) ) DONALD KULYSKI v. MARY KULYSKI, 2013 ONSC 719

CITATION : Kulyski v.

Kulyski, 2013 ONSC 719 COURT FILE NO.: 03-021/10 DATE: 20130213 ONTARIO SUPERIOR COURT OF JUSTICE IN THE MATTER OF STELLA KULYSKI AND THE SUBSTITUTE DECISIONS ACT , R.S.O. 1992, S.O. 1992, c.30 BETWEEN: ) ) DONALD KULYSKI and MARY KULYSKI Applicants – and – STELLA KULYSKI, PATRICIA KULYSKI and THE PUBLIC GUARDIAN AND TRUSTEE, Respondents ) ) ) ) ) ) ) ) )) ) ) ) ) ) Pierre Sicco , Counsel for the Applicants Graham Webb , Counsel for the Respondent, Stella Kulyski George Harasymowycz , Counsel for the Respondent, Patricia Kulyski Mara Farmer , Counsel for the Respondent, The Public Guardian and Trustee ) ) ) HEARD: NOVEMBER 29, 2012 judgment on passing of accounts: greer j. : [ 1 ] The Application in this matter, issued by the Court on March 11, 2010, was brought on by the Applicants, Donald and Mary Kulyski, the son and daughter-in-law of Stella Kulyski.

They ask for various kinds of relief in connection with the Respondent, Stella Kulyski; her assets and her Powers of Attorney granted at various times. Relief was also sought against the Respondent, Patricia Kulyski. The third Respondent, The Public Guardian and Trustee was served, given the competing Powers of Attorney and the issue of Stella Kulyski’s lack of capacity to manage her property and personal care. [ 2 ] In this Judgment, the four Kulyskis shall be referred to by their first names. They are: 1. “Donald”, the only son of Stella, was born September 28, 1948 and is now age 64.

He is a practising Dentist with his own dental clinic. 2. “Mary” is the wife of Donald. They have been married since August 1975 for 37 years. 3. “Stella” is the mother of Donald and Patricia. She was born on March 1, 1921 and was 89 years of age when the Application was brought on. By the time of the Passing of the Accounts, finally took place, Stella was 91 years old. 4. “Patricia” is the only daughter of Stella and is Donald’s sister. She was born December 7, 1950. At the time the Application was brought on, Patricia was 60 years old and living in Stella’s home.

It is unknown when Patricia was last fully employed. [ 3 ] Stella, on August 7, 1998, had named Donald and Patricia jointly and severally as her attorneys for property. That Power of

Attorney was revoked by Stella on September 15, 2008, when she met with a lawyer, Miriam Kelly, at Stella’s request. It is Donald’s evidence that while Stella was hospitalized she expressed concerns about Patricia taking large sums of her money and her Canada Savings Bonds. Given Stella’s concerns, Donald says he contacted her lawyer, Angelo Cimetta, to see if Stella had ever executed a Power of Attorney. Mr. Cimetta sent Donald a copy of the 1998 Power of Attorney and a Will.

New powers of attorney were granted by Stella for her personal care and her property to Donald and Mary on that September 15, 2008 date. [ 4 ] Stella’s health continuously deteriorated in 2008. She was first admitted to hospital on January 11, 2008 with a bowel obstruction. She was continuously hospitalized and in rehabilitation for 10 months until October 2010, having had 2 surgeries, admissions to the Intensive Care Unit at St. Joseph’s Health Centre and admissions to St.

Hilda’s Convalescent Care and the Toronto Rehabilitation Institute. [ 5 ] During this period, the Applicants say Stella told them that Patricia “had taken her investments and was withdrawing Stella Kulyski’s funds.” The new powers of attorney were therefore executed by Stella. [ 6 ] The Applicants say that the Staff at the Rehabilitation Institute recommended that Stella undergo a capacity assessment. This was done on December 3, 2008 by a social worker, Kathy Wheeler Sullivan. In her capacity assessment report dated December 6, 2008, Ms.

Wheeler Sullivan found that Stella was not capable of managing property. [ 7 ] The day after that capacity assessment, Stella is purported to have signed a document revoking the September 2008 powers of attorney. On October 27, 2009, Stella executed a Revocation of Continuing Power of Attorney for Property in respect of the September 2008 powers she had previously signed. On October 29, 2009, she signed a Power of Attorney in favour of Patricia. [ 8 ] Stella had 4 days earlier undergone a second capacity assessment on October 23, 2009, conducted by Dr. Giovanni Marotta.

He spoke neither to Stella’s family doctor nor to Donald and Mary. Dr. Marotta found Stella to be capable of managing property. [ 9 ] While Donald and Mary had assisted Stella during the period from September 2008 to November 2009, they made enquiries regarding Stella’s assets and banking matters. They say they learned that between February to November 2008, Patricia had withdrawn at least $12,649.62 from Stella’s bank account. [ 10 ] It is in the context of this background that Donald and Mary brought on their Application. They therefore ask the Court under subparagraphs (

b) and (

c) of their Application to order another capacity assessment of Stella to be conducted by Dr. Michael Silberfeld, and that Stella be declared incapable of managing her property. [ 11 ] In subparagraphs (

i) to (

k) of their Application, Donald and Mary ask the Court for the following relief: (

i) An Order compelling an informal accounting of all transactions conducted by Patricia Ann Kulyski concerning and affecting the property of Stella Kulyski, whether held solely by her or jointly with another from February 2008 to the date of the within Order Giving Directions in accordance with the provisions of the Substitute Decisions Act , and its Regulations and the Rules of Civil Procedure , Rules 74.11 to 74.18 within twenty (20) days of the within Order; (

j) An Order compelling Patricia Ann Kulyski to give full and complete disclosure of her banking records, financial records, income tax returns and assets, including investments and properties from February 2008 to the date of the within Order Giving Directions for the purpose of ascertaining the use of assets held by Stella Kulyski; (

k) An Order that Patricia Ann Kulyski pass her Attorney accounts if the informal accounting requested to be ordered herein is deemed unsatisfactory by the Applicants, within forty-five (45) days of the receipt of the informal accounting without further Court Order. [ 12 ] The Application was set to be heard on April 7, 2010. It was adjourned by Mr. Justice Pitt on that date, “…to a date to be fixed by the Registrar on consent of the parties to be brought back on seven (7) days notice.” The Interim Orders 1. February 8, 2011 a Notice of Return of Application was set down to be heard on March 24, 2011.

Neither Stella nor Patricia had complied with the Rules and no materials were filed by them. The Application was adjourned at the request of Stella, who finally filed an Affidavit on May 2, 2011. 2. On June 20, 2010 , Dr. Michael Silberfeld had filed a capacity assessment saying that Stella was “unable to meet minimum standards for verbal fluency.” He also said Stella was “susceptible to undue influence.” His Report was done on consent of all the parties. There were now two findings of incapacity on Stella’s part. 3. Order May 17, 2011 before Madam Justice Greer.

On this appearance before me, over a year later, on a Return of the Application, Stella’s counsel wanted only an Order for Mandatory Mediation even though a full year had passed. Patricia still had no counsel and had only filed her Appearance on that day after being served over a year ago. She had not responded to the Application as noted in my Endorsement. I found that mandatory mediation would be of no help since the parties had failed in December 2010 to accept a comprehensive settlement proposal put forward by Donald and Mary.

Stella also wanted now, to challenge Dr. Silberfeld’s Report, yet it was done “on Consent” of the parties. Patricia, who had no status as she had filed no Affidavit also said she wanted to challenge the Report. Counsel for Donald and Mary had proposed a draft Order for Directions, to which Stella’s counsel had some objections. A comprehensive Order for Directions, with some changes, was signed by me and was in place for all parties to follow as to the issues in the litigation. [ 13 ] In my Order of May 17, 2011, paragraph (

i) of the Application, was incorporated into an expanded Paragraph 9 of the Order whereby Patricia was to provide her informal accounting as noted. It also, however, was to include in that accounting, all transactions relating to the “2005 General Power of Attorney with the Royal Bank of Canada”, which she had on Stella’s account. In addition, it also was to include the “proceeds of Anna Thompson’s Estate from January 1, 2005 to the date of the within Order”.

All such accounting was to be provided to Donald and Mary within 30 days of the Order being issued. [ 14 ] The Order was issued and entered on June 16, 2011. No such accounting was presented by Patricia by July 16, 2011.

Paragraph 9 of the Order stated that if Patricia failed to provide the accounting within the 30 days as required by her, Donald and Mary were entitled to return the Application to the Court to request from it that they receive leave of the Court for an Order requiring her to formally pass her accounts for the same period pursuant to S.42 of the Substitute Decisions Act, 1992 , S.O. 1992, c.30. [ 15 ] Pursuant to paragraph 10 of the Order, Patricia, was also required to give “full and complete disclosure of all back-up vouchers, financial records and assets, whether held solely or jointly with another, including monies in trust, investments and properties, banking records, powers of attorney documents, and testamentary documents, from January 1, 2005 to the date of the within issuing Order.” This also was for the purpose of ascertaining the use of Stella’s assets.

It was to be done within 30 days of the issuing of the Order. 4. Case Management Order January 9, 2011 , Madam Justice Barbara Conway. Counsel for Donald and Mary wrote to the Estates Team Leader requesting that a Case Management Judge be appointed to oversee the case and to hear all interim matters as well as the final hearing of the Application. I was appointed as that Judge on June 9, 2011 by Madam Justice Conway. 5. Consent Order December 21, 2011 , Madam Justice Greer. Six months passed and Patricia still had no counsel, although she had been advised to get counsel by me at the May hearing.

This new Order came about as a result of a Telephone Conference Call arranged with counsel representing the other parties and Patricia. Mr. Webb was appointed as S.3 counsel for Stella. The Public Guardian and Trustee was appointed as litigation guardian of Stella for the purposes of reviewing Patricia’s accounts. [ 16 ] A cross-examination of Patricia had been set down for January 24, 2012, so an Order was made that she serve any additional affidavit material on all parties 4 days in advance of the cross-examination. 6. Order June 4, 2012 , Madam Justice Greer.

During the 6 months following my December 2011 Order, Donald and Mary changed counsel and Patricia retained counsel. The Passing of Patricia’s accounts had still not taken place as I tried to move the parties forward. On June 4, 2012, when the Passing was to be heard, the parties negotiated all day and came up with a Consent Order on some aspects of the Application. The new Order included the following: (

a) Stella was declared incapable of managing property. (

b) Donald and Patricia were appointed as joint guardians of Stella’s property. (

c) A scheme of management and decision-making respecting Stella’s property was put in place. In addition, Patricia was to prepare Stella’s 2011 Income Tax Return on certain terms. (

d) The operating costs of Stella’s property at 14 Arnold Avenue, Toronto, were to be paid in accordance with the plan set out in para. 4 of the Order. (

e) If Stella vacated her home, para. 5 sets out how the home shall be sold and the net proceeds of any sale to be used for Stella’s benefit. (

f) Paras. 6-8 dealt with financial matters regarding Patricia’s continued occupation of home and her expenses and legal costs of the parties.

(

g) Paras. 9 to 12 dealt with personal care issues of Stella, and Donald’s and Mary’s rights of visitation with her, as Patricia had been preventing private visitations. (

h) Para. 14 set out the issues to be tried on the completion of the Application, including the Passing of Accounts by Patricia, which was still not before the Court. (

i) Para. 14 set out the steps and timetable to be taken by the parties to complete all matters, stating that the Trial shall take place on a date to be set by the trial co-ordinator after November 30, 2012. 7. Order August 30, 2012 . The Motion set down for August 30, 2012, was a Contempt Motion to have Patricia held in Contempt of Court. After lengthy discussions by the parties, they came to a Consent Order on terms other than the contempt issue. They agreed as follows: (

a) Patricia would immediately provide Donald with a key to front door of Stella’s home, as Patricia had failed to comply with an earlier Order of mine to do so. (

b) Donald shall arrange to have an inspector attend at Stella’s home with him to review the safety of the home’s wiring, plumbing, furnace and to inspect the small apartment in the basement under lock by Patricia. All locks were ordered to be removed by Patricia. (

c) Donald shall arrange with Patricia, on 24-hours notice, visits with Stella and Patricia shall ensure that the screen door is not locked and Donald may enter using his key. (

d) Donald and Patricia shall attend on August 31, 2012, at Scotiabank, to sign documentation for Stella’s account there for automated transfers to be effective to carry out the terms of my earlier Orders. (

e) Donald and Patricia’s names shall appear on all Stella’s medical and hospital records as her next-of-kin, guardians of personal care and contacts in case of emergency. Dr. Sheldon Katz shall remain as Stella’s family physician for all her personal care, only to be changed under Court Order. Patricia’s Accounts (

a) July 11, 2011 [ 17 ] Patricia prepared a documentation which she filed with the Court on July 11, 2011. She filed an Affidavit of Service sworn on that date saying she sent an “Affidavit of Pat Kulyski” to Stella’s counsel “by fax”, to Donald’s and Mary’s counsel “by hand” and to the Court “by hand”. A copy is said to be attached as Exhibit “A” to the Affidavit of Service. Nothing is attached to the Affidavit filed with the Court. On July 15, 2011, Patricia notified the Court that what paragraph 2 of the Affidavit should have read was not her Affidavit but a “Statement of Accounts of Stella Kulyski”.

The Plastic folder left with the Court was not marked as an Exhibit and there was no Affidavit of Patricia. [ 18 ] The so-called “Accounts” consisted of a folder of loose papers, not numbered. These were not Accounts. In her so-called Statement, Patricia wrote that “mom did not keep good records”. The papers included copies of Royal Bank statements with notations by Patricia as to what some cheques referred to, and some deposits such as “Ann’s Estate”. There were many “cash withdrawals” not accounted for.

[ 19 ] Also included were copies of some receipts or vouchers for some payments. Of note is one entry on March 23, 2010, of $1,000, with Patricia’s hand-written note that it was for “Kristina – Lawyer…Simpson Wigle.” [ 20 ] The binder also included groups of loose papers relating to “Scotia Bank #2”. These were not bank statements but a computer printout with no description of entries. In each case, Patricia gave a running statement of what she says was taking place with her Mother.

She says “I do not believe I have been treated fairly as I am with my mother almost 24/7”. [ 21 ] Within this folder, Patricia did include copies of Stella’s Income Tax Returns for 2005 to 2010. In 2009 and 2010, for example, the Returns show that Stella should have received Income Tax Refunds of $990.41 and $892.44. [ 22 ] With respect to the Estate of Anna Thompson, of which Stella was the sole beneficiary, two deposits of $3,227.33 and $1,166.91 were deposited in Stella’s account on October 13, 2006, days after Anna Thompson died.

Patricia says “My mother gave this money to me as a gift in gratitute (sic) for the care and time and support I provided to both Anna herself.” [ 23 ] Patricia opened up her own CIBC Savings Account on that date, October 13, 2006. On December 31, 2006, the balance is shown as $15,119.05. There were no deposits, other than interest paid on the account, throughout the years 2007-2011, when the last statement shows a balance of $3,377.46 on May 27, 2011. All the money in that account came from Anna’s Estate. [ 24 ] What Patricia produced was not an informal accounting.

It in no way complied with the terms of the Consent Order. Given the wording of para. 9 of the Order, Patricia was now to produce a full accounting if required to do so by Donald and Mary. There had been no balances brought forward nor a list of assets and values, nor a full accounting of the Estate of Anna Thompson. There was no accounting of Patricia’s operation under the earlier Powers of Attorney given by Stella to Patricia. (

b) Patricia’s second attempt at Accounts [ 25 ] On December 14, 2011, after counsel for Donald and Mary wrote to me to try to move matters forward, I wrote to counsel saying that if all parties agreed, I would conduct a Telephone Conference Call on the issues. I said in para. 2 of that letter: Since Ms.

Patricia Kulyski appears not to be co-operating with anyone, and in breach of my Order, any Motion should be set down on the regular Estates List. (given that I was on supernumerary time off from January to the end of March 2012.) The matter did not move forward in my absence. [ 26 ] A second set of Accounts was filed by Patricia by faxing them to the Court on October 17, 2012. They purported to cover the period January 1, 2005 to May 17, 2011, including an accounting of 3 bank accounts with the Royal Bank and Scotiabank, with schedules of original assets at January 1, 2005 and those remaining on May 17, 2011.

These accounts were prepared for Patricia by George Harasymowycz, her new counsel, who was now on the record for her. [ 27 ] I arranged for the Court to bind them for Court purposes. These Accounts also did not comply with the Estate Rules as there were no separate Accounts for Capital and Income Receipts and Disbursements. There were no vouchers to support most banking entries. There was no accounting of Anna’s Estate and no accounting of Patricia’s income and assets. (

c) Patricia’s third set of Accounts [ 28 ] By July 13, 2012, Donald and Mary were so frustrated by Patricia’s failure to comply with the Court Orders, they set down a Motion to have Patricia held in Contempt of Court, as noted earlier in this Judgment. September and October came and went without Patricia filing her Accounts under her Powers of Attorney (other than the 2009 one now being challenged). I set down the date of November 29, 2012 as peremptory to Patricia. No accounts were filed by her until the morning of the hearing. No appointment to Pass Accounts was ever set down by her.

The Public Guardian and Trustee was not given sufficient time to review the Accounts in detail. [ 29 ] Patricia and her counsel arrived late for Court and requested additional time. Donald and Mary had prepared a new Affidavit in support of their position that Patricia should be removed as Donald’s co-guardian of Stella’s property. It was late served and I would not accept it being filed. [ 30 ] Stella’s counsel said he had received 120 pages of vouchers by fax September 14, 2012. Donald’s and Mary’s counsel said he received some near the end of September by e-mail.

All of the materials should have been personally served on other counsel, given the number of pages being sent as Accounts and Vouchers. The full document was not delivered to Donald’s and Mary’s counsel until the morning of the hearing when the Court’s copy was also filed. [ 31 ] The Statement of Original Assets as of January 1, 2005 shows assets as having a total value of $334,052.11. These include a bank account, Canada Savings Bonds, a Term Deposit and the home. The home as of January 1, 2005, on the MPAC assessment shows a $299,000 value. This was increased to $345,000 as of January 1, 2008.

The value as of 2011 is said to be $333,500. [ 32 ] The Accounts cover certain periods of administration but are a running account of operation of bank accounts co-mingled with some vouchers. They are untabbed and not numbered, making it difficult to follow. The periods in this document are: (

a) January 1, 2005 to 2007 [ 33 ] Patricia maintains that Stella operated her bank accounts on her own and administered her own assets during this period. Stella’s main sources of income were her monthly OAS of $675.45 and her CPP of $704.83. These amounts increased over the years as indexing took effect on government payments. She also received some modest C.S. Bond and term deposit interest. [ 34 ] There is a multitude of “cash withdrawals” unaccounted for in odd amounts such as $351.09 in February, 2005, $396.37 in March and $312.45 in April. This remains a constant pattern throughout the accounts. Some cash amounts were said to be given to

Anna Thompson such as $1,300 on 3 dates in August and September 2005, to “pay bills”, and $500 to Patricia on the following day in August, 2005. [ 35 ] Other payments seem quite out of character for the household’s lack of income, such as $1,000 on July 28, 2005 and another $1,000 in 2006 and $2,000 in 2007 for the “Jehovah’s Witness Building Project” and a total of $899.78 for “Young Living Essential Oils” during the first 4 months of 2005. [ 36 ] There are regular payments almost monthly to Sears and The Bay for bills.

Large cash amounts again were removed from the bank account in 2006, 3 of which total $2,053.43 between November 27, and December 19, 2006. [ 37 ] The pattern of cash withdrawals escalates in 2007 to 17 separate entries totalling $8,061.78 during a period when Stella’s average yearly income was in the $15,000 to $17,000 range. (

b) Stella’s Accident proceeds [ 38 ] Stella had an accident at some point prior to May 29, 2007, when she received $34,823.48 from a settlement of her Claim. That amount was deposited in her account on that date. (

c) Anna (Ann) Thompson Estate [ 39 ] In para. 9 of my Order of May 17, 2011, Patricia was ordered to provide an accounting of the “proceeds of the Estate of Anna Thompson from January 1, 2005” to the date of the within Order. No such accounting was ever provided by Patricia. Anna was Stella’s sister and was the registered owner of 1/3 of the Arnold Street home occupied by her, Stella and Patricia at Anna’s death. [ 40 ] Throughout this proceeding, it was Donald who provided as much information on the Estate as he could. Anna died on September 10, 2006.

He says he was told by Patricia that she was the executrix of the Estate and that Anna had left everything to her. This has proven false and was not the case. Stella was the executrix named in Anna’s Will dated August 7, 1998. No Application for probate of the Will was made by Stella. On October 13, 2006, two deposits of Anna’s money was deposited in Stella’s account, namely $3,227.33 and $1,166.91.

We also know now that Patricia, on that date, opened a CIBC account in her own name and deposited an additional $19,670, as noted in a banking record from Anna’s Estate, which Patricia says Stella gave to her. [ 41 ] It was Donald who finally arranged the legal transfer of Anna’s 1/3 interest in the home into Stella’s name on April 6, 2009. He also provided the Court with a copy of Anna’s Will as Exhibit “B” to his Affidavit sworn March 8, 2012 in support of the Application. (

d) Accounts from January to October 29, 2008 [ 42 ] Patricia was still, during this period, accessing Stella’s account. On February 19, 2008, Patricia withdrew $1,000, another $800 on April 2, $800 on May 22, $1,300 on July 30, $1,000 on August 29, and $1,000 on October 7, 2008, Stella herself, is said by Patricia, to have gone to the Bank and withdrawn $500 on September 26 and October 24, $1,000. Days later on October 29, Donald and Mary took over under their Power of Attorney. On November 6, however, Patricia’s car insurance of $1,746 was paid out of the account. (

e) Accounts from October 29, 2008 to September 30, 2009 [ 43 ] During the period of Stella’s hospitalization, Donald and Mary acted under the Power of Attorney granted to them by Stella. They paid all Stella’s bills and looked after her assets. Both counsel for The Public Guardian and Trustee and Stella are satisfied with the accounting given by Donald and Mary. (

f) Accounts from October 1, 2009 to May 2011 [ 44 ] Stella is alleged to have revoked the Power of Attorney given by her to Donald and Mary, and signed a new one in favour of Patricia in October 2009. The bank entries for October 5, 2009, are payments over of $94.50 GST rebate and $991.56 Income Tax refund from Stella to Kristina Hyland, a Hamilton lawyer who acted on the preparation of these new documents. By November 2009, Patricia was obtaining $200 or so per week for groceries. Dr. Marotta was paid $500 in December for another assessment of Stella’s capacity. A further $1,000 was paid to Ms.

Hyland on March 23, 2010. [ 45 ] A new Scotiabank account had been opened by Patricia in November 2009, and all OAS and CPP payments began to be deposited in this account and bills paid out of it during the end period of November and during 2010. [ 46 ] This Account is said to have been closed in July 2010 with the funds transferred to another account. From this new account, Patricia paid her car insurance of $2,106 on July 20, 2010, with a further $1,000 paid that day on Ms. Hyland’s outstanding legal account. A further amount of $921.99 was paid to Ms. Hyland on January 19, 2011. (

g) Value of Assets at May 17, 2011 according to Patricia 1. Cash in 2 RBC Accounts $284.19 $3,391.12 2. Canada Savings Bonds

2 x $500 Series CS50 $1,000.00 3. Term Deposits – RBC $40,000.00 Branch 901 Jane Street $21,736.13 4. House – 14 Arnold Street $299,000.00 Original Asset unrealized (current value $333,500) __________ $365,411.44 Conclusions [ 47 ] It is the position of Donald and Mary that Patricia has improperly taken for her personal use approximately $9,700 since the beginning of 2008.

The Public Guardian and Trustee agrees that at least $7,700 was improperly taken by Patricia, and it questions entries 91, 23 and 113, spent for “Young Living Essential Oils” in the amounts of $587.33 twice and $400 once for an additional $1,574.66. Stella’s counsel agrees that Patricia in 2008, after Stella’s first assessment of incapacity, took between $7,700 and $7,900 for her personal use.

He agrees Patricia should reimburse the Estate for this. [ 48 ] It is Donald’s and Mary’s position that while Patricia may have occupied a portion of Stella’s home both before and after Anna died, Patricia has produced no evidence either by way of Affidavit evidence or Income Tax Returns, that she in any way contributed to the on-going household expenses during any year before or after 2008.

The evidence before the Court is that Stella paid all expenses including groceries. [ 49 ] Donald and Mary further point to the fact that the Toronto Rehabilitation Hospital notes set out numerous concerns by its Staff members that Patricia was unduly influencing Stella. One note, does say that Patricia was educated to be a Dietician but never worked as one. [ 50 ] There is no evidence to show that Patricia ever worked full-time and contributed to expenses. She had a car (age and description was never disclosed) but paid her car insurance bills out of Stella’s account.

I agree with Donald’s and Mary’s submissions, that Patricia helped herself to Stella’s funds for her own personal use. [ 51 ] Patricia says that her living arrangements in Stella’s home go back for a “decade and a half” before 2008. Does this mean she has not worked since 1992? Patricia says both Stella and Anna wanted her to “look after them”. There is, however, no evidence that either Anna, before 2006, and Stella before 2008, were incapable of looking after themselves.

Patricia may have acted as a chauffeur but there is no evidence that either Stella or Anna required “care” from Patricia before that date. [ 52 ] Patricia acknowledges that Stella signed some cheques while she was hospitalized before Donald and Mary were appointed as her Attorneys for Property. Patricia says these were “advances” for her living expenses. Yet Patricia in 2008, was 57 years old and perfectly capable of working.

Donald’s evidence is that the last time he knew of Patricia working on a short-term basis was during the 2001 Census. [ 53 ] On the evidence before me, I find that Patricia has improperly benefitted herself by taking the following amounts from Stella’s funds: 1. Cash amounts February 2008 to October 24, 2008 totalling $10,855.00 2. November 6, 2008 and July 20, 2010 Monex Car Insurance $1,746.00 $2,106.00 3. Young Living Essential Oils – 2008/9 $1,574.66 4. December 4, 2008 – Cheque to R. Zarowsky $320.00 5. October 27, 2008 – cash $1,023.41 6. Payments to Kristina Hyland, (a)March 23, 2010, $1,000.00

(b)October 5, 2009 – endorsement of Stella’s GST Refund of $94.50 and her $991.56 Income Tax Refund , $1,086.06 and (c)January 19, 2011 $921.99 7. December 2009 – Dr. Marotta $500.00 ________ $21,133.12 [ 54 ] An analysis of Stella’s income and living expenses, as set out in Patricia’s accounts show that each year Stella’s capital was being eroded by Patricia taking these monies and benefitting perhaps through other accounts paid by Stella. [ 55 ] Stella’s income never exceeded $17,000 annually. Some years it was in the $15,000 range. I have checked the household expenses and utilities bills. In 2008, these were the approximately yearly expenses: (

a) Property taxes $2,616.02 (

b) Bell Canada $264.00 (

c) Rogers Cable $442.00 (

d) Enbridge $2,000.00 (

e) Hydro $586.00 (

f) House Insurance $548.00 $6,456.02 These figures do not include repairs and maintenance, groceries, sundries, accounts with The Bay and Sears, and all the unknown miscellaneous amounts out of Stella’s bank accounts. [ 56 ] I have included in Patricia’s total payments, the legal bills of Ms. Hyland, as there is no evidence that Stella knew this lawyer in Hamilton, who provided legal services which only benefitted Patricia. Orders 1.

An Order shall go that Patricia shall repay to Stella the sum of $21,133.12 to the date hereof, with post-judgment interest to accrue at the Courts of Justice Act rate until payment is made in full. 2. An Order shall go varying paragraph 2 of my Order of June 4, 2012, by removing Patricia as a joint attorney with Donald of Stella’s property. Donald shall remain the sole surviving attorney for property for Stella until all litigation in this matter has been fully and finally concluded and comes to an end. She did not act honestly when she acted in the past, as noted in this Judgment. 3.

The Accounts as presented by Patricia are not passed, given her failure to comply with the terms of my Orders. She has been in breach of those Orders and she failed to provide Donald with a key to the house, tried to prevent him from seeing Stella without Patricia present, failed to remove the locks in the basement, and deliberately delayed to co-operate to move the litigation forward. None of the Accounts presented were “informal accounts”. At best, they were a running account of bank records. 4. Patricia is in breach of providing a proper accounting of Anna’s Estate.

There is no list of Anna’s assets at death and where the monies/assets went. Patricia claims Stella gave her all the money from the Estate. While no one, at this point, has asked that the monies so taken be paid back to Stella’s Estate, the Application could be amended, given Patricia’s recent filing of a Cross-Application, making certain cross-claims against Stella’s Estate. Costs [ 57 ] If the parties cannot otherwise agree on Costs in this matter, they shall send written submissions to me no longer than 3 pages plus a Bill of Costs and time-dockets plus case law.

The Applicants shall serve and file their submissions with me and other parties’ counsel within 30 days of this Judgment, with the other parties having 10 days thereafter to respond to those submissions. If any Reply is necessary, it shall be submitted 7 days thereafter. All such submissions shall be delivered to me and left with Judges’ Reception at

Osgoode Hall. Greer J. Released: February 13, 2013 CITATION : Kulyski v. Kulyski, 2013 ONSC 719 COURT FILE NO.: 03-021/10 DATE: 20130213 ONTARIO SUPERIOR COURT OF JUSTICE IN THE MATTER OF STELLA KULYSKI AND THE SUBSTITUTE DECISIONS ACT , R.S.O. 1992, S.O. 1992, c.30 BETWEEN: DONALD KULYSKI and MARY KULYSKI Applicants – and – STELLA KULYSKI, PATRICIA KULYSKI and THE PUBLIC GUARDIAN AND TRUSTEE, Respondents JUDGMENT ON PASSING OF ACCOUNTS Greer J. Released: February 13, 2013