Court of Appeal for Ontario

Date: 2019-11-28 Docket: C66897 (M50434 and M51042)

Judges: Watt, Hourigan and Trotter JJ.A.

Between

Lydia Carey-Patel, Robert Carey and David Aello Applicants (Respondents)

and

Douglas Carey, Arthur Carey, Jennie Carey and The Office of The Public Guardian and Trustee Respondents (Respondents)

and

David Carey and Edward Carey Respondents (Appellants)

Counsel

Kenneth Wise, for the appellants

Matthew Harris and Yonatan Lipetz, for Douglas and Arthur Carey

Richard Watson, for Lydia Carey-Patel, Robert Carey and David Aello

Heard and released orally: November 28, 2019

On appeal from: the judgment of Justice Kurz of the Superior Court of Justice, dated April 26, 2019.

Reasons for Decision

[1] This is a dispute about the care of the parties' 90 year old mother. Specifically, the issue is who should act as guardians for the mother's property and personal care. David and Edward Carey were originally applicants but decided on the return of the application not to support the position of the applicants.

[2] By order dated March 8, 2018, the motion judge removed them as applicants, but he did not order that they be made respondents. The motion judge then made an interim order regarding guardians on July 26, 2018. A final order was made on April 26, 2019, appointing guardians of personal care and property.

[3] David and Edward Carey seek an order appointing them as appellants. That order is unopposed and shall go. They argue that the motion judge erred in not appointing them as respondents. However, they never appealed that interlocutory order. Instead, they said nothing and waited until after the final order to raise objections to their lack of party status.

[4] We would not give effect to this ground of appeal. The motion judge explained why he was not making them respondents in the proceeding. The time to object to that order was when it was made, not after months of hearings and subsequent orders of the motion judge.

[5] Ultimately, the motion judge made a decision after having an opportunity to evaluate the performance of the children as guardians. We see no error in that decision, and are satisfied that he properly considered all the surrounding circumstances and made an order that was in the best interests of the mother.

[6] In the result, an order will go naming David and Edward Carey as appellants. The appeal is otherwise dismissed. David and Edward Carey shall pay costs in the amount of $5,000, all inclusive, to the respondents Lydia Carey-Patel, Robert Carey, and David Aello. No costs were sought or are ordered in respect of any other party.

"David Watt J.A."

"C.W. Hourigan J.A."

"G.T. Trotter J.A."