2010 ONSC 2424, 2010 ONSC 2424

CITATION : Koperniak v. Wojtowicz, et al, 2010 ONSC 2424 HAMILTON COURT FILE NO.: 09/11531 DATE: 2010/04/23 ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: ) ) HELEN KOPERNIAK ) ) ) Paul J. Osier , for the Applicant ) Applicant ) ) - and - ) ) ) RICHARD WOJTOWICZ and STANLEY WOJTOWICZ as Attorney for Property and Personal Care of Harriet Wojtowicz and THE PUBLIC GUARDIAN AND TRUSTEE and HARRIET WOJTOWICZ ) ) )))))) Patrice A.J. Cote , for the Respondents, Richard Wojtowicz and Stanley Wojtowicz Dermot Moore , for the Respondent, The Public Guardian and Trustee Brian J.

Inglis , for the Respondent, Harriet Wojtowicz ) Respondents ) ) ) ) HEARD: March 23, 2010 THE HONOURABLE MADAM JUSTICE W.L. MACPHERSON [ 1 ] The Applicant, Helen Koperniak, is the adult daughter of the Respondent, Harriet Wojtowicz, (hereinafter referred to as “the mother”) who is 88 years of age. She has three other adult children, Richard Wojtowicz and Stanley Wojtowicz (Respondents in this proceeding) and Lucy Halla. Ms. Halla is not a party to the proceeding, but she supports the Application by her sister, Helen. [ 2 ] The initial Notice of Application included the following relief:

a) An Order terminating the Powers of Attorney for personal care and property granted to Richard Wojtowicz and Stanley Wojtowicz by the mother;

b) An Order declaring that Harriet Wojtowicz was incapable of managing property and making health care decisions;

c) An Order appointing the Applicant as the mother’s Attorney for personal care and property;

d) An Order requiring Richard and StanleyWojtowicz to deliver the mother’s assets to the Applicant and to provide an accounting. [ 3 ] At the commencement of the hearing of this Application, counsel for Harriet Wojtowicz, sought leave to file her Affidavit which had been sworn on March 22, 2010. This Affidavit contained relevant evidence that was necessary for the Court to determine these matters. Counsel for the Applicant did not oppose the filing of the material. He confirmed that he did not wish to cross-examine the mother nor did he wish to adjourn the Application to file any responding material.

On that basis, leave was granted for the Affidavit to be filed. [ 4 ] Since the commencement of the proceedings in May 2009, there had been a change in the mother’s living arrangements in that she was no longer residing with her son, Stanley, at the family farm. The mother has been residing at an Extendicare Retirement Home since Fall of 2009 and the Applicant’s counsel confirmed that the care being provided to the mother was no longer in issue.

Further and although initially the Applicant had raised the issue of the mother’s capacity and a declaration had been sought that she be found incapable of managing her personal and financial affairs, Counsel for the Applicant conceded that in light of the Affidavit sworn on March 22, 2010, he was no longer seeking a declaration that the mother was incapable of making decisions nor was he seeking an assessment pursuant to the Substitute Decisions Act . [ 5 ] The only relief presently being claimed by the Applicant is: (

a) An accounting of the financial dealings of Richard Wojtowicz and Stanley Wojtowicz regarding their mother’s financial affairs under the Power of Attorney for Property; and (

b) An Order requiring the release of the notes and records of Brian Lutz concerning a family meeting that was held in Spring of 2007. [ 6 ] The uncontradicted evidence is that:

a) Harriet Wojtowicz sold the family farm in February 2007 at a sale price of $1,387,694.00.

b) It was the mother’s decision to sell the farm and she was not pressured into doing so.

c) The farm property was not sold using a Power of Attorney, but with the mother signing the necessary documentation.

d) The net sale proceeds were distributed as follows: (

i) The mother gave each of her sons, Richard and Stanley, the sum of $500,000.00; (ii) The mother gave her daughter, Lucy, the sum of $100,000.00; (iii) The mother gave Stanley a further $50,000.00 for his continuing care of her and for looking after the house; (iv) The balance of the money was given to Richard and Stanley to be invested in a way that would benefit the mother.

e) A plausible explanation was provided for the unequal distribution that was made as between the children including that the two sons had worked for many years on the farm without compensation; Helen and Lucy had been gifted land by the mother and father previously; and neither Richard nor Stanley had previously received any significant assets or property from either of their parents.

f) The mother is satisfied that her sons, Richard and Stanley, will manage her funds and continue to provide for her personal care and financial needs in a way that is of benefit to her. [ 7 ] The Applicant made numerous allegations concerning the nature and quality of the personal care provided by Stanley while the mother was residing with her at the family farm.

The allegations ranged from concerns that the home was in a state of disarray; that the mother was not properly fed and clothed; that Stanley was absent from the home for extended periods of time; that Stanley was verbally abusive toward the mother; and that he was verbally abusive toward Helen and Lucy when they questioned Stanley about the level of care that he was providing. [ 8 ] Stanley vehemently denied each of these allegations and he indicated that between himself and the personal care attendant who attended at the home twice per week, his mother was properly and adequately cared for.

It was also significant that although the mother required assistance with her daily care, she continued to be competent and capable of making decisions concerning her health and personal care. [ 9 ] Most importantly, the mother denies the allegations and specifically confirms that she was being adequately cared for by Stanley

while at the home. The Applicant’s counsel has confirmed that the Applicant is satisfied with the present care being provided to her mother. [ 10 ] On May 22, 2009, the mother executed a Power of Attorney for Personal Care appointing her sons, Richard and Stanley. As set out in her recent Affidavit, the mother confirms that the Power of Attorney was signed freely and that she fully understood the consequences of doing so. [ 11 ] The Applicant is no longer seeking to terminate the Power of Attorney for Personal Care nor is she asking to have herself appointed as her mother’s Attorney for Personal Care.

Most importantly, the mother has confirmed in her recent Affidavit that she is happy with her current living arrangements and that in the event that she becomes incompetent and is unable to provide her personal care, she is satisfied that her sons will adequately provide for her, as had been done in the past. ACCOUNTING [ 12 ] The request for an accounting is made under

section 42 of the Substitute Decisions Act . Although that particular

section was not pleaded in the Notice of Application, that is not fatal to the relief being requested. [ 13 ] What is fatal, is the fact that there was no evidence before me that the mother is incapacitated in her decision-making process nor that the transactions complained of (the sale of the farm and the gifts of $500,000.00 to each to the Applicant’s brothers, Richard and Stanley) were contrary to the wishes of the mother. In fact, the mother confirms in her recent Affidavit that it was her decision, after consulting with three of her children (Stanley, Richard and Lucy) to sell the farm while she was alive.

The mother also confirms that the disposition of the sale proceeds in 2007 was in accordance with her wishes and was done for valid reasons. [ 14 ] Certainly, if the transactions had been done pursuant to the powers granted under the Power of Attorney for Property and the mother was concerned about the manner in which her financial affairs had been handled, she would be entitled to an accounting from the attorneys under section 42 (3) of the Substitute Decisions Act .

However, as is clear from her Affidavit, she has expressed no such concerns, she is well aware of her finances and how they have been dealt with to date and she is satisfied that her sons will continue to handle her money appropriately. [ 15 ] Section 42 (4) does extend the category of persons who may apply to have an attorney pass their accounts.

Counsel for the Applicant suggests that the Applicant should be entitled under subsection 6 being “any other person, with leave of the court” to obtain the requested accounting. [ 16 ] The Applicant’s counsel submitted numerous cases in support of his position that there has been a tendency for the Courts to lean toward full transparency of an Attorney’s dealing with a Grantor’s assets and to more often than not, to require an accounting to be done, particularly when there are suspicious circumstances and gifts have been bestowed upon the Attorney using the Power of Attorney. [ 17 ] In the majority of the cases referred to by the Applicant’s counsel, the Grantor of the Power of Attorney had subsequently died and the beneficiaries under the Estate were seeking to require the Attorney to pass the accounts.

In the other cases, the Grantor was still alive, but was no longer competent, nor able to confirm their intentions. [ 18 ] In the case before me, the Grantor is still alive and she is able to confirm her wishes as to the disposition of the net sale proceeds from the family farm. [ 19 ] The only issue on which there was contradictory evidence was whether or not Richard and Stanley ever acted for their mother as attorneys under the Attorney for Property. Richard and Stanley deny that they have done so.

The contrary evidence consists of the Management Plan (which is an unsworn document) attached as an Exhibit to a Supplementary Affidavit of the Applicant where it is indicated that Stanley advised that he had used the Power of Attorney to pay himself and Richard $500,000.00 and to pay Lucy $100,000.00; and the Affidavit of Lucy Halla sworn October 30, 2009 wherein she confirms that sometime between the Spring of 2007 and the end of October 2009, she received a cheque signed by Stanley and/or Richard Wojtowicz. She understood that the monies derived from her mother.

The cheque was accepted without any consideration of the significance or whether it was appropriate. [ 20 ] I would note that the Applicant has not questioned the payment of $100,000.00 to her sister, Lucy. The only payments that have

been questioned are the payments of $500,000.00 to each of the brothers. [ 21 ] Even if I were to accept the evidence of the Applicant and her sister, Lucy, such that the transactions complained of by the Applicant were done by the Respondents using the authority granted to them under a Power of Attorney for Property that would not automatically necessitate that an accounting be done.

In contrast to the cases referred to by the Applicant’s counsel where such an accounting was ordered, the transactions complained of in this case have been confirmed by the mother to have been made in accordance with her wishes – both at the time they were done in 2007 and as of the date of her sworn Affidavit (March 22, 2010). [ 22 ] There is no evidence whatsoever that the mother is incapacitated nor am I being asked to make such a declaration.

The mother has instructed her counsel to prepare an Affidavit confirming that she is opposed to the Application and that she is quite upset with the Applicant’s actions in pursuing these remedies. [ 23 ] The mother is free to dispose of her assets in her lifetime and it appears that she has chosen to do that. She has confirmed that she did not take these steps under any pressure from any of her children. She has also confirmed that her current wishes are to leave things exactly as they are. [ 24 ] It may be that the Applicant is unhappy with the manner in which her mother has decided to deal with her assets.

However, there is no obligation at law that a person’s children be treated equally. On the evidence before me from the sworn Affidavit of the mother, it was never her intention to do so.

As the mother has clearly stated she has disposed of her assets as between her four children in a way that was “just and proper” and “fair” to all of the children taking into account the children’s involvement with the farm and with the mother’s care and other circumstances. [ 25 ] In those circumstances, I am not prepared to grant leave to the Applicant to require the Respondents (Stanley Wojtowicz and Richard Wojtowicz) to provide an accounting.

RELEASE OF NOTES OF FAMILY MEETING HELD IN 2007 [ 26 ] As part of the Applicant’s Management Plan for handling her mother’s property (an unsworn document) the Applicant indicates that there was a family meeting held in 2007 after the sale of the farm. Three of the four children (Stanley, Helen and Lucy) were in attendance together with the mother, a family friend and his solicitor, Brian Lutz. It is alleged by the Applicant that at this meeting it was disclosed that her mother had given $500,000.00 to each of her sons, and $100,000.00 to Lucy. At some point during this meeting, the mother met in private with Mr.

Lutz. [ 27 ] Although Mr. Lutz was asked to release the notes from this meeting, he has correctly refused to do so unless the mother authorizes their release or the Court orders him to do so. [ 28 ] In the usual scenario of trying to ascertain a Grantor’s wishes it is often necessary to look at many different sources to try to determine the intentions of the Grantor as he or she has passed away or has become incompetent.

In this case, the mother is still alive and she has clearly indicated her wishes and intentions with valid reasons being provided in a detailed Affidavit. [ 29 ] In those circumstances, there is no reason to require the notes of Brian Lutz to be released nor do I make such an Order. ORDER [ 30 ] For the above reasons, the Application is dismissed. COSTS [ 31 ] If the issue of costs cannot be resolved, I direct that the party seeking costs deliver written submissions to my office within 15 days of the release of these Reasons with responding submissions to be delivered to my office within 15 days thereafter.

The written submissions are not to exceed three typewritten, double spaced pages, excluding the Bill of Costs and Costs Outline.

___________________________ MacPherson J. Released: April 23, 2010 CITATION : Koperniak v. Wojtowicz, 2010 ONSC 2424 HAMILTON COURT FILE NO.: 09/11531 DATE: 2010/04/23

ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: HELEN KOPERNIAK Applicant - and - RICHARD WOJTOWICZ and STANLEY WOJTOWICZ as Attorney for Property and Personal Care of Harriet Wojtowicz and THE PUBLIC GUARDIAN AND TRUSTEE and HARRIET WOJTOWICZ Respondents REASONS FOR JUDGMENT MacPherson J. Released: April 23, 2010