BARRIE
COURT FILE NO.: 11-0804
DATE: 20130909
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: LYNN AUGUSTINO AS GUARDIAN FOR ARLENE JOAN TIMMINS, Applicant (Moving Party)
AND:
ROSS TIMMINS, Respondent (Responding Party)
BEFORE: THE HON. MR. JUSTICE P.H. HOWDEN
COUNSEL:
E. Brohm, Counsel for the Applicant/Moving Party
P.W. Murray, Counsel for the Respondent (Responding Party)
HEARD: August 27, 2013
ENDORSEMENT
[1] On December 13, 2012, the applicant Lynn Augustino was appointed as full guardian of the person of her mother, Arlene Joan Timmins. Ms. Timmins was found incapable of caring for herself. The full guardian’s plan for the care of Ms. Timmins was approved. As part of the same order, the respondent Ross Timmins’ authority under Ms. Timmins’ Power of Attorney for personal care in his favour was terminated. Mr. Timmins is Arlene Timmins’ husband. In paragraph 29 of the guardianship order, the applicant was ordered to have her mother Ms. Timmins placed on a waiting list for admission to a long-term care facility in the Hamilton area and to have her admitted to such facility when a bed becomes available. This order was made on consent of the parties.
[2] The applicant now moves to vary the guardianship order by deleting paragraph 29 and replacing it with a new order as follows:
- THE COURT ORDERS that the guardian of personal care may have Arlene Joan Timmins placed in a Long Term Care Facility within the City of Barrie, Province of Ontario.
[3] The applicant also moves to delete para. 30 of the prior order. The respondent consents to this request deleting para. 30 from the order regarding unsupervised visits out of the hospital or care facility.
[4] As to the issue of the deletion of para. 29 of the guardianship order, in my view, after careful consideration, the motion has two problems which need to be corrected. First, virtually all of the evidence in support pre-dates the order of December 13, 2012 which was made on consent. The law regarding the finality of consent orders is clear; the courts have stated for years that, “where parties consent, with full opportunity to ascertain all the facts, they must abide by that adjudication of their private quarrel to which they gave their consent”. Maynard v. Maynard, 1950 3 (SCC), [1951] S.C.R. 346 (SCC). The only grounds to support setting aside part or all of such an order are grounds justifying the setting aside of a contract. In Monarch Construction Ltd. v. Buildevco Ltd., [1998] O.J. No. 332, the Ontario Court of Appeal stated that a consent order or judgment can only be amended when it does not express the real intention of the parties or where there is fraud.
[5] In this case, there is no evidence that the order did not express the real intention of the parties at the time and there is no evidence of fraud in obtaining the guardianship order. This point was raised by Mr. Murray for the respondent as in his view fatal to the motion as it affects para. 29.
[6] The second problem is frankly the lack of care in preparing the Notice of Motion and the submissions. For grounds of the motion, the Notice of Motion merely recites the guardianship order and evidence that was or should reasonably have been available to the applicant before the guardianship order was made, and some bald conclusions about Ms. Timmins’ best interests. As grounds in law for the motion, the Notice lists only the Rules of Civil Procedure. The supporting affidavit follows the same pattern.
[7] When I raised this problem, counsel for the applicant made a rather vague statement about perhaps looking at the Substitute Decisions Act, S.O. 1992, ch.30 (“S.D.A.”) where there may be jurisdiction to vary the prior order and some direction to look to the best interests of the incapable person as a reason to vary this consent order within one year of its being made. But even then, the facts now set out by the guardian are all from observations, hospital staff notes and letters or memos relating to Mr. Timmins prior to the date of the consent order and to his being found incapable and later being found capable of managing his own affairs, again all of it dating back to well before the order in question was consented to and known, or reasonably should have been known, to the applicant prior to the order.
[8] The Notice of Motion fails to give notice to the respondent of the statutory authority for a motion for directions by the guardian under s. 68 of the S.D.A. and that a variation of the prior order was being sought under s. 68(3) and (5) of that Act. A new motion should be brought, if there are grounds available to support it, indicating that it is a motion for directions under s. 68 (1), (3), and (5) of the S.D.A. or, if some other jurisdiction is to be invoked, that the motion is brought under another statute or other legal authority allowing the order sought to be made as well as the nature of the relief sought. As it stands, there is no notice to the respondent that this is really a motion for directions under s. 68 of the S.D.A. and to vary the prior order under the S.D.A. Any party is entitled to know the case they have to meet and as the motion stands, it does not provide proper notice.
[9] The additional problem remains that evidence should be provided showing some change since the guardianship order was made to warrant the variation sought of deleting para. 29 of the guardianship order under s.68 of the S.D.A. A new affidavit should be provided indicating what, if anything, has changed since December 13, 2012 to warrant the variation that is wanted.
[10] Accordingly, I will make the order requested in regard to para. 30 of the guardianship order of December 13, 2012 because it is on consent of both parties. However the balance of the motion as it relates to para. 29 of the prior order is dismissed without prejudice to another motion being brought properly constituted and with recent evidence to support it.
[11] As the motion was necessary to deal with para. 30 for which relief was granted on consent, there will be no costs ordered.
HOWDEN J.
Date: September 9, 2013