Vriend v Vriend and PGT, 2023 ONSC 2704

Court File and Parties

Court File No.: OTTAWA COURT FILE NO.: CV-23-91185 Date: 2023/05/03 Superior Court of Justice – Ontario

Re: STEPHEN VRIEND, Applicant And: ELLEN CHARLOTTE VRIEND and THE PUBLIC GUARDIAN AND TRUSTEE, Respondents

Before: Madam Justice S. Corthorn

Counsel: Frank G. Tanner, counsel for the applicant No one appearing for the respondents

Heard: April 11, 2023

Endorsement

Introduction

1Ellen Charlotte Vriend was born in August 1943 and is 79 years old. In late 2019, Ellen was diagnosed with dementia. By 2022, Ellen’s treating neurologist was of the opinion that Ellen suffers from severe dementia.

2In September 2022, Ellen’s husband, Albertus Johannes Vriend (“Albert”) passed away. Prior to his death, Albert had, together with the couple’s only child (the applicant), been responsible for caring for Ellen.

3Ellen is now residing at the Forest Hill Retirement Community, in the City of Ottawa. The plan is for Ellen to move to a long-term care facility because of her requirement for supervision on a 24/7 basis.

4The applicant, Stephen W. Vriend, is Ellen and Albert’s only child. Albert died intestate. On December 29, 2022, a certificate of appointment of estate trustee without a will was issued to Stephen, in relation to Albert’s estate (“the Estate”). Stephen estimates that the value of the Estate is $5,000,000. Stephen understands that the first $350,000 of the Estate will be paid to Ellen; the balance will be distributed equally between him and his mother. There is no evidence as to the basis for the distribution of the Estate in that manner.

5Three months have passed since the certificate of appointment was issued to Stephen. There is no evidence as to the status of, the particulars of, or the anticipated timing of distributions from the Estate.

6In the context of managing both Ellen’s share of the Estate and her day-to-day needs, Stephen applies for appointment as the guardian of property of and guardian of the person for Ellen.

7Before addressing the substantive relief requested, I will first address service of documents, the format of the record, and the potential conflicts arising from counsel’s representation of the applicant in this matter and of the applicant in his capacity as the Estate Trustee of Albert’s estate.

Service of Documents

8Service of documents related to an application is addressed in Rule 38 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. First, a copy of the notice of application must be served on the respondent: r. 38.06(1). The notice of application is an originating process, as a result of which it must be served on the respondent personally (r. 16.02) or by an alternative to personal service (r. 16.03): see r. 16.01(1). In addition, a copy of the application record must be served on the respondent: r. 38.09(1).

9Last, a copy of the factum upon which the applicant relies must also be served on the respondent: r. 38.09(1). No factum was filed and there is no affidavit of service identifying that a factum was served on the respondent. The applicant seeks an order dispensing with the requirement to deliver a factum. There is no evidence which supports making an order dispensing with the requirement to deliver a factum. Evidence in support of the relief requested in that regard is required.

10On an application for the appointment of a guardian – whether a guardian of property or a guardian of the person – the requirements for service set out in the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”) must also be met. Section 69 of the SDA requires that the notice of application be served on siblings of the person who is the subject of the application.

11I will deal first with service of documents on Ellen’s siblings and then with service of the documents on the respondents.

a) Service of Documents on Ellen’s Siblings

i) Four Siblings Consent to the Relief Sought

12Four of Ellen’s siblings were provided with a copy of the application record by email. The record includes consents, signed in December 2022 by each of the four siblings, to an order appointing Stephen as Ellen’s guardian of property and guardian of the person.

13The affidavit of service regarding service of the application record identifies that a copy of the application record was sent by email to each of those four siblings in late March 2023. Taking into consideration the provisions of Rule 16 with respect to personal service and/or alternatives to personal service, the four siblings have not been served with either the notice of application or the application record.

14As a result, an order validating service of those documents is required. That relief has not been requested. The supporting affidavit does not explicitly address that relief.

15I am, however, prepared to validate service of the application record by the method set out in the affidavit of service sworn by J. Moore, on March 30, 2023. A term to that effect is included in the order made.

16I have also included a term that provides for service of documents on the four siblings by email at their respective last known emails, with the proviso that the affidavit of service must include a copy of the ‘cover’ email together with either a delivery receipt or read receipt confirmation.

ii) Ellen’s Fifth Sibling has not Been Located

17Stephen’s evidence is that Ellen has five siblings. Ellen’s brother, Hugh Jordan has not been located. The relief requested does not include an order dispensing with the requirement to serve Hugh.

18The evidence includes an affidavit, from a law clerk employed in the office of the applicant’s counsel, setting out the steps taken in an effort to locate Hugh (“the clerk’s affidavit”). Based on the clerk’s affidavit, I draw an inference and find that Hugh has not had recent communication with Ellen.

19It is reasonable to dispense with the requirement to serve the notice of application, the application record, and any further documents on Ellen’s brother, Hugh. A term to that effect is included in the disposition section of this endorsement.

b) Service of Documents on the Respondents

i) Service of Documents on Ellen

20An affidavit from a process server states that on March 29, 2023, he served Ellen with a copy of the application record by leaving a copy of the document with her, after she had verbally confirmed her identity. There is no evidence from the process server as to the quality of his communication with or belief in Ellen’s understanding of what was transpiring when a copy of the application record was given to Ellen.

21The record includes a statement from Stephen, pursuant to s. 70(1)(c)(ii) of the SDA. Stephen says that he believes “that because of [her] Profound disability it would be impossible for Ellen C. Vriend to understand that [he] is applying to this Court to become guardian of her property and person and that she has a right to oppose [the] application if [he] were to speak to her or attempt by other means to communicate this information to her.”

22The evidence supports a finding that when served with documents, Ellen does not understand them or appreciate their significance. For that reason, the requirement to serve on Ellen a copy of the order made pursuant to this endorsement is dispensed with.

ii) Service of Documents on the PGT

23There is no explicit evidence that a copy of the application record was served on the Office of the Public Guardian and Trustee (“PGT”). The materials filed include an affidavit of service in which the affiant states that the “Ministry of the Attorney General, Office of the Public Guardian and Trustee” was served with a copy of the application record by sending a copy of the record to that office by email on February 14, 2023. Attached to the affidavit, although not identified as exhibits, are copies of the email sent and a delivery receipt message.

24The PGT responded to the application with a letter dated March 6, 2023. In that letter, the PGT sets out its position on the application. Some portions of the contents of that letter are addressed in the substantive discussion which follows below. The point here is that the letter is confirmation that the PGT received a copy of the application record.

25That confirmation from the PGT is important because there is no evidence that a copy of the notice of application, an originating process, was personally served on the PGT, as required pursuant to r. 16.01(1). Service of the application record (as opposed to the notice of application) on the PGT by email is permitted pursuant to r. 16.06(9).

26The applicant does not request, but requires, an order validating service of the notice of application on the PGT. Given the PGT’s response to the application record, I make an order validating service of the notice of application on the PGT. A term to that effect is included in the order made at the conclusion of this endorsement.

27I will next address the format of the application record.

Format of the Application Record

28Rule 4 sets out standards for court documents. Neither the notice of application nor any of the affidavits included in the record comply with Rule 4. For example, the documents are not set within the margins prescribed, are not double-spaced, and are not in the font size required.

29Attached as exhibits to Stephen’s affidavits are consents signed by each of the four of Ellen’s siblings who consent to the relief requested. The consents are in a form which includes the title of proceeding for this application. The consents are part of the record in the proceeding, independent of the affidavit evidence. The consents should each be included as a discrete document, numbered, and tabbed separately from any affidavit evidence.

30Documents filed in this proceeding in the future must comply with Rule 4.

The Substantive Relief

a) Guardianship of Property

31There are several reasons why the relief requested with respect to guardianship of property is not granted at this stage of the application. Those reasons include the following:

• First, there is a potential conflict, if not an actual conflict, between Stephen in his capacity as the Estate Trustee for the Estate and Ellen in her capacity as one of the two beneficiaries of the Estate;
• Second, there is a potential conflict, if not an actual conflict, between Stephen in his capacity as the Estate Trustee for the Estate and Stephen, were he to be appointed, prior to the completion of the distribution of the Estate, as the guardian of property for one of the beneficiaries of the Estate;
• Third, there is insufficient evidence as to the value of the Estate and Ellen’s potential share of the Estate including the basis for the distributions described above (i.e., an initial $350,000 to Ellen, with the balance shared equally by Ellen and Stephen);
• Fourth, there is insufficient evidence to support an order dispensing with the requirement to post a bond for what appears to be assets in excess of $2,500,000 to be managed;
• Fifth, there is insufficient evidence as to the status of the Estate and/or an estimate as to the timing of distributions from the Estate; and
• Sixth, in its March 6, 2023 letter, the PGT requires that the guardian of property open a bank account for Ellen in trust or that the name on Ellen’s existing bank account be changed to reflect that it is an “in trust” account.

32The same counsel is representing Stephen in both his capacity as the Estate Trustee for Albert’s estate and his capacity as an applicant in this proceeding. Counsel was directed to consider this potential conflict and, if he was satisfied that a conflict exists, to take the steps necessary to address it.

33In light of the value of the Estate, the conflicts identified for Stephen and the potential, if not actual conflict, identified for counsel, the order made includes a term requiring the PGT to appoint Section 3 counsel for Ellen.

34With Section 3 counsel appointed, the court can be satisfied that Ellen’s interests are represented in response to this application and with respect to the proposed management of her property.

b) Guardianship of the Person

35I am satisfied that the conflicts which exist for Stephen in his various roles related to the Estate and in the management of his mother’s property are not relevant to the determination of Stephen’s request for appointment as Ellen’s guardian of the person.

36The Guardianship Plan includes Stephen working with a social worker to arrange for Ellen to be moved, if necessary, from the retirement home in which she is currently living to a home closer to Stephen’s home and to the home of one of Ellen’s sisters; the sister remains in regular contact with both Stephen and Ellen. Although not addressed on the return of the motion, it appears that Ellen’s move to a retirement home closer to Stephen and the one sister has already been made. The application record refers to Ellen living in Greystones Retirement Home. On the return of the application, the court was informed that Ellen is now living in Forest Hill Retirement Community.

37From the Guardianship Plan, it is clear that Stephen is familiar with Ellen’s condition, frailties, and needs in terms of support. Understandably, consideration is being given to moving Ellen from a retirement home setting to a long-term care facility. The Guardianship Plan includes hiring private care, to supplement the care provided by a long-term care facility.

38In light of Ellen’s entitlement under the Estate, it appears there will be sufficient funds to pay for that type of private care. When a revised management plan is filed, it must address expenses associated with Ellen’s care. A revised guardianship plan will also be required at that time to ensure that the continuing guardianship of Ellen’s person accords with the proposed management of her property.

Disposition

39For the reasons set out above, I make the following order:

Procedural Matters

1. Service of the notice of application and application record on each of Debbie Narraway, Donna O’Donnell, Cathy Coleman, and Jim Jordan, as set out in the affidavit of service of Jocelyn Moore sworn on March 30, 2023, is deemed to be valid service.
2. Service of any document in this proceeding on each of the four individuals identified in paragraph 1, above, shall be effected by sending a copy of the document to the last known email address for each individual. Service in that manner shall be deemed effective only if the related affidavit of service includes as exhibits a copy of both the cover email and a delivery or read receipt from the individual to whom the cover email is sent.
3. The requirement for service of any document in this proceeding on Hugh Jordan, the brother of Ellen Charlotte Vriend, is dispensed with.
4. Service of the notice of application and application record on the Public Guardian and Trustee, as set out in the affidavit of service of Jocelyn Moore sworn on March 30, 2023, is deemed to be valid service.

Guardianship of the Person

5. The court declares that Ellen Charlotte Vriend is incapable of personal care specifically in respect of her own health care, nutrition, shelter, clothing, hygiene, and safety, and as a result, needs decisions to be made on her behalf by a person or persons who is/are authorized to do so.
6. Stephen W. Vriend is appointed as guardian of the person of Ellen Charlotte Vriend.
7. The Guardianship Plan of Stephen W. Vriend, attached as exhibit “G” to the affidavit of Stephen W. Vriend sworn on January 25, 2023, is approved and Stephen W. Vriend shall act in accordance with the Guardianship Plan.
8. Stephen W. Vriend, as guardian of the person of Ellen Charlotte Vriend, shall be entitled to exercise custodial powers over Ellen Charlotte Vriend, including to determine her living arrangements and provide for her shelter and safety.
9. Stephen W. Vriend, as guardian of the person of Ellen Charlotte Vriend, shall be entitled to access personal information, including health information and records, to which Ellen Charlotte Vriend could have access if capable and that he shall be further entitled to consent to the release of that information to another person except for the purpose of litigation that relates to the property of Ellen Charlotte Vriend or to Stephen W. Vriend’s status or powers as guardian of the person for Ellen Charlotte Vriend.
10. Stephen W. Vriend, as guardian of the person of Ellen Charlotte Vriend, shall be entitled to make any decision on behalf of Ellen Charlotte Vriend to which the Health Care Consent Act, 1996, S.O. 1996, c. 2 applies.
11. Stephen W. Vriend, as guardian of the person of Ellen Charlotte Vriend, shall be entitled to make decisions about the health care, nutrition, hygiene, employment, education, training, clothing, recreation, and social services provided to Ellen Charlotte Vriend.
12. The requirement of a second assessor’s statement, set out in s. 74 (1) of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“the SDA”), is dispensed with.
13. Stephen W. Vriend, as guardian of the person of Ellen Charlotte Vriend, shall serve an amended guardianship plan on the Public Guardian and Trustee for approval pursuant to s. 66(16) of the SDA, (a) within 30 days of the appointment of a guardian of property for Ellen Charlotte Vriend, and (b) within 60 days of any material change in the circumstances of Ellen Charlotte Vriend.
14. Stephen W. Vriend shall serve a copy of this order on the administrator of Forest Hill Retirement Community, in Ottawa, or such other retirement community or long-term care facility at which Ellen Charlotte Vriend may reside over time.

Section 3 Counsel for Ellen Charlotte Vriend

15. The Public Guardian and Trustee shall arrange for legal representation to be provided to Ellen Charlotte Vriend, pursuant to section 3 of the SDA.
16. Ellen Charlotte Vriend’s reasonable legal fees and disbursements shall be paid from her property unless a Legal Aid certificate is issued in connection with this proceeding.
17. Counsel arranged by the Public Guardian and Trustee, as legal representative for Ellen Charlotte Vriend, shall be provided with a copy of the application record and all documents filed in this proceeding.

Service of this Order on Ellen Charlotte Vriend Dispensed With

18. The requirement for Stephen W. Vriend to serve a copy of this order on Ellen Charlotte Vriend is dispensed with.

40For term no. 7, above, the subject Guardianship Plan shall be identified and attached as Schedule ‘A’ to the order and term no. 7 shall be revised accordingly.

41Counsel for the applicant shall provide the court with a draft order, approved as to form and content by counsel for the PGT. The approved draft order shall be filed with the court in the usual manner, but to my attention for review and signature.

42The balance of the application is adjourned. I remain seized of the matter, with the balance of the application to proceed before me either in-person or by videoconference, at the choice of counsel involved in the matter.

43Any party who intends to make submissions on the return of the balance of the application shall deliver a factum unless the party (a) seeks an order dispensing with the requirement to deliver a factum, and (b) delivers a record which includes evidence in support of that relief. In any event, the applicant shall deliver a factum in support of (a) his request for an order dispensing with the requirement to post security, and (b) any other relief he is seeking.

Costs

44The relief requested includes costs payable to the PGT for its review of documents to date. As there will be additional steps taken by the PGT in response to this application, the issue of the costs to which the PGT is entitled shall be addressed at the conclusion of this proceeding.

45The applicant requests costs of $6,000 payable from Ellen’s estate. The applicant does not identify the scale upon which he is requesting that costs be paid – full, substantial, or partial. There is no evidence in support of the quantum requested.

46When the hearing of the application continues, the applicant shall deliver both a bill of costs and a factum addressing both the scale and quantum upon which the request for costs is based. The factum shall also address the applicant’s request for his costs of this proceeding to be paid from Ellen’s estate.