Gronnerud (Litigation Guardians of) v. Gronnerud Estate, [2002] 2 S.C.R. 417, 2002 SCC 38

Cherie Gronnerud, by her litigation guardians, Glenn Gronnerud and Judith Ann Farr, and the Public Trustee for Saskatchewan, as litigation guardian of Cherie Gronnerud Appellants

v.

Harold Robert (Bud) Gronnerud, as Executor of the Estate of Harold Russell Gronnerud Respondent

Indexed as: Gronnerud (Litigation Guardians of) v. Gronnerud Estate

Neutral citation: 2002 SCC 38.

File No.: 27993.

2001: December 6; 2002: April 25.

Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for saskatchewan

Estates — Administration — Public Trustee — Property of dependent adults — Court of Appeal appointing Public Trustee as litigation guardian and property guardian for dependent adult — Criteria to be used in appointing or replacing litigation and property guardians — Whether Court of Appeal had jurisdiction to preclude Public Trustee from pursuing matrimonial property claim — If so, whether Court of Appeal properly exercised that jurisdiction — The Dependent Adults Act, S.S. 1989-90, c. D-25.1, s. 20(3)(a) — The Public Trustee Act, S.S. 1983, c. P-43.1, s. 29(6).

Cherie and Harold Gronnerud were married for 57 years and raised four children, Bud, Judy, Glenn and Jim, on a family farm. Cherie, currently in a government-sponsored institution, suffers from illnesses including Alzheimer’s disease and requires the highest level of assistance. The courts have held that the government-sponsored institution best serves her needs. In 1967, she executed a will leaving most of her assets to Bud and expressing hope that the farm would remain intact. In 1996, she signed a power of attorney in favour of Bud. After it was determined, in 1997, that she had incurable Alzheimer’s, Harold signed a will leaving the majority of his estate to Bud and naming him executor. Harold left his wife Cherie a $100,000 trust fund. When Harold died in July 1999, leaving an estate valued at roughly $1.5 million, Cherie owned only her personal belongings and a small bank account. A dispute arose about how to administer Harold’s estate. Bud and Judy were appointed as Cherie’s personal and property guardians. Judy and Glenn were appointed as her litigation guardians. Judy and Glenn commenced actions on Cherie’s behalf under The Matrimonial Property Act, 1997 and The Dependants’ Relief Act, 1996. A successful action would have resulted in the farm being sold. The Court of Appeal substituted the Public Trustee as Cherie’s property and litigation guardian and prohibited the Public Trustee from continuing the action under The Matrimonial Property Act.

Held (L’Heureux-Dubé and Arbour JJ. dissenting in part): The appeal should be dismissed.

Per McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie and LeBel JJ.: The Court of Appeal was correct to appoint the Public Trustee as Cherie’s litigation and property guardian. It had jurisdiction to prohibit the matrimonial property claim and properly exercised its jurisdiction.

A litigation guardian is responsible for commencing, maintaining or defending an action on behalf of a person. Under Rule 49(1) of The Queen’s Bench Rules of Saskatchewan, the court can remove a litigation guardian and appoint a substitute in the best interests of the dependent adult. One criterion for appointing a litigation guardian requires the candidate to be indifferent as to the outcome of the proceedings. The requirement for indifference protects the best interests of the dependent adult. A litigation guardian must be free of conflict of interest and capable of providing an unbiased assessment of the dependent adult’s legal situation and the appropriate course of action. A family member generally may be desirable but there are exceptions such as family members who are involved in disputes over an estate. Judy and Glenn are not indifferent and cannot act in Cherie’s best interests.

A property guardian manages the finances of a dependent adult. To appoint a property guardian under The Dependent Adults Act, the court must be satisfied that the individual does not have a conflict of interest and can carry out his or her duties satisfactorily. The property guardian must be able to handle the dependent adult’s finances in a disinterested, unbiased manner. Merely being a family member or a potential beneficiary will not disqualify a person under the Act, but it will be unusual for a family member or potential beneficiary who is involved in a dispute over an estate to be able to demonstrate an absence of conflict. Judy’s status as a residuary beneficiary of Harold and a potential beneficiary of Cherie on intestacy, evidence of an acrimonious relationship with Cherie, and other factors indicate that financial and personal conflict prevents Judy from acting in Cherie’s best interests.

The Court of Appeal’s jurisdiction to restrict the Public Trustee’s authority is apparent from the plain wording of The Dependent Adults Act. Although The Public Trustee Act sets out the matters over which the Public Trustee has authority as a property guardian, the court may restrict the exercise of that authority when appointing the Public Trustee as a property guardian under s. 20(3)(a) of The Dependent Adults Act. The Court of Appeal recognized that Cherie’s best interests are protected by the trust account. This is supported by evidence of Cherie’s intentions regarding the family farm, her relationships with her children and her husband, her physical and mental condition and, the fact that a public facility best suits her needs. It is unlikely Cherie’s intentions with respect to her family would have changed before the onset of her illness. Together these factors illuminate Cherie’s best interests and a claim under The Matrimonial Property Act would not have been in her best interests.

The record in this case is not limited. There is a lengthy record from numerous proceedings regarding Cherie’s best interests. The use of affidavit evidence is not problematic and it promotes efficiency and finality in family law procedures. Each individual case raising the court’s jurisdiction to prohibit or allow claims must be decided on its merits. In this case, the unique set of circumstances supports the Court of Appeal’s decision.

Per L’Heureux‑Dubé and Arbour JJ. (dissenting in part): It was not appropriate for the Court of Appeal to prevent the Public Trustee from pursuing a claim under The Matrimonial Property Act on the facts of this case. Assuming a proper statutory foundation for such a discretion, there was no reason to interfere prematurely with the usual process of allowing the Public Trustee to decide whether the claim is in the best interests of Cherie. The claim appears to have considerable chance of success. This matter came to the courts on the basis of affidavit evidence and the record is far from extensive. An argument that Cherie’s needs are best met in a public institution and that she has no use for money that would be generated by a division of the matrimonial assets has no relevance because her entitlement to a division of matrimonial assets is not predicated on her need. The sole argument that could support the Court of Appeal’s decision is that the claim would probably lead to disposing of the family farm contrary to the wishes of Harold and Cherie. There is not much of a record around this critical issue. The record consists of a holographic will executed in 1967 and the absence of anything showing a change of heart. In the absence of reasons, it is uncertain how the Court of Appeal felt that this was sufficient to determine Cherie’s best interests. It is rarely in a person’s best interest to forgo an entitlement to as much as half a million dollars. More investigation should be done and the Public Trustee is ready, able and willing to undertake the investigation. It is possible that the Public Trustee will conclude that it is not in Cherie’s best interest to pursue a claim or that an unequal division of the property would be suitable, but there is no reason to take away the decision from the Public Trustee.

Cases Cited

By Major J.

Explained: Szwydky v. Magiera (1988), 1988 CanLII 4975 (SK QB), 71 Sask. R. 273; referred to: Regina and District Assn. for Community Living Inc. v. Public Trustee (1992), 1992 CanLII 8172 (SK QB), 88 D.L.R. (4th) 560; Schikosky v. Schikosky, [1995] S.J. No. 263 (QL); Re R.J.B. (1997), 1997 CanLII 11384 (SK QB), 160 Sask. R. 306; Re Bousquet (1989), 1989 CanLII 4700 (SK QB), 77 Sask. R. 77; Re Leeming, 1984 CanLII 566 (BC SC), [1985] 1 W.W.R. 369; Public Trustee for Province of Alberta v. Stirling (1980), 1980 CanLII 3831 (AB KB), 14 Alta. L.R. (2d) 214; Re Barnhill (1970), 1970 CanLII 1767 (NS SC), 3 N.S.R. (2d) 488; Re Young, 1942 CanLII 98 (ON CA), [1942] O.R. 301; Re Stensrud (1992), 1992 CanLII 7987 (SK QB), 99 Sask. R. 165; Re Kemp (1991), 1991 CanLII 7843 (SK QB), 89 Sask. R. 249.

Statutes and Regulations Cited

Adult Guardianship and Co-decision-making Act, S.S. 2000, c. A-5.3, ss. 43, 47(1)(a).

Dependants’ Relief Act, 1996, S.S. 1996, c. D-25.01.

Dependent Adults Act, S.S. 1989-90, c. D-25.1 [rep. & sub. 2000, c. A-5.3, s. 76], ss. 19(1), (4), (5), (6), 20(1), (2), (3), (4), (5).

Matrimonial Property Act, 1997, S.S. 1997, c. M-6.11 [now the Family Property Act, S.S. 1997, c. F-6.3].

Public Trustee Act, S.S. 1983, c. P-43.1, ss. 29(6), 30(1)(c).

Queen’s Bench Rules (Saskatchewan), rr. 46(1), (2)(a), (f), 49(1), 514.

Authors Cited

Kerans, Roger P. Standards of Review Employed by Appellate Courts. Edmonton: Juriliber, 1994.

APPEAL from a judgment of the Saskatchewan Court of Appeal rendered April 25, 2000, setting aside an order appointing litigation guardians, and varying an order appointing personal and property guardians. Appeal dismissed, L’Heureux-Dubé and Arbour JJ. dissenting in part.

Joanne C. Moser and Charlene M. Richmond, for the appellant Cherie Gronnerud, by her litigation guardians, Glenn Gronnerud and Judith Ann Farr.

Robert G. Richards, Q.C., and Heather D. Heavin, for the appellant the Public Trustee for Saskatchewan, as litigation guardian of Cherie Gronnerud.

David A. Gerrand, for the respondent.

The judgment of McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie and LeBel JJ. was delivered by

Major J. —

I. Introduction

1 The circumstances of this appeal are probably familiar to the courts. A dispute arose between the children of the deceased Harold Gronnerud on how his estate should be administered. Cherie Gronnerud, his spouse of 57 years, is an elderly woman suffering from serious illnesses, the most devastating being advanced Alzheimer’s disease.

2 It is apparent that both Harold and Cherie Gronnerud treasured the farm land that they had accumulated over their many years together and wished to preserve it. Evidence of Cherie’s wish to keep the land intact can be found in a holograph will executed 35 years ago in 1967. In that will she carefully assessed the strengths and weaknesses of her children and, while expressing maternal love for them all, she was most emphatic in expressing her hope that the land would remain as it was. There was no evidence to suggest that her views had changed over the 35 years since her last will.

3 After discovering in 1997 that Cherie had incurable Alzheimer’s disease and needed institutional care, the now deceased husband made a new will which, among other things, set up a $100,000 trust account. The trust account was intended to look after Cherie’s incidental expenses while she was cared for in a government-supported institution, the Saskatchewan courts having found that such an institution would best serve Cherie’s needs.

4 There is little doubt that, had Cherie been in good health, the provisions of her husband’s will might have been different and, if not different and adequate, a claim would undoubtedly have been considered under The Matrimonial Property Act, 1997, S.S. 1997, c. M-6.11 (now The Family Property Act, S.S. 1997, c. F-6.3).

5 The Saskatchewan Court of Queen’s Bench appointed two of the children, Bud and Judy, as Cherie’s personal and property guardians. Gerein J. (as he then was) also appointed Judy and another son, Glenn, as her litigation guardians who then commenced actions on behalf of Cherie for an equal division of the matrimonial property under The Matrimonial Property Act and for relief from the estate under The Dependants’ Relief Act, 1996, S.S. 1996, c. D-25.01.

6 A successful action would have resulted in the farm lands being sold. The Saskatchewan Court of Appeal replaced Judy and Bud, and Judy and Glenn as property and litigation guardians respectively. The Court of Appeal appointed the Public Trustee but prohibited it from bringing an action under The Matrimonial Property Act.

7 While it gave no reasons for its decision, the Saskatchewan Court of Appeal appeared to conclude that an action under The Matrimonial Property Act would result in the family farm being broken up to produce more assets for Cherie, assets which she was incapable of using. Had there been successful litigation, the farm lands would have been sold with no possible benefit to Cherie, but only to the children on her death. If these were the conclusions of the Saskatchewan Court of Appeal, I agree with them.

8 At the heart of this appeal lies the issue of whether, in appointing the Public Trustee as litigation guardian for a mentally incompetent person under The Dependent Adults Act, S.S. 1989-90, c. D-25.1 (now repealed), the Court of Appeal for Saskatchewan can prohibit the Public Trustee from pursuing a claim under The Matrimonial Property Act. Related issues are the criteria to be used in appointing or replacing litigation guardians and property guardians.

II. Facts

9 While the above outlines most of the circumstances, some additional facts may help to complete the chronology.

10 Cherie and Harold Gronnerud were married on January 4, 1942. Their marriage lasted 57 years and produced four children, Jim, Glenn, Judy Farr (née Gronnerud), and Bud. The children were raised on the family farm near Lewvan, Saskatchewan. The marriage was a traditional one, with Cherie performing the demanding duties of a farm wife and mother. Her husband Harold controlled the family finances, and almost all assets were placed in his name.

11 In January 1996 Cherie signed a Power of Attorney in favour of her son Bud. She was formally diagnosed with Alzheimer’s disease in 1997 and was placed in a special care home in February 1999. Much earlier in 1967, she had executed a holograph will which left the bulk of her assets to Bud.

12 In April 1999, after Cherie had been diagnosed with Alzheimer’s disease, Harold, her husband, signed a will leaving the majority of his estate to Bud, who was named the executor of Harold’s estate. Other residuary items were left to the other three children. The will left Cherie a $100,000 trust fund. Harold died in July 1999. The estate was valued for probate purposes at roughly $1.5 million.

13 At the time of Harold’s death, Cherie owned only her personal belongings and a small bank account. Cherie’s present physical and mental condition is serious. She requires the highest level of assistance with most routine functions. She suffers from Alzheimer’s-related dementia and is currently in a publicly funded facility in Regina. She receives additional, privately funded, night care.

III. Statutory Provisions

14 The Queen’s Bench Rules

46(1) Unless otherwise ordered or provided a person with respect to whom an order has been made under The Dependent Adults Act or, a person under a mental disability, other than a minor, may commence, continue or defend an action by a litigation guardian.

(2) For the purposes of this rule, “litigation guardian” means:

(a) a property guardian appointed pursuant to The Dependent Adults Act with authority to commence, defend, compromise or settle any legal proceeding that relates to the estate of the dependent adult;

49(1) Where, at any time, it appears to the court that a litigation guardian is not acting in the best interests of the person under disability, the court may appoint and substitute another person as litigation guardian on such terms and conditions as may seem just.

The Dependent Adults Act, S.S. 1989-90, c. D-25.1 (repealed and replaced by The Adult Guardianship and Co-decision-making Act, S.S. 2000, c. A-5.3, effective July 15, 2001)

19(1) Subject to subsections (2) to (5), where the court is satisfied that the conditions described in section 18 are met, the court may appoint any person as a property guardian for the person with respect to whom the application is made.

(4) No person shall be appointed a property guardian unless the court is satisfied that the person is capable of carrying out the duties of a property guardian in a satisfactory manner, having regard to:

(a) the needs of the dependent adult; and

(b) the relationship between the person and the dependent adult.

(5) No person shall be appointed a property guardian who will be in a position where the person’s interests will conflict with the dependent adult’s interests.

20(1) Subject to subsections (2) to (5) and subsection 29(6) of The Public Trustee Act, where the court makes an order appointing a property guardian, the court shall specify whether all or any one or more of the following matters relating to the dependent adult’s estate are to be subject to the authority of the property guardian:

(e) the authority to commence, defend, compromise or settle any legal proceeding relating to the estate of the dependent adult;

(3) In making an order appointing a property guardian, the court may:

(a) make its order subject to any conditions and restrictions that it considers necessary . . . .

The Public Trustee Act, S.S. 1983, c. P-43.1

29 . . .

(6) Where the public trustee is appointed as property guardian on an application:

(b) pursuant to The Dependent Adults Act;

the public trustee’s powers and duties as property guardian are the powers and duties given to the public trustee by this Act.

30(1) The public trustee, in his capacity as property guardian of a dependent adult, has the power to:

(c) bring, maintain or defend an action or proceeding in respect of the person or his property . . . .

The Adult Guardianship and Co-decision-making Act, S.S. 2000, c. A-5.3

43 Subject to section 47, the property guardian may, on the adult’s behalf, do, and the adult ceases to have the authority to do, anything respecting the adult’s estate that the adult could do if he or she had the capacity to make reasonable decisions respecting matters relating to his or her estate, except make a will, and the property guardian may sign documents and do all things necessary to give effect to the authority vested in him or her.

47(1) In making an order appointing a property decision-maker, the court may:

(a) make its order subject to any limitations or conditions that it considers necessary . . . .

IV. Judicial History

A. Saskatchewan Court of Queen’s Bench

15 On November 30, 1999, the Court of Queen’s Bench for Saskatchewan appointed two of Cherie’s children, Bud and Judy, as her personal and property guardians. The next day, Gerein J. also appointed Judy and Glenn as her litigation guardians. Judy and Glenn commenced a proceeding under The Matrimonial Property Act on behalf of Cherie against the estate of Harold Gronnerud, requesting an equal division of the matrimonial property. They also commenced a proceeding on behalf of Cherie requesting dependants’ relief under The Dependants’ Relief Act, 1996 from Harold Gronnerud’s estate.

B. Saskatchewan Court of Appeal (April 25, 2000)

16 The Court of Appeal for Saskatchewan replaced Judy and Bud as property guardians with the Public Trustee. Judy appeals her removal as property guardian. The Court of Appeal also replaced Judy and Glenn as litigation guardians with the Public Trustee. Judy and Glenn appeal this removal. The court curtailed the Public Trustee’s powers as litigation guardian, precluding him from proceeding with The Matrimonial Property Act claim. No reasons for the decision were issued. Judy, Glenn and the Public Trustee appeal the Court of Appeal’s decision to prohibit the claim under The Matrimonial Property Act.

V. Issues

17 (a) What are the applicable criteria in deciding whether to remove a litigation guardian? Was the Court of Appeal for Saskatchewan correct to remove Judy and Glenn as litigation guardians?

(b) What are the applicable criteria in deciding whether to remove a property guardian? Was the Court of Appeal correct to remove Judy as property guardian?

(c) In making an order appointing the Public Trustee as litigation guardian for a disabled person, does the Court of Appeal have jurisdiction to preclude the Public Trustee from pursuing a claim under The Matrimonial Property Act?

(d) If the answer to (c) is “yes”, did the Court of Appeal properly exercise such jurisdiction in this case?

VI. Analysis

A. The Criteria for Removing a Litigation Guardian

18 A litigation guardian is responsible for commencing, maintaining or defending an action on behalf of a person. Under The Queen’s Bench Rules of Saskatchewan, the litigation guardian can be the property guardian appointed under The Dependent Adults Act or any other individual appointed by the court: Rules 46(2)(a) and 46(2)(f). Under Rule 49(1), the court can remove a litigation guardian and appoint a substitute, if it appears to the court that the guardian is not acting in the best interests of the disabled adult. The test to remove and replace a litigation guardian turns on the “best interests” of the dependent adult.

19 The leading Saskatchewan case on the criteria to appoint a litigation guardian is Szwydky v. Magiera (1988), 1988 CanLII 4975 (SK QB), 71 Sask. R. 273 (Q.B.), at pp. 276-77 (followed in: Regina and District Assn. for Community Living Inc. v. Public Trustee (1992), 1992 CanLII 8172 (SK QB), 88 D.L.R. (4th) 560 (Sask. Q.B.); Schikosky v. Schikosky, [1995] S.J. No. 263 (QL) (Q.B.); Re R.J.B. (1997), 1997 CanLII 11384 (SK QB), 160 Sask. R. 306 (Q.B.)). The six criteria are:

– the evidence must establish that the incompetent is unable to act for himself or herself;

– evidence should be verified under oath as to the incompetent’s mental condition and his or her inability to act as plaintiff;

– evidence must demonstrate that the litigation guardian is both qualified and prepared to act, and in addition is indifferent as to the outcome of the proceedings;

– the applicant should provide some evidence to support the claim being made;

– the applicant should obtain the consents of the next-of-kin or explain their absence;

– if the applicant has a personal representative or power of attorney whose status is not being challenged in the proceedings, some explanation should be offered as to why the attorney or representative has not been invited to bring the claim.

20 The Szwydky criteria provide guidance in defining the “best interests” test set out in Rule 49(1). The third criterion, that of “indifference” to the result of the legal proceedings, essentially means that the litigation guardian cannot possess a conflict of interest vis-à-vis the interests of the disabled person. Indifference by a litigation guardian requires that the guardian be capable of providing a neutral, unbiased assessment of the legal situation of the dependent adult and offering an unclouded opinion as to the appropriate course of action. In essence the requirement of indifference on the part of a litigation guardian is a prerequisite for ensuring the protection of the best interests of the dependent adult. A litigation guardian who does not have a personal interest in the outcome of the litigation will be able to keep the best interests of the dependent adult front and centre, while making decisions on his or her behalf. Given the primacy of protecting the best interests of disabled persons, it is appropriate to require such disinterest on the part of a litigation guardian.

21 It is acceptable in most cases, and perhaps desirable in some cases, to have a trusted family member or a person with close ties to the dependent adult act as litigation guardian. For examples, see: Re Bousquet (1989), 1989 CanLII 4700 (SK QB), 77 Sask. R. 77 (Q.B.); Re Leeming, 1984 CanLII 566 (BC SC), [1985] 1 W.W.R. 369 (B.C.S.C.); Public Trustee for Province of Alberta v. Stirling (1980), 1980 CanLII 3831 (AB KB), 14 Alta. L.R. (2d) 214 (Surr. Ct.); Re Barnhill (1970), 1970 CanLII 1767 (NS SC), 3 N.S.R. (2d) 488 (T.D.); Re Young, 1942 CanLII 98 (ON CA), [1942] O.R. 301 (C.A.). However, there are exceptions. One such exception is the situation currently presented by this appeal, in which there is a particularly acrimonious and long-standing dispute among the children concerning their dead parent’s estate. In such cases, the indifference required to be a litigation guardian is clearly absent.

22 In my opinion, the Court of Appeal was correct in removing Judy and Glenn as Cherie Gronnerud’s litigation guardians and replacing them with the Public Trustee. Judy and Glenn could not act in their mother’s best interests because they fail to meet the third Szwydky criterion. Namely, they were not indifferent as to the outcome of the proceedings surrounding the estate of Harold Gronnerud, such as the claim under The Matrimonial Property Act and the claim for dependants’ relief. As residuary beneficiaries under Harold’s will, Judy and Glenn have an interest in proceedings that could result in the movement of assets from Harold’s estate to Cherie’s estate. As Cherie’s 1967 holograph will is not broad enough to cover all potential assets passing from Harold’s estate, those new assets would be distributed to all four of Cherie’s children equally in accordance with the laws of intestacy. If proceedings brought by Cherie’s litigation guardian against Harold’s estate are successful, Judy and Glenn could stand to gain more as beneficiaries with one-quarter interest each in Cherie’s newly increased estate, as opposed to residuary beneficiaries under Harold’s will. It is obvious that Judy and Glenn cannot be said to be disinterested in the results of the legal proceedings. The Court of Appeal was correct to remove them as litigation guardians.

B. The Criteria for Removing a Property Guardian

23 The property guardian is responsible for managing the finances of the dependent adult. Under The Dependent Adults Act the court appointing the property guardian must be satisfied that the individual is able to carry out the duties of a property guardian in a “satisfactory manner”, with regard to the dependent adult’s needs and the relationship between the proposed guardian and the disabled adult: s. 19(4). The court cannot appoint a property guardian who has a conflict of interest: s. 19(5). The mere status of being a relative of the dependent adult or a potential beneficiary is insufficient on its own to establish a conflict of interest: s. 19(6).

24 The requirement that the property guardian not be in conflict of interest is a proxy for ensuring that the property guardian protect the best interests of the dependent adult. Similar to the requirement that a litigation guardian be “indifferent”, at minimum a property guardian must be able to handle the finances of the represented party in a disinterested, unbiased manner. Although the statute is clear in stating that being a family member or a potential beneficiary is insufficient by itself to prove a disqualifying conflict, in some cases of family members or potential beneficiaries, there is evidence of other factors indicating a lack of objectivity. It is the unusual case where a family member or potential beneficiary in a troubled estate can demonstrate an absence of conflict and thus act as property guardian.

25 In my opinion, the present case is not one of those cases where the absence of conflict can be demonstrated. Judy Farr is the daughter of Cherie Gronnerud. She is also a residuary beneficiary of Harold Gronnerud, and a potential beneficiary of Cherie Gronnerud on intestacy. According to s. 19(6) of The Dependent Adults Act, this alone is insufficient to prove a conflict of interest. However, in addition to her status as a potential beneficiary and a family member, the record shows other factors indicating both financial and personal conflict.

26 First, if Judy is property guardian, she would be in a position to arrange Cherie’s financial affairs such that Cherie’s expenses are increased without benefit to Cherie and the assets passing from Harold to the primary beneficiary, Bud, are decreased. The higher Cherie’s expenses are, the greater the likelihood that a court will find that the trust fund from Harold’s will is inadequate to cover Cherie’s needs and award relief. As has already been observed, if Cherie’s estate is increased by a successful equalization claim, the portion passing to Judy on the basis of Cherie’s intestacy would be greater than the portion that Judy would receive as a residuary beneficiary of Harold’s original estate. It is again apparent that Judy has a direct financial conflict of interest and is disqualified from acting as property guardian by s. 19(5) of The Dependent Adults Act. Her conflict would prevent her from acting in Cherie’s best interests.

27 As well, Judy may have a personal conflict of interest that also brings into question her ability to act in Cherie’s best interests. There is some dispute as to the amount of contact Judy maintained with her parents. While Judy states that she visited her parents frequently and had a close relationship with Cherie, Bud’s version of those facts is very different. He claimed that Judy rarely visited and had a strained relationship with both parents, due to their disapproval of her marriage. Bud’s version of facts would appear to be supported by the distribution of property in both Harold’s will and Cherie’s holograph will, which left little to Judy. Given that there is some evidence of a possibly strained relationship between Cherie and her daughter, Judy may have a personal conflict of interest, contrary to s. 19(5) of The Dependent Adults Act, and for that additional reason the Court of Appeal was correct to remove her as property guardian.

28 Finally, we observe that Judy would not be an appropriate property guardian, given the standard set out in s. 19(4) of The Dependent Adults Act, which requires that the proposed property guardian be able to carry out his or her duties in a “satisfactory manner”, having regard to the needs of the dependent adult and the relationship between the proposed guardian and the dependent adult. As noted above, there is some evidence of an acrimonious relationship between Judy and Cherie. In addition, Judy has repeatedly attempted to have her mother placed in privately run facilities or moved to Judy’s own home, despite the finding of the Court of Queen’s Bench that Cherie’s needs are best met in a publicly funded facility. As Judy does not appear to have an accurate perception of Cherie’s needs and best interests, she fails to meet the standard outlined in s. 19(4) and was thus properly replaced as property guardian by the Court of Appeal.

C. The Jurisdiction of the Court of Appeal for Saskatchewan over the Public Trustee

29 It is my opinion that, in appointing the Public Trustee as litigation guardian for a disabled adult, the Court of Appeal for Saskatchewan has the jurisdiction to restrict the Public Trustee to litigating some types of claims and not others. This authority of the appellate court is apparent from the plain wording of the relevant statute. Section 20(1) of The Dependent Adults Act states that, “[s]ubject to subsections (2) to (5) and subsection 29(6) of The Public Trustee Act”, where the court makes an order appointing a property guardian, the court must specify the matters over which the property guardian has authority, such as the authority to commence a legal proceeding relating to the estate of the dependent adult. Section 29(6) of The Public Trustee Act states that where a public trustee is appointed as property guardian, the trustee’s powers and duties are those contained in The Public Trustee Act including the power to bring, maintain or defend an action on behalf of the disabled adult. This alone would appear to give the Public Trustee unfettered authority to commence any legal proceeding it wishes, without any restrictions from the Court of Appeal.

30 However, s. 20(1) is also made subject to s. 20(2) to (5) of The Dependent Adults Act. Of particular relevance is s. 20(3)(a), which grants the court the power to make the order appointing the property guardian “subject to any conditions and restrictions that it considers necessary”. Unlike s. 20(1), s. 20(3) is not made subject to s. 29(6) of The Public Trustee Act. Under s. 20(3)(a), the court has authority to restrict the Public Trustee’s powers.

31 In summary, the power of the court to specify the matters over which a property guardian has authority does not apply where the property guardian is the Public Trustee. In that case, the matters over which the Public Trustee has authority are found only in The Public Trustee Act. The language of s. 20(1) of The Dependent Adults Act makes this clear. In contrast, the ability of the court to place restrictions on how the property guardian exercises his or her authority applies regardless of whether the guardian is a natural person or the Public Trustee. This is apparent due to the absence of any language in s. 20(3)(a) that is similar or parallel to the limiting language used by drafters of s. 20(1). Thus, while a court is unable to decide which powers the Public Trustee will possess as property and litigation guardian (because of s. 20(1)), under s. 20(3)(a) the court has the authority to place restrictions on how those powers are exercised by the Public Trustee.

32 I would dismiss this ground of the appeal. The Court of Appeal had the discretion under s. 20(3)(a) of The Dependent Adults Act to place restrictions on the order appointing the Public Trustee as litigation guardian. The next issue is whether the court wrongly exercised this discretion when it prohibited the Public Trustee from commencing a claim under The Matrimonial Property Act on behalf of Cherie Gronnerud.

D. Whether Jurisdiction Was Properly Exercised

33 Reasons by the Court of Appeal for their decision to preclude the marital property claim would have been useful. In the absence of reasons by a trial judge in a civil case, the appellate court is unable to exhibit the usual deference and instead conducts its own assessment of the case: R. P. Kerans, Standards of Review Employed by Appellate Courts (1994), at p. 111. As we are faced at present with the unusual situation of an absence of reasons at both the trial and appellate court levels, it is logical to conclude that this Court must conduct where necessary a de novo assessment of the case.

34 The question that the Court of Appeal would have had to answer is whether the commencement of an action under The Matrimonial Property Act would have been in Cherie’s best interests. As the criteria to appoint and remove a litigation guardian turn on the best interests of the dependant, the question of whether a particular lawsuit should be brought by the litigation guardian similarly focuses on whether the lawsuit is in the best interests of the dependent adult.

35 On my review, it appears that underlying the Court of Appeal’s decision must be the implicit recognition that the best interests of Cherie Gronnerud are protected by the trust account in Harold’s will. This is supported by evidence of: Cherie’s intentions regarding the family farm; Cherie’s relationships with her children and her husband; Cherie’s present physical and mental condition; and the fact that a public facility best suits Cherie’s present needs. While none of these factors is determinative on its own, taken together they serve to illuminate the best interests of Cherie Gronnerud.

36 First, in terms of Cherie’s intentions regarding the estate, the evidence shows that both Cherie and Harold wished to keep their assets together and also wanted to give the majority of their assets to their son Bud. If a claim under The Matrimonial Property Act was brought that resulted in an equal division of the matrimonial property, then the family farm and house would have to be sold to permit the payment to Cherie’s estate. This would be antagonistic to the testamentary intention of Harold, who wanted to bequeath almost everything to Bud in part to ensure the farm land so labouriously acquired was retained. Harold’s intentions are only relevant in that they may assist one in discerning Cherie’s intentions, which in turn are useful in establishing her best interests.

37 That Cherie shared her husband’s view is evident in her holograph will. Although this will was drafted a number of years ago, it nevertheless indicates Cherie’s desire that Bud have the bulk of the family assets primarily to ensure protecting the family farm. The relationship between Cherie and Bud does not seem to have changed a great deal between 1967 and the time when she became mentally incompetent; they appear to have remained close, with Bud living near his parents and visiting them regularly. It is unlikely that Cherie’s original intention to leave the majority of her estate to Bud would have changed between 1967 and the onset of her illness. Cherie’s own wishes concerning the family home and farm further assist us in determining what would be in her best interests.

38 It is also significant that Harold Gronnerud drafted his will in 1999, after Cherie had been diagnosed with Alzheimer’s disease in 1997. Given their lengthy and satisfactory marriage, it is likely that had Cherie been competent in 1999, Harold would not have drafted his will in the manner that he did. It is apparent that he knew Cherie was terminally ill and permanently disabled mentally by Alzheimer’s disease. In the result, it was pointless to provide for her in any other way. His will not only expressed his intentions but reflected those of his wife expressed in her holograph will some 35 years ago. We do not know if or how Cherie would have changed her original will had she not become medically incompetent. While not significant on its own, the evidence of the testamentary intentions of Cherie and Harold Gronnerud is relevant in that it provides additional clues as to what would be in Cherie’s best interests, the latter being the central inquiry.

39 At present, Cherie’s condition, both mental and physical, is dire. As noted above, the Court of Queen’s Bench has twice found that Cherie’s needs are best met in the publicly funded facility in Regina, rather than in a private home or in an expensive private facility. She has no chance of recovery, she suffers from dementia, and she requires assistance with most basic activities. It is reasonable to assume that, in deciding to leave a $100,000 trust fund to his wife of 57 years, Harold had in mind the fact that Cherie is suffering from a debilitating and incurable disease, and believed that the trust fund would provide for her particular needs. This appears to be supported by the findings of the Court of Queen’s Bench that Cherie’s needs as an Alzheimer’s patient are best met in a publicly funded facility. We believe that, given this factual record, the Court of Appeal must have recognized this as well.

40 Therefore, although we lack the benefit of the Saskatchewan court’s reasons, I find that the Court of Appeal properly exercised its jurisdiction when it prohibited the Public Trustee from bringing a claim on behalf of Cherie Gronnerud under The Matrimonial Property Act. Given the evidence of the testamentary intentions of both Cherie and Harold Gronnerud, the fact that Harold drafted his will after the onset of Cherie’s tragic illness, and Cherie’s current mental and physical condition, such a claim would not have been in Cherie’s best interests.

41 I respectfully disagree with Arbour J.’s assertion that the record in this case is limited. While there is an absence of trial evidence, there is, in my opinion, a lengthy evidentiary record on the issue of whether it is in Cherie’s best interests to have a claim brought on her behalf pursuant to The Matrimonial Property Act. There has been a considerable investigation into what would be in the best interests of Cherie Gronnerud. There have been numerous proceedings, a dozen listed below, some dealing with the appointment, replacement or removal of guardians, or with whether a public or private facility is the best place for Cherie, or with which lawsuits should be brought on her behalf. All of these proceedings dealt with the broader issue of Cherie’s best interests, and help to shed light on the more specific matter of the appropriateness of a claim under The Matrimonial Property Act. The list of proceedings dealing with Cherie’s best interests includes the following:

– on September 10, 1999 and September 13, 1999, Judy Farr and Glenn Gronnerud commenced petitions under The Dependent Adults Act for the appointment of themselves as personal and property guardians for Cherie;

– on October 29, 1999, Judy and Glenn brought a motion applying to be

appointed personal and property guardians for Cherie;

– on November 5, 1999, Judy and Glenn brought a motion to be appointed litigation guardians for Cherie;

– on November 25, 1999, Bud Gronnerud commenced a proceeding under The Dependent Adults Act to be appointed as personal and property guardian for Cherie;

– on November 30, 1999, the Court of Queen’s Bench for Saskatchewan issued an order appointing Judy and Bud as personal and property guardians for Cherie;

– on December 1, 1999, the Court of Queen’s Bench for Saskatchewan issued an order appointing Judy and Glenn as litigation guardians for Cherie;

– on December 2, 1999, Judy and Glenn issued a petition as litigation guardians for Cherie, claiming relief under The Matrimonial Property Act and The Dependants’ Relief Act, 1996;

– on May 15, 2000, Bud brought an application by Notice of Motion, requesting the removal of Judy as personal guardian and for an order removing Cherie from a private facility to a publicly funded institution;

– by fiat on July 21, 2000, the Court of Queen’s Bench for Saskatchewan ordered that Cherie be moved to a publicly funded facility and that she receive additional, privately funded night care;

– on November 28, 2000, the Public Trustee, who by then had been appointed by the Saskatchewan Court of Appeal as property and litigation guardian, commenced an application pursuant to The Dependants’ Relief Act, 1996;

– by Notice of Motion dated December 8, 2000, Judy applied to the Court of Queen’s Bench for Saskatchewan for an order removing Cherie from the publicly funded facility and placing her in Judy’s home;

– by fiat on January 17, 2001, Zarzeczny J. for the Court of Queen’s Bench for Saskatchewan dismissed Judy’s application of December 8, 2000 and held that Cherie should remain in the public facility. Zarzeczny J. stated: “To now accede to the application to have Mrs. Gronnerud moved from Wascana [the public facility] to the personal care of Judith Farr at her home outside of Regina . . . would be unwise, imprudent and not in her best interests”: Gronnerud (Litigation Guardians of) v. Gronnerud Estate, [2001] S.J. No.16 (QL), at para. 11.

As has already been stated, what is in Cherie’s best interests is the main inquiry in determining whether it is appropriate for the litigation guardian to bring a claim under The Matrimonial Property Act on her behalf. As Cherie’s best interests have been the central issue canvassed in multiple proceedings, I do not see what additional useful evidence would result from further investigations.

42 As well, the fact that the record in this case consists of affidavit evidence is not problematic. On this point I diverge from Arbour J.’s opinion (at para. 48). It is clear that the court can choose to hear an application pursuant to The Dependent Adults Act on affidavit evidence: Rule 514 of The Queen’s Bench Rules of Saskatchewan; see also Re Stensrud (1992), 1992 CanLII 7987 (SK QB), 99 Sask. R. 165 (Q.B.), and Re Kemp (1991), 1991 CanLII 7843 (SK QB), 89 Sask. R. 249 (Q.B.), for examples of hearings under The Dependent Adults Act based on affidavit evidence. The use of affidavit evidence where appropriate is sensible, given that adult guardianship proceedings and general family law procedures are often time-consuming, costly, and may involve the play of strong emotions. It is usually a good, common sense policy to promote efficiency and finality in this type of litigation, though not at the expense of fairness. Such a policy is particularly appropriate where there is a record as extensive as in the case at bar and further investigation would likely bear little or no fruit.

43 As a final point, it is worth highlighting the fact that the issue in this case does not turn solely on a determination of the merits of any possible claim that could have been brought under The Matrimonial Property Act on behalf of Cherie Gronnerud. We are not adjudicating that issue and indeed that question is not the central focus of this appeal. Rather, the main issue is whether the Court of Appeal had the jurisdiction under The Dependent Adults Act to prohibit such a claim. We respond to this question by concluding that the Court of Appeal did indeed possess such jurisdiction under the statute. Furthermore, in the unique set of circumstances presented by this appeal and despite the silence of the Court of Appeal, there existed reasons to support their decision to exercise their jurisdiction in the manner that they did.

44 We caution that this holding should not be taken as establishing a general rule that the Court of Appeal should prohibit all such claims or similar claims where they are brought on behalf of a dependent adult, or even on behalf of an adult with a serious and incurable disease such as Alzheimer’s. Rather, the Court of Appeal should look at the particular set of circumstances presented by each individual case and decide on the basis of the facts before them whether they should exercise their jurisdiction to prohibit or allow the claim in question. Given another set of facts, the Court of Appeal may find that it is appropriate to permit a claim under The Matrimonial Property Act.

45 The appeal is dismissed and the order of the Court of Appeal is affirmed. Costs of all the parties on a party-party basis will be payable by the estate.

The reasons of L’Heureux-Dubé and Arbour JJ. were delivered by

46 Arbour J. (dissenting in part) — I have read the reasons of my colleague, Major J., and while I agree with him on most issues, I respectfully disagree with his conclusion endorsing the Court of Appeal decision to limit the powers of the Public Trustee acting as litigation guardian in this case.

47 I am prepared to assume that there is a proper statutory foundation for the discretion exercised by the Court of Appeal to preclude the Public Trustee from pursuing Cherie Gronnerud’s claim under The Matrimonial Property Act, 1997, S.S. 1997, c. M-6.11 (now The Family Property Act, S.S. 1997, c. F-6.3). Even on the assumption that my colleague’s analysis is correct as a general matter of statutory interpretation, there remains the issue of whether the Court of Appeal acted appropriately in preventing the Public Trustee from pursuing a division of property under The Matrimonial Property Act on the facts of this particular case. I am unable to conclude that it did on the strength of this limited record.

48 My colleague correctly observes (at para. 33) that “[i]n the absence of reasons by a trial judge in a civil case, the appellate court is unable to exhibit the usual deference and instead conducts its own assessment of the case”. Having decided to appoint the Public Trustee as litigation guardian for Cherie Gronnerud, the Court of Appeal ordered him not to proceed with an action for division of assets under The Matrimonial Property Act, an action that appears to have considerable chance of success, on the basis, one must assume, that it is not in the best interests of Cherie Gronnerud to receive her fair share of the property accumulated during her marriage. This whole matter came to the courts on the basis of affidavit evidence and the record is far from extensive. As I understand it, the argument in favour of precluding the Public Trustee from proceeding with the division of property action is twofold. First, it is said that Cherie Gronnerud’s needs are best met in a public institution and that she has no use for the money that such a division of assets would generate. Although there is support in the record for a finding that the elderly Mrs. Gronnerud, severely afflicted by Alzheimer’s disease, has all her needs met adequately as it is, and that the care that she is receiving in a public institution is better suited to her present needs than what a private expensive alternative may provide, I cannot see that this argument has any relevance on its own. Entitlement to division of matrimonial assets is not predicated on need or lack thereof. The main, in fact the sole argument in my view that could support the decision of the Court of Appeal is that a division of matrimonial property would probably lead to the family farm having to be disposed of, contrary to the wishes of both Mr. and Mrs. Gronnerud. In other words, the idea is that it is not in her best interests to pursue an action that she herself would not want to pursue.

49 One of the main difficulties with this case is that there is not much of a record constructed around that critical issue. The most there is to ascertain what would be the wishes of Mrs. Gronnerud were she capable of formulating any such wishes is essentially a holographic will dating back some 35 odd years, and the fact that nothing since shows a change of heart on her part. In the absence of reasons by the Court of Appeal, I cannot say how the court felt that this was sufficient to dispose of the issue of her best interests. For myself, I cannot be persuaded, again on this record, that I am in a better position than the Public Trustee to make that determination. It is obviously rarely in a person’s best interests to forgo a statutory entitlement to as much as possibly half a million dollars. I cannot say that this is not such an unusual case. However, considerably more investigation should be done, as the Public Trustee is fully ready, able and willing to do, to ascertain whether this is in fact the case. For instance, we do not know if it is possible that a portion, not even necessarily an equal division, of the family property could pass to Mrs. Gronnerud — and, eventually her estate — without the farm having to be sold (by taking out a mortgage for example). We are no better situated than the Public Trustee, in fact we are hampered by the limited record before us, to decide that it is in the best interests of Mrs. Gronnerud not to pursue what she seems to be entitled to. In the circumstances I think it would be far preferable to leave the decision as to whether an action for division of assets under The Matrimonial Property Act should proceed to those who are better placed to make that decision.

50 The Public Trustee gave assurances, in both written and oral argument before this Court, that it would conduct a thorough investigation into the best interests of Cherie Gronnerud before deciding whether to proceed with the action for a division of assets. I see no reason to doubt these assurances and would accordingly defer to the Public Trustee, whose relative expertise in handling such matters far outstrips that of this Court. Should the action proceed, it is also possible under the Act for a court to order an unequal division of the family property, should this be required to do justice to the unusual circumstances of this case. Given all this, I see no reason for this Court, following the Court of Appeal, to interfere prematurely with the usual legal process through which these controversies are settled. It is possible that the Public Trustee will conclude that it is not in Mrs. Gronnerud’s best interests to pursue her claim for what is hers under that law, and that her best interests are adequately protected by the trust account in her husband’s will, supplemented, if necessary, by a claim under The Dependants’ Relief Act, S.S. 1996, c. D-25.01. I can see no reason to justify taking away that decision from the Public Trustee.

51 I would accordingly allow this part of the appeal, and permit the action for division of assets under The Matrimonial Property Act to proceed at the discretion of the Public Trustee.

Appeal dismissed with costs, L’Heureux-Dubé and Arbour JJ. dissenting in part.

Solicitors for the appellant Cherie Gronnerud, by her litigation guardians, Glenn Gronnerud and Judith Ann Farr: Richmond Nychuk, Regina.

Solicitors for the appellant the Public Trustee for Saskatchewan, as litigation guardian of Cherie Gronnerud: MacPherson Leslie & Tyerman, Regina.

Solicitors for the respondent: Gerrand Rath Johnson, Regina.