Court File and Parties

Court File No.: CV-24-718762-00ES
Date: 2025-05-20
Superior Court of Justice – Ontario [Estates List]

In the Matter of the Estate of Guardianship of Carol Jacqueline Black

Re: Robert MacLachlan Scott (Applicant)
And: Mark Allan Wilson, Denise Wilson, Carol Jacqueline Black, Chartwell Master Care Corporation, Guelph General Hospital, the Attorney General of Ontario, and the Public Guardian and Trustee (Respondents)

Before: C. Gilmore

Counsel:

• Rochelle F. Cantor, for the Applicant
• Kimberly Whaley, Nima Hojati & Joanna Weiss, for the Respondents Mark Wilson and Denise Wilson
• Clare Burns, for the Respondent Carol Jacqueline Black

Heard: 2025-05-02

Endorsement on Motion

Introduction

[1] This is a follow up hearing to the Case Conference held on April 25, 2025 and my endorsement of that date which gave the following directions:

[12] As such, the Court makes its own motion under s. 79 of the SDA to require that Ms. Black undergo a capacity assessment. The parties will respond to motion as set out below.

[13] The parties will provide their responses to the Court's motion and other relief sought by s.3 counsel as follows:

(a) The release of Ms. Black's medical records, the Silver Sherpa report and any underlying material (including MMSE tests and scores) to the assessor and to Ms. Burns.

(b) An Order that Ms. Burns may communicate with Ms. Black's treating professionals including doctors, dentists and physiotherapists in her role as s.3 counsel.

(c) The motion for a capacity assessment with respect to both property and personal care under s.79 of the SDA.

[2] The parties have now provided their submissions which may be summarized as follows:

a. Mr. Robert Scott (“Bob”) will consent to a release of Carol Black’s (“Carol”) medical records and the other items in (a) above, but only to section 3 counsel (“Ms. Burns”). He has no opposition to Ms. Burns having access to Carol’s treating professionals. He does not consent to Carol undergoing a capacity assessment.

b. Carol’s siblings, Mark and Denise Wilson (“the Wilsons” or individually “Mark” and “Denise”) seek a copy of any of Carol’s medical records which are released. They take no position on the capacity assessment.

c. Ms. Burns requested the items in (a) and (b) above. She opposes Carol’s medical records being released to any other parties other than a capacity assessor if such an assessment is ordered. Ms. Burns, on behalf of Carol, opposes any Order requiring her to undergo a capacity assessment.

[3] For the reasons set out below, Carol’s medical records will be released to all parties and the capacity assessor, and she will be required to undergo a capacity assessment with respect to property, personal care and the ability to instruct counsel. Ms. Burns may communicate with all of Carol’s treating professionals. All parties will receive a copy of the capacity assessment when available.

Litigation and Factual Background

[4] Carol is 74 years old. Bob is her common law spouse. Carol and Bob have been together for 25 years. Carol had a successful career in business and worked at the Bank of Montreal for many years.

[5] Carol began showing signs of dementia in 2017. She has since been diagnosed with Alzheimer’s dementia, iron-deficiency anaemia, lymphedema, and glaucoma. She has significant short term memory problems.

[6] Carol resides at Venvi Kingsway Retirement Residence (“Kingsway”) in Etobicoke. Prior to that Carol resided at the Chartwell Wellington Park Retirement Residence (“Wellington Park”) in Guelph. Prior to that she resided in her home in Toronto.

[7] In May 2023 Bob wrote to Mark asking to discuss Carol’s condition and her care going forward. Bob and Mark discussed moving Carol to the residence at Wellington Park in Guelph. In an email on May 23, 2023, Bob told Mark that Carol was “in complete denial on how her current condition is progressing.” Throughout 2023 Mark and Bob exchanged emails and made enquiries about possible placements for Carol. Mark always copied Bob on emails sent to various placement prospects. They discussed the fact that only certain types of residences would be suitable for Carol given her Alzheimer’s condition.

[8] On March 21, 2024, Mark and Bob spoke by phone. Bob told him that Carol was not doing well at all, and it was a 24-hour job to look after her. They continued to discuss various options with respect to placing Carol in care.

[9] In late March 2024 a series of events occurred, of which the foundational facts are disputed. What is clear is that Carol went to stay with her friend Judy Gray in Guelph. The Wilsons’ position is that Bob dropped Carol off at Judy’s home because she had raised issues about Bob being away for extended periods of time and his lack of regard for her needs. The Wilsons visited Carol while she was with Ms. Gray and were concerned by her deteriorated state. Bob’s position was that Carol was aggressive and difficult to care for. He sought some respite due to caregiver burnout and he and Carol agreed that she would stay with Ms. Gray for some time.

[10] On March 28, 2024, Carol spoke over the phone with Frank Valeriote, a lawyer at SV Law. They discussed the preparation of new Powers of Attorney for Carol. Mark then drove Carol to meet with Mr. Valeriote in person alone. She executed a Power of Attorney for Property in favour of Mark and a Power of Attorney for Personal Care in favour of Denise (“the 2024 POAs”). Bob maintains that the 2024 POAs were obtained under false pretences or suspicious circumstances.

[11] That same day, the Wilsons placed Carol at Wellington Park. By March 31, 2024, Bob was describing Carol’s placement at Wellington Park as an “abduction” despite his communications with Mark discussing various placements for Carol over the period of a year (including placements in Guelph) and Bob’s direct input as to Carol’s future care.

[12] While at Wellington Park, Carol had to be hospitalized on April 12, 2024 due to low hemoglobin. She advised Mark that she did not want to see or speak to Bob until she felt stronger. She agreed to see Bob on April 13, 2024. There was an altercation at the hospital between Bob and Denise. Bob exhibited aggressive behaviour and was not permitted to visit Carol at the hospital.

[13] On April 22, 2024, Bob served his urgent Application claiming that the Wilsons had surreptitiously removed Carol from Ms. Gray’s home, placed her at Wellington Park without his knowledge, and were preventing him from seeing her. Bob claimed that Carol had been abducted by Mark and Denise on March 26, 2024. He sought access to Carol, an Order setting aside the 2024 POAs, and a declaration that POAs signed by Carol in 2007 (“the 2007 POAs”) naming him as her Attorney were valid. He further sought an Order that Carol was incapable of managing her personal care or her property and an Order appointing him as her Guardian of Personal Care and Property.

[14] On April 26, 2024, Justice Sanfilippo made an Order granting Bob access to Carol on terms. At Justice Sanfilippo’s direction, the parties attended mediation on May 8 and 11, 2024.

[15] On June 12, 2024, the parties (including Ms. Burns on Carol’s behalf) entered into an Agreement in Principle (“the Agreement”) signed by all parties after two days of mediation. In summary, the Agreement provided as follows:

a. The 2024 POA for Personal Care would be suspended. The 2007 Power of Attorney for Personal Care would remain in place and Bob would remain as Carol’s Attorney for Personal Care.

b. Bob would update Mark and Denise on Carol’s health and condition no less than quarterly.

c. Both the 2007 and the 2024 POAs for Property would be suspended. No party was to exercise any authority under any POA for Property for Carol until further court order.

d. Silver Sherpa would be engaged to provide care management and a report.

e. Angela Casey would be appointed as Carol’s Guardian of Property.

f. Ms. Casey to serve a Management Plan on all parties before June 24, 2024, with a view to obtaining Court approval of the Guardianship.

g. All parties would have unfettered access to Carol.

h. No party would engage in the surveillance of Carol.

i. Bob’s Application would be dismissed.

j. A motion for Ms. Casey’s appointment as Guardian of Property was scheduled for October 16, 2024.

[16] The parties appeared before Justice Sanfilippo again on June 18, 2024. Many of the terms of the Agreement were incorporated into his June 18, 2024 Order, including a provision that all parties were to comply with the Agreement.

[17] By September 2024 it became clear that the parties could not agree on the terms of the Management Plan.

[18] In or around October 10, 2024, Bob resiled from the Agreement. Bob deposed that he expected that the Management Plan would reflect the joint family venture between him and Carol and his investment into her real estate holdings. When the Management Plan simply listed Carol’s properties in her own name with no mention of Bob’s claimed beneficial interest, he would not approve the Plan. He also claimed that he thought the Agreement was subject to Carol’s approval, which approval had not been obtained.

[19] An email to counsel from Ms. Burns dated October 10, 2024 set out that during a meeting with Carol, Bob and Ms. Burns on September 13, 2024, Bob advised that he would not agree to the Management Plan unless all of Carol’s properties were transferred into his name. Bob denies taking this position. He submits that he claims a beneficial interest in the properties and did not request that they be transferred into his name.

[20] The Wilsons then sought a date for a motion to enforce the Agreement. Carol required representation on the motion. The motion was adjourned to March 20, 2025 to permit Ms. Burns to obtain Carol’s instructions on the enforcement motion.

[21] In the time leading up to the enforcement motion Mark received a number of shocking emails from an email account claiming to be Carol. Mark is certain that the emails were not from his sister as she does not speak in this manner and when he visits Carol she is cordial and does not discuss the litigation. A copy of a sample of the emails is set out below:

On January 4, 2025:

You are a mother fucking piece of shit. I hope you die an excruciating painful death you piece of shit. May you rot in hell.

On January 5, 2025:

Mark I am asking you to rescind all interest in my properties that you screwed me over to take from me. These properties belong to Bob. He developed them and put in all the work to make them what they are. You did nothing. You have 2 months to make this right or…

On January 24, 2025:

I’m waiting to hear from you on what action you have taken so far on returning my personal items and rescinding the POA
None of which you have no right in having
Time is running out before I start Legal Action against you.

On February 2, 2025:

You are going to receive an offer to settle through your lawyer. The intent is to end all these expensive and stressful court battles.
Remember, you brought all this on when you abducted me 10 months ago.
Did you really think I would just roll over and let you change my way of life so drastically.
Going forward, if you want any relationship with me, then don’t delay signing and returning the offer to settle.

On February 23, 2025:

Stop meddling in my financial affairs proof of that from your actions on Friday.
You have no right to even look at them something you have been doing repeatedly this past year since you abducted me.
PLEASE CONFIRM THAT YOU WILL NO LONGER BE MEDDLING WITH ANYTHING THAT HAS TO DO WITH ME OR MY FUTURE.

[22] Bob denied authoring the emails and reminded counsel that Carol was an Executive Vice-President at BMO and knew how to draft a letter without assistance. He claimed that Carol’s dementia had led to her having uncharacteristic outbursts, and that he had been the object of such outbursts as well. Bob insisted that Carol did not want to see her siblings, yet in a photograph taken of a visit by Denise and Mark to Carol in January 2025 all appears cordial and well.

[23] On January 28, 2025, Silver Sherpa delivered its report. The parties had previously agreed to engage Silver Sherpa to conduct a care needs assessment, assess Carol’s quality of life, identify gaps in Carol’s current care and living arrangements and make recommendations with respect to Carol’s future care needs. Silver Sherpa only interviewed Bob and was not given access to any family members other than Bob’s son and Carol’s friend Christine Taylor. The Wilsons dispute the background information given to Silver Sherpa regarding the sequence of events in March and April 2024 relating to Carol’s placement at Wellington Park and the 2024 POAs.

[24] The Silver Sherpa report contains the following pertinent information with respect to the within motion:

a. Carol has been living with Alzheimer’s dementia for 8 years and has mild cognitive impairment especially as it relates to short-term memory. She takes medication for her dementia.

b. It was recommended that Carol have a comprehensive geriatric assessment.

c. Carol has glaucoma which should be treated with eye drops. Her vision should be re-assessed and monitored regularly by an optometrist.

d. Carol has iron deficiency anemia which needs to be monitored by blood tests. Symptoms can result in an increased risk of falls and a sudden decline in health. Carol was not taking any iron supplement at the time of the report. She had an upcoming phone appointment with her hematologist.

e. Carol has lymphedema. This result in swelling of her feet, lower legs and hands and a result she has limited mobility. She requires exercise and attention to her anemia which may be a contributing factor to the lymphedema. Carol needs daily reminders and cues to participate in exercise.

f. Carol has osteopenia and requires follow up bone density tests and medication.

g. Carol’s medications are prescribed by the on-site doctor at Kingsway rather than her primary care physician. The report queries whether this could lead to miscommunication or incorrect dosing. Carol should be registered for Kingsway’s Level 1 medication administration given that Bob is away in Ottawa each week for work. Kingsway should be given the name of Carol’s primary care physician, her pharmacy and her emergency contacts. Apparently, Carol does not like her family doctor and somehow thinks she was involved in the alleged “abduction” by her siblings. Appointments with Carol’s family doctor should be tracked, and the advice followed up on.

h. Bob is the only emergency contact listed for Carol. Silver Sherpa was concerned about the availability of Jonathan Scott or Christine Taylor as emergency contacts. Alternate emergency contacts should be provided.

i. Carol spends too much time alone. This could accelerate symptoms of dementia. Carol needs more social contact including participation in activities at Kingsway or hiring a companion service.

j. Carol’s suite has emergency call bells, but she does not remember what they are for. A Home Safety assessment is recommended as well as an emergency pendant. Bob needs a point person to facilitate communication with physicians in the event of a crisis.

k. Carol should have an alternate Attorney for Personal Care.

l. Longevity Planning should be implemented with respect to future housing options for Carol including support services, assisted living, memory care and long-term care.

[25] In February 2025, Ms. Burns brought a motion to be discharged. In her Notice of Motion and redacted supporting material, she raised some concerning issues which were outlined in my endorsement of February 6, 2025 as follows:

Ms. Burns as s. 3 counsel for Carol brought a motion at the commencement of today’s proceeding to be discharged as s.3 counsel. She does so for the following reasons as outlined in her redacted affidavit and report to the Court sworn February 3, 2025:

(a) When Ms. Burns met with Carol, Bob, Bob’s counsel and Ms. Casey on September 13, 2024 to review the proposed Management Plan, Bob’s tone was belligerent which made Carol upset. Ms. Burns was concerned that Bob’s presence and tone were interfering with Carol’s ability to freely provide instructions to Ms. Burns;

(b) Bob advised that he did not consent to the appointment of a Guardian of Property for Carol or the Management Plan.

(c) Ms. Burns attempted to set up subsequent meetings with Carol, but Carol will not meet with her except at Bob’s direction. She has not been able to obtain independent instructions from Carol despite multiple attempts to do so.

[26] There were allegations that Bob was interfering with Ms. Burn’s ability to obtain instructions from Carol. In my endorsement of February 6, 2025, I made Orders directly related to Bob’s conduct:

(b) In order for Ms. Burns to obtain clear and unimpeded instructions from Carol, Bob is not to interfere with their meetings including but not limited to:

i. Leaving instructions for Carol as to what she should tell Ms. Burns.

ii. Attempting to call Carol when Ms. Burns is there.

iii. Not interfering with the scheduling of meetings with Ms. Burns and not being present at those meetings. This includes Bob reassuring Carol that she may meet with Ms. Burns without Bob present.

[27] I did not grant Ms. Burns’ requested relief but attempted to provide a framework in which she could obtain clear instructions from Carol. Her motion was adjourned sine die and the matter was adjourned to a Case Conference on March 31, 2025.

[28] Ms. Burns met with Carol on March 11, 2025. Christine Taylor was present at the meeting. Ms. Taylor advised that she was present at the meeting because Carol was nervous and needed moral support. Ms. Burns asked Ms. Taylor to leave as the meeting was intended to be private. Carol had notes in front of her which she conceded had been prepared by Bob so that she would know what to say to Ms. Burns. The notes included a copy of an email which Carol purportedly sent to Ms. Burns on January 17, 2025 firing her.

[29] During the course of the meeting Ms. Burns asked Carol if she could send a test email to Ms. Burns. Carol looked in her list of contacts but Ms. Burns was not there. Ms. Burns asked Carol if she had sent emails to Mark or Denise. Carol said their names were not in her contact list and that they were estranged.

[30] Ms. Burns asked Carol if it was her wish to fire Ms. Burns. Carol said no, she liked Ms. Burns. A few minutes later she asked who she was supposed to fire.

[31] Carol told Ms. Burns that she does not remember signing the Agreement or its terms. Ms. Burns then explained the terms of the Agreement to Carol. A few minutes later Ms. Burns asked Carol to tell her what the terms of the Agreement were. Carol could not recall.

[32] On March 13, 2025, Ms. Burns received an email from Carol asking that she send Carol a copy of the report from their meeting on March 11, 2025 prior to sending it to anyone else. Ms. Burns doubted that Carol could have sent the email based on their interaction on March 11, 2025.

[33] On March 25, 2025, BMO froze Carol’s accounts. In their letter of that date, BMO recited a concern about receiving conflicting information from different parties with respect to Carol’s accounts. As such, the accounts will remain frozen until BMO receives clear directions by way of a Court Order.

[34] On March 28, 2025, Bob advised that his position is that the 2007 POAs are valid, and that it is not necessary for Carol to have a Guardian of the Person or Property as she is able to independently manage her affairs.

[35] On March 31, 2025, counsel for the Wilsons wrote to Ms. Burns and advised that in paying Carol’s ongoing expenses, as per Justice Sanfilippo’s May 1, 2024 endorsement, he discovered that a cheque from Carol’s accounts had been written to Bob’s counsel for $35,000 and signed by Bob. The Agreement provided that each of Bob and the Wilsons were to receive $10,000 from Carol’s assets as a contribution towards their legal fees. Beyond the payments authorized by Justice Sanfilippo, no party is to exercise any authority under any Power of Attorney for Property.

[36] In her brief for the March 31, 2025 Case Conference, Ms. Burns reiterated the need to meet with Carol independently to ensure that Carol’s wishes as reported by Bob were in fact Carol’s wishes, that Carol’s MMSE tests and scores should be released to Ms. Burns, and that the issue of Carol being treated by two different family physicians as identified in the Silver Sherpa report has not been resolved.

[37] At the Case Conference on March 31, 2025, Justice Sanfilippo ordered the following:

[7] After hearing from counsel on the relief sought by Ms. Burns as section 3 Counsel, I order as follows:

(a) In order for Ms. Burns to obtain clear and unimpeded instructions from Ms. Black, Ms. Burns shall meet with Ms. Black before April 18, 2025, without the presence, involvement or interference of any of the parties.

(b) For the purpose of Ms. Burns' meeting with Ms. Black, and in order for section 3 Counsel to address with Ms. Black the issue of capacity by the Application, any MMSE tests, reports and scores conduced of Ms. Black, including those conducted on June 7, 2024 and November 27, 2024, shall be released to Ms. Burns.

(c) Ms. Burns, as section 3 Counsel, is authorized to speak to Ms. Black's treating physicians, Dr. Asfa Daudi and Dr. Herag Hamboyan.

(d) As part of the care of Ms. Black, the Applicant, Mr. Scott, shall arrange for Ms. Black to be registered in Kingsway Retirement Residence's Level 1 medication administration service.

(e) The Applicant, Mr. Scott, shall advise the section 3 Counsel of the physiotherapist who assessed the arrangements in Ms. Black's suite to determine whether any additional arrangements are required.

[38] In order to facilitate the directions in Justice Sanfilippo’s endorsement of March 31, 2025, Ms. Burns asked for the assistance of Bob and Christine Taylor to arrange a meeting with Carol so that Ms. Burns could obtain instructions from Carol. By way of email dated April 2, 2025, Ms. Taylor declined to assist Ms. Burns. Ms. Burns then advised Bob that she intended to meet with Carol on April 14, 2025, and requested Bob’s assistance. Bob did not respond.

[39] Nevertheless, Ms. Burns attended at Kingsway on April 14, 2025. What occurred on that date was set out in a letter from Ms. Burns to all counsel on that date. When Ms. Burns attended Kingsway, the Executive Director, Ms. Bronzovic, advised her that Carol and her POA, Bob Scott, did not want her there. Ms. Burns showed Ms. Bronzovic Justice Sanfilippo’s Endorsement, but Ms. Bronzovic’s position was that Ms. Burns was not welcome at Kingsway. Ms. Burns sought an urgent Case Conference to permit her unimpeded access to Carol.

[40] On April 15, 2025 Ms. Burns arranged for a letter to be delivered to Kingsway to ensure that Carol was aware of the March 31, 2025 endorsement.

[41] Upon receipt of Ms. Burns’ correspondence, I directed that an urgent Case Conference take place on April 25, 2025 and that Bob was to be present in person at the conference. After this direction was sent to counsel, Bob’s counsel advised that Bob had arranged for a meeting with Carol and Ms. Burns on April 17, 2025 at 4:30 p.m.

[42] Given the concerns with Carol’s capacity and the alleged influence with her instructions to Ms. Burns, I determined that a motion with respect to whether Carol should submit to a capacity assessment was required. As no party intended to bring such a motion, the Court made the motion. Following the April 25, 2025 conference, I required that the parties file responses in relation to the following issues for a further hearing which I set for May 2, 2025:

a. The release of Ms. Black's (Carol's) medical records, the Silver Sherpa report and any underlying material including MSP's tests and scores to the assessor and to Section 3 counsel;

b. an order that Section 3 counsel may communicate with Ms. Black's treating professionals including doctors, dentists, and physiotherapists; and

c. the Court's own motion for capacity assessment with respect to both property and personal care under section 79 of the Substitute Decisions Act, 1992.

[43] On April 23, 2025, the Wilsons issued their competing Application for Guardianship. In that Application, the Wilsons seek a declaration that Carol is incapable of managing her property and that a trust company be named as her Guardian or alternatively Mark Wilson. They also seek a declaration that Carol is incapable of managing her personal care and that Mark and Denise be jointly appointed as her Guardians of the Person.

[44] Justice Sanfilippo has previously directed that the Applications are to be heard together at a three-day hearing scheduled for February 2-4, 2026.

[45] At the May 2, 2025 Conference, Bob submitted that Carol did not consent to a capacity assessment, nor to the general release of her medical records. However, he agreed that Carol’s medical records could be released to Ms. Burns only and that Ms. Burns could communicate with Carol’s treating professionals. Bob maintains that the POAs executed by Carol in 2007 should prevail.

[46] The Wilsons did not take a position with respect to the Court’s motion to require that Carol submit to an assessment. They requested that copies of any medical records and underlying material given to Silver Sherpa be shared with them.

[47] Ms. Burns’ position is that Carol does not wish to be assessed and that her medical records, and the information underlying the Silver Sherpa report should be provided only to Section 3 counsel. Carol consents to Ms. Burns communicating with her treating medical professionals. Ms. Burns further submitted that if a capacity assessment is ordered, it should be performed by one of Dr. Kenneth Shulman, Dr. Richard Shulman or Ms. Alannah Kaye.

Analysis and Ruling

Issue 1. The Section 79 Motion for a Capacity Assessment

[48] Section 79 of the Substitute Decisions Act, 1992, S.O. 1992, c.30 sets out the jurisdiction of the Court to compel a person to be capacity assessed:

Order for assessment

79 (1) If a person's capacity is in issue in a proceeding under this Act and the court is satisfied that there are reasonable grounds to believe that the person is incapable, the court may, on motion or on its own initiative, order that the person be assessed by one or more assessors named in the order, for the purpose of giving an opinion as to the person's capacity. 1992, c. 30, s. 79 (1).

Same

(2) The order may require the person, (a) to submit to the assessment; (b) to permit entry to his or her home for the purpose of the assessment; (c) to attend at such other places and at such times as are specified in the order. 1992, c. 30, s. 79 (2).

Place of assessment

(3) The order shall specify the place or places where the assessment is to be performed. 1992, c. 30, s. 79 (3).

Same

(4) If possible, the assessment shall be performed in the person's home. 1992. c. 30, s. 79 (4).

Health facility

(5) An order that specifies a health facility as the place where the assessment is to be performed authorizes the person's admission to the facility for the purpose of the assessment. 1992, c. 30, s. 79 (5).

[49] In my endorsement of April 25, 2025, I found that Carol’s capacity is in issue. I note that both parties’ Applications seek an assessment of Carol’s capacity for both property and personal care.

[50] Bob’s position continues to change. Initially he was clear that Carol did not have capacity in March 2024 when she signed the 2024 POAs. Now he seems to be resiling from that, claiming that Carol was simply “vulnerable” at the time. He concedes that Carol has short term memory issues but asserts that she is otherwise able to manage her personal care and property without much support, and that Silver Sherpa need not be further involved.

[51] Ms. Burns takes Carol’s instructions, but based on certain interviews she has had with Carol, Carol’s capacity to give those instructions is in issue. The history above demonstrates interference by Bob with Carol’s relationship with Ms. Burns. This Court has had to intervene on more than one occasion to ensure that Carol met with Ms. Burns alone and without influence from Bob. Ms. Burns has been turned away from interviewing Carol at Kingsway on Bob’s instructions. Ms. Taylor has turned up at interviews with Ms. Burns and been requested to leave. It is unclear how Ms. Taylor could have known about those interviews other than through Bob. Carol has sent emails to Ms. Burns allegedly on her own yet when asked by Ms. Burns to send her a test email she could not do so. Ms. Rintoul has shown up as a replacement for Ms. Burns because Carol allegedly wanted to fire Ms. Burns. Carol later queried who she was to fire.

[52] Ms. Burns instructions from Carol are that she does not want to be assessed. This Court has significant concerns that Carol either does not understand those instructions given her short term memory issues or is simply repeating what Bob has told her to say.

[53] There are also the medical issues. The concerns outlined by Silver Sherpa are clear and may be summarized as follows:

1. Carol has significant difficulty with short term memory which requires cueing.
2. Bob is not always available onsite with Carol, and therefore she requires a trusted person to provide health and care coordination, along with emergency assistance in situations such as a hospital visit, in Bob's absence.
3. Lack of appropriate medical coordination with no functioning family doctor.
4. Lack of follow-up and medication review with specialists that could be affecting Carol's current health status.

[54] While some of the concerns outlined by Silver Sherpa have been addressed, the fact is that Bob works in Ottawa from Monday to Thursday and is often out of town or out of province or out of country for work purposes. It is clear from the Silver Sherpa report that Carol has many medical issues which require attention and coordination with her treating professionals. Bob’s dismissal of Silver Sherpa to assist with an ongoing supportive plan for Carol is concerning.

[55] Further, Carol appears to be spending too much time alone. She often appears confused and simply repeats what Bob has told her. Bob’s insistence that Carol is able to manage her own care with his assistance is not feasible and short-sighted. His rejection of Silver Sherpa’s assistance when he is not on site for much of the week clearly does not prioritize Carol’s best interests.

[56] No one disputes that Carol has been suffering from dementia for the last eight years or that she has significant short term memory issues. Her comorbidities complicate her cognitive issues and make her care complex as it involves multiple physicians in different medical specialties. Given the information in the record thus far, it would seem that Carol cannot manage the coordination of appointments, medications and follow ups required for her own care as Bob seems to suggest.

[57] Bob insists that Carol is now more mobile, and her health is better overall due to treatments from her physiotherapist. This is simply a bald statement which is not supported by any medical documentation. The last reliable information before the Court is the Silver Sherpa report from February 2025 which raises concerning issues about Carol’s care and Bob’s unwillingness to accept any further involvement from Silver Sherpa.

[58] Bob also has a clear conflict of interest with respect to his care of Carol and any management of her property. Based on Justice Sanfilippo’s Order emanating from the settlement of this matter last June, no person was to act as Carol’s Guardian of Property until a Guardian of Property was appointed. Yet, in February 2025, Bob wrote a cheque from one of Carol’s accounts for his own legal fees. There is also, of course, the fact that Bob has resiled from the Agreement claiming that he will not approve any Management Plan which does not recognize his beneficial interest in Carol’s properties. It is convenient for Bob to claim that Carol still has capacity. It means that he remains involved and can continue to influence her decisions while claiming that they are Carol’s alone.

[59] The Wilsons have taken a neutral position on the issue of the Court’s motion. When Bob issued his Application in April 2024, they took the position that the 2024 POAs were valid and as such, confirmed that Carol had capacity at that time. They now seek appointment of a Guardian for Carol and an Order for a capacity assessment in their Application.

[60] Apart from finding that Carol’s capacity is in issue, the Court must further apply the test set out in Abrams v. Abrams, para 53, to determine whether the Court should exercise its discretion under section 79. The determination requires a balance between the public interest and Carol’s privacy interests, and requires the Court to balance the following factors:

(a) the purpose of the SDA, to protect the vulnerable;

(b) the terms of section 79, namely:

• (a) the person's capacity must be in issue; and
• (b) there are reasonable grounds to believe that the person is incapable;

(c) the nature and circumstances of the proceedings in which the issue is raised;

(d) the nature and quality of the evidence before the court as to the person's capacity and vulnerability to exploitation;

(e) if there has been a previous assessment, the qualifications of the assessor, the comprehensiveness of the report and the conclusions reached;

(f) whether there are flaws on the previous report, evidence of bias or lack of objectivity, a failure to consider relevant evidence, the consideration of irrelevant evidence and the application of the proper criteria;

(g) whether the assessment will be necessary in order to decide the issue before the court;

(h) whether any harm will be done if an assessment does not take place;

(i) whether there is any urgency to the assessment; and

(j) the wishes of the person sought to be examined, taking into account his or her capacity.

[61] First, I recognize that undergoing a capacity assessment is an intrusive and demeaning process (see Flynn et al. v. Flynn (18 December 2007), 03-66/07 (Ont. S.C.)). Carol’s privacy and personal interests must be respected particularly given Ms. Burns’ submission that Carol does not consent to an assessment.

[62] I turn then the considerations in Abrams noting that (e) and (f) above do not apply as there has been no previous assessment in this case.

[63] Turning to the nature and circumstances of the proceedings in which the issue has been raised and whether the assessment is necessary to decide the issue before the Court ((c) and (g) above), I note that there are two competing Guardianship Applications before the Court. It is unclear to me how any of Applicants could proceed with the guardianship relief sought without evidence that Carol lacked the required capacity and needed a Guardian. I am not certain how long the parties intended to wait before having this critical question answered. It must be answered now.

[64] As to issue (d) above related to the required test, I have already reviewed much of the evidence in which Carol’s capacity is put into issue. However, I stress that much of this evidence relates to Carol’s vulnerability to exploitation. Bob alleges that Carol was exploited by the Wilsons. The Wilsons allege that Carol is vulnerable to Bob’s influence. I find that Carol has been and continues to be the subject of influence by Bob and those in Bob’s control. The fact that Bob told Kingsway to deny entry to Ms. Burns for an interview with Carol would be enough but there are other instances set out above including a concern that Bob may be sending emails to Mark and Ms. Burns from Carol’s computer claiming they are from Carol. Bob does not like Carol being interviewed alone as he is concerned about what she might say when he is not present personally, by phone or by written notes to tell her what to say. If I am wrong and Carol’s wishes are clearly stated and independent of Bob, the capacity assessor will be able to opine on this.

[65] As for (h) and (i) above, I find that there will be harm if an assessment of Carol’s capacity is not completed. The parties will continue to take adverse positions on the issue, each claiming that Carol does/does not have capacity as it suits them. This must end. As for the urgency, there is no particular urgency other than the fact that both Applications will be heard in nine months and having this information will assist in both preparation for the hearing and potential settlement.

[66] Finally, as per factor (j) from Abrams, I must take into consideration Carol’s wishes. She has told both Bob and Ms. Burns that she does not wish to undergo an assessment. The Court may take into consideration the person’s capacity in stating those wishes.

[67] I find that it is not clear to this Court that Carol’s wishes are either capable or freely given. Further, it is not clear that Carol fully understands the nature of this litigation and the importance of her role in it. She apparently does not understand the Agreement or its terms.

[68] There is also the issue of Bob’s influence over Carol which is outlined extensively above. I am persuaded that Carol’s wishes may be the subject of Bob’s “instructions” to Carol as opposed to Carol’s independent and balanced wishes taking into consideration all of the circumstances. Again, if I am wrong, the assessor will determine that Carol has capacity and the Court’s concerns will have been assuaged.

Issue 2. The Release of Medical Records and Silver Sherpa Underlying Documents

[69] Carol and Bob do not wish Carol’s medical records to be released to anyone other than section 3 counsel. While I understand that those are Carol’s instructions to her counsel and related to her privacy interests, I find that it would be prejudicial to the Wilsons to not be on the same footing as Carol, Bob and Carol’s counsel in this litigation. That is, they would be the only parties missing key information given the nature of this proceeding and the relief sought in their own Application.

Issue 3. Ms. Burns’ Communication with Carol’s Treating Professionals

[70] There is no opposition to this by Bob, Carol or the Wilsons.

Orders

[71] Given all of the above, I make the following Orders:

a. An Order shall issue under section 79 of the SDA requiring Carol to submit to an assessment of her capacity to manage her personal care and her property on the following terms:

i. The assessment shall be completed by one of Dr. Kenneth Shulman, Dr. Richard Shulman or Alannah Kaye.

ii. Ms. Burns to arrange for the assessor and choose the assessor from amongst those listed above. No party is to interfere with Ms. Burns’ choice of assessor or her instructions to the chosen assessor.

iii. The cost of the assessments is to be paid for from Carol’s assets and BMO is to be directed to make such payment upon presentation of the assessor’s invoice(s).

iv. The capacity assessor is also to opine on Carol’s vulnerability to the influence of others and her ability to instruct counsel.

v. The assessment is to take place at Carol’s residence at Venvi Kingsway and Venvi Kingsway is to be provided with a copy of this endorsement (and any resulting Order). Venvi Kingsway and all personnel at Venvi Kingsway are to cooperate with the assessment process including ensuring that the assessor is permitted access to Carol in a private setting as many times as may be needed to complete the assessment.

vi. Ms. Burns to provide the assessor with all of Carol’s medical records, the Silver Sherpa report and any underlying documents related to the Silver Sherpa reporting including any previous MMSE tests.

vii. Ms. Burns to provide to the assessor any documents relevant to the outstanding litigation (the within Application and that of the Wilsons) which she deems necessary for the assessor to understand the background and history of this matter including a copy of this endorsement.

viii. No party to this proceeding is to communicate with the capacity assessor concerning the assessments. The capacity assessor is to report to Ms. Burns immediately if any party attempts to contact him/her.

ix. Once the capacity assessments are available, copies will be sent to all parties and uploaded to Case Center with the appropriate affidavit attaching the assessments as an exhibit.

b. Carol’s medical records, MMSE test results and any other supporting documentation from the Silver Sherpa report are to be produced to all parties but need not be uploaded to Caselines unless so directed by the judge hearing these matters in February 2026.

c. Bob is to forthwith repay to Carol the $35,000 he took from her accounts to pay for his legal fees. While those funds may well have come from a joint account, they are still considered Carol’s assets in the context of Justice Sanfilippo’s June 18, 2024 Order. Bob may not use Carol’s funds to pay for any of his personal expenses including his legal fees.

d. Ms. Burns may communicate with any of Carol’s treating physicians or health care professionals.

e. As per Silver Sherpa’s recommendations, a comprehensive Geriatric Assessment, a Home Safety Assessment and Longevity Planning should be conducted with respect to Carol’s needs. Silver Sherpa to assist in undertaking those assessments and any cost related to those assessments is to be paid from Carol’s assets. If Carol’s assets remain frozen, BMO is directed to make those payments from Carol’s assets.

f. Ms. Burns, Bob and Venvi Kingsway are to facilitate the additional assessments set out in (e) above.

g. The Trial Coordinator to contact the parties to set up a Case Conference in July 2025 or when the assessments and medical records are available.

h. The costs of this appearance are reserved to the judge hearing the Applications in February 2026.

Justice C. Gilmore
Date: 2025-05-20