Kartsonas v. Kartsonas

2009 BCCA Kartonas v.Kartonas

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Kartsonas v. Kartsonas, 2009 BCCA 218 Date: 20090519 Docket: CA036636 Between: Perry Kartsonas and Stella Tarintino Respondents (Petitioners) And Christophoros Kartsonas Appellant (Respondent) Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Bauman The Honourable Madam Justice Neilson G.B. Gomery Counsel for the Appellant E.F. Macaulay Counsel for the Respondent Place and Date of Hearing: Vancouver, British Columbia April 20, 2009 Place and Date of Judgment: Vancouver, British Columbia May 19, 2009 Written Reasons by: The Honourable Madam Justice Newbury Concurred in by: The Honourable Mr. Justice Bauman The Honourable Madam Justice Neilson Reasons for Judgment of the Honourable Madam Justice Newbury: [1] On October 15, 2008, the appellant Christophoros Kartsonas was found to be incapable of managing his affairs by reason of mental infirmity, by a judge of the Supreme Court of British Columbia. Her reasons are indexed as 2008 BCSC 1437. The chambers judge also noted that although the evidence pointed strongly to Mr. Kartsonas' being incapable of managing himself, she did not have before her two affidavits to this effect as required by s. 3(1) of the Patients Property Act, R.S.B.C. 1996, c. 349 (the "Act"). By supplementary reasons for judgment indexed as 2008 BSCS 1607, the chambers judge later appointed the

petitioners (respondents in this court) Perry Kartsonas and Stella Tarintino, as co-committees of Mr. Kartsonas' estate. They are his son and daughter respectively and were the only applicants for appointment. [2] Mr. Kartsonas appeals the Supreme Court's orders on the grounds that the chambers judge erred as follows: (a) In holding that the affidavit of Dr. McDonald satisfied the requirements for an order under s. 3 of the Act; (b) In the alternative, in finding on the medical evidence as a whole that Mr. Kartsonas was incapable of managing his affairs because of mental infirmity arising from disease, age or otherwise; (c) In the further alternative, in appointing the children as committee of Mr. Kartsonas' estate having regard to the disputes between them and his lack of confidence in them. [3] I do not intend to recount here the evidence concerning the unfortunate deterioration in the relationship between Mr. Kartsonas and his children in recent years. Until 2004 or so, the relationship was a close one. Mr. Kartsonas was generous to his children and obviously trusted them enough to involve them in his business activities. As the chambers judge noted, he gave his son Perry power of attorney in 1986 when Mr. Kartsonas and his wife (now deceased) were travelling to Greece, and in 1988, he arranged for certain property he owned on East Broadway in Vancouver to be held jointly in

his name and the names of his two children. When the property was rented out, the three shared the rental income equally, but Mr. Kartsonas severed the joint tenancy in 2006 and an action for partition has been commenced in the Supreme Court by his children. [4] The other members of the family to be noted are Mrs. Papamichail and Mrs. Bordokas, who are Mr. Kartsonas' younger sisters, and Mrs. Papamichail's daughter, Linda Stamoulos. [5] At paras. 15-43 of her reasons, the chambers judge described the apparent changes that took place in Mr. Kartsonas' mental functioning from about 2004, which Dr. McDonald, a geriatric psychiatrist, attributed to "some frontal cognitive changes" in June 2005. At the time, Dr. McDonald did not find Mr. Kartsonas incapable of managing his affairs, but expressed concerns about his ability to drive. Eventually - while Mr. Kartsonas was in hospital recovering from a serious fall - his driver's licence was cancelled. [6] When Mr. Kartsonas was ready to leave the hospital in December 2005, his treating physician advised that he had to live in a care home or in his own home with 24-hour care. Mr. Kartsonas chose the latter and left the hospital without being formally discharged. On his return home, he found that his son had removed all alcohol from the house, having been told his father should avoid alcohol due to the medication he was then taking. As

well, his children had removed his car. These circumstances led him to accuse his children of stealing from him. Ms. Tarintino was so upset by his accusations that she returned his car to him. The chambers judge noted at para. 26 of her reasons that apparently at Ms. Papamichail's urging, Mr. Kartsonas drove his car many times in the first half of 2006 until the police impounded it because he was driving without insurance or a licence. [7] Mr. Kartsonis also began to make similar accusations against other people with whom he came in contact, including his homecare worker, Rosa Gabriel. Over 2006, it appears that Ms. Papamichail and her daughter began agitating against Ms. Gabriel and indirectly, against Perry Kartsonas. On one occasion, the son learned that his father was going to go his credit union, in the company of Ms. Papamichail and Ms. Stamoulos to withdraw $100,000 from the family's joint account. Perry Kartsonas alerted the credit union and the withdrawal was blocked. Shortly thereafter, Mr. Kartsonas' children engaged a solicitor to write to Ms. Papamichail and Ms. Stamoulos warning them not to interfere in their father's affairs. [8] As the chambers judge noted, at this point "the battle lines were drawn and things went from bad to worse." (Para. 34.) Ms. Papamichail laid criminal assault charges against Ms. Tarintino; and Ms. Gabriel's employment was terminated in

July after Ms. Papamichail threw all of the caretaker's belongings out on the front lawn and chased her out of the house. Evidently, Ms. Papamichail had constantly told Ms. Gabriel not to tell Perry Kartsonas anything and had instructed her not to accept any telephone calls from his family. [9] The poisonous family dispute and its ramifications for Mr. Kartsonas' financial affairs were described by the chambers judge thus: Mrs. Bordokas says that she heard Mrs. Papamichail and Ms. Stamoulos tell Mr. Kartsonas that his children stole his money, they had people spying on him, Ms. Gabriel was a spy, and his children want to put him in an old folks' home. She heard Ms. Stamoulos tell Mr. Kartsonas to put everything he has, including his house and the Broadway property, into her mother's name. This is not denied. In August 2006, Mr. Kartsonas revoked the power of attorney he had granted to Perry. He granted a power of attorney to Ms. Stamoulos. He plans to change his Will and disinherit his children. His house locks and telephone number have changed and since June 2006, he refuses to have anything to do with his children or grandchildren. He stopped seeing Dr. Robert Greenwood, his family physician for 30 years. Since around December 2006, he and Mrs. Papamichail have had nothing to do with Mrs. Bordokas because she is on the other side of the battle line. Mr. Kartsonas now

complains that his children seldom visited him while he was in the hospital. The petitioners say they visited him every day, except when Perry had a cold. Nothing in this application turns on this, except that Mr. Kartsonas seems to minimize anything and everything his children have ever done for him or in their lives, which is unfortunate. Perry continues to monitor and ensure that Mr. Kartsonas' bills are being paid on time, something he has done for many years. Both he and Ms. Tarantino are willing to account to the Public Trustee. [At paras. 39-41.] [10] At the time of the hearing below, Ms. Papamichail claimed to be taking care of her brother full-time, returning to her own house only once a week. As the chambers judge emphasized, the petition raised only the matter of Mr. Kartsonas' competence to manage his financial affairs and not his person - even though, as she also noted, "what seems undisputed from Mr. Kartsonas and Mrs. Papamichail is that he needs someone to look after his daily living needs." (Para. 42.) [11] At paras. 44-64, the chambers judge reviewed the medical evidence relating to Mr. Kartsonas' condition. In order to meet the requirements of the Act, the petitioners relied upon the opinions of Dr. Rabheru and Dr. McDonald, mentioned above. Both are geriatric psychiatrists and medical practitioners within the meaning of the Act. Again, I do not intend to

recount all of this evidence here, it being sufficient to say that Dr. Rabheru provided an opinion in a report dated August 14, 2006 that Mr. Kartsonas was not capable of managing his financial estate; that he was capable of assigning or revoking a power of attorney; and that because of the conflict within the family, the Public Trustee's office "should play a significant role in assisting to protect Mr. Kartsonas' estate." [12] Dr. McDonald had prepared consultation reports dated July 21, 2005 and March 1, 2006 after Mr. Kartsonas was referred to him for psychiatric assessment. The July 21, 2005 report stated that Mr. Kartsonas had: some frontal cognitive changes that are likely on the basis of vascular disease. These changes are generally mild, but because he is stubborn and independent, he has created some worries for his family. There was some concerns [sic] expressed about his financial capacity, but he is independent in his financial affairs and he is quite well aware of his income and his assets. While his son might disagree with him as to what he should do regarding his commercial property, his judgment is not impaired enough to call him incapable. My biggest concern would be about his driving, but he has not had any particular problems so far. [13] On March 1, 2006, Dr. McDonald had again seen Mr. Kartsonas for reassessment, after Mr. Kartsonas had been hospitalized

for his fall. On this occasion, the doctor said he found no evidence of depressive systems or paranoia, although he noted that Mr. Kartsonas had: very rigid views about his son stealing his expensive brandy. His thought form was generally concrete and he saw things in black and white. He was oriented to the day, month and year, although not to the exact date, and he remembered 2/3 words spontaneously with prompting He has had some functional memory problems and there is evidence of frontal deterioration in his judgment. His son is worried about his father's judgment regarding some business matters of rental properties. I explained to the son that there was no gross evidence of financial failure and that it would be difficult to do a formal financial competency assessment without aggravating his father more than would be helpful for him. I tried to counsel both the son and daughter about the importance of being supportive, and allowing their father to live at some risk and choosing their battles carefully. I felt the one area that was important for safety was the driving issue. " [14] Next, Dr. McDonald prepared a report dated October 11, 2007 to assist counsel for the children in interpreting two other assessments, one by Dr. Hill and one by Dr. Cook. Dr. Hill had carried out some simple cognition tests on Mr. Kartsonas on which he had scored 28/28. Dr. McDonald suggested that

the fact Mr. Kartsonas ceased taking a particular drug could have had a beneficial effect on his cognition. As well, he said that "Although [Mr. Kartsonas] may have tested well that day in a structured testing, it does not rule out the frontal cognitive changes and poor judgment and poor insight that was [sic] evident to me throughout the time that I followed him." With respect to Dr. Cook's report, he noted it had been carried out at Ms. Stamoulos' request so that in a proposed trip to Greece, Mr. Kartsonas would have "proof up front of [his] financial capacity". Dr. McDonald commented that "Perhaps in the limited context of being able to travel and handle money for travelling there may not be a significant risk. However, in terms of dealing with the larger issues of his Estate as well as trying to resolve some of the family conflict I am not sure if Dr. Cook would find him capable." [15] Dr. McDonald also noted that in June 2005 Dr. Rabheru had carried out an assessment of Mr. Kartsonas. Dr. McDonald continued: I agreed with Dr. Rabheru's assessment that Mr. Kartsonas was not capable of managing his finances especially in that he was not able to understand the complexities of his Estate and the financial partnership that he established with his children. Dr. Rabheru felt that Mr. Kartsonas was capable of assigning and revoking a Power of Attorney. He also felt that the family

conflict was so prominent that he stated that the Public Guardian and Trustees office "should play a significant role in assisting to protect Mr. Kartsonas' estate". [Emphasis added.] Then in summary, the doctor wrote: In summary I believe that Mr. Kartsonas has not significantly changed since Dr. Rabheru found him financially incapable. I do believe that his frontal cognitive changes make him vulnerable to undue influence and that the family conflict has created an undue influence. I believe that the issue of his competency is complex and that this matter should go before the Courts so that all of the information can be made available. That way all of the competency assessments can be put before a Judge and if necessary there can be an opportunity for an Independent Medical Examination to ascertain Mr. Kartsonas' financial competency. [Emphasis added.] [16] Evidently, Dr. McDonald declined to provide an affidavit for use in this litigation stating his opinion, but was ultimately compelled to do so. That affidavit states in material part: 4. As I state in my October 11th 2007 letter "I believe that Mr. Kartsonas has not significantly changed since Dr. Rabheru found him financially incapable". It is also my opinion that the issue of Mr. Kartsonas's capacity is complex due to his frontal cognitive impairment.

5. In my opinion Christopher Kartsonas would benefit from a complete competency assessment to determine his capacity to manage his financial affairs. [17] It was on this affidavit and Dr. Rabheru's affidavit described above that the petitioners relied on to meet the requirements of s. 3(1)(b) of the Act. I do not find it necessary to consider the opinions of the other doctors who did not find Mr. Kartsonas to be incompetent, since it is my view that Dr. McDonald's affidavit did not constitute an opinion that Mr. Kartsonas is "because of mental infirmity arising from disease, age or otherwise, incapable of managing his affairs". While Dr. McDonald stated in his letter that he had previously agreed with Dr. Rabheru's opinion of June 15, 2005, his affidavit sworn June 11, 2008 opined only that the issue of Mr. Kartsonas' capacity was "complex" and that he would benefit from a complete assessment. Given the very serious nature of a committeeship order, it is not appropriate to grant, nor does the Act permit the court to grant, an order of committeeship on the basis of ambiguous or unclear medical opinions, or opinions that are not up to date. [18] In these circumstances, it seems to me that it would be appropriate for this court to order an assessment of Mr. Kartsonas pursuant to s. 5(1)(b) of the Act. Since the Act specifies that the order must state the time and place which Mr.

Kartsonas must attend, I would ask that counsel confer with appropriate medical practitioners or the College of Physicians and Surgeons of British Columbia and advise the Court in writing no later than 60 days after issuance of these reasons. The order may then be prepared and entered. [19] In light of the foregoing, it is unnecessary for us to resolve the question raised by the appellant's third ground of appeal - that is, whether the chambers judge erred in appointing Mr. Kartsonas' children as committee of his estate "having regard to the disputes between them and his lack of confidence in them." I will say, however, that even if it is entirely misguided, Mr. Kartsonas' distrust of his children poses a significant obstacle to their acting as committee, in my respectful view. As was noted at para. 41 of Re West [1978] N.B.J. No. 55, 20 N.B.R. (2d) 686, quoting from Theobald in The Law Relating to Lunacy (1924), the wishes of a patient should be considered if he is capable of expressing such a wish, and even if his wishes are unreasonable. However, if Mr. Kartsonas is eventually found to be incompetent of managing his affairs, the identity of the committee will be a matter to be decided by a judge of the Supreme Court of British Columbia. [20] I would allow the appeal, set aside the orders below, and make the order described above pursuant to s. 5(1)(b) of the Patients Property Act. "The Honourable Madam Justice Newbury" I Agree: "The Honourable Mr. Justice Bauman" I Agree: "The Honourable Madam Justice Neilson"