Court File and Parties

Oshawa Court File No.: 94773/16E Ontario Superior Court of Justice

Between: Walter Burnat, Applicant – and – Olga Burnat, Mary Bosworth and The Public Guardian and Trustee, Respondents

Counsel: John W. Montgomery, for the Applicant Edward Spong, for the Respondent Mary Bosworth

Reasons for Decision

Charney J.:

Introduction

[1] Olga Burnat (Olga) is an 80 year old woman who has lived in the Oshawa area for all of her adult life. She has been diagnosed with moderate to severe dementia. She is incapable of managing her property or making decisions regarding her personal care. She can no longer live on her own, and requires 24 hour supervision.

[2] The applicant Walter Burnat (Walter) is Olga’s son. The respondent Mary Bosworth (Mary) is Olga’s daughter. Walter and Mary have joint power of attorney for Olga’s personal care and property management, but they cannot agree on many issues in relation to these matters.

[3] Walter commenced this Application under the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the SDA) for an order declaring Olga incapable of personal care under s.45 of the SDA, and to terminate the power of attorney for personal care granted by Olga to Walter and Mary, and to appoint Walter as the sole guardian of the person of Olga and to permit him to make any decisions on Olga’s behalf to which the Health Care Consent Act, 1996, S.O. 1996, c.2 applies. He also seeks an order terminating the power of attorney for property granted by Olga to Walter and Mary, and an order that Olga is incapable of managing property and appointing him as the sole guardian of property for Olga.

[4] These are all issues that will have to wait for a full hearing. The immediate issue before me is Walter’s request for an interim order for directions under s. 68 of the SDA regarding the personal care and living arrangements for Olga pending the final determination of this application. Walter wants to move Olga to a retirement residence; Mary wants her to remain in Olga’s Whitby home.

Position of the Parties

[5] Walter wants to move Olga to the Brookside Retirement Living Residence in Richmond Hill (“Brookside”). Brookside is the closest retirement residence available with a locked living area to prevent cognitively challenged residents from wandering or becoming lost. Brookside has a suite available for Olga, which, at the date of hearing, they are holding for her. Brookside offers meals, housekeeping, laundry and recreation. It has 24 hour nursing available. The only disadvantage with Brookside is that it is approximately 60 kilometres from Oshawa.

[6] Mary wants to keep Olga close to Oshawa where Olga has lived for her entire adult life. There are no suitable retirement residences currently available in the Oshawa area. Until an appropriate retirement residence becomes available in the Oshawa area, Mary wants to keep Olga in Olga’s Whitby house with various supports and 24 hour supervision.

[7] Walter would also prefer to have Olga in an Oshawa area retirement residence if and when ones becomes available, but is of the view that Mary’s proposal does not provide sufficient supervision for Olga in the short term.

[8] Given Walter and Mary’s inability to agree on where Olga should live, the issue on this interim motion is which living arrangement should be ordered.

[9] Walter takes the position that Olga’s dementia is becoming more acute, and that she is not able to live safely on her own. Olga is no longer capable of remaining safe and healthy at home without 24-hour care and supervision. Mary has refused to cooperate with, and has actively discouraged, Walter’s efforts to move Olga to long-term care.

[10] Mary’s position has evolved over time. The record does suggest that, until recently, Mary did not appreciate the extent of Olga’s dementia or the requirement for 24-hour supervision. She now appears to accept the need for 24-hour supervision, and has proposed a plan to provide such supervision in Olga’s home. Mary takes the position that it is better for Olga to remain in the familiar surroundings of her own house with the support of the Ukrainian Catholic Church and Oshawa’s Ukrainian community.

[11] Put bluntly, Walter does not trust Mary to follow through with her plan for homecare, and believes that Olga should be placed at Brookside as soon as possible. Walter takes the position that Olga is in real danger of injury and/or serious illness, and that Mary is failing or refusing to recognize or act in Olga’s best interest.

Facts

[12] In the interest of time I will not recite the details of Olga’s life and current medical condition. The bottom line is that Olga is suffering from dementia, and although she has periods when she is “lucid” it is impossible to predict when her episodes of dementia will begin or how long they will last. The evidence does indicate that the episodes of dementia are becoming more frequent and lasting longer. She suffers from hallucinations, and is prone to wandering off.

[13] When this Application was commenced on February 11, 2016, the evidence is that Olga was not being provided with 24-hour supervision. Mary visited on a daily basis, and a Personal Support Worker (PSW) attended several days per week, but there were frequent periods when Olga was left alone. For example, Mary went on a two-week vacation to Egypt in December 2015, and no arrangements were made to supervise Olga while Mary was away. Mary did not tell Walter that she would be away.

[14] On December 16, 2015, Olga met with a certified capacity assessor, Dr. Emoke Jozsvai. Following a thorough assessment, Dr. Jozsvai concluded that Olga is incapable of making decisions in the personal care areas of health care, nutrition, shelter, clothing, hygiene and safety. These conclusions are not disputed by the parties.

[15] Olga was hospitalized on December 18, 2015. She was kept under 24 hour care and supervision and moved to a locked ward to prevent her from wandering. Olga was discharged by the hospital into Mary’s care on January 12, 2016. The hospital advised that Olga required 24-hour supervision, and Mary presented a plan for providing 24-hour care and supervision for Olga at home.

[16] Walter’s affidavit states that Mary did not follow through on this plan for 24-hour care. For example, Olga is supposed to attend a senior’s centre five days a week, but Walter was advised by the centre that Olga attends only twice a week. When he visited Olga on February 4, 2016, he found her home alone. His evidence, which is based on the log entries of the PSW entered as an exhibit, is that the PSW visits Olga once or twice daily for periods of a couple of hours each visit. Olga is often alone and sometimes in distress when the PSW arrives.

[17] Walter believes that Olga is often left alone overnight and is not being properly cared for. His affidavit states that as recently as February 12, 2016, Olga told him that Mary does not stay overnight, and that Olga does not like the PSW. She does not want to be left alone.

[18] The cost of Brookside is $3,600 per month, which Walter is prepared to pay going forward subject to requesting an order on the final disposition of this application that he be reimbursed from Olga’s property when possible.

[19] Mary acknowledges that Olga has dementia and episodes of hallucinations and confusion, but states that “this is not a constant state and my mother has periods of lucidity”. She states that her mother has told her when she is lucid that she wants to continue to live in her home as long as possible and does not want to be placed into a long-term care residence. Mary denies that she has “inappropriately left my mother alone”.

[20] Mary acknowledges that Olga’s interests can be served in an appropriate institutional environment, but takes the position that placing Olga in Richmond Hill would isolate her from her family and the Oshawa Ukrainian community.

[21] Mary has made the following proposal: (a) She has made an appointment with the Geriatric Assessment and Intervention Network Clinic (GAIN Clinic) at Lakeridge Health Oshawa to have her mother assessed. The appointment is scheduled for May 12, 2016; (b) She has made arrangements to have a PSW at the house three hours a day (one hour in the morning and two hours in the evening), seven days a week to assist with personal care and hygiene. (c) Her mother is enrolled in a day program through the CCAC three days a week (Monday, Tuesday, Friday) from 8:00 a.m. to 4:00 p.m.. (d) She will hire a woman named Anna Marchalok, who is a member of the Oshawa Ukrainian community, to move into Olga’s house from after the day programme on Tuesday until Sunday morning. Ms. Marchalok has known Olga for a long time and is willing to participate in this arrangement. She has experience taking care of her own elderly parents. (e) Mary will stay in the house with Olga from Sunday morning when Ms. Marchalok leaves until Olga goes to the CCAC program on Tuesday morning. Mary will also visit most days and be available by telephone.

[22] Mary says that she will continue this arrangement “for however long is necessary to assist in the transition”. She believes that this proposed arrangement adequately addresses safety concerns while enabling Olga to stay in contact with her friends, family and church.

Analysis

[23] This application is brought under s. 68 of the SDA. Section 68 provides a mechanism for a power of attorney for personal care to obtain the court’s direction “on any question arising…in the power of attorney.” Subsection 4 reads: “A court may by order give such directions as it considers to be for the benefit of the person and consistent with this Act.”

[24] In the case of Sly v. Curran, Himel J. stated with respect to the court’s authority under s.68:

An application for directions is designed to provide an avenue for guidance and direction by the court in how to approach decision-making, not to have the court make the decision for the substitute except for certain exceptional situations.

[25] It is unfortunate that Walter and Mary are unable to cooperate and come to a joint decision on this matter. Since Walter and Mary both have power of attorney for personal care but cannot agree on where it would be in Olga’s best interest to reside, this is one of the exceptional cases in which it is appropriate for the court to use this procedure to make a decision and resolve this impasse.

[26] I understand that this is a difficult time for both Walter and Mary, both of whom are trying to do what they believe is best for their mother in her remaining years. While everyone appears to agree that the best interests of Olga would be for her to be in an appropriate retirement residence in the Oshawa area, that option is not available in the short-term. The issue then is what is in the best interests of Olga until the Oshawa area facility becomes available.

[27] This matter first came before me on April 1, 2016. At that time I concluded that the affidavit evidence strongly supported that Olga should be in a long-term care home/retirement home with secure care. I granted a two-week adjournment to give Mary, who had just retained counsel, an opportunity to prepare a proposal that would meet Olga’s care and supervision needs. The adjournment was based on the condition that Olga receive 24-hour supervision by Mary or an adult family member or PSW or other health professional, not friends or cleaning staff.

[28] There are obvious advantages to both proposals presented at the hearing on April 15th. Walter’s proposal has the advantage of certainty. If Olga is moved to Brookside there is no question that she will receive the 24-hour care and supervision that she requires. This professional care will become even more important if Olga’s condition continues to deteriorate.

[29] Mary’s proposal has the advantage of keeping Olga in the community that Olga has lived in all her adult life. Mary lives close by and will be able to drop in to see Olga on days that she is not responsible for her care. Such daily visits will not be possible if Olga is moved to Richmond Hill.

[30] I am concerned, however, that Mary’s proposal relies on the services of Ms. Marchalok. Ms. Marchalok did not provide an affidavit. I have no way of assessing her experience or reliability. I do not know whether she will be able to deal appropriately with Olga if Olga has a hallucinatory episode. This adds an element of uncertainty.

[31] Mary relies on the upcoming May 12, 2016 appointment with the Geriatric Assessment and Intervention Network Clinic (GAIN Clinic) at Lakeridge Health Oshawa to have her mother assessed. It is not clear to me what additional evidence this assessment will provide beyond the assessment already provided by Dr. Jozsvai.

[32] Unfortunately, the dispute between Walter and Mary is based on mistrust. Walter does not trust that Mary will keep her word and maintain the 24-hour care and supervision that she has promised. While Walter has provided affidavit evidence to support his concerns in this regard, Mary’s affidavit evidence disputes these allegations. There has been no cross-examination. There is no expert evidence except the assessment of Dr. Jozsvai. Given these limitations the court is not in an ideal situation to make this decision.

[33] I am particularly troubled by the fact that no one can know how long it will take to find an appropriate residence closer to Oshawa. While Mary’s proposal has the advantage of preserving something of the status quo for Olga, I am not persuaded that Mary will be able to realistically maintain the kind of 24-hour supervision that Olga now requires. If the evidence were that an Oshawa area retirement residence was to become available within the next couple of months, I would be more inclined to agree to Mary’s proposal as a better short-term solution. However, while Mary’s proposal may work in the short-term, I am not confident that Ms. Marchalok has the requisite skills or commitment to deal with Olga in the long term or that Olga will have the appropriate resources if the situation continues for the next six to twelve months, which may be a more realistic scenario.

Conclusion

[34] Based on these reasons, this court grants the following interim order and direction:

1. Olga Burnat will reside at the Brookside Court retirement residence, 980 Elgin Mills Rd. E., Richmond Hill, Ontario until such time that a suitable retirement residence in the Oshawa area becomes available.

[35] If the parties cannot agree on costs they may file costs submissions of no more than three pages within 20 days after the release of this decision.

Justice R.E. Charney Released: April 18, 2016