County Court

Cite as: Zahringer (Re), 1992 NSCO 39 1992 C.K. No. 11,947 IN THE COUNTY COURT FOR DISTRICT NUMBER FOUR IN THE MATTER OF: Section 8 of the Social Assistance Act - and - IN THE MATTER OF: An Application On Behalf of Mrs. Henrietta Zahringer , HEARD: At Kentvi1le, Nova Scotia on the 3rd day of March and the 17th day of March, 1992. BEFORE: The Honourable Judge Donald M. Hall, J.C.C. DECISION: July 28, 1992. COUNSEL: Heather Hill, Counsel for tu~ Applicant. Allan Tufts, Esq., Counsel for the Respondent.

, HALL, D.M., J.C.C.: This is an application for an order pursuant to section 8 of the Social Assistance Act confirming that a designation of a residence under section 8 of the Act is valid. The principal issue before the Court is whether a person may designate a "residence" pursuant to section 8 where title to the property is held by other persons. The applicant is now 89 years of age and suffers from alzheimers disease. She is presently residing in and being cared for at the home of her daughter and only child, Winnifred Pearl and her husband, Harold Pearl, , at 63 Carmen Drive, Kentville, Nova Scotia. This application was made by Mr. Pearl on behalf of Mrs. Zahringer pursuant to a general Power of Attorney dated April 1, 1986, whereby Mrs. Zahringer appointed Mr. Pearl her attorney for all purposes. Mrs. Zahiinger was a long time resident of the 'Ibwn of Kentville and owned a property at Main Street, Kentville, where she resided until December, 1988. At that time as a result of her deteriorating health she went to live with her daughter and son-in-law in their new home at 63 Carmen Drive in the Town of Kentville. Although there was no agreement in writing, it apparently had been an understanding for many years that when Mrs. Zahringer was unable to care for herself her daughter and son-in-law would care for her in their home. It also

- 2 ­ appears that since the death of in 1952 that Mr. Pearl had looked after Mrs. financial affairs .. Under date of February Attorney was executed by Mrs. Pearl as her attorney to sell to above. In March of 1989 this approximately $65,000.00. Of $47,797.75 was applied to a bank Pearl had outstanding with constructing their horne on Carmen which totalled $235,000.00 including land. was constructed it included eventuality that Mrs. Zahringer may reside with the Pearls. It was acknowledged by the Kentville, that the space occupied she had access would have resulted determined by Mr. Pearl. It the respondent that this is the that the balance of the proceeds Zahringer's home has been satisfactorily accounted for. In September of 1989, Mrs. Zahringer, made application to the to have Ler placed in a h)me for speci~l care fact that she was suffering from that the Pearls were no longer their horne. Medical opinion was Mrs. Zahringer I s husband Zahringer IS 1st, 1988, a Power of Zahringer appointing Mr. her real estate referred property was sold for the net proceeds of sale loan that Mr. and Mrs. respect to the cost of Drive in 1986 and 1987, When the horne additional space for the respondent, the Town of by her and to which in the cost as was also acknowledged by amount in contention and of sale of Mrs. Mr. Pearl, on behalf of Town of Kentville due to the alzheimers disease and able to care for her in to the effect that she

, - 3 ­ was "in need of heavy care". The application for financial assistance was rejected by the Town of Kentville. A second such application 1990, but it again was refused. A third application for placement and assistance was made in January, 1991, but again the application denied. This decision was Assistance Appeal Board and the a decision of the Board dated Board ruled that the Town was financial assistance in view of opinion, Mrs. Zahringer owned , the amount that had been invested in the Pearls' residence. On December 19, 1991, was made with respect to the Pearl on behalf of Mrs. Zahringer: Description of land Pearl, Power of Attorney M. Zahringer, pursuant to section 8 of the Social Assistance Act, Chapter of Nova Scotia, 1989. "In-law suite" of adjacent to family room of Drive, Kentville, Nova is Mrs. Zahringer's area found on main square feet. Total number of designated square feet equals 620.75. joint names of Winnifred and Harold L. Despite the foregoing still refused to provide the requested assistance. This application followed. the Court on March 3, 1992, was made in July, was appealed to the Social appeal was dismissed by September 19, 1991. The not obliged to provide the fact that, in their an asset of $47,797.75, the following designation PearIs' residence by Mr. designated by Harold L. for Mrs. Henrietta 432 of the Statutes 207 square feet, located house at 63 Carmen Scotia. Also included share (1/4) of common floor totalling 413.75 The property is in the Pearl. the Town of Kentville It first came before when representations were

- 4 ­ made by counsel representing Mrs. of Kentville. Following representations further hearing of the application was 17, 1992, to, in part, enable Mr. he wished to make some changes take some further or other steps interest in the property. In accordance with the foregoing an amended designation was filed wherein the entire Pearl property was included in the interest in t~e property was conveyed to Mrs. The pertinent sections of Act are the following: DESIGNATION OF RESIDENCE "residence" defined 8 (1) In this Section, means a housing unit ordinarily inhabited by that person for at least two years, and includes land on which the housing unit is situate that may as contributing to the the housing unit as that the person establishes the regulations is necessary enjoyment. Successive housing units (2) A housing unit inhabited for at least housing unit was purchased proceeds' from the sale and the two housing a tL~al period of at least two y~ars. Designation (3) A person in need any assistance is given to that person, designate Zahringer and the Town by counsel, adjourned to March Pearl to decide whether in the designation or to respecting the claimed designation, however, no Zahringer. the Social Assistance "residence" of a person in the Province that was reasonably be regarded use and enjoyment of a residence or such land in accordance with to such use and is deemed to have been two years where that solely with the of another housing unit units were inhabited for may, before or after

- 5 ­ that person's residence purpose of this Part. Designation by spouse (4) A person in need may not designate different purpose of this Part. Dispute (5) Where there is or not .particular real a residence for the purpose application may be made for resolution of the court shall determine the matter. GRANT OF ASSISTANCE Duty of committee to assist person in need 9 ( 1) Subject to this the social services assistance to all persons by the social services committe~, in the municipal unit. Designated residence (2) Notwithstanding subsection a determination pursuant services committee consideration the ownership in a designated residence. Sale of land (3) Notwithstanding subsection a determination pursuant services committee consideration the fact less than the maximum attainable am'Junt where (a) the land is assessed value to the Ass€;sment Act; (b) the land is unit that is a si tuate and the be regarded as and enjoyment of residence or cannot as a resl dence for the and that P8rson's spouse residences for the a dispute ils to whether property constitutes of this Part, an to the county. court dispute and the county Act and the regulations committee ~hall furnish in neeu, as defined who reside (I), in making therett) the social shall not take into of or an interest (I), in making theretq the social shall not take into that land was sold for sold for at least its as determ1 ned pursuant and land on wh lch a housing designated residence is land cannl)t reasonably contributin1 to the use the housing unit as a be et~tablished in

- 6 ­ accordance with necessary to such use and enjoyment. The position put forth substantially to the effect that interest in the Pearls' residential property of a constructive or resulting trust and that this interest in the property is subject to a 8 of the Social Assistance Act. The respondent, on the that Mr. Pearl in fact had no application on behalf of Mrs. Power of Attorney, although he so as a guardian ad litem. The respondent also contended that this Court has no jurisdiction to rule on the question of Mrs. Zahringer owning an interest in the property since a question of title to land contended was beyond the judicial competence of the County Court. The respondent also took partial interest in property is not subject to designation and in any event that the evidence conclusion that Mrs. Zahringer property in question. It appears that the its objection based on Mr. Pearl's make this applica ,-ion on behalf any event, I am satisfied that either under the Power of Attorney or acting as ad litem. the regulations as by the applicant was Mrs. Zahringer owns an by virtue designation under section other hand, contended authority to make this Zahringer pursuant to the would be entitled to do was involved, which it the position that a does not support the owns any interest in the respondent has abandoned lack of authority to of Mrs. ZahrLlger. In he has such authority, a guardian

- 7 - , As to this Court having jurisdiction to entertain the application or to determine hearing of the application, I am has jurisdiction. Under section consider and determine any matters to resolve a dispute as to whether a "residence". It seems apparent disputes would likely involve a question of title to land. I am satisfied, therefore, that that the County Court would have such determinations in fulfilling sub-section 8(5). , It seems to me that property that has served as the applying for assistance may come "residence" under the terms of section 8. I am of the view that a reading bear such an interpretation, however, read in conjunction with section of section 9 there is a reference or an interest in a designated this latter reference it seems to intended that a partial interest in a residential property may be the subject of a design<tion under section 8. In this case, however, that Mrs. Zahringer owns any residence. The resulting trust the issues raised on the satisfied that the Court 8 it is obliged to that are necessary a property constitutes to me that most such the Legislature intended jurisdiction to make its function under a partial interest in a residence of a person wi thin the meaning of Standing alone of section 8 would not section 8 must be 9. In sub-section ( 2 ) to "the ownership of residence". In view of me that the Legislature ­ I am unable to conclude interest in the Pearls' argument was put forth

- 8 ­ by Mr. Pearl contending that Mrs. interest in the property. Reference to such legal concepts or doctrines or devices, however, unnecessary if the Pearls were conveying to Mrs. Zahringer the interest in the property that is contended. Apparently so. This failure to execute mind, gives credence to Mr. Tuft I s posi tion put forward by Mr. Pearl is self-serving of own interest and that the purpose is to benefit the Pearls and these circumstances I am unable to find that Mrs. owns an interest in the property intended designation. The application is therefore dismissed. Zahringer has such an would be entirely to execute a document they have declined to do such a conveyance, to my contention that the his of this application not Mrs. Zahringer. In Zahringer referred to in the ,:l{i:{{{(, ¢I? ~t Donald M. Hall Judge of the County Court of District Number Four