Parker v. Fockler, 2010 ONSC 6872

CITATION: Parker v. Fockler, 2010 ONSC 6872 COURT FILE NO.: 03-35/09 DATE: 20101213 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Deann Parker v. Dorothy Jane Fockler, Devra Parker, Rhys Fockler, Duncan Miller, Armstrong & Quaile Associates Inc., Meta Financial, TD Canada Trust, Dr. Martin Lessement, Barry Katz, and the Public Guardian and Trustee BEFORE: Justice Corrick COUNSEL: Charles B. Wagner for Deann Parker, Applicant/Moving Party Heather A. Laidlaw for Dorothy Jane Fockler, Respondent/Responding Party Andrew E.

Felker for Devra Parker, Respondent/Responding Party Jerry Herzskopf for Rhys Fockler, Respondent/Responding Party Richard Coutinho for Public Guardian and Trustee, Respondent/Responding Party Douglas Stewart for Scotia Trust DATE HEARD: November 24, 2010 E N D O R S E M E N T This Application for Directions has an unnecessarily long and convoluted history. The parties have lost their focus on the purpose of the application. I propose to set a

schedule in an attempt to bring some order to the procedural chaos that has developed. It is instructive to set out the chronology of this litigation. May 2009 Deann Parker (“Deann”) commences an application seeking among other things, directions on questions arising from a power of attorney given by Dorothy Fockler (“Dorothy”) to Rhys Fockler (“Rhys”) and ownership interest in 1299 Don Mills Road. June 2009 Gans J. orders, among other things, that Dorothy undergo a capacity assessment by Alanna Kaye.

August 2009 Alanna Kaye opines that Dorothy is incapable of making decisions with respect to finances, health care and safety. September 2009 Klowak J. orders, among other things, that Dorothy’s assets be preserved, and prescribes a litigation timetable, including mediation dates of October 14, 19, and 29, 2009. October 2009 Pitt J. orders, among other things, vacant possession of 1299 Don Mills Road by November 15, 2009, the development of a marketing plan for the sale of 1299 Don Mills Road by Scotia Trust, and the rescheduling of the mediation to December 14, 2009.

February 2010 Pattillo J. orders, among other things, that the mediation be conducted on April 20, 2010, that Deann be granted leave to amend the notice of application to seek a declaration that Dorothy is incapable of managing personal care and property, that the order of Pitt J. be varied to provide for vacant possession of 1299 Don Mills Road on a date agreed to by Dorothy and Scotia Trust.

Matter adjourned to May 12, 2010 for a scheduling appointment. May 2010 Conway J. adjourns the matter to June 7, 2010 for a scheduling appointment. June 2010 Lederer J. relieves Scotia Trust of its obligations in the matter and adjourns the application to October 19, 2010. September 2010 Dorothy changes solicitors and retains Ms. Laidlaw. October 19, 2010 The application comes before me. Mr. Wagner indicates that the parties are consenting to adjourn the matter to February 22, 2011 for a 4½ hour motion for directions. Ms.

Laidlaw indicates that Dorothy’s capacity to manage property and personal care is going to be assessed by Dr. Silberfeld within two weeks. I adjourn the matter to February 22, 2011 and ask counsel to reattend before me on November 24, 2010 to further discuss the issues. I expected that by November 24, counsel would have had an opportunity to review and discuss Dr. Silberfeld’s report, and determine the outstanding issues, if any. November 24, 2010 Counsel attend before me. Ms. Laidlaw presents Dr. Silberfeld’s report indicating his opinion that Dorothy is capable of managing property and personal care.

No fruitful discussions had taken place since the parties had been before me on October 19. At the hearing on November 24, Mr. Wagner sought an order directing that, 1 . prior to the February 22, 2011 hearing date, Dr. Silberfeld and Alanna Kaye meet to attempt to narrow the issues regarding Dorothy’s capacity and to determine areas of agreement and disagreement; 2 . Dr. Silberfeld and Alanna Kaye address their minds to the issue of undue influence and how that may affect Dorothy’s capacity, and probe and verify this issue by speaking to all parties; 3 . Ms. Laidlaw provide him with the instructions she gave Dr.

Silberfeld; and 4 . any draft reports prepared by Dr. Silberfeld be provided to him. Mr. Felker supported Mr. Wagner’s requests. Ms. Laidlaw and Mr. Herzskopf opposed them. Ms. Laidlaw sought an order permitting Dorothy to list the property at 1299 Don Mills Road for sale without having to put Deann Parker’s name on the listing agreement or having to deal with Deann Parker over the sale. Currently, Dorothy and Deann own the property as joint tenants. Ms.

Laidlaw undertook to distribute the agreement of purchase and sale to all parties and to have the proceeds of sale deposited into the Armstrong & Quaile account, which holds Dorothy’s funds. Mr. Wagner opposed this request. He does not oppose the sale of the property, but submits that it must proceed by way of agent given that Dorothy’s capacity is in question. Finally, Mr. Stewart, on behalf of Scotia Trust, sought an order that released it from the obligation to pass its accounts, and required Dorothy to pay its fees and disbursements in the amount of $31,890.13.

Scotia Trust was originally retained in 2009 to assist in selling 1299 Don Mills Road. Lederer J. released Scotia Trust from its obligations in June 2010. Ms. Laidlaw indicated that the quantum of the fees was in dispute, as was the requirement that Dorothy pay them. Mr. Stewart and Ms. Laidlaw agreed that the issue of quantum be referred for assessment, while the issue of the party responsible for payment be left to the court. Ms.

Laidlaw submitted that the appropriate outcome of the day’s proceedings was an order that required counsel to draft a consent order for directions and provided a means by which the parties can settle any unresolved issues. At this stage of the proceedings, I am not prepared to grant the orders sought by Mr. Wagner nor the order regarding the sale of the property sought by Ms. Laidlaw. The orders sought by Mr. Wagner are premature. They are more properly matters related to the examination of parties and the discovery process. The order sought by Ms.

Laidlaw is directly affected by the issues that must be adjudicated in the matter. There are three main issues to be adjudicated in this matter: 1. The validity of the power of attorney granted by Dorothy to Rhys. 2. Whether Deann holds 1299 Don Mills Road in a resulting trust, and, if so, the consequences that flow from that. 3. The capacity of Dorothy, and if she lacks capacity, the determination of the appropriate guardian of property and personal care. [2] It is clear from reviewing the history of the matter that a trial will be required to adjudicate the issues.

There are obvious credibility and factual disputes. Counsel must turn their minds to getting this matter to trial quickly and efficiently. [3] To that end, I direct counsel to prepare a draft order for directions that includes a list of issues to be tried, a

schedule for production of documents, and for examinations and cross-examinations of witnesses. I urge counsel to complete as many steps as possible by February 1, 2011. The draft order is to be served and filed with the Estates Office by January 14, 2011. In addition to the draft order, each party shall file a one-page statement of the unresolved issues, if any. I expect the parties to narrow the issues so that 4½ hours are not required on February 11, 2011.

Counsel can attend Estates Court for a scheduling appointment to set a date earlier than February 11, 2011 to resolve any contentious issues. [4] The purpose of this proceeding under the Substitute Decisions Act is to ensure that Dorothy’s interests and assets are protected. It appears that the parties have lost sight of the purpose. Counsel cannot. I urge counsel to cooperate and work hard to bring this matter to trial as quickly as possible without a multiplicity of court proceedings.

[5] In

summary, I order as follows: 1. Scotia Trust shall not be obligated to pass its accounts and shall be paid its fees and disbursements and legal costs in this matter, as assessed. The court will determine the party responsible for payment. 2. Heather A. Laidlaw shall be paid the amount of $5,788.00 out of the funds of Dorothy Fockler held by Armstrong and Quaile to reimburse her for the cost of Dr. Silberfeld’s report. 3. Counsel will serve and file with the Estates Office a draft order for directions that includes a list of issues to be tried, a

schedule for production of documents, and for examinations and cross-examinations of witnesses no later than January 14, 2011. 4. Counsel will also serve and file a one-page statement of the issues they have been unable to resolve in the draft order for directions. ___________________________ Corrick J. DATE: December 13, 2010