When parents age, it can be difficult for children to determine how their parents will be cared for and who will provide such care. While most children approach these situations with the best intentions, however, in certain cases, a child or a caregiver may seek to benefit from a vulnerable person who is unable to manage their own finances or health. Sometimes, the lines between good and bad intentions can be hard to determine.

In a recent decision from the Court of King’s Bench of Alberta, a sister commenced an action against her brother requesting that his name be taken off of title to their mother’s condominium as well as her power of attorney.

Mother adds son to title of condominium

In the case of Fair v. Fair, the mother (“MF”) was 86 years old and she had two adult children (“BF” and “SF”). BF and her brother SF were in a disagreement as to how MF should be cared for and what should happen to her condominium.

The issues leading up to litigation began on December 5, 2017, when a doctor completed a Capacity Assessment for MF and concluded that she did not have the capacity to make decisions about her financial or legal affairs. Two days later, SF accompanied MF to meet with a lawyer in order to have him added to the legal title on her condominium as a joint tenant. MF executed this transfer on December 13, 2017.

Daughter granted emergency order to take mother to hospital

Four years went by, and in December 2021, BF became concerned after she was unable to get in contact with her mother. At this time, SF was living with MF in her condominium. This led to BF and her son (“IF”) applying for an emergency order to take MF to the hospital. This order was granted on an emergency basis on January 31, 2022, and both BF and IF were appointed as Guardians and Trustees of Margaret. This order had a review date set for April 4, 2022.

In the months that followed, BF and IF applied for an order that SF’s name be removed from the title to MF’s condominium and for SF to vacate the property so that it could be sold. BF argued that at the time when SF’s name was added to the title, MF did not have the requisite capacity to make such a decision to transfer title. Conversely, SF argued that MF did have the capacity to execute the transfer and that MF was better off living in the condominium with him rather than at a care facility.

Did the mother have capacity to execute the transfer of title?

During its analysis, the Court referenced the 2008 decision of Archer v. St. John, which outlined a “modern” version of the test for capacity as “capacity to understand substantially the nature and effect of the transaction.” The Court noted that the onus was on BF and IF to prove that MF did not understand the nature and effect of the transfer when she made her son a joint tenant on title to her property.

Both of the parties presented evidence from doctors who made assessments and conclusions regarding MF’s mental health. The lawyer who prepared the transfer of title had known MF for over fifty years and in support of SF’s argument, deposed that MF told him that she had evidence that BF had withdrawn money from her bank account without her permission. He also confirmed that he concluded that MF was of sound mind of the date the title transfer was executed.

Court accepts expert evidence that mother did not have capacity

Conversely, BF’s medical expert opined that MF did not have the necessary capacity to make decisions about her own financial matters, which was the same conclusion he came to in December 2017 during his initial capacity assessment.

The Court accepted the evidence of BF’s medical expert and determined that the applicants had met their burden of proof in establishing that MF did not have capacity when she signed the transfer of title. Since MF did not have capacity to execute the title transfer in the first place, the Court declined to address whether SF held joint title to the condominium in a resulting trust in favour of MF.

Son ordered to vacate condominium and be removed from title

The Court then considered whether it would be in MF’s best interests for BF to be named as her permanent Guardian and Trustee. The Court heard BF’s plans for her mother, which included moving her into a care home. However, in order to do so, BF would need to sell BF’s condominium, which was valued between $185,000-$200,000, though there was a $90,000 line of credit registered against it and some repairs that would have to be made. Despite these additional considerations, a sale of the home would provide enough money to allow MF to live in a care home with the support she required.

The Court was satisfied that BF’s plan was suitable for her mother, and therefore removed SF as MF’s named Power of Attorney. Additionally, SF was ordered to vacate the condominium by November 30, 2023, so that it could be listed for sale. SF was also ordered to not remove or sell any furniture from the home without BF’s permission. The Court also emphasized that SF should not talk to his mother about these issues and should remain positive in his communications with her, as negativity may cause MF to experience emotional distress and BF may request that his visits be professionally supervised or may consider terminating his visits.

DBH Law can help you with any estate planning or litigation needs

The skilled estate planning and litigation lawyers at DBH Law rely on more than 25 years of experience to provide clients with responsive and concise legal advice they can trust. Our team takes a pragmatic approach to the law and gives our clients practical, cost-efficient solutions tailored to their specific estate planning goals or disputes. We work with our clients to ensure that their needs are met and their loved ones will be taken care of in the future. For those involved in estate disputes, our team will help protect your rights and ensure you are positioned for the best possible outcome. To schedule a consultation, contact us online or by phone at 403.252.9937.