Court of Appeal for Ontario

Date: June 20, 2017

Docket: C61581 and C62716

Judges: Gillese, Huscroft and Trotter JJ.A.

Parties

Between

Michael Childs and Andrew Childs Applicants (Respondents)

and

Peter Childs, Caroline Childs and the Public Guardian and Trustee Respondents (Appellants)

AND BETWEEN

Peter Childs and Caroline Childs Applicants (Appellant)

-and-

Michael Childs, Andrew Childs, Eileen Vera Childs and the Ontario Public Guardian and Trustee Respondents (Respondents)

Counsel

Peter Childs and Caroline Childs, in person

Michael Childs and Andrew Childs, in person

Alexandra V. Mayeski, for BMO Trust Company

Debra Stephens and Kaylie Handler, for the intervener Wendy Griesdorf

Richard Coutinho, for the Public Guardian and Trustee

Heard: May 4, 2017

On appeal from: The decision of Justice Gary W. Tranmer of the Superior Court of Justice, dated June 25, 2015, and the judgment dated December 16, 2015, with reasons reported at 2015 ONSC 4036 and at 2015 ONSC 6616.

By the Court:

[1] Introduction

Eileen Vera Childs ("Mrs. Childs") is 90 years of age and has Alzheimer's disease. These two appeals are the culmination of protracted litigation by her four children, who disagree about her care.

Background

[2] The Parties

Mrs. Childs was born on September 15, 1926. She is currently 90 years of age and has Alzheimer's disease. She has four children: Peter Childs, Caroline Childs, Michael Childs, and Andrew Childs. For ease of reference, we will refer to each of the children by his or her first name.

[3] The Dispute

The four children do not agree on how their mother should be cared for. Generally speaking, Peter and Caroline are on one side of the dispute and Michael and Andrew are on the other side.

The Applications

[4] Two Proceedings Commenced

Two proceedings were commenced in the court below (the "Applications").

[5] Michael and Andrew's Application

Michael and Andrew brought an application in which they sought, among other things: a declaration of Mrs. Childs' incapacity; a revocation of existing powers of attorney in favour of all four children; and, their appointment as guardians of their mother's personal care and property. The named respondents were Peter, Caroline, and the Public Guardian and Trustee (the "PGT").

[6] Peter and Caroline's Application

Peter and Caroline responded with an application in which they sought to have Peter appointed as guardian of Mrs. Childs' property and Caroline as her guardian for personal care. In addition, they sought the appointment of counsel for their mother under s. 3 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the "SDA").

[7] Appointment of Section 3 Counsel

An order was made requiring the PGT to arrange for legal representation for Mrs. Childs under s. 3 of the SDA. Pursuant to that order, Ms. Wendy Griesdorf was appointed as s. 3 counsel to represent Mrs. Childs ("Section 3 Counsel").

[8] The Hearing of the Applications

The Applications were heard together on June 18, 2015. Prior to the oral hearing of the Applications, almost all of the issues had been resolved on consent. The only outstanding matter in dispute (aside from costs of the litigation) was how much Caroline should be paid for her care of Mrs. Childs. There were two aspects to this matter: should Caroline be compensated for the care she had provided to her mother from June 2011 to October 2013 and from April 23, 2015 to the date of the hearing; and, how much should Caroline be paid on an ongoing basis for providing that care? At the hearing, Caroline sought $133,000 for the care that she had provided from June 2011 to October 2013 and $170.22 per day for the care that she had provided from April 23, 2015 to the date of the hearing. She also sought $53,620 in annual compensation for caring for her mother going forward.

[9] The Applications Decision

The applications judge released his reasons for decision on June 25, 2015 (the "Applications Decision"). In the Applications Decision:

• Mrs. Childs was found incapable in terms of management of personal care and property,
• Her deemed capable wishes were as set out in Section 3 Counsel's submissions,
• Caroline was appointed guardian of personal care for Mrs. Childs,
• BMO Trust Company ("BMO") was appointed guardian of property for Mrs. Childs and ordered to pass accounts every two years,
• Michael was appointed as Mrs. Childs' litigation guardian,
• Caroline was to be paid $25,000 for the care that she had provided for her mother between June 2011 and October 2013 and the two months preceding the hearing of the Applications, and
• Caroline was to be paid compensation of $500 per month going forward.

A Motion to Vary Is Brought

[10] Caroline's Change of Position

Five days after the Applications Decision was released, in a letter dated June 30, 2015 (the "June 2015 Letter"), Caroline's counsel advised the parties that Caroline was in the process of arranging for professional care for Mrs. Childs on a full-time basis. In the June 2015 Letter, Caroline's counsel asserted that full-time professional care was being arranged in accordance with the terms of the Applications Decision, with Caroline as the supervisor of the personal care plan, rather than as the primary caregiver. The June 2015 Letter also stated that given the low amount of compensation provided for Caroline in the Applications Decision, Caroline would seek outside full-time employment.

[11] Section 3 Counsel Brings a Motion to Vary

Section 3 Counsel brought a motion under r. 59.06(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, seeking an order to set aside or vary Caroline's appointment as guardian of Mrs. Childs' personal care on the ground of new facts arising after the Applications Decision, namely, the June 2015 Letter. In the motion, she asserted that Caroline's proposal in the June 2015 Letter was inconsistent with the guardianship plan previously filed. In particular, Section 3 Counsel noted that Caroline was now maintaining that she would no longer provide such basic necessities for her mother as housekeeping, laundry, meal preparation or general property maintenance.

[12] The Vary Motion Ruling

On August 21, 2015, the applications judge gave an oral ruling (the "Vary Motion Ruling") that the contents of the June 2015 Letter fell within r. 59.06(2)(a) as demonstrating facts arising or discovered after the Applications Decision was released and, consequently, the vary motion could proceed.

Costs of the Applications

[13] The Costs Decision

Before the return of the vary motion, in reasons dated September 17, 2015, the applications judge released his costs decision in respect of the Applications. The corresponding order was dated September 18, 2015 (the "Costs Order").

[14] Section 3 Counsel's Costs Claim

Section 3 Counsel had sought costs of the Applications of $55,351. Michael and Andrew consented to this amount being paid from Mrs. Childs' assets. Caroline and Peter asserted that the costs were excessive and should be reduced by 75%. They also alleged misconduct by Section 3 Counsel.

[15] Costs Sought by All Parties

Both sets of children also sought their own costs.

[16] The Applications Judge's Reasoning

The applications judge noted that all of the issues had been resolved before the hearing of the Applications with the exception of Caroline's compensation for her care of Mrs. Childs and that it was Peter and Caroline's decision to litigate that issue.

[17] The Costs Order

He ordered Peter and Caroline to pay Section 3 Counsel $16,770 in costs, with the balance of Section 3 Counsel's costs to be paid from Mrs. Childs' assets. He also ordered them to pay Michael and Andrew costs of $4522. Michael and Andrew were to bear the balance of their costs personally. Costs of the PGT were to be paid from Mrs. Childs' estate. Peter and Caroline were to bear their own costs.

The Vary Motion is Heard and Decided

[18] The Hearing

The vary motion was heard over four days in October and November 2015.

[19] Evidentiary Ruling

On November 13, 2015, the applications judge delivered reasons in which he ruled inadmissible certain evidence that Peter and Caroline had adduced on the vary motion, including affidavit evidence about the conduct of Section 3 Counsel as well as paragraphs from Caroline and Peter's affidavits relating to settlement discussions.

[20] The Vary Motion Decision

He released reasons for judgment on the vary motion dated December 16, 2015 (the "Vary Motion Decision").

[21] The Vary Motion Decision – Outcome

In the Vary Motion Decision, the applications judge rejected Caroline and Peter's assertion that the June 2015 Letter was simply their attempt to implement the Applications Decision. He found that Caroline and Peter's actions had caused the litigation to escalate. He varied the Applications Decision by ordering that Michael and Caroline were to be joint guardians of Mrs. Childs' personal care in accordance with a guardianship plan filed by Michael. He reluctantly increased Caroline's compensation going forward to $50,000 per year, after Michael agreed to it and Section 3 Counsel acknowledged that it was required, given the situation.

[22] The Judgment

As the parties had not yet taken out an order based on the Applications Decision, the applications judge also set out terms for assisting in the settlement of an order which took into account both the Applications Decision and the Vary Motion Decision. This led to a judgment dated December 16, 2015 (the "Judgment").

Costs of the Vary Motion

[23] The Vary Motion Costs Order

On April 5, 2016, the applications judge delivered a decision on the costs of the vary motion (the "Vary Motion Costs Order"). He found that the vary motion was necessitated by the actions of Caroline and Peter, who "leveraged their mother's health and best interests to manipulate a more favourable result to Caroline" than that which he had ordered in the Applications Decision.

[24] Essential Aspects of the Vary Motion Costs Order

The essential aspects of the Vary Motion Costs Order are:

• the parties consented to an award of $1500 costs to the PGT to be paid from Mrs. Childs' estate,
• costs were awarded to Section 3 Counsel in the amount claimed of $102,641.29 plus $1238.35 disbursements, such costs to be paid from Mrs. Childs' assets,
• the costs of Section 3 Counsel of $16,770 provided for in the Costs Order, which were to have been paid by Peter and Caroline, were ordered to be paid from Mrs. Childs' assets,
• 50% of the total costs payable to Section 3 Counsel were to be set off against Peter and Caroline's inheritances from their mother's estate,
• costs in the amount of $26,459.20 plus HST were ordered in favour of BMO, to be paid from Mrs. Childs' assets,
• 50% of the total costs payable to BMO were to be set off against Peter and Caroline's inheritances from Mrs. Childs' estate,
• Michael and Andrew's costs were fixed at $72,614.98,
• 50% of Michael and Andrew's costs were to be paid from Mrs. Childs' assets and set off against Caroline and Peter's inheritances, and
• Caroline and Peter were ordered to bear their own costs.

Motion to Compel the Passing of Accounts

[25] The Motion

On November 10, 2016, Peter, supported by Caroline, brought a motion to compel a passing of accounts by BMO and Section 3 Counsel (the "Passing of Accounts Motion").

[26] The Motion Judge's Decision

In an endorsement dated November 10, 2016, the motion judge dismissed the Passing of Accounts Motion. He noted that BMO was already subject to the Applications Decision, which required it to pass accounts every two years. He also noted that the Applications Decision was under appeal and found that the Passing of Accounts motion was a collateral attack on it.

[27] Costs of the Motion

He awarded costs of the motion to BMO ($6200), to Section 3 Counsel ($5000), and to Michael, as the litigation guardian ($2000). The costs were ordered to be paid out of Mrs. Childs' estate, to be set off against Peter's expected inheritance.

Orders of Feldman J.A. made on February 25, 2017

[28] Transfer and Consolidation of Appeals

Feldman J.A. heard two motions in these proceedings on February 25, 2017. Two appeals had been brought: C62716 and C61581. She ordered appeal C62716, which had been brought to the Divisional Court, transferred to this court. She ordered it to be consolidated with C61581 and the two appeals heard together.

[29] Relief of Section 3 Counsel

She also granted Section 3 Counsel's motion in which she asked to be relieved of her role in this court.

The Motions on March 28, 2017

[30] Five Motions Brought

Prior to the hearing of the appeals, five more motions were brought to this court relating to these appeals. Peter and Caroline moved for leave to appeal (1) the Costs Order, (2) the Vary Motion Ruling, and (3) the Vary Motion Costs Order. Peter moved for leave to appeal (4) the decision rendered in the Passing of Accounts Motion. Section 3 Counsel moved for (5) leave to intervene on the appeals.

[31] The Simmons Decision

The motions were heard by Simmons J.A. on March 28, 2017. Her reasons were released on April 4, 2017 (the "Simmons Decision").

[32] Leave to Appeal the Costs Order

In the first motion, Peter and Caroline sought to appeal the Costs Order (which decided costs of the Applications). Simmons J.A. granted leave to appeal the Costs Order only on the issue of Peter and Caroline's personal liability for such costs and not on the quantum of the costs awarded. Simmons J.A. also deemed struck all submissions and evidence in Peter and Caroline's appeals documentation relating to the quantum of costs awarded to Section 3 Counsel and BMO and to any submissions and evidence not made or filed in the court below.

[33] Extension of Time to Appeal the Vary Motion Ruling

In the second motion, Peter and Caroline sought an extension of time to appeal the Vary Motion Ruling. Simmons J.A. concluded that this motion concerned an appeal from a final order and that permitting the appeal would not be redundant in relation to the pending appeals before this court. Although there was no clear evidence that Peter and Caroline had formed an intention to appeal the Vary Motion Ruling within the appeal period, Caroline had raised issues concerning its propriety in her notice of appeal of the Judgment, thereby notifying the other parties within the relevant time period. Simmons J.A. therefore granted the second motion.

[34] Leave to Appeal the Vary Motion Costs Order

In the third motion, Caroline sought leave to appeal the Vary Motion Costs Order. Simmons J.A. explained that Caroline should have made this request in a supplementary or amended notice of appeal in relation to the appeal of the Judgment, but to disregard the request for that reason would be overly technical and contrary to r. 1.04 of the Rules of Civil Procedure. That provision requires courts to construe the Rules "to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits." Therefore, Simmons J.A. granted leave but again precluded a challenge to the quantum of costs awarded.

[35] The Passing of Accounts Motion

At the oral hearing of the motions on March 28, 2017, Peter withdrew his request, in the fourth motion, for an order compelling a passing of accounts by BMO. However, he pursued the motion in respect of Section 3 Counsel.

[36] Dismissal of the Fourth Motion

Simmons J.A. dismissed the fourth motion, noting that Peter had not pointed to any authority permitting the granting of this relief.

[37] Leave to Intervene

In the fifth motion, Section 3 Counsel requested leave to intervene on the appeals. After acknowledging that granting such leave is rare in private lawsuits, Simmons J.A. nonetheless granted leave. She did so because Peter and Caroline, in advancing their appeals, were making serious allegations concerning Section 3 Counsel's conduct, which impugned Section 3 Counsel's reputation and integrity. Further, Peter and Caroline relied on those allegations in support of other aspects of their appeals and separation of the various allegations might prove to be impractical. In the circumstances, Simmons J.A. held that Section 3 Counsel was entitled to participate in the appeals to protect her reputational interests.

The Review Motion

[38] Peter and Caroline's Request

Peter and Caroline moved to set aside or vary the Simmons Decision so that:

1. on the appeals, they could argue the quantum of the costs awarded to Section 3 Counsel and BMO;
2. the panel hearing the appeals would have before it the materials that the Simmons Decision ordered excluded; and
3. Section 3 Counsel's status as intervener on the appeal would be revoked and she would be declared a party.

[39] The Panel's Order

The panel of this Court hearing the appeals ordered that the review motion was to be heard in conjunction with the appeals.

The Review Motion Decided

[40] The Panel's Ruling

The review motion was argued at the outset of the hearing of the appeals. After hearing argument, the panel advised the parties that the review motion was dismissed for reasons to follow. These are the promised reasons.

[41] Standard of Review

A review of a decision by a single judge of this court is a review for error, not a hearing de novo. The panel found no error in the Simmons Decision. Accordingly, there is no basis on which to interfere with it.

[42] Quantum of Costs

First, Peter and Caroline argue that, on these appeals, they should be allowed to argue the quantum of costs awarded to Section 3 Counsel and to BMO in the proceedings below. An award of costs is a discretionary matter entitled to significant deference by appellate courts. Such awards should be set aside on appeal only if the first instance judge made an error in principle or if the costs award is plainly wrong: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27. We see no error in principle in the quantum of costs awarded nor can we conclude that they are plainly wrong. Accordingly, there is no basis for interfering with the Simmons Decision precluding Peter and Caroline from arguing the quantum of costs awarded in favour of Section 3 Counsel and BMO.

[43] Struck Materials

Second, there is no basis for interfering with the Simmons Decision deeming struck certain parts of the materials that Peter and Caroline filed on these appeals. Those materials related to (1) the quantum of costs awarded to Section 3 Counsel and BMO, and (2) evidence that had not been filed in the court below.

[44] Relevance of Struck Materials

As we have explained, the Simmons Decision refusing leave to appeal the quantum of costs awarded stands. Consequently, those parts of Peter and Caroline's documentation relating to the quantum of costs below are not relevant to a matter in issue on the appeals. For that reason alone, there is no basis on which to interfere with the Simmons Decision deeming those materials struck.

[45] New Evidence on Appeal

As for the documentation that refers to submissions and evidence not before the court below, the general rule is that such materials are inadmissible on appeal. Simmons J.A. made no error in adhering to the general rule.

[46] Section 3 Counsel's Intervention

Third, there is no basis on which to interfere with the Simmons Decision to permit Section 3 Counsel to intervene on the appeal. That decision was the exercise of Simmons J.A.'s discretion and is entitled to deference on review by this panel. Furthermore, Section 3 Counsel's case for intervention was compelling, given the allegations that Peter and Caroline make against her in these appeals.

The Issues on the Appeals

[47] Summary of Issues

After allowing for the fact that some of the issues raised in the two appeals are the same and others are overlapping, the issues on the appeals can be summarized as follows.

C62716 (transferred from Divisional Court with file number 15-DC-2138)

[48] Issues in Appeal C62716

In appeal C62716, Peter and Caroline appeal the Applications Decision. On this appeal, their primary challenges are to: BMO's appointment as guardian of Mrs. Childs' property; Michael's appointment as Mrs. Childs' litigation guardian; and, the application judge's award of compensation to Caroline for past personal care services. They also assert that there is a reasonable apprehension of bias on the part of the applications judge. Further, they challenge various factual findings made by the applications judge.

C61581

[49] Issues in Appeal C61581

Appeal C61581 is Caroline's appeal of the Judgment. In it, Caroline: challenges her joint appointment with Michael to serve as guardians for Mrs. Childs' personal care and asks for her appointment as sole guardian; seeks a declaration or order regarding Section 3 Counsel's role "as stated in paras. 70 and 93 of the Judgment"; asserts that the applications judge erred in hearing the vary motion; and, asserts that the applications judge erred in finding that Section 3 Counsel had acted commendably throughout.

Analysis

[50] No Merit to the Appeals

In our view, there is no merit to these appeals. They are the culmination of unnecessarily protracted litigation that has depleted Mrs. Childs' estate, wreaked havoc on the emotional and financial health of all concerned, wrongfully maligned Section 3 Counsel, and wrongfully impugned the applications judge. It is past time for the litigation over Mrs. Childs to end.

[51] Standard of Review

Appellate courts do not "rehear" or "retry" cases without a clear statutory mandate – they review for error: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 52. The nature of the review undertaken by this court depends upon the nature of the issue in dispute and the relevant standard of review.

[52] Palpable and Overriding Error

Many of the arguments made on both appeals are essentially challenges to the factual findings of the applications judge. Such findings are subject to the "palpable and overriding error" standard of review. A "palpable" error is "one that is obvious, plain to hear or see". An "overriding" error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a "palpable" error does not automatically mean that the error is also "overriding": Waxman v. Waxman (2004), 186 O.A.C. 201 (C.A.), at paras. 296-297.

[53] Mixed Fact and Law Issues

Because the appeals are largely based on challenges to factual findings, Peter and Caroline bear a heavy onus. However, four claims that are advanced on the appeals arguably also raise questions of mixed fact and law and, therefore, may be subject to a somewhat less deferential standard of review. These issues are: (1) BMO's appointment as guardian of Mrs. Childs' property; (2) Caroline's claim for increased compensation for past personal care services that she provided her mother; (3) whether the applications judge erred in hearing the vary motion; and, (4) whether there is a reasonable apprehension of bias on the part of the applications judge. We will begin by considering these four claims.

(1) BMO's Appointment as Guardian of Property

[54] The Challenge

On this ground of appeal, Caroline and Peter assert that they did not consent to BMO's appointment as guardian of property.

[55] Consent to BMO's Appointment

This ground of appeal cannot succeed. BMO was appointed as the guardian of Mrs. Childs' property on consent of all of the parties. At the time they consented, Peter and Caroline were represented by counsel. In effect, on this ground of appeal, Peter and Caroline seek to appeal their own consent.

[56] Palpable and Overriding Error

For this ground of appeal to succeed, Peter and Caroline would have to point to a palpable and overriding error in the application judge's finding that they consented to BMO's appointment and their consent was full and informed. They have pointed to no such error.

[57] Leave to Appeal Consent Orders

Furthermore, an appeal from a consent order requires leave of the court to which the appeal is to be taken: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 133(a). Leave to appeal was not sought from this court, so this panel must begin by considering whether leave should be granted. We have concluded that it should not.

[58] Grounds for Leave to Appeal Consent Orders

Consent orders have their foundation in contract. There is great judicial resistance to granting leave to appeal consent orders. Leave should not be granted where the issue relates to the validity of the consent unless there is evidence before the court on the leave application that demonstrates an arguable case that at the time the consent was given, the party could not or did not consent. Such evidence may relate to factors that might undermine the enforceability of contracts, such as fraud, duress and undue influence: Ruffudeen-Coutts v. Coutts, 2012 ONCA 65, 348 D.L.R. (4th) 64, at paras. 59-64.

[59] No Evidence of Fraud, Duress or Undue Influence

Caroline and Peter's central argument on this ground is that Section 3 Counsel "coerced" them into accepting BMO as property guardian by insisting that she would not advocate for removal of Mrs. Childs from Andrew's residence until Peter and Caroline consented to the appointment. Assuming that to be the case, it does not constitute evidence of fraud, duress or undue influence such that leave should be granted.

(2) Caroline's Claim for Increased Compensation for Past Care Services

[60] The Unjust Enrichment Claim

Caroline's claim for increased compensation for past personal care services appears to be based on unjust enrichment. This claim may arise from the application judge's reference to Peter v. Beblow, [1993] 1 S.C.R. 980, at p. 984, in the Applications Decision. In that decision, the applications judge did not accept that Caroline had any arguable claim in unjust enrichment. He merely cited Peter v. Beblow as authority empowering him to make an equitable resolution of this particular dispute.

[61] Gratuitous Care

The claim in unjust enrichment fails for the simple reason that the applications judge found that Caroline had gratuitously provided the care in question for her mother and, indeed, was willing to continue to do so. This finding has compelling support in the record, as discussed in more detail below.

[62] Caroline's Representations

At this point, it is sufficient to note that on June 17, 2015 – one day before the hearing of the Applications – Section 3 Counsel wrote to counsel for Caroline to determine whether Caroline was "reconsidering her guardianship plan proposing that she live in [Mrs. Childs' house] if the compensation is set lower than she expects." In her responding letter, counsel for Caroline wrote: "In response to your question, there is no connection between the level of compensation that Caroline is requesting and the offer to live [in Mrs. Childs' house]."

[63] The Argument Fails

The argument that an "offer to live" in Mrs. Childs' house did not amount to an offer to provide Mrs. Childs with personal care does not satisfy the "palpable and overriding error" standard.

[64] Conclusion

Therefore, this ground of appeal fails.

(3) No Error in the Hearing of the Vary Motion

[65] The Challenge to the Vary Motion

This ground of appeal relates to the availability of the r. 59.06(2)(a) motion based on the June 2015 Letter. Caroline and Peter submit that, in hearing and deciding the vary motion, the applications judge "exceeded the scope of such motions, essentially rehearing a case he had already heard."

[66] The Vary Motion Fell Within Rule 59.06(2)(a)

We see no error in the applications judge's determination that the vary motion fell within the scope of r. 59.06(2)(a). The applications judge determined that the matter fell within the scope of r. 59.06(2)(a) because Caroline had clearly indicated to all parties, prior to and throughout the proceedings, that she would continue to live with and care for her mother in her mother's home on a full-time basis, whether or not her claims for compensation for such care were granted by the court. The applications judge had relied on those representations in making the Applications Decision. Caroline's intentions, as revealed in the June 2015 Letter, stood in direct contrast with those representations. In the June 2015 Letter, Caroline contemplated arranging full-time, 24/7 professional caregivers for her mother while she sought outside employment.

[67] The Applications Judge's Reliance on Caroline's Representations

A full and fair reading of the Applications Decision shows that, when setting the amount of Caroline's compensation, the applications judge based it on a finding that Caroline would continue to provide personal, unpaid care to her mother. The following excerpts from the Applications Decision demonstrate this.

[32] In considering this issue, important factors include that the care and services performed by Caroline did benefit her mother and were in her mother's best interests. She did not act with the expectation of being compensated nor was she motivated by the compensation possibility. She would have done the same, compensation or not. Eileen Childs is lucky to have her daughter to help her remain in her own home because otherwise she could not. Eileen Childs has significant liquid assets. However, her in-home care needs will increase and become significant and the cost of the proper facility will be significant. These expenses are in her future in all likelihood. I have also considered that Peter and Michael both thought compensation was appropriate.

[38] The care provided by Caroline to this point in time is of priceless value to her mother. One really cannot place a dollar figure on it. Even if it enhanced Eileen Childs' life for one day or one hour, the value is beyond measure.

[42] It is fair and reasonable from the perspective of Eileen Childs' best interests that Caroline be paid the sum of $25,000 in recognition of her efforts, which to some extent two of the three brothers have acknowledged. This is for her personal care services for the 2½ years between 2011 and 2013 and for the past two months since the order of Justice McLean.

[43] This is in Eileen's best interests to end this dispute between her children.

[44] Caroline should not have brought this claim to court to litigate against her family, but she should not have had to do so either. The $150,000 incurred by this family for legal fees could have been more constructively utilized within the family. The litigation also took a toll on all concerned emotionally. We have heard submissions that Eileen is upset by this family feud.

[68] The June 2015 Letter Met Rule 59.06(2)(a) Requirements

Given the application judge's reliance on Caroline's representation that she would continue to provide her mother with personal care – with or without payment – the statement in the June 2015 Letter that Caroline planned to pursue full-time employment outside of the home met the requirements of r. 59.06(2)(a).

[69] Caroline and Peter's Interpretation

Caroline and Peter focus on paragraph 46 of the Applications Decision for an interpretation that would allow Caroline to cease providing much personal care for Mrs. Childs. On their interpretation, the Applications Decision made Caroline the guardian of Mrs. Childs' personal care and ordered that others were to actually provide Mrs. Childs with most of her personal care.

[70] Paragraphs 45 and 46 in Context

Paragraph 46 must be read in the context of paragraph 45 (as well as the balance of the reasons). Therefore, paragraphs 45 and 46 are set out now.

[45] With respect to the compensation for Caroline as guardian of the personal care of Eileen Childs, that is a distinct issue from the direct caregiving that has taken place to date.

[46] Going forward as guardian of her mother's personal care, Caroline's role is as the manager of personal care rather than the primary care attendant. There are sufficient assets available to permit proper homecare to be provided for Eileen Childs in her home. Caroline will have to manage accessing the proper services and care givers and she should do so to provide fully for the best interests of her mother.

[71] The Correct Interpretation

Caroline and Peter's interpretation might be plausible if paragraph 46 were read in isolation. However, when the Applications Decision is read as a whole, it is clear that the applications judge meant that the compensation that Caroline was to receive going forward was for the services she provided as the guardian of her mother's personal care, but while Caroline continued to live in her mother's home she was to provide personal care for her mother without compensation.

[72] Conclusion

For these reasons, this ground of appeal also fails.

(4) No Reasonable Apprehension of Judicial Bias

[73] The Allegations of Bias

Peter and Caroline's allegation of judicial bias rests on the applications judge having: (1) given an early indication of his view on the vary motion before formally deciding that r. 59.06(2)(a) applied; (2) made an evidentiary ruling to exclude some allegations by Caroline and Peter against Section 3 Counsel from consideration on the vary motion; (3) rejected Peter and Caroline's assertion that they had not properly consented to BMO's appointment as guardian for property; (4) been "gratuitously critical" of their submissions and overly deferential toward Section 3 Counsel; and (5) allegedly met in private with Section 3 Counsel.

[74] The Test for Reasonable Apprehension of Bias

There is a strong presumption of judicial integrity. A party who alleges a reasonable apprehension of judicial bias must provide the court with "cogent evidence" that an informed person, viewing the matter realistically and practically and "having thought the matter through" would conclude that the judge's impugned conduct would cause a reasonable apprehension of bias: R. v. R.D.S., [1997] 3 S.C.R. 484, at paras. 111-117.

[75] Insufficient Evidence

Caroline and Peter have not provided such cogent evidence to this court. In our view, their submissions on this ground of appeal, considered alone and in combination, do not rise to the requisite level.

[76] Early Indication of View

With respect to the first allegation, we observe that a judge is entitled to offer a tentative view on a matter such as the one in question. It is clear from his Vary Motion Ruling that the applications judge kept an open mind and decided jurisdiction based on the relevant legal principles and the evidence before him, which included the evidence led on the Applications.

[77] Evidentiary Ruling

The applications judge was entitled to exclude some of the allegations made by Caroline and Peter against Section 3 Counsel from consideration on the vary motion. Therefore, there is nothing in the second allegation.

[78] BMO's Appointment

We have already considered and rejected the submission relating to BMO's appointment as Mrs. Childs' guardian of property. As Peter and Caroline consented to BMO's appointment, there is nothing in their submission that the applications judge's refusal to accept their arguments in that regard demonstrates a reasonable apprehension of bias.

[79] Critical Comments

The fourth allegation does not hold up to scrutiny. Given the about-face between Caroline's position on the Applications and that expressed in the June 2015 Letter five days after the Applications Decision's release, as well as the applications judge's findings in the various costs decisions, the applications judge's criticisms of Caroline and Peter appear well-founded. They do not displace the presumption of judicial integrity.

[80] Secret Meeting Allegation

We flatly reject the fifth allegation – that there was a secret meeting between the applications judge and Section 3 Counsel – because, while Peter and Caroline make the accusation, they have provided no evidentiary support for it.

[81] Conclusion

Therefore, this ground of appeal must also fail.

(5) The Remaining Grounds of Appeal

[82] Summary of Remaining Grounds

As previously explained, the remaining grounds of appeal are all based on challenges to the applications judge's findings of fact. They can be summarized as follows. Caroline and Peter: (a) challenge Michael's appointment as litigation guardian and his appointment (jointly with Caroline) as guardian for personal care; (b) complain about Section 3 Counsel's conduct and the applications judge's "deferential attitude" towards her; and (c) seek to set aside the costs orders insofar as those orders require Peter and Caroline to personally pay certain of the costs awards. Each of these grounds of appeal can be dealt with summarily.

a. Michael's Appointment as Mrs. Childs' Litigation Guardian and Jointly with Caroline as Guardian of Mrs. Childs' Personal Care

[83] Michael's Appointment as Litigation Guardian

In respect of Michael's appointment as litigation guardian, the applications judge accepted Section 3 Counsel's recommendation when he appointed Michael, rather than Peter, to fill this role. Section 3 Counsel, as Mrs. Childs' representative, was well-positioned to determine which of Mrs. Childs' children was best equipped to serve as Mrs. Childs' litigation guardian.

[84] Discretionary Decision

Furthermore, in making the appointment, the applications judge exercised a discretionary power and, thus, the decision warrants deference by this court. The allegations against Michael on which Caroline and Peter rely do not qualify as palpable and overriding errors.

[85] No Basis to Interfere

There is no basis on which to interfere with the applications judge's order appointing Michael as Mrs. Childs' litigation guardian.

[86] Joint Guardianship of Personal Care

The applications judge noted at para. 82 of the Vary Motion Decision that Caroline had consented to sharing with Michael the role of guardian for Mrs. Childs' personal care. We explained above, when discussing BMO's appointment as guardian of Mrs. Childs' property, the law governing an attempt to set aside a court order based on consent. For similar reasons, had leave to appeal this consent order been sought, we would not have granted it.

[87] Conclusion

Accordingly, this ground of appeal fails.

b. Section 3 Counsel's Conduct and the Applications Judge's Attitude Towards Her

[88] Allegations Against Section 3 Counsel

Peter and Caroline make a number of allegations about Section 3 Counsel's conduct during this litigation. These allegations can be summarized as follows: (i) Section 3 Counsel's communications with Mrs. Childs for instructions were insufficient; (ii) Section 3 Counsel was "partisan", favouring Michael and Andrew over Caroline and Peter; (iii) Section 3 Counsel misrepresented information to the applications judge; (iv) Section 3 Counsel neglected to investigate allegations by Caroline that Andrew had abused Mrs. Childs while Mrs. Childs was living in Andrew's home; (v) Section 3 Counsel acted with "excessive zeal"; (vi) there was an allegedly improper relationship between Section 3 Counsel and BMO; and (vii) in pursuit of her own pecuniary interest, Section 3 Counsel was the driving force behind this litigation.

[89] Section 3 Counsel's Response

Section 3 Counsel makes two submissions in response. First, she says that to respond to these allegations she would have to divulge privileged discussions which she had with her client, Mrs. Childs, contrary to her professional obligations. This she will not do. Second, she notes that, in his evidentiary ruling dated November 13, 2015, the applications judge struck those parts of Caroline and Peter's affidavits in which they impugned Section 3 Counsel's conduct. As Section 3 Counsel notes, Peter and Caroline never appealed this ruling. Therefore, they ought not to be allowed to raise it here.

[90] Allegations Not Properly Before the Court

We accept both submissions of Section 3 Counsel. Therefore, Caroline and Peter's allegations against Section 3 Counsel are not properly before this court and ought not to be entertained.

[91] Categorical Rejection of Allegations

We would go further, however, and state that we categorically reject the suggestion that Section 3 Counsel failed in her duties in any way. There is nothing in the record that remotely supports these allegations against Section 3 Counsel and we denounce them.

[92] The Applications Judge's Attitude

We also categorically reject the suggestion that the applications judge displayed a deferential attitude towards Section 3 Counsel.

[93] Professional Conduct

On the record, both Section 3 Counsel and the applications judge discharged their professional obligations well and with patience, dignity and integrity.

[94] Section 3 Counsel's Communications with Mrs. Childs

In terms of the sufficiency of Section 3 Counsel's communication with Mrs. Childs, we note that Section 3 Counsel met with Mrs. Childs three times to discuss the guardianship applications and to obtain Mrs. Childs' instructions. On the record, it is plain that it was as a result of Section 3 Counsel thereafter negotiating with all parties that, with the exception of the amount of Caroline's compensation, all matters on the Applications went on consent. In the circumstances of this case, that is nothing short of extraordinary. It is also consistent with Mrs. Childs' instructions that she wanted the litigation to end.

[95] Allegations of Bias Towards Michael and Andrew

In response to the allegation that Section 3 Counsel had a bias in favour of Andrew and Michael, the evidence that Peter and Caroline seek to rely on is largely inadmissible. In any event, it shows only that Section 3 Counsel acted as a zealous advocate for her client, Mrs. Childs. It does not show her to be overly zealous. Section 3 Counsel is to be commended for her efforts – not pilloried.

[96] Alleged Misrepresentations

Of the many instances of alleged "misrepresentations" to the court, we will speak only to that concerning Section 3 Counsel's conduct on the vary motion. Peter and Caroline's position on this is untenable. All those at the vary motion, other than Caroline and Peter's counsel, agreed that the June 2015 Letter was inconsistent with the guardianship plan that Caroline had presented on the Applications and that was the finding of the applications judge. The other alleged misrepresentations are nothing more than a difference of opinion on certain matters.

[97] Alleged Neglect to Investigate Abuse

The allegation that Section 3 Counsel neglected to investigate Caroline's suspicion that Andrew had abused Mrs. Childs cannot stand. The record shows that Section 3 Counsel explained to the applications judge that none of the other professionals who had met with Mrs. Childs privately had heard of such allegations.

[98] Alleged Improper Relationship with BMO

The allegation of an improper relationship between Section 3 Counsel and BMO reflects another attempt by Caroline and Peter to circumvent an order to which they consented. The record demonstrates that Section 3 Counsel initially proposed that Michael engage BMO as guardian of property, but that Peter and Caroline asked Section 3 Counsel to undertake that task instead. Furthermore, as Section 3 Counsel points out, she had no personal or banking relationship with BMO. She engaged BMO on the parties' consent and in compliance with Mrs. Childs' expressed preference that a bank manage her money.

[99] Alleged Prolongation of Litigation

There is absolutely no merit to the allegation that Section 3 Counsel prolonged the litigation in service of her own pecuniary interest. Section 3 Counsel demonstrated her commitment to protecting Mrs. Childs' interests at all steps of the proceedings including by initiating settlement discussions, negotiating consent orders wherever possible, and attempting to resolve concerns raised by the June 2015 Letter without recourse to the courts.

[100] Conclusion

This ground of appeal is flatly rejected.

c. The Costs Orders

[101] Scope of the Costs Appeal

It will be recalled that as a result of the Simmons Decision, upheld on the review motion, Caroline and Peter may not challenge the quantum awarded in the various costs orders below. Thus, this ground of appeal relates solely to whether the applications judge erred in ordering Peter and Caroline to personally pay certain of the costs.

[102] Peter and Caroline's Contention

This ground of appeal rests on Peter and Caroline's contention that they were substantially successful in the proceedings below because they succeeded in having Mrs. Childs remain in her own home, as she wished, rather than be moved into an elder care facility.

[103] No Basis to Interfere

Even if Peter and Caroline's view of what occurred in these proceedings is correct, it does not amount to a reason to interfere with the costs decisions below. In the Applications Decision, the applications judge made findings of fact that fully warrant costs being ordered against Peter and Caroline personally. It will be recalled that he found that all issues – other than costs – had been resolved prior to the oral hearing of the Applications with the exception of Caroline's compensation and that Caroline and Peter were the ones who had caused litigation of that issue. When deciding costs of the vary motion, the applications judge found that it was Caroline and Peter's actions that had caused the motion to be brought and that they had "leveraged their mother's health and best interests" to manipulate a more favourable financial result for Caroline than he had ordered in the Applications Decision.

[104] Deference to Costs Awards

As we explained above, an appellate court is to accord a high degree of deference to first instance costs awards: Open Window Bakery Ltd., at para. 27. In the circumstances of this case, we see no error in principle in the applications judge's decision to require Peter and Caroline to pay certain costs personally nor are the orders plainly wrong.

Disposition

[105] Dismissal of Appeals

For these reasons, the review motion and both of the appeals are dismissed. If the parties are unable to agree on the matter of costs, they may make written submissions on the same, limited to four pages, such submissions to be filed with the court within fourteen days of the release of these reasons.

Released: June 20, 2017

"Eileen E. Gillese J.A."

"Grant Huscroft J.A."

"Gary T. Trotter J.A."