ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NOs.: 12-38588
13-40027
DATE: 2013-08-14
BETWEEN:
Karen Orens
Applicant
(Respondent in Counter Application)
– and –
Sonia Aleong, Damien Lee Young and Justine Lee Young
Respondents
(Applicants by Counter Application)
Brad Wiseman, for the Applicant
Anthony H. Little, for the Respondents
HEARD: Contested Guardianship Application heard Friday, August 9, 2013 at Hamilton, Ontario
THE HONOURABLE JUSTICE THERESA MADDALENA
APPLICATION ENDORSEMENT
THE ISSUES
[1] This is a contested guardianship application heard pursuant the Substitute Decisions Act, S.O. 1992 c.30.
[2] Karen Orens, the applicant in action number 12-38588 is the sister of the incapacitated individual, David Lee Young.
[3] Sonia Aleong, the applicant in action number 13-40027 is the legal spouse of the incapacitated person, David Lee Young. Damien Lee Young and Justine Lee Young are two adult children of Sonia Aleong and David Lee Young.
[4] The Public Guardian and Trustee has been served with all pleadings and provided its comments to the court by correspondence dated February 22, 2013. The Public Guardian and Trustee takes no position with respect to the applications before the court.
BACKGROUND FACTS
[5] David Lee Young (hereinafter referred to as “David”) immigrated to Halifax, Nova Scotia from Trinidad and Tobago in May 2006. David was born in Trinidad and Tobago on September 12, 1963. He came to Canada to work for the Bank of Nova Scotia in Halifax, Nova Scotia.
[6] At the time David moved to Nova Scotia, his wife, Sonia Aleong (hereinafter referred to as “Sonia”), and their three children moved to London, Ontario as Sonia’s aunt owned a home in London, Ontario, that they could reside in on a rent free basis.
[7] The last time that David resided together with his family was in Trinidad. Since coming to Canada they have not resided together.
DAVID’S INCAPACITY
[8] On February 16, 2010, while living in Halifax, Nova Scotia, David suffered, according to the treating neurosurgeons, “a right basal ganglia hemorrhagic stroke”. His sister, Karen Orens (hereinafter referred to as “Karen”) described the injury suffered as an intracranial hemorrhage requiring an emergency craniotomy. This was a massive brain bleed that required surgery to remove a large clot and followed by drainage tubes to relieve the pressure.
[9] There is no doubt that the end result was a serious brain injury which left David paralyzed on the left side of his body. David now requires 24-hour care. This injury left him incapable of looking after himself and managing his property.
[10] Currently David is non-ambulatory, requires hoist/lift assistance and a wheelchair for mobility.
[11] A guardianship order was made by the Supreme Court of Nova Scotia on May 5, 2010, with the consent of all parties including Sonia. In that order David’s uncle, Anthony George, was appointed as David’s guardian of his person and property by the court.
[12] The guardianship order was firstly obtained in Nova Scotia as David resided there at the time of his injuries. However, part of the guardian’s plan for David was that David would be moved to Ontario as soon as he was stabilized in order to be closer to his guardian, his uncle Anthony George who resided in Oakville, and to David’s children who resided in London, Ontario.
[13] At the time of his injury David was in intensive care for several months, however, when his condition was stabilized he was moved to Ontario.
[14] David currently resides in at Leisure World Long Term Care Home in Mississauga. David currently requires 24-hour a day care.
[15] A most recent capacity assessment of David conducted by Kim Goldstein, RSW, leaves no doubt that David continues to be incapable of managing his personal care and his property and requires the appointment of a guardian.
[16] Mr. Anthony George, David’s uncle, who is the guardian for David appointed pursuant to the order of the Supreme Court of Nova Scotia on May 5, 2010, wishes to resign as guardian due to his own health issues. Therefore the contested guardianship application is currently before the court.
ANALYSIS
[17] Karen is David’s sister. Although she lives in Lakewood, California, with her husband and children, I am satisfied that there is a close bond between Karen and her brother David. Karen also looks after her own mother (and David’s mother) who lives with them in California. David’s father died in 1985 in Trinidad. Karen, in her guardianship plan dated November 19, 2012, states that she wishes to transfer David to The Wenliegh Home in Toronto which Karen says is better suited to David’s rehabilitation.
[18] Sonia, along with her and David’s two adult children, Damien and Justine, wish to move David to London, Ontario, to be closer to them.
[19] From the affidavit materials, there is evidence of disagreement and disharmony between Karen and her family and Sonia regarding the care of David. This is particularly so between the current guardian, Anthony George, and Sonia.
[20] Both Karen and Sonia and her adult children have submitted detailed guardianship plans for David and plans for the management of David’s property.
[21] The paramount consideration for the court is the best interests of the incapable person.
[22] The court should also consider, in coming to its conclusions, the provisions of ss. 66(6) and 66(7) of the Substitutes Decisions Act, 1992, which recites as follows:
Family and friends
(6) The guardian shall seek to foster regular personal contact between the incapable person and supportive family members and friends of the incapable person. 1992, c. 30, s. 66(6)
Consultation
(7) The guardian shall consult from time to time with,
(a) supportive family members and friends of the incapable person who are in regular personal contact with the incapable person; and
(b) the persons from whom the incapable person receives personal care. 1992, c. 30, s. 66(7).
[23] It is abundantly clear from the evidence that neither party is submitting their guardianship plan for any reasons of personal gain as David has very minimal assets and it is very likely there may be a shortfall when it comes to dealing with assets and property. Both parties have indicated a willingness to cover any financial shortfall with respect to David and indeed both would be financially able to do so based on the evidence presented to the court.
[24] The real issue therefore is with the personal care decisions relating to David.
[25] In this regard there are a number of considerations for the court. At the time of the event causing David’s incapacity, David was residing alone in Nova Scotia. Sonia and the three children resided in London, Ontario, and have lived there since coming to Canada in 2006. Although Sonia’s affidavit deposes evidence of contact with David for special events between 2006 through 2009, the parties remained essentially separate and apart. Thus the last time the family resided as a family unit in a permanent residence was actually in Trinidad.
[26] In 2010 Sonia consented to Anthony George acting as guardian for David. As a result the order of the Supreme Court of Nova Scotia made on May 5, 2010, appointed Anthony George as guardian for David’s personal care and property. That order continues today.
[27] Anthony George has been closely bonded to David. The affidavits presented to the court do show some disharmony between Mr. George and Sonia.
[28] Further, paragraph 19 of Sonia’s affidavit, sworn the 30th of May 2013, deposes that she has not spoken to any of David’s medical consultants or physicians as to his medical condition or situation since the appointment of Anthony George on May 5, 2010. Further, in paragraph 11 of Sonia’s affidavit, sworn the 21st of February 2013, she deposes that she is not particularly aware of the circumstances surrounding the medical treatment received by David. Although Sonia indicates that she will of course rely on David’s future caregivers, as she must, she and her adult children may not have a full appreciation of David’s needs and best interests given their non-involvement at the beginning.
[29] Sonia and the two adult children’s plan is to move David to a long term care facility in London, Ontario, more specifically at Chateau Gardens, which is approximately 1.5 kilometres from where they live. This would obviously put David very close to his spouse and three children, two of whom are adults.
[30] Karen’s plan would move David to the Wenleigh in Toronto, which Karen deposes is a facility better suited towards rehabilitation of David.
[31] The court is to consider the best interests of David as well as those factors outlined in s. 66(6) and s. 66(7) of the Substitute Decisions Act, 1992.
[32] The personal contact with Sonia and the three children is in David’s best interests and can and should continue regardless of whether Sonia and the two adult children are guardians of David. The contact with Anthony George, and his family and Karen and her family should also continue as this also is in David’s best interests.
CONCLUSIONS
[33] I conclude that David and Sonia were living separate and apart at the time of the incident that led to David’s incapacity.
[34] I further conclude, based on the affidavit materials filed, that the relationship has broken down between Sonia and Anthony George and this is problematic.
[35] David’s adult children, while young adults who are keen and willing to look after their father, should not be burdened with his guardianship.
[36] I conclude, therefore, that Karen is best suited to act as guardian of David, both with respect to personal care and the management of his property. I conclude also that Karen will best promote and foster regular personal contact between David and family members and friends.
[37] The court wishes to empathically state that the appointment of Karen as guardian is not meant to exclude the children and Sonia from visiting David. It is hoped and anticipated that the personal contact with them and David will continue, as this is also in David’s best interests.
ORDERS MADE
[38] (1) There is a declaration that David Lee Young continues to be incapable of managing his personal care and his property, and requires the appointment of a guardian for both personal care and property.
(2) Karen Orens is hereby appointed as guardian of the person and property of David Lee Young in accordance with s. 22 and s. 55 of the Substitute Decisions Act, 1992, S.O. 1992 c. 30. Anthony George is no longer the guardian of the incapacitated person, David Lee Young.
(3) There is no requirement for Karen Orens to post a bond and the posting of a bond is hereby dispensed with.
(4) This order supersedes the order of the Nova Scotia Supreme Court dated May 5, 2010.
(5) The parties have agreed in advance that regardless of the outcome of the application there shall be no order as to costs. Accordingly, the court orders that there shall be no order as to costs of the two applications before the court.
(6) At the request of the Public Guardian and Trustee, this Court orders that the Public Guardian and Trustee’s fee for reviewing this application, as approved by the Attorney General, in the amount of $250 plus HST of $32.50 shall be paid forthwith to the Public Guardian and Trustee from the property of David Lee Young.
(7) The guardian, Karen Orens, shall act in accordance with the Guardianship Plan dated November 19, 2012, a copy of which attached as appendix A to this Order.
Maddalena, J.
Released: August 14, 2013
COURT FILE NOs.: 12-38588
13-40027
DATE: 2013-08-14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Karen Orens
Applicant
(Respondent in Counter Application)
– and –
Sonia Aleong, Damien Lee Young and Justine Lee Young
Respondents
(Applicants by Counter Application)
APPLICATION ENDORSEMENT
Maddalena, J.
Released: August 14, 2013