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
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.