Vriend v. Vriend and PGT, 2024 ONSC 2692

OTTAWA COURT FILE NO.: CV-23-91185 DATE: 2024/05/09 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 Ryan Flewelling, Section 3 counsel for Ellen Charlotte Vriend No one appearing for the Public Guardian and Trustee

HEARD: April 11, 2023 and April 2, 2024 (by videoconference), and in writing

Ruling

Introduction

[1] This application is made pursuant to the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“the SDA”). The relief sought relates to guardianship of the person and guardianship of the property of the individual respondent (“Ellen”). [1]

[2] The application first came before the court in April 2023. Following that portion of the hearing, a) A declaration was made regarding Ellen’s incapacity in all spheres of personal care; b) Stephen was appointed as Ellen’s guardian of the person; and c) Procedural relief was granted regarding service of documents on Ellen’s siblings and on Ellen.

[3] The application, as it relates to guardianship of Ellen’s property, was otherwise adjourned. Stephen was required to address deficiencies in the evidence. Stephen was also required to consider the potential, if not actual, conflicts he has by virtue of his various roles in relation to Ellen and her late husband’s estate (“the Estate”). [2]

[4] Stephen is the only child of Ellen and her late husband, Albertus Johannes Vriend (“Albert”). Albert died intestate in September 2022. In December 2022, a certificate of appointment of estate trustee without a will was issued to Stephen, in relation to the Estate. The potential, or actual, conflicts referred to in para. 3, above, arise from the fact that Stephen is the sole estate trustee of the Estate and, together with Ellen, one of two beneficiaries of the Estate.

[5] The hearing of the application continued on April 2, 2024. The relief now sought is for Stephen and Deborah Narraway to be appointed as joint guardians of property. Deborah is one of Ellen’s siblings; she consents to being appointed, together with Stephen, as a joint guardian of property for Ellen.

Background

[6] Ellen was born in August 1943 and is 80 years old. In late 2019, Ellen was diagnosed with dementia. By 2022, Ellen’s treating neurologist was of the opinion that Ellen had severe dementia. Prior to Albert’s death, Stephen and Albert were responsible for caring for Ellen.

[7] When this matter first came before the court in 2023, Ellen was living at the Forest Hill Retirement Community (“Forest Hill”). Based on the contents of Deborah’s January 2024 affidavit, and of the management plan now before the court, it appears that Ellen continues to live at Forest Hill.

[8] Stephen originally estimated that the Estate is valued at $5,000,000. In his February 2024 affidavit, Stephen provides a summary of the administration of the Estate to November 2023. Stephen therein lists the Estate’s assets at a total value of $2,190,105. Stephen’s evidence is that his original estimate for the value of the Estate was based on pre-tax dollars; the amount set out in the summary is based on after-tax dollars.

[9] The Estate’s debts totalled $155,982 and were paid by the Estate. After payment of those debts, the balance remaining to be distributed was $2,034,123 ($2,190,105 - $155,982).

[10] Ellen’s share of the Estate is $1,192,061.50. That amount is comprised of what Stephen describes as the “widow[’]s preferential share”, to which Ellen is entitled, and Ellen’s 50 percent share of the balance of the Estate ($1,192,061.50 = $350,000 + ($2,034,123 - $350,000)/2).

[11] As of November 2023, the balance remaining in the Estate’s bank account was $69,194.92. According to the summary, Ellen is entitled to $67,239.05 of that amount, being the balance owed to her of her share of the Estate.

[12] The management plan before the court is dated February 2024 (“the Management Plan”). Stephen and Deborah state therein that the balance in Ellen’s chequing account with CIBC is $1,129,431.19. The remainder of Ellen’s share of the Estate (rounded to $67,000) is listed separately, as an account receivable. The combined value of the balance in the chequing account and the account receivable is $1,200,000.

[13] Ellen’s assets also include her entitlement to the proceeds of a life insurance policy. Ellen is the beneficiary of a policy of life insurance held by Albert as part of group benefits available to him. Stephen originally estimated that the life insurance proceeds are in the amount of $350,000. In a document filed with the court subsequent to April 2, 2024, Stephen’s counsel informs the court that the proceeds of that policy are in the amount of $240,000.

[14] The insurer responsible for payment of the life insurance proceeds requires a copy of an order appointing one or more guardians of property before it will make any payment to Ellen. Based on Ellen’s entitlement to the $240,000 in life insurance proceeds and the balance in her bank account, the value of her assets is approximately $1,440,000 ($1,200,000 + $240,000).

The Issues

[15] The following issues are determined at this second stage of the hearing of the application:

1. Is Ellen incapable of managing property, such that it is necessary for someone to make decisions on her behalf?
2. If the answer to question no. 1, above, is “yes”, are Stephen and Deborah to be appointed as the joint guardians of property in accordance with the Management Plan?
3. If Stephen and Deborah are appointed as the joint guardians of property, are they required to post security?
4. Is the Public Guardian and Trustee (“PGT”) entitled to her costs for reviewing the application?

Issue No. 1 - Ellen’s Incapacity to Manage Property

[16] The following documents are attached as exhibits to one or more of the affidavits sworn by Stephen in support of this application:

• A Form A, Statement of Assessor, signed by capacity assessor Nicole Robert on January 6, 2023;
• A Form C, Assessment Report, signed by Ms. Robert on January 6, 2023;
• A letter dated September 13, 2022, addressed to “National Bank”, from Internal Medicine physician, Dr. Carlynne Janelle Kobewka, of The Ottawa Hospital, Civic Campus; and
• A letter dated September 13, 2022, addressed “To Whom it May Concern”, from Cognitive and Behavioural Neurologist, Dr. Neil Thomas of the Bruyère Hospital.

[17] In the documents which she prepared, Ms. Robert expresses the opinion that Ellen “does not display the ability to understand and appreciate information needed to manage her financial affairs or the consequences of financial decisions. Decisions related to property must be made on her behalf.”

[18] In September 2022, while Ellen was an in-patient at The Ottawa Hospital, Dr. Kobewka expressed the opinion that Ellen was unable to manage her financial affairs.

[19] Dr. Thomas first saw Ellen in November 2019. Based on that appointment, Dr. Thomas diagnosed Ellen with dementia due to Alzheimer’s disease. Dr. Thomas saw Ellen again in March 2022.

[20] In his September 2022 letter, Dr. Thomas expresses the opinion that, in November 2019, Ellen had a moderate to severe level of cognitive impairment. Dr. Thomas’s opinion is that, as of March 2022, Ellen’s condition was consistent with a “severe stage of dementia”. He describes Ellen as requiring help with the most basic of activities of daily living and as lacking insight into her cognitive impairment and dementia diagnosis.

[21] Based on the documents listed in para. 16, above, I find that Ellen is incapable of managing property such that it is necessary for someone to make decisions on her behalf.

Issue No. 2 - The Appointment of Joint Guardians of Property

[22] As noted in the introductory section of this ruling, the relief requested has changed from the appointment of Stephen as the sole guardian of property to the appointment of Stephen and Deborah as joint guardians of property.

a) Stephen and Deborah are Appointed as Joint Guardians of Property

[23] Stephen has long demonstrated his devotion to his mother, his wish to see that she is well-cared for, and his desire to see that her day-to-day needs are met. I am satisfied that Stephen has his mother’s best interests at heart and will, together with Deborah, carefully manage Ellen’s property.

[24] There is no evidence as to Deborah’s age. Deborah’s evidence is that she is married, is retired (as is her husband), and has, for 23 years, been living with her husband in a home in Ottawa for which the mortgage is now fully paid. Deborah’s son and three teenage grandchildren also live in Ottawa.

[25] In response to the application, Section 3 counsel filed an affidavit, sworn on March 14, 2024, from Cathy Coleman. Cathy is another of Ellen’s siblings. Cathy’s evidence is that Deborah has been assisting Stephen with Ellen’s care. Cathy expresses her belief that, if a joint guardian of property is required, it makes sense that the joint guardian be Deborah. Cathy signed a consent in support of the application for the appointment of Stephen and Deborah as joint guardians of property.

[26] Ellen has five siblings in total. Of the four siblings who remain entitled to service of documents [3], three of them consent to the appointment of joint guardians of property. Ellen’s Section 3 counsel informs the court that the fourth of the siblings entitled to service, chose not to be involved on the continuation of the application.

[27] Deborah visits Ellen once a week at Forest Hill. Deborah’s evidence is that, notwithstanding that Ellen has dementia, she manages well, and is both comfortable and adequately cared for at Forest Hill.

[28] Stephen and Deborah propose to maintain the vast majority of Ellen’s assets in term deposits, GICs, mutual funds, and/or other conservative investments. To pay the expenses associated with Ellen’s residence and care at Forest Hill, necessities of life, and incidentals, Stephen and Deborah plan to rely on Ellen’s pension income and withdrawals from capital as may be necessary.

[29] I am satisfied that the Management Plan is reasonable and in Ellen’s best interests. The order made at the conclusion of this ruling provides that Stephen and Deborah are appointed as Ellen’s joint guardians of property and requires them to act in accordance with the Management Plan.

b) Reimbursement of Expenses Incurred by the Guardians of Property

[30] Stephen and Deborah ask the court to address a specific element of the day-to-day management of Ellen’s assets – reimbursement of expenses incurred by either one of them for Ellen’s benefit. They ask that the court permit them to be reimbursed for amounts up to $1,500 on the basis of either one of their signatures.

[31] The Management Plan identifies two types of expenses that will be incurred for Ellen’s benefit. First is the annual cost of Ellen’s residence at Forest Hill – approximately $34,600. Second are personal care expenses totalling $1,500 per year. More generally, in the Management Plan, Stephen and Deborah say, “[n]o significant increases or decreases in the above expenditures are anticipated” apart from increases, over time, in the cost of Ellen’s residence at Forest Hill.

[32] In the Management Plan, Stephen and Deborah express their collective belief that $36,100 (approximately) in total expenses “will meet Ellen’s current needs and maximize her comfort and well-being.” Last, they state, “[i]f further expenditures for Ellen’s comfort are identified by Stephen, they can be paid from [Ellen’s] substantial assets.” In May 2023, Stephen was appointed as the sole guardian of the person for Ellen. Based on that appointment, the court infers that the reference in the Management Plan to expenditures “identified by Stephen” is to expenditures identified by Stephen in his role as Ellen’s guardian of the person.

[33] There is no evidence from Deborah or Stephen to explain why they expect to incur expenses of $1,500 with such a degree of frequency that they would require reimbursement based on a single signature. The request for relief in that regard is dismissed.

Issue No. 3 - The Guardians are Required to Post Security

[34] Pursuant to s. 25(2)(a) of the SDA, in an order appointing a guardian of property, the court has the discretion to “require that the guardian post security in the manner and amount that the court considers appropriate”. Stephen originally requested, and Stephen and Deborah now request, that they not be required to post security.

[35] At the conclusion of the hearing on April 2, 2024, the application was adjourned to be continued in writing. Stephen was required to file (a) evidence as to the cost of posting security, and (b) a statement of law in support of the request made that the court not require the posting of security.

a) The Cost of Posting a Security Bond

[36] Stephen filed an affidavit, sworn on April 15, 2024. In that affidavit, Stephen provides two estimates for the cost of posting security.

[37] Stephen obtained an estimate from Firstbrook Cassie & Anderson Ltd. (“FCA”) for the cost of a premium for the one-time posting of security. Attached to Stephen’s April 2024 affidavit is a copy of an email from an account executive with FCA. In her email, the account executive explains that there can be a single premium paid for the posting of a bond. If posted, the bond would remain in place “for as long as the courts need it”. There would be no additional premium charged.

[38] The account executive explains to Stephen that the single premium is typically calculated based on two (2) percent of the amount for which security is required. The account executive reports to Stephen that for “a higher bond value”, FCA is sometimes able to negotiate a premium based on 1.75 percent of the amount for which security is required. The account executive does not define what she means by “a higher bond value”. Nor does the account executive explain the criteria to be met to obtain the reduced premium.

[39] By my calculation, based on two (2) percent of either $1,200,000 and $1,440,000, the one-time premium would be $24,000 and $28,800, respectively. Based on 1.75 percent, the premium would be $21,000 and $25,200, respectively.

[40] At the conclusion of her email, the FCA account executive says, “[w]e do charge a one time fee for the bond and the bond remains in place for as long as the courts need it. So there will be no additional premium after the initial is paid.” It is unclear whether the “one time fee” is a brokerage fee in addition to the premium for the bond. Neither the account executive nor Stephen provides any explanation in that regard.

[41] From that lack of explanation, I draw an inference and find that the one-time fee, if something other than the premium, is minimal in comparison to the premium for the bond.

[42] The second estimate Stephen obtained as to the cost of posting security is from a “Commercial Producer” with W. Ross Davey Insurance Brokers Ltd. In his email to Stephen, the Commercial Producer provides Stephen with an estimate of the annual cost of a security bond. The estimated annual cost is based on $7 per $1,000 of assets to be secured. The Commercial Producer explains that, without all of the relevant information and documents, he is unable to provide a formal quote for the cost of a bond.

[43] By my calculation, at $7 per $1,000 of assets to be secured, the annual cost of posting security for $1,200,000 or $1,440,000 in assets is $8,400 and $10,080, respectively.

[44] In his April 2024 affidavit, Stephen says the cost of posting security, whether once or annually, would also include legal fees related to obtaining the bond and to obtaining the approval of the PGT. Stephen does not provide an estimate for those legal fees. Based on the process of posting a security bond, the legwork Stephen has already done, and the work the guardians of property can contribute to the completion of the process, I draw an inference and find that the legal fees related to posting security would be minimal in comparison to the premium for the bond.

[45] In his April 2024 affidavit, Stephen does not explain why it would be necessary to obtain the approval of the PGT to the specific security to be posted. If the court orders that security be posted, the guardians of property would be required to comply with the court order. Unless the court so orders, it would not be necessary for the guardians of property to obtain the approval of the PGT to the security to be posted.

b) The PGT Recommends Security be Posted

[46] For the continuation of the hearing of the application in April 2024, the PGT filed with the court a letter dated March 19, 2024. In that letter, the PGT recommends that the guardians of property be required to post security.

[47] In the factum filed by Section 3 counsel, he submits that “the PGT’s comments regarding posting of security are sensible.”

c) Security is Required

[48] In his statement of law, Stephen submits that one of the reasons why it would be appropriate not to require the guardians of property to post security is because, “[i]n the normal course all of Ellen’s estate will pass to her son Stephen.” Stephen submits that any encroachment on Ellen’s assets would ultimately be to his detriment.

[49] Stephen’s submissions regarding what will happen to Ellen’s estate on her death are unsupported by any evidence. In none of his three affidavits does Stephen set out any evidence as to whether Ellen has a will. Nor does Deborah address the subject in her affidavit. If Ellen has a will, a copy of it is not before the court.

[50] In the absence of any evidence as to whether or not Ellen prepared a will, I am unable to make any findings as to how her estate will be distributed upon her death.

[51] Even if there were evidence to support a finding that Stephen is the sole beneficiary of Ellen’s estate – on an intestacy or pursuant to a will – Ellen’s estate will only pass to Stephen if he remains alive at the date of her death. It is not reasonable for the court to make any assumptions about whether Stephen will remain alive as of the date of his mother’s death.

[52] In summary, any encroachment of Ellen’s assets will be to Ellen’s disadvantage, while she remains alive, and to the disadvantage of the beneficiary or beneficiaries of Ellen’s estate on Ellen’s death.

[53] The posting of security serves as protection for Ellen and is not to be dispensed with lightly: Fiacco v. Lombardi (2009), 82 C.P.C. (6th) 235 (Ont. S.C.), at para. 26. I am not convinced that the posting of security is not required.

d) One-Time Security Shall be Posted

[54] Are the guardians of property to post security on a one-time or an annual basis? For the following reasons, I conclude that they are to post security on a one-time basis.

[55] Ellen will turn 81 in August 2024. Ellen was diagnosed with dementia in 2019. By March 2022, one of Ellen’s doctors described Ellen’s dementia as having reached the severe stage. In her January 2023 assessment of Ellen’s capacity to manage personal care, capacity assessor Nicole Robert describes Ellen as (a) being at risk of falling because of mobility issues, (b) depending on assistance for all her daily activities, and (c) impaired in her communication skills.

[56] In addition, Ms. Robert provides a summary of medical records, dated October and December 2022, she reviewed in preparation for the capacity assessment. Included in those records are the following statements:

• “Stable, but worsening cognitive status”;
• “Advanced dementia”; and
• “[A] very pleasant lady with [a] history of wandering and exit seeking”.

[57] In her March 2024 affidavit, Ellen’s sister, Cathy, describes Ellen as having dementia and having lost the ability to carry on coherent conversations. Cathy does not say when she last saw Ellen or on what records, if any, her description of Ellen’s condition is based.

[58] There is no evidence as to the changes, if any, in Ellen’s condition from late 2022 and early 2023 to the spring of 2024. There is no evidence as to Ellen’s life expectancy. Evidence in that regard would be helpful to assist the court in determining whether it makes more economic sense for the guardians of property to post security on a one-time basis or on an annual basis.

[59] Based on the Management Plan, there will be minimal encroachment on Ellen’s capital from one year to the next. The guardians of property express concern about incurring legal and other fees regarding posting security. To keep things simple, it is reasonable to require the guardians of property to post security on a one-time basis.

[60] There is no evidence to support a finding that Ellen will not receive the $240,000 in life insurance proceeds discussed in this ruling. For that reason, the guardians of property shall post one-time security on Ellen’s assets valued at $1,440,000.

[61] Stephen’s evidence is that he is a stay-at-home father. Deborah is retired. It would not be reasonable to require Stephen and Deborah to personally pay the cost of posting the security required pursuant to this ruling. In the circumstances, it is reasonable for the cost of the security to be paid from Ellen’s assets.

Issue No. 4 - The PGT’s Costs

[62] The PGT shall be entitled to her costs of reviewing the application in the amount of $250, plus HST thereon of $32.50 – for a total of $282.50.

Disposition

[63] For the reasons set out above, I make the following order:

Guardianship of Property

1. The court declares that Ellen Charlotte Vriend is incapable of managing property and that, as a result, she needs decisions to be made on her behalf by a person or persons who is/are authorized to do so.
2. Stephen W. Vriend and Deborah A. Narraway shall be appointed as the joint guardians of property of Ellen Charlotte Vriend.
3. The Management Plan of Stephen W. Vriend and Deborah A. Narraway, included at Tab 7 of the supplementary application record, is approved and Stephen W. Vriend and Deborah A. Narraway shall act in accordance with the Management Plan.
4. The guardians of property shall, pursuant to s. 32(6) of the SDA and in accordance with the applicable regulations, keep accounts of all transactions involving the property of Ellen Charlotte Vriend.
5. Stephen W. Vriend and Deborah A. Narraway, as joint guardians of property for Ellen Charlotte Vriend, shall, within six (6) months of the three-year anniversary date of this order, bring an application to pass their accounts and shall, thereafter, bring an application to pass their accounts as ordered by the court. Such passing of accounts shall comply with rr. 74.16 to 74.18 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
6. Stephen W. Vriend and Deborah A. Narraway, as joint guardians of property for Ellen Charlotte Vriend, shall, within sixty (60) days of any material change in the financial circumstances of Ellen Charlotte Vriend, and pursuant to s. 32(11) of the SDA, serve on the Public Guardian and Trustee, for approval, an amended management plan.
7. The request for leave to reimburse a guardian of property for expenses incurred of $1,500 or less based on the signature of only one of the guardians of property is dismissed.

Posting of a Bond

8. Stephen W. Vriend and Deborah A. Narraway shall, collectively, post a one-time bond with the Registrar of this court in the amount of $1,440,000, being the current value of Ellen Charlotte Vriend’s assets, and this order shall not be issued until such a bond is posted.
9. The expense incurred for the premium to secure the bond, referred to in paragraph 8, above, shall be paid from the property of Ellen Charlotte Vriend.

Payment to the Office of the Public Guardian and Trustee

10. The Public Guardian and Trustee’s fee for reviewing this application, as approved by the Attorney General in the amount of $250 plus HST of $32.50, shall be paid forthwith to the Public Guardian and Trustee from the property of Ellen Charlotte Vriend.

Service of this Order on Ellen Charlotte Vriend Dispensed With

11. The requirement for Stephen W. Vriend and Deborah A. Narraway to serve on Ellen Charlotte Vriend a copy of the order made pursuant to this ruling is dispensed with.

[64] For term no. 3, above, the subject Management Plan shall be identified and attached as Schedule ‘A’ to the order and term no. 3 shall be revised accordingly when the draft order is prepared.

[65] The court has yet to determine the issues of the applicant’s costs and the costs payable to Section 3 counsel. The court leaves it to the applicant and Section 3 counsel to determine whether they wish to wait until costs have been determined before an order related to guardianship of property is issued and entered.

Costs of the Application

a) The Applicant’s Costs

[66] When the application was first before the court in April 2023, Stephen requested that his costs be paid in the amount of $6,000 and that they be paid from Ellen’s assets. At para. 46 of Ruling No. 1, the court said, “[w]hen 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 [assets].”

[67] Prior to the continuation of the hearing of the application on April 2, 2024, Stephen filed a bill of costs and a factum. The bill of costs identifies that Stephen seeks his costs of the application in the amount of $16,713.50 (for fees, disbursements, and applicable HST). Stephen seeks his costs on the full indemnity basis.

[68] In support of his claim for costs, Stephen relies on the complexity of the proceeding. He identifies as the complex element of the matter, the sorting out that he had to do and the correction that he had to make as a result of his error in transferring $150,000 more to himself than he was entitled from Albert’s estate. In my view, that error was made in the context of the administration of Albert’s estate and not in the context of the management of Ellen’s property. Ellen should not have to bear the cost of that error.

[69] Stephen’s factum did not assist the court in determining his request for the payment of costs on the full indemnity scale or for his costs to be paid from Ellen’s assets. That issue was not addressed at all in the factum. Stephen’s request for his costs of the application to be paid on the full indemnity scale from Ellen’s assets is adjourned and shall be continued in writing. Stephen shall, within 30 days of the date of this ruling, (a) serve his factum regarding costs on Section 3 counsel, (b) file with the court the factum and related affidavit of service, and (c) upload to CaseLines both the factum and affidavit of service.

b) Costs Incurred for Section 3 Counsel

[70] Paragraph 16 of the May 2023 order, made pursuant to Ruling No. 1, provides that “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.” If any additional relief is required to address the entitlement of Section 3 counsel to be paid for his services on Ellen’s behalf, then Section 3 counsel shall, within 30 days of the date of this ruling, (a) serve his bill of costs on Stephen, (b) file with the court, the bill of costs and related affidavit of service, and (c) upload to CaseLines both the bill of costs and affidavit of service.

[71] If necessary, the costs to which Ellen is entitled pursuant to the May 2023 order will be addressed in the same endorsement in which the court addresses the costs requested by Stephen.

c) Determining Costs of the Application

[72] Unless one or both of Stephen and Section 3 counsel request that the hearing of the application be continued as an oral hearing for the purpose of determining the scale on which costs are to be paid, the quantum of costs to be paid, and whether costs are to be paid from Ellen’s assets, the court intends to continue the hearing in writing.

[73] A request, if made, for the application to be continued by way of oral hearing, shall be made within 15 days of the date of this ruling, with the date to be set through the office of the Civil Trial Co-ordinator.

Other Matters

a) The Draft Order for Guardianship of Property

[74] In the draft order filed for the continuation of the application in April 2024, the applicant includes the following term: “THIS COURT ORDERS that the estate of Albert J. Vriend shall forthwith deliver to Stephen W. Vriend and Deborah A. Narraway joint guardians of Ellen’s property all assets currently in its possession and control belonging to Ellen.” For the reasons which follow, the court is not in a position to make such an order.

[75] The Estate of Albert J. Vriend is not a party to this application. For that estate to be a party to the application, it would have to be named in the title of proceeding as follows: “Stephen W. Vriend, in his capacity as the Estate Trustee for the Estate of Albert J. Vriend”.

[76] When the relief requested on a motion has the potential to affect a non-party, the motion record must be served on the non-party: r. 37.07(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Service of a notice of application on non-parties is addressed in r. 38.06(1). That rule stipulates that, “[t]he notice of application shall be served on all parties and, where there is uncertainty whether anyone else should be served, the applicant may make a motion without notice to a judge for an order for directions.”

[77] The relief requested in the notice of application does not include an order to the effect of the term set out in para. 72, above. Nor does the notice of application include a request for directions as to whether the notice of application and/or any other documents on this application are to be served on Stephen, in his capacity as the estate trustee for his late father’s estate.

[78] There is no basis for granting the relief set out in para. 72, above.

[79] Stephen is aware of his obligations as the estate trustee of his late father’s estate. The joint guardians of property are aware of Ellen’s entitlement as a beneficiary of her late husband’s estate. It is incumbent on Stephen in his capacity as the estate trustee and, together with Deborah, in his capacity as a joint guardian of property, to fulfill his obligations. If those obligations are fulfilled, then Ellen will have received her full entitlement as a beneficiary of the Estate.

b) May 2023 Order re Guardianship of the Person

[80] When reviewing the record, it came to my attention that paragraph 9 of the court’s May 2023 order appointing Stephen as Ellen’s guardian of the person includes a typographical error. Paragraph 9 currently reads as follows:

THIS COURT ORDERS that Stephen W. Vriend, as guardian Ellen Charlotte Vriend, shall be entitled to full access to personal information, including health information and records, to which Ellen Charlotte Vriend could have access if capable and that 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 Stephen W. Vriend’s status or powers as guardian of the person for Ellen Charlotte Vriend.

[81] The first line of paragraph 9 of the May 2023 order is missing the phrase “of the person of” so as to describe Stephen as “guardian of the person of Ellen Charlotte Vriend”. In the other paragraphs in the May 2023 order, Stephen is described in that manner.

[82] If the applicant wishes to have the May 2023 order amended to correct that typographical error, he shall, when filing the factum addressing his costs of the application, simply indicate so. An endorsement providing for that amendment can be included in what the court hopes will be its final endorsement on the matter.

Draft Order

[83] Whether the order related to guardianship of property is to be issued and entered before or after costs are determined, counsel for the applicant shall file with the court a draft order approved as to form and content by Section 3 counsel. A clean copy of the order, in Word format, shall also be filed.

Madam Justice S. Corthorn Released: May 9, 2024

OTTAWA COURT FILE NO.: CV-23-91185 DATE: 2024/05/09 SUPERIOR COURT OF JUSTICE - ONTARIO RE: STEPHEN W. VRIEND Applicant AND ELLEN CHARLOTTE VRIEND and THE PUBLIC GUARDIAN AND TRUSTEE Respondents RULING Madam Justice Sylvia Corthorn Released: May 9, 2024

Footnotes

[1] For ease of reading, the court refers to the individual respondent, the individual respondent’s late husband, the applicant, and the proposed joint guardian by their respective first names.

[2] Vriend v. Vriend and PGT, 2023 ONSC 2704 (“Ruling No. 1”).

[3] In Ruling No. 1, the court dispensed with the requirement to serve Ellen’s brother, Hugh Jordan, with any documents on the application: at paras. 17-19. The applicant was unable to locate that individual.