyone. V. Conclusions [ 78 ] I am satisfied that the Applicants’ applications should be granted. [ 79 ] I find that Margaret did not have capacity to execute the transfer of land adding Scott as a joint tenant.

I direct that Scott’s name be removed from the title and that title to the condominium be transferred to Margaret as the sole owner. [ 80 ] Scott shall vacate the condominium no later than November 30, 2023. No furniture shall be removed or sold by Scott without the written consent of Beverly, nor should any furniture be damaged by Scott. [ 81 ] The condominium shall be sold after December 1, 2023, and the funds, after payment of all expenses, shall be deposited into Margaret’s Plan 60 account with TD Bank ending in 661 or 709, the selection of the Plan 60 account to be at Beverly’s sole discretion.

The funds shall be used by Beverly to meet Margaret’s daily living expenses and any other reasonable expenses necessary to meet Margaret’s needs. [ 82 ] The January 31, 2022 Order pronounced by Justice Angotti is terminated. [ 83 ] Beverly is appointed the permanent Guardian and Trustee of Margaret. The requirements to pass accounts and review the order within a set time are dispensed with. [ 84 ] Each party shall bear their own costs. As all parties are self represented, the Court will prepare the Orders. Rule 9.4(2)(

c) is waived. Heard on the 21 st and 22 nd day of September, 2023. Dated at the City of Edmonton, Alberta this 4 th day of October, 2023 Susan L. Bercov J.C.K.B.A. Appearances: Beverly Ann Fair and Ivan Fair Self-Represented Applicants

Scott Fair Self-Represented Respondent