



COURT OF APPEAL FOR ONTARIO

CITATION: Volk v. Volk, 2020 ONCA 297

DATE: 20200508

DOCKET: M51316

(C67918)

Miller
    J.A. (Motions Judge)

BETWEEN

George
    Volk

Responding
    Party

Applicant
    (Respondent)

and

Doris
    Volk,
Darlene Mussato
, Lisa Volk,
Felicia Mussato
and Public Guardian and Trustee

Moving Parties

Respondents
    (
Appellants
)

Jerry W. Switzer, for the moving
    parties

Ellen Ann Brohm, for the responding
    party George Volk

Heard: May 6, 2020, by combination of Teleconference
    and Videoconference

REASONS
    FOR DECISION

OVERVIEW

[1]

The moving parties bring this motion for a stay
    of an order for the sale of real property, pending appeal to this court of an
    order of McCarthy J. dated January 7, 2020. The order under appeal provides a
    suite of remedies in an application under the
Substitute Decisions Act
,
    R.S.O., 1990 c. 30, brought by the respondent, George Volk, primarily against
    his daughter, Darlene Mussato, and granddaughter Felicia Mussato. For the
    reasons given below, the motion for a stay is dismissed.

[2]

The litigation arises out of a dispute over the
    alleged mismanagement by the moving parties of the financial affairs of Doris
    Volk, the wife of George Volk and mother of Darlene Mussato. Doris Volk is
    incapable of managing her own affairs, and had executed a power of attorney for
    property and personal care, appointing her daughters Darlene Mussato and Lisa
    Volk.

[3]

The attorneys sold the matrimonial home in which
    George and Doris Volk resided. The application disputes their authority to have
    done so, and seeks an accounting of the proceeds of sale and other assets.

[4]

Some of the proceeds of sale are alleged to have
    been used by the moving parties to purchase, improve, and maintain the real
    property that is the subject of this motion  4 Rose Cottage Lane, Schomberg 
    supplying the down payment, the continuing mortgage payments, and other
    expenses.

[5]

Felicia Mussato is the registered owner as to
    99% of the property, with Doris Volk the registered owner as to 1%. There is a
    dispute as to whether Doris Volk intended to gift the down payment and
    continuing mortgage payments to Felicia.

[6]

George Volk and Doris Volk had been living at
    the property with Darlene Mussato and her partner. The arrangement has not been
    a happy one.

[7]

George Volk brought the present application as a
    dependant of Doris Volk under the
Substitute Decisions Act
, R.S.O.
    1990, C. 30, seeking, among other things, guardianship for Doris Volks
    financial and personal care, and a passing of accounts. He also sought the sale
    of the property, which George Volk argues is depleting the resources of Doris
    Volk to her detriment (and to his, as her dependant) and to the benefit of the
    moving parties.

[8]

George Volk brought a motion for interim relief,
    in which he sought  among other things  an order that Darlene Mussato and her
    partner vacate the property, that the property be listed for sale, and that the
    proceeds of sale be paid to George Volk in trust for Doris Volk. This relief
    was granted in the order under appeal and the moving parties have appealed to
    this court. A court ordered timetable remains in place to address the balance
    of the application.

Analysis

[9]

The question whether a stay should be ordered is
    governed by the three inquiries set out in
RJR-Macdonald Inc. v. Canada
    (Attorney General)
, [1994] 1 S.C.R. 311. The moving party must show that:

a)

There is a serious question to be tried;

b)

The moving party will suffer irreparable harm if the stay were
    refused; and

c)

The balance of convenience favours granting the stay.

[10]

As to the first inquiry, there is little
    likelihood that the appeal could succeed. The moving parties have not
    identified a plausible ground of appeal. There is no serious dispute that they
    were validly served. Furthermore, it was evident from the materials they
    received, and the correspondence they had with counsel for the respondent,
    their previous attendances in court, and their answers to undertakings that
    they knew what was in issue. They chose not to attend. They did not move under
    Rule 37.14 to have the order set aside in Superior Court on the basis of
    accident, mistake, or insufficient notice. Nor could they have done so, on
    the evidence before me. The moving party Felicia Mussato objects that counsel
    for George Volk did not advise myself or my mother that it would be in our
    best interest for us to attend the court on January 7, 2020. Counsel had no
    obligation to persuade the moving parties to attend. Their failure to appear
    does not provide a ground to appeal the order.

[11]

The second ground of appeal identified by the
    moving parties is that it was an error to order the sale of the property at the
    application of George Volk, when George Volk is not an owner of the property
    and is not the attorney for property of a registered owner. This cannot succeed.
    The application was brought under the
Substitute Decision Act
. The
    moving parties needed to engage with the powers of the court under the
Substitute
    Decision Act
, and explain how those powers were exercised in error. They
    have not an argument in this regard.

[12]

The moving parties have not met their onus on
    the first branch of
RJR- Macdonald
.

[13]

In my view, that is sufficient to dispose of the
    motion. I will, however, briefly consider the other factors.

[14]

The moving parties do not face irreparable harm
    from the sale of the property. Neither of them resides at the property, and
    neither appear to have more than a minimal financial investment in it, if
    anything at all. There appears to be no concern that the proceeds of sale would
    be dissipated. The moving parties have not met their onus under the second
    factor.

[15]

With respect to balance of convenience, there is
    no harm to the moving parties. As noted above, they do not currently reside in
    the property (albeit because of court order) and have no financial stake in it.
    There is, however, potential harm to George Volk, who attests to the ongoing
    depletion of the assets of Doris Volk in maintaining a house that is larger and
    more expensive than what they require. The balance of convenience favours
    George Volk.

DISPOSITION

[16]

The motion is dismissed. Costs of this motion,
    and costs of the motion before Paciocco J.A. on April 14, 2020 that were
    reserved to this motion, are awarded to George Volk in the amount of $15,000
    inclusive of disbursements and HST, payable forthwith.

B.W.
    Miller J.A.


