COURT OF APPEAL FOR ONTARIO

CITATION: Roelandt v. Roelandt, 2016 ONCA 858

DATE: 20161115

DOCKET: C61455

Weiler, Rouleau and Roberts JJ.A.

BETWEEN

Kenneth Roelandt

Appellant (Applicant)

and

Yvonne Roelandt, Martina Roelandt, Nelly Burwell and the Public Guardian and Trustee

Respondents (Respondents)

Ian McLean, for the appellant

James McIlhargey, for the respondent, Yvonne Roelandt

Mary E. Cull, for the respondent, Martina Roelandt

Philip Cornish, for the respondent, Nelly Burwell

Heard: November 7, 2016

On appeal from the order of Justice I.F. Leach of the Superior Court of Justice, dated November 16, 2015, with reasons reported at 2015 ONSC 6874.

ENDORSEMENT

[1] ‎The appellant appeals the application judge’s order, appointing Yvonne Roelandt (“Yvonne”) and Nelly Burwell (“Nelly”) as the guardians of property and personal care for Martina Roelandt (“Martina”). Martina, Nelly and the appellant are Yvonne’s three children.

[2] There is no dispute that Martina is incapable of managing her property and personal care. Martina is now 57 years old. She needs help with nutrition, dressing and bathing, and requires 24-hour supervision. She is unable to make decisions on her own. Her medical history is complicated and she takes medication for a number of conditions, including epilepsy, which she is unable to administer on her own.

[3] With the exception of one year, from December 2013 to December 2014, when she resided in North Bay with the appellant and his wife, Julie, Martina has lived with her mother who is 86 or 87 years of age. In December 2013, Martina and her mother lived in Goderich when her mother became ill and was hospitalized. Her mother arranged for Martina to stay with neighbours whom Martina knew well. Upon learning of Yvonne’s illness, the appellant and his wife took Martina to live with them in North Bay. When Yvonne left hospital, the appellant refused to return Martina to her care on the basis that it was better for Martina to live with him and his wife in North Bay.

[4] The appellant subsequently commenced an application on February 18, 2014 to be appointed Martina’s guardian of her property and personal care, which Yvonne opposed. Yvonne brought a counter-application to be appointed together with Nelly as Martina’s guardian.

[5] In the course of the proceedings, Martina returned home for a visit with her mother in December 2014. At the end of the visit, Yvonne refused to return Martina to North Bay although she had agreed to do so as a precondition to the visit. In light of complaints made by Martina to Yvonne and Nelly about her care in North Bay and about her wanting to come home to her mother’s care, Yvonne felt, that as her mother and the person with whom Martina had always lived, it was in Martina’s best interests to stay with her. Martina has resided with her mother since that time.

[6] The appellant does not allege that the application judge misstated the relevant principles of law and acknowledges that the overarching consideration is Martina’s best interests. The appellant essentially takes issue with the application judge’s findings of fact. In his submission, those findings were unreasonable, unfairly disregarded the appellant’s evidence, and did not consider Martina’s best interests. In the appellant’s view, it was apparent that he had presented the best management plan. The appellant submits that the application judge’s criticisms levelled against him and his wife were unfounded and biased.

[7] We do not accept the appellant’s submissions. On the evidence, the application judge’s findings were available to him, including his finding that the actions taken by the appellant and his wife were financially motivated.

[8] The application judge carefully and thoroughly considered and weighed the parties’ differing accounts of relevant events, including the history of family relations and interactions, and Martina’s treatment while in her mother’s care, compared with her stay with the appellant and his wife. Where the various accounts were at variance, he preferred the evidence proffered by Yvonne, Nelly and the objective witnesses who were not family members, and, as far as he could ascertain, Martina’s own expressed desire to remain with her mother. The unvarnished language he used in making his findings does not meet the test for apprehension of bias or bias.

[9] The appellant submits that the application judge erred in failing to give more weight to the appellant’s management plan. We disagree. The application judge scrutinized the parties’ respective management plans. In particular, he noted the discrepancies between the appellant’s proposed care for Martina and the reality of the care that she received in North Bay. Those discrepancies included the lack of contact permitted between Martina and her mother while she was with the appellant in North Bay and the fact Yvonne was required to forward monies for Martina’s care during that time. He also considered the appellant’s proposed deficit spending for Martina’s care. Again, those findings were open to the application judge.

[10] In sum, having reviewed the relevant legal principles, the application judge applied them to the evidence before him and concluded that it was in Martina’s best interests to have Yvonne and Nelly appointed as her guardians of property and personal care. We see no basis to interfere with the application judge’s decision.

Disposition

[11] For these reasons, the appeal is dismissed.

[12] Costs to the respondents as follows:

i. Nelly Roelandt: $1,250.00;

ii. Yvonne Roelandt: $750.00;

iii. Martina Roelandt: $1,865.18.

“K. Weiler J.A.”

“Paul Rouleau J.A.”

“L.B. Roberts J.A.”