Park and Park, 2010 ONSC 2627

CITATION: Park and Park, 2010 ONSC 2627 COURT FILE NO.:03-79/09 DATE: May 3, 2010 ONTARIO SUPERIOR COURT OF JUSTICE IN THE MATTER OF the Substitute Decisions Act, S.O. 1992, c. 30 as amended AND IN THE MATTER OF

Section 101 of the Courts of Justice Act , R.S.O. 1990 C. C-43 as amended AND IN THE MATTER OF Rule 14.05 of the Rules of Civil Procedure B E T W E E N: ) ) YOUNG BIN PARK ) ) ) Applicant ) Jill M. Knudsen, for the Applicant ) ) - and - ) ) JAE SUN PARK, EUN-KYUNG KIM, also known as ELLEN KIM KYUNG CHAN PARK, also known as CHRISTINE PARK KEUN CHAN PARK, also known as WILLIAM PARK KEUN JONG PARK, also known as ANDREW PARK And the PUBLIC GUARDIAN AND TRUSTEE ) Joan M. Mouland, for the Respondents except the Public Trustee and Guardian HEARD: January 28, 2009 Turnbull, J.

[ 1 ] The applicant (Mr. Park) has brought this application (the Toronto application) under the Substitute Decisions Act, S.O. 1992, c. 30 as amended, under

Section 101 of the Courts of Justice Act, R.S.O. 1990, c. C-43 as amended and under Rule 14.05 of the Rules of Civil Procedure. He is the husband of the respondent Jae Sun Park (Mrs. Park) and seeks an order declaring Mrs. Park to be mentally incompetent and to have himself appointed as her guardian, and if necessary, to have her capacity assessed. [ 2 ] Mr. Park is 82 years of age and his wife is 77 years old. In June, 2009, Mrs. Park left matrimonial home where she resided with her husband and her daughter Pamela, and has since lived with one of her other children. The applicant states that Mrs.

Park was taken from her residence contrary to her will and is mentally incompetent to make decisions with respect to her property and personal care. He is supported in his contention by his daughter Pamela who resides with him in the matrimonial home. [ 3 ] The other four children of Mr. and Mrs. Park, who are the named respondents in this application, disagree with the applicant’s position. They contend that their mother has full capacity to manage her affairs and that she has knowingly separated from Mr. Park after almost 60 years of marriage and wishes the matrimonial home to be sold. [ 4 ] Jae Sun Park (Mrs.

Park) and her son Keun Jong Park (Andrew) commenced an action by issuing and serving a statement of claim in July 2009. That action was initiated in the Superior Court of Justice in Simcoe Ontario as court file 133-09 (the Simcoe action). The named defendants are her husband Mr. Park and Hae Kung Park (Pamela, who is the daughter of Mr. and Mrs. Park.) In that action, the plaintiffs demand an order for the sale of the home at 110 Ernest Avenue in Toronto, which previously had been the home where the family resided. They also seek an accounting from the defendants of monies expended and/or withdrawn from Mrs.

Park’s bank accounts and other sources pursuant to Powers of Attorney allegedly granted by her to the defendants. [ 5 ] In their defence of that action, the defendants deny the allegations and question the mental competency of Mrs. Park. As was noted during argument of the motion before this court on December 8, 2009 , if the mental competency of the plaintiff is in issue, a Litigation Guardian would have to be appointed for her in that action.

Hence, her mental competency is in issue in both proceedings. [ 6 ] I ultimately determined that the Simcoe action should be stayed pending determination of this application. [ 7 ] Counsel both agreed that t he issue to be determined in this hearing is whether it is necessary for Jae Sun Park to submit to a comprehensive capacity assessment pursuant to the Substitute Decisions Act, S.O. 1992, C.30 as amended. Overview of the Facts as Contained in Filed Affidavits [ 8 ] The parties have filed numerous affidavits on this application.

I have simply tried to very generally outline the facts and allegations articulated in some of them to give some context to my reasons in this application. [ 9 ] Mr. Park, the applicant, contends that his wife is incapable of managing her property and affairs, the most important item of which is the litigation in which she is a plaintiff seeking, inter alia, the sale of the only home she has ever owned since coming to Canada in 1982 (the matrimonial home). Mr. Park says Mrs.

Park is not capable of understanding the nature and effect of the claims being made on her behalf in the action, and she is not capable of instructing counsel. [ 10 ] Additionally, although not directly an issue in the action, Mr. Park alleges that Mrs. Park is incapable of managing her person, and of appreciating the effect of making or not making decisions regarding her own health care. Mr. Park has issued this application in order to be appointed guardian over Mrs. Park’s person and property.

Additionally, if she is found to be incapable of managing her property, and the “Simcoe action” in particular, a litigation guardian will have to be appointed for her. [ 11 ] Counsel for the applicants asserted that at the outset of the litigation, t he respondents initially conceded that Mrs. Park was incompetent. However, it is argued that after orchestrating and implementing a scheme to remove Mrs. Park from the matrimonial home, where she has lived continuously with her husband and Pamela since 1990, they now allege she is capable. The respondents, including Mrs.

Park in her affidavit sworn on this application, state that she is intent on divorcing her husband of 60 years and forcing a sale of the matrimonial home. The applicant asserts that the effect of the sale would be to put him out on the street. [ 12 ] The respondents (other than Mrs. Park) have alleged that Mr. Park is an abusive alcoholic who has no concern for the well being of his wife. They also allege that Pamela has “embezzled” money from her mother by improper use of a Power of Attorney. The applicant noted that none of these allegations were ever raised until Mr.

Park made it clear to his son Andrew that he intended to pursue a resulting trust claim for himself and Mrs. Park against Andrew to secure the one third interest in the matrimonial home currently registered in Andrew’s name. [ 13 ] The applicant contends that the entire elaborate scheme of spiriting Mrs. Park away from the home, isolating her from Mr. Park and Pamela and making allegations of abuse and impropriety is Andrew’s attempt to stymie his father’s efforts and to retain his interest even though he knows he is not entitled to it.

Basis for the Resulting Trust Claim [ 14 ] The applicant contends that Mr. and Mrs. Park purchased their home in 1990 and that they intended Pamela would live with them and support them with the revenue she generated from her employment in operating a donut shop. Mr. Park swore that he and his wife had asked their son Andrew arrange the mortgage and that it was Andrew who had all the discussions with the bank. The applicant alleges that Andrew told his parents that they did not meet the bank’s requirements for mortgage financing and so Andrew had

advised the bank that he would guarantee the mortgage. The bank then took Andrew’s income into consideration and approved a mortgage of $172,000.00. [ 15 ] Mr. Park swore in his affidavit that he and his wife only learned after closing that Andrew was also registered on title as an equal joint tenant. It had never been their intention that Andrew would be an owner of the matrimonial home. He asserts that Andrew provided none of the down payment nor any other of the money required to buy the home.

The applicant contends that Andrew had acted without his parents’ consent or authorization in representing to the bank that he was one of the buyers, and they never considered him to be a true beneficial owner of the home. [ 16 ] Mr. Park further swore that Pamela sold the donut shop in 2002, and she used the net proceeds, which were her personal funds, to pay out the balance remaining on the mortgage. As a result, the matrimonial home has been mortgage free for more than seven years. [ 17 ] Mr. Park swore that in or about May 2008, and again in July 2008, he told Andrew that he and Mrs.

Park wanted Andrew to transfer his registered interest in the home to them and that they were surprised when Andrew refused to convey the interest. [ 18 ] At roughly the same time, Mr. and Mrs. Park sought the advice of a lawyer to prepare Powers of Attorney. On August 8, 2008, Mrs. Park appointed Mr. Park as her attorney for personal care, and Pamela as her attorney for property, on August 8, 2008. The lawyer who prepared the powers of attorney, John Y. S. Park, specifically certified that he had no reason to believe Mrs. Park was incapable. [ 19 ] Mr.

Park swore that, at the time of executing their Powers of Attorney, they learned from the lawyer that Andrew would be the sole owner of their home after they passed away. He asserts prior to August 2008, neither he nor Mrs. Park were aware of this and that they never intended such a result when they bought the home. [ 20 ] Andrew wrote to Pamela three days after learning of the powers of attorney and demanded she pay $300.00 per month to him in “rent” for occupying “his” home. Mr. Park contends that this demand confirmed that Andrew was scheming to appropriate the house for himself. Evidence of Mrs.

Park’s Alleged Incapacity [ 21 ] Mr. Park and Pamela sought the advice of a lawyer, Steven Dyment, regarding Andrew’s conduct in September 2008. Mr. Park has sworn that Mrs. Park’s mental status had declined since the execution of the Powers of Attorney in August 2008 and noted that her memory had become unreliable and she was easily confused over relatively simple things. Because her competency was questionable, Mr. Park swore that Mr. Dyment was not prepared to undertake any work regarding the home until her capacity had been confirmed. [ 22 ] Dr.

Michael Silberfeld , M.D., M.Sc., F.R.C.P., a physician experienced in the field of capacity assessments, allegedly conducted a comprehensive capacity assessment with the assistance of a certified translator on September 27, 2008. Dr. Silberfeld apparently determined that Mrs. Park was not mentally capable after conducting this comprehensive assessment as evidenced by the statement of account from Mr. Dyment to his client Pamela Park dated December 22, 2008. [1] In his letter of December 23, 2008 to Dr. Silberfeld, Mr. Dyment indicated that his client Pamela wanted Dr.

Silberfeld to send his written report to her. However, Dr. Silberfeld did not prepare a report nor retain the notes of his assessment. He simply sent Pamela a letter in March 2009 stating that to the best of his recollection, Mrs. Park was not capable and that she had no desire to transfer her property. Dr. Silberfeld did not file an affidavit on this application. [ 23 ] Dr. Silberfeld’s letter to Pamela also indicated that Mr.

Dyment did not want a written report to be forwarded to him as “since they were not helpful.” He also indicated that Mrs.Park did not want to transfer her property which can only suggest that Pamela was wanting her mother to transfer her interest in the matrimonial home to her or her father. [ 24 ] Neither Mr. Dyment nor Dr. Silberfelt filed any information to assist the court in understanding why the report was not forwarded and what was not “helpful” with respect to an alleged independent capacity assessment. [ 25 ] By letter dated April 1, 2009, Mr.

Park demanded that Andrew turn over his one third interest in the home to him and Mrs. Park. By letter from Andrew’s counsel dated May 1, 2009, Andrew refused. The applicant has argued that the respondents expressly acknowledged that Mrs. Park was not capable in that letter by the following: “It is unfortunate that Mrs.

Park is unable to make her wishes known as this matter has been raised since her health has failed.” [ 26 ] In their responding affidavits in this matter, the respondents have indicated that they have observed a significant improvement in their mother’s health and general awareness since she has left the matrimonial home. [ 27 ] Mr. Park and Pamela swore that shortly thereafter, the respondents became far more active in their involvement with Mrs. Park. William arrived unexpectedly from his residence in Rhode Island on Victoria Day weekend. He allegedly acknowledged to Mr. Park that Mrs.

Park was not capable of making decisions for herself, and proposed that she come to visit with him in Rhode Island for a month. Mr. Park and Pamela subsequently learned that William had taken Mrs. Park to the bank and had obtained a statement of the bank account Mrs. Park held jointly with Pamela. Mrs.

Park confirmed William had taken her to the bank, but she had simply sat in a chair and had no idea what William had done. [ 28 ] William swore an affidavit stating that in May 2009, he went to the bank with his mother and discovered that the money he had been depositing for her benefit into an American currency bank account had been removed and he further found irregularities in the handling of her Canadian bank account. When he asked Mr. Park and Pamela to explain the use they had been

making of Mrs. Park’s Power of Attorney, he was given no information. Pamela subsequently filed an affidavit sworn January 15, 2010 in which she explained that she had transferred the proceeds of her mother’s bank account into her personal bank account to protect her mother from her siblings (the respondents) taking advantage of her incapacity and getting her to give them money. She further explained that $22,000.00 had been paid by her from her mother’s funds to a lawyer for the benefit of her parents in the exploration and pursuit of their “rights” regarding Andrew’s interest in the home.

She acknowledged that in September 2009, counsel determined that in fact $12,000.00 of the fees incurred were properly for her account and she then reimbursed her mother’s account for that sum. [ 29 ] Clearly, the parties will have to account for the management of Mrs. Park’s bank accounts pursuant to the Powers of Attorney and that issue will have to be determined by the trial judge in the Simcoe Action. [ 30 ] Mr. Park and Pamela also learned that Ellen took Mrs. Park for passport photos and had her sign a completed application for a passport. Mrs.

Park allegedly had no idea what she had signed, according to the applicant and Pamela. [ 31 ] On June 12, 2009, Pamela took Mrs. Park to her family doctor, Dr. Kim, for a routine visit. Dr. Kim told Pamela that Ellen had attended at Dr. Kim’s office alone on June 9 th and had told him that since Mrs. Park was not “right” mentally, Ellen was taking her to Rhode Island. On the basis of that representation that Mrs. Park was incapable, Dr. Kim gave Ellen prescriptions for a six month supply of Mrs. Park’s medications. Dr. Kim, Mrs.

Park’s family physician, did not file an affidavit on this application to support or refute such hearsay comments. [ 32 ] On June 15, 2009, the respondents asked whether Mr. Park was agreeable to having a capacity assessment conducted on Mrs. Park. Counsel for the applicant replied that as all parties had acknowledged she was incapable, Mr. Park saw no reason to go to that expense and so advised the respondents. Counsel for the applicant argued before this court that the respondents did not challenge that position or contest the statement that they had admitted Mrs. Park was incapable.

On argument of this motion, Ms. Mouland argued the statement quoted from her letter was privileged as it was written in contemplation of litigation and/or as an effort to settle litigation. Having read the entirety of the record, I am not satisfied the letter was privileged because it was not written as part of an effort to settle all or some of the issues between the parties.. However, the extract from the letter is, in my view, equivocal and does not say that Mrs. Park is mentally incompetent. It simply indicated that at that time her health had deteriorated and she was unable to make her wishes known.

It does not speak to mental incapacity of a permanent nature. [ 33 ] On Saturday, June 27, 2009, Mrs. Park left the matrimonial home with the respondents. When Pamela and Mr. Park realized this, they contacted the police. The applicant states that they misrepresented the situation to the police that she would be taken to Christine’s home in Richmond Hill and would be returned after a few days. Mr. Park swore that Mrs. Park told him that she wished to live with him in their home and that she would be home in two or three days. Mr.

Park has not seen his wife since then. [ 34 ] After the police attendance at Christine’s home and at the matrimonial home, a police incident report was completed. The applicant contended that it was significant that in completing the report, the attending officer noted that the matter involved the elderly mother of adult children with “limited mental capacity”. However, the court has no idea of who provided that information to the officer and consequently, it has little or no probative value on this application. [ 35 ] The respondents took Mrs. Park to a law clerk who was employed by a lawyer Chan H.

Kim, the very next day, Sunday, June 28, 2009, where she purported to revoke her previous Powers of Attorney and to substitute the respondents as her attorneys. The law clerk, Mee Suk Gwak swore an affidavit December 16 th , 2009. In it, she stated that she is fluent in Korean and in English. She stated that in her duties with Mr. Kim’s office, she regularly meets with clients and drafts Powers of Attorney. She swore that she met privately with Mrs. Park for the purpose of preparing Powers of Attorney for Property and Personal Care. She swore that she confirmed that Mrs.

Park understood the consequences of the Powers of Attorney and that in her view, Mrs. Park had the capacity to make her own decisions regarding the Powers of Attorney. [ 36 ] Dr. Kim issued a very brief medical note dated July 9, 2009, in which he claimed Mrs. Park was capable. However, it is unclear whether Dr. Kim even saw Mrs. Park on July 9, 2009. Moreover, Dr. Kim purports to rely on a mini-mental state exam (“MMSE”) conducted on Mrs. Park in October 2008 to suggest Mrs. Park is capable. Mr. Park swore that a nurse in Dr. Kim’s office, and not Dr. Kim, had conducted this examination in October 2008, and Mr.

Park was told that Mrs. Park had in fact “failed” that examination. [ 37 ] When Mr. Park made it clear he did not accept Dr. Kim’s “finding” of capacity, the respondents had another MMSE conducted on Mrs. Park in Rhode Island. In a letter dated August 24, 2009, Dr. Edsell C. Bernardo, M.D., who is shown as a specialist in internal medicine, stated that Mrs. Park had a mental status examination that day and attained a result “adequate for her educational level and age”. She had scored 28/30 on this exam.

However, it is unclear as to who conducted this examination, the qualifications of the examiner, who acted as the interpreter and whether the interpreter gave verbatim responses to the questions posed if it was an oral examination. [ 38 ] Mr. Park then launched this guardianship application under the Substitute Decisions Act, S.O. 1992, C.30 as amended and due to the conflicting evidence concerning Mrs. Park’s capacity, he asked that she be comprehensively assessed. The respondents opposed that application. However, when their action (the Simcoe action) was stayed, they moved themselves to have Mrs.

Park assessed. [ 39 ] Paul Cappuccio, a qualified capacity assessor under the Substitute Decisions Act, provided the court with a Letter of Opinion dated December 21, 2009 that he had determined that Jae Sun Park (Mrs. Park) had the capacity to manage property. He further provided a Letter of Opinion dated January 4, 2010 that Mrs. Park had the capacity to manage her personal care. [ 40 ] The applicant then retained the aforesaid Dr. Silberfeld to review the assessment undertaken by Mr. Cappuccio. His written report is attached to the affidavit of Lily White sworn January 20, 2010.

He determined that the assessments conducted by Mr.Cappuccio were not adequate to support a finding that Mrs. Park is capable of understanding the nature and effect of claims made on her behalf in litigation and that she is capable of instructing counsel. He further determined that the failure of Mr. Cappuccio to have

corroborative information to check the specific answers given to specific questions relating to Mrs. Park’s ability to manage propertyresulted in a situation where the information provided was insufficient to draw a conclusion. Dr. Silberfeld further felt the failure to havea functional examination of her ability to perform personal care functions meant there was no objective information available to meet thelegal criteria of the determination of capacity for personal care. He felt this could only be obtained by an in home assessment of heractivities of Daily Living. [41] Jae Sun Park (Mrs.

Park) denies that she requires a guardian of property or a guardian of personal care. She sworein her affidavit that she is competent and is insulted by the suggestion that she is not competent. She strongly opposes Mr. Park beingappointed her guardian. She has filed an Application for Divorce. [42] Her daughters Ellen (Eun-Kyung Kim) and Christine (Kyung Chan Park) have sworn affidavits on this applicationthat their mother has capacity. [43] Her son Andrew, (Keun Jong Park) has sworn in his affidavit that his mother can carry on thoughtful, intelligentconversations.

He asserts that she knows what she wants and she can communicate those wishes clearly. Christine has sworn to thesame effect in her affidavit. Andrew further swore that his mother plays HwaToo, puts together jigsaw puzzles, plays with hergrandchildren and is capable of performing mathematical operations. He is of the opinion that his mother is competent. [44] Her son William has sworn in his affidavit that his mother is fully aware of who she is, where she is, and what sheis doing. She has a good sense of the time of the seasons.

She knows who her children are, where they live, who her grandchildren areand what their names are. William is of the opinion that Mrs. Park is competent. [45] Andrew, William, Christine and Ellen have all sworn that they never admitted that their mother lacked capacity. [46] I have further considered the fact that none of the respondents was cross examined on his/her affidavit, particularlyMrs. Park.

I would have thought that if she did lack capacity, that might have been made fairly evident by asking her concise, simplequestions directed at essential elements of her capacity to instruct counsel, to manage her property and to attend to matters of personalcare. The Law [47] It is clear that the purpose of the the Substitute Decisions Act, S.O. 1992, C.30 as amended is to protect thevulnerable. On the other hand, the Act contains a number of provisions that reflect the principle that the dignity and privacy of a personmust be assiduously respected. For example,

Section 2 presumes that a person is capable. Sections 22(3) and 55(2) make it clear thatthe court must not appoint a guardian if it is satisfied that the need for decisions to be made can be made by an alternative course ofaction that is less restrictive of the person’s decision making rights. Furthermore, in considering the choice of guardian for property orpersonal care, the court is to consider the wishes of the incapable person (Sections 24(5)(

b) and 57(3)(b).) [48] The court is therefore placed in a position where it must weigh the fundamental rights of each citizen against thedanger that that vulnerable person may be taken advantage of due to his/her incapacity to protect or care for her/himself or his/her assetsand property. In doing that, the court must be cognizant that the capacity to perform certain functions differs, depending on the nature ofthe function. [49] That fact was reviewed by this court in Calvert v.

Calvert, at paras. 54-59 where Benetto J.wrote as follows: It has long been recognized that there are varying degrees of capacity: A person’s right of self-determination is an important philosophical and legal principle. A person can be capable of making a basicdecision and not capable of making a complex decision. Dr. Molloy, the director of the Geriatric Research Group and Memory Centreand Associate Professor of Geriatrics at McMaster University, said: Different aspects of daily living and decision-making are now viewed separately.

The ability to manage finances, consent to treatment,stand trial, manage personal care, make personal care or health decisions, all require separate decision-making capabilities andassessments. The courts have recognized these varying levels of capacity. Birkert L.J. said there “can be no doubt there are degrees of capacity”:Park v. Park, [1953] 2 All E.R. 1411 at p. 1434, [1954] P. 112 (CA). . . . . There is a distinction between the decisions a person makes regarding personal matters such as where or with whom to live anddecisions regarding financial matters.

Financial matters require a higher level of understanding. The capacity to instruct counselinvolves the ability to understand financial and legal issues. This puts it significantly higher on the competency hierarchy...

[ 50 ] In Abrams v. Abrams, [2008] O. J. No. 5207 (S.C.J.) , Strathy J. had to consider a request by children for a capacity assessment of their parents under either S. 79 under the Substitute Decisions Act. In that decision, the learned Justice enumerated a series of factors which the court must consider in such an intrusive judicial decision. Some of those are as follow: (

a) the purpose of the Act; (

b) the terms of

section 79, namely: (

i) the person’s capacity must be in issue; and (ii) there are reasonable grounds to believe the person is incapable; (

c) the nature and circumstances of the proceedings in which the issue is raised; (

d) the nature and quality of the evidence before the court as to the person’s capacity and vulnerability to exploitation; (

e) if there has been a previous assessment, the qualifications of the assessor, the comprehensiveness of the report and the conclusions reached; (

f) whether there are flaws on the previous report, evidence of bias or lack of objectivity, a failure to consider relevant evidence, the consideration of irrelevant evidence and the application of the proper criteria; (

g) whether the assessment will be necessary in order to decide the issue before the court; (

h) whether any harm will be done if an assessment does not take place; (

i) whether there is any urgency to the assessment; and (

j) the wishes of the person sought to be examined, taking into account his or her capacity. [ 51 ] I have attempted to apply these considerations in my analysis of this issue in this matter. Analysis [ 52 ] The onus in this matter rests upon the applicant. The Substitute Decisions Act, S.O. 1992, C.30 as amended makes it very clear that a capacity assessment is the last resort with respect to the management of the affairs or personal care of a person. [ 53 ]

Section 79, which is the

section relied on by the applicant in this application, specifies that if the court is satisfied that there are reasonable grounds to believe that the person is incapable, the court may order the person to be assessed by one or more

assessors. [54] In this matter, I do not find that the applicant has met the onus of satisfying the court that there are reasonablegrounds to believe that Mrs. Park is incapable. [55] First, Mrs. Park has sworn an affidavit that she is competent. She swore that she was insulted by the suggestionthat she needed someone to care for her finances and her person. She was not cross examined on that affidavit. (If I am mistaken and shewas cross examined, the court was not referred to any inconsistencies or other relevant extracts from the transcripts).

The rights of aperson to have sovereignty over her person and property must only be abrogated in the clearest of cases. In my view, such an ordershould not be granted in this case. The principle was well articulated by Low J. in Abrams v. Abrams (ON SCDC),[2009] O.J. No. 1223, 247 O.A.C. 380 (Div’l.

Ct)at para. 57: “….these rights should not be easily interfered with and the individual should not be visited with intrusion into her privacy that anassessment entails simply by virtue of an allegation having been made- even if there is “good reason to believe there is substance to theallegation”-is reflected in the statutory presumption of capacity and, in respect of the particular issue before the court, in the onus builtinto s. 79 for the moving party to show that there are reasonable grounds to believe that the person is incapable.” [56] Ms.

Mouland has noted there is no medical evidence before the court suggesting that Mrs. Park has been diagnosedwith any type of illness which would adversely affect her cognitive abilities. Furthermore, while Mrs. Park may have in the past hadhealth problems which may have limited her capacity to manage her property or her personal care, there is no evidence of such conditionexisting at the time of this matter being heard. The operative word in s. 79 is “are” with respect to the application.

A person may havehad limitations on his/her capacity in the past for any number of reasons but the court must consider the capacity of the individual at thetime of the hearing. [57] Secondly, four of her five children have sworn affidavits that she is mentally competent and able to manage herown affairs and her personal care. Those children were not cross examined on their affidavits (or if they were, the court was not referredto any inconsistencies or other relevant extracts from the transcripts).

Three of them have no direct financial interest in the matrimonialhome or the outcome of the pending litigation involving not just their parents but also the financial interests of Pamela and Andrew. [58] Thirdly, the paralegal who prepared and explained the Powers of Attorney sworn in June 2009 swore in heraffidavit that she felt Mrs. Park was competent. In my view, this was confirmed by her comments that Mrs. Park understood who shewanted appointed as her Powers of Attorney and that she understood the effects of a Power of Attorney. She swore that Mrs.

Parkwanted specific children (Andrew and Christine) appointed jointly and severally as her Powers of Attorney over property because of theirunderstanding of financial matters. She further specifically wanted William appointed as her Power of Attorney for personal carebecause she felt that he had a genuine concern for her welfare and that he was the most knowledgeable of her children in health relatedmatters. She too, was not cross examined on her affidavit. [59] Fourth, Mrs. Park has attained a score of 26/30 in her Mental Status exam in 2008 and a score of 28/30 in herMental Status exam in August 2009.

I attribute very little weight to these exams other than to note that they are consistent with PaulCappuccio’s findings that she scored 29/30 on the mental status test given by him. These findings are supportive of his opinion that Mrs.Park is capable of managing her property and capable to manage her personal care. [60] Fifth, the opinion letters of Paul Cappuccio, B.A., M.S.W.,R.S.W, are the best independent evidence before thiscourt of the capacity of Mrs. Parks. Mr. Cappuccio specializes in counseling, consultation and capacity assessments.

He is a capacityassessor who was located by the Respondents’ counsel from the Capacity Assessor roster of the Capacity Assessment Office of theMinistry of the Attorney General. He is a lecturer in the Department of Psychiatry at Queens University. He noted that Dr. Silberfeldagreed that the cognitive tests he undertook were relevant. Dr. Silberfeld felt that capacity to manage property also requires a functionaltest and suggested that Mr. Capuccio did not perform such a functional test. However, in his letter of Opinion dated December 21, 2009,Mr. Cappuccio specifically related that he had Mrs.

Park participate in a modified BAFPE Task oriented/Money Marketing Test. Henoted that she did very well on the test. She also passed the second part of the test dealing with financial priorities. He noted that sheshowed a clear understanding of financial decisions and an appreciation of why her decisions were correct. This is reflective of the moresophisticated capacity level referred to by Benotto J. in Calvert v. Calvert, supra. [61] With respect to Dr. Silberfeld’s concerns over his conclusions about Mrs.

Park’s personal care functioning, Mr.Cappuccio followed the “Guidelines for Conducting Capacity Assessments”, issued by the Ministry of the Attorney General and he usedthe “Personal Care Assessment Tables” worksheets that require specific answers regarding all six personal care domains from both theperson being assessed and an “informant” to corroborate the answers.[2] He noted that this is a document with which capacity assessorsin Ontario have been trained and is an accepted standard. Mr. Cappuccio concluded that if there had been evidence of possibleincapacity that he had observed during his time with Mrs.

Park or gleaned from his questions, he would then have instituted a moreformalized functional assessment performed by an Occupational Therapist as suggested by Dr. Silberfeld. However, Mr. Cappucciodetermined that this was not necessary. [62] He was also satisfied that the translator Ms. Min Kim was a professional translator who followed his instructionsnot to embellish any of Mrs. Park’s answers or to help her unless he made such a request. Andrew swore in his affidavit of December 30,2009 that Ms. Kim was an independent, professional interpreter. That evidence is not disputed. [63] The failure of Mr.

Cappuccio to address the issue of the capacity to instruct counsel was considered by Dr.Silberfeld to be a major deficiency in his opinion letters. However, Mr. Cappuccio was not asked to perform an assessment as it pertainsto the capacity to instruct counsel in litigation. The assessment sought by the applicant is in support of his desire to have himself named aguardian of Mrs. Park under the Substitute Decisions Act, S.O. 1992, C.30 as amended. I must say, based on the evidence before thiscourt, such a plan is most likely totally untenable. The issue of Mrs.

Park’s ability to instruct counsel is only relevant in the event that amotion is brought under Rule 7 of the Rules of Practice to have a Litigation Guardian appointed for Mrs. Park in “the Simcoe action” andto this stage, that has not been done.

[ 64 ] Hence, I largely discount the findings of Dr. Silberfeld with respect to the capacity of Mrs. Park. His earlier findings in September 2008 are not available for any meaningful cross examination because the test and interview results and notes have been destroyed. He did not state any diagnosis or offer any information as to whether the condition he perceived was permanent or temporary in nature. He never prepared a report. His concerns expressed with respect to Mr. Cappuccio’s Opinion letters have been satisfactorily answered by Mr. Cappuccio. [ 65 ] The evidence of Pamela and Mr.

Park, proferred on the applicant’s behalf, is subject to the limitation that it is somewhat self servicing and supportive of their financial positions. The same may be said for the evidence of Andrew. [ 66 ] I am satisfied that no harm will be done if this application is dismissed. The Powers of Attorney are subject to duties to perform their responsibilities in the best interests of Mrs. Park at the time and in the event she wishes or needs to resort to her Powers of Attorney managing her property or her care.

They will be subject to a duty to account, and they will be aware of that responsibility all the more so because of the outstanding litigation. [ 67 ] I am satisfied that the potential conflict of interest of Andrew being a joint Power of Attorney over property and a plaintiff in the litigation in the Simcoe action can be controlled by virtue of the fact that his sister Christine is also a Power of Attorney over property and she does not have a direct financial interest in the ongoing litigation. [ 68 ] I have carefully weighed the submission of Ms.

Knudsen that it would be of little inconvenience to have a full capacity assessment undertaken of Mrs. Park and it would thereby create a sense of fairness and openness surrounding that issue. However, that is not the test under S. 79, particularly where the party herself does not wish to have an assessment. [ 69 ] Ms. Knudsen has argued that the nature of the circumstances of the litigation raise tremendous suspicions as to Mrs. Park’s vulnerability and capacity. She argued that the claims made in the litigation are not in Mrs.

Park’s best interest; rather, her best interests are protected by the pursuit and recovery of the interest from Andrew. The applicant contends that the claims as currently constituted are instead in Andrew’s interest only, as he wishes to secure one third of the proceeds of the sale of the home for himself. The applicant argued that the fact that Mrs. Park purports to sue Mr. Park for the sale of the matrimonial home is the strongest evidence that she does not understand what is going on. She submitted that the claim as currently constituted will not proceed if Mrs.

Park is found to be incompetent and therefore it is imperative that there be a determination as to whether she is capable of understanding the nature and consequences of the claims made in the litigation as well as whether she can instruct counsel. [ 70 ] Ms. Mouland has pointed out that Mrs. Park simply wants a divorce and a division of the proceeds of the matrimonial home and such matrimonial break ups are hardly novel in our society. Mrs.

Park is represented by experienced counsel in that litigation who is well aware of her professional responsibilities in the event she senses Andrew and his mother have a conflict of interest in the continuation of the litigation. Similarly, if Mrs. Park appears to be unable to instruct counsel appropriately, her lawyer will be able to act appropriately to have a litigation guardian appointed under the Rules of Civil Procedure. [ 71 ] Finally, I should note that counsel for the respondent the Public Guardian and Trustee did not appear in person on this application.

However, by letter counsel did indicate that based on the opinion letters of Mr. Cappuccio, it may not be necessary for the court to order a capacity assessment under s. 79. Conclusion: [ 72 ] The applicant’s application is dismissed. If counsel cannot agree on the issue of costs, Ms. Mouland may make brief written submissions with copies of relevant offers and a costs outline on or before May 20, 2010. Ms. Knudsen may reply on or before June 5, 2010. Ms. Mouland may serve and file and brief reply on or before June 10, 2010. ___________________________ Turnbull, J.

Released: May 3, 2010 CITATION: Park and Park, 2010 ONSC 2627 COURT FILE NO.: 03-79/09

DATE: 2010/05/03 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: YOUNG BIN PARK Applicant - and – JAE SUN PARK, et al Respondent REASONS FOR JUDGMENT Turnbull, J. Released: May 3, 2010