ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-09-451
DATE: 2014-03- 21
B E T W E E N:
Scott Wray Anderson and Sunny Anderson
Paul Osier, for the Applicants
Applicants
- and -
Jesse Maracle J. Jamieson and Sandra Patricia Drinkwater Montero and Raul Montero also known as Rauly (Raulee) Montero, and Kathy Lynn Renee and The Department of Indian and Northern Affairs
Self-Represented
Respondents
HEARD: August 12, 13, 14 and 15, 2013 at Brantford
The Honourable Madam Justice J.A. Milanetti
[1] Scott Wray Anderson and Sunny Anderson bring this application to terminate the Powers of Attorney (for property and person) granted by their mother Jesse Maracle J. Jamieson (born October 12, 1925) to the respondents, their step-sister Sandra Montero and their nephew (Sandra’s son) Raul Montero, dated July 13th 2008.
[2] The only respondents remaining by the time of trial were Jesse Jamieson, Sandra Montero and Raul Montero. I understand Kathy Renee and the Department of Indian and Northern Affairs were released from the action prior to trial.
[3] While both brothers move to have the attorneys terminated; only Wray seeks to be appointed as Ms. Jamieson’s guardian of property pursuant to s. 22, and person pursuant to s. 55 of the Substitute Decision Maker’s Act.
[4] At the outset, I would indicate that Justice Ramsay made an order on February 12th, 2010 that the “pleadings be constituted by the existing application record and supporting affidavits for the applicants and the motion record of the respondents and supporting affidavits”. As a result, the trial record includes affidavits from Sandra Montero, Raul Montero, Kathy Renee, and Rose Kragelj. There is also a Notice of Appearance by the Public Guardian dated June the 26th, 2009. Despite such, I was told that they declined to be involved. I received no other information as to their position on the matter but note that Justice Glithero made an order on March the 9th, 2012 that their costs of $250.00 plus HST shall be paid from Ms. Jamieson’s property ultimately.
[5] Ms. Jamieson is currently 89 years old and has been living at St. Joseph’s Health Centre in Guelph since June 13th, 2011.
[6] I heard from Wray Anderson as well as Larry McDermott, Paul Williams, John Deacon, Mike Bedford and Jody Hill for the applicants.
[7] Sunny Anderson did not participate but did appear in court sporadically through the proceedings. I heard that he sustained a serious head injury as a teen; having been hit in the head with a metal bat. It appears he has had quite significant difficulties as a result.
[8] It is relevant that Ms. Jamieson and Sunny had been living in her own home on the Six Nations at Lot 33-11, Concession 3 Township Tuscarora, a property she had owned since 1976 (also known as 576 Third Line RR1 Oshweken), with Sunny immediately before being taken into varied forms of assisted living.
[9] While Wray’s application indicates that Sunny had been “caring” for his mother, I did not hear from Sunny or anyone else about Sunny’s role in this regard. I am most skeptical of this contention given the information I received about Sunny’s own difficulties. As well, the respondents called Jeff Martin from Jay Silverheel’s home about the concerns their staff had about Sunny’s involvement when Ms. Jamieson was staying at that residence. The notes of her time at that facility were made Exhibit 21.
[10] Sandra and Raul Montero maintain that Ms. Jamieson had been living in deplorable conditions in her home and begged them to get her out. Wray did not address the condition of the home in-chief but in cross-examination he said only that “it was under repair at the time of the sale and there had not been time to fix it after the flood”.
[11] He was not asked, nor did he address the condition of the home when Sunny and his mother were living there. I had bits of information from a variety of other witnesses on this issue, nothing terribly substantial. Larry McDermott (who travelled from Lanark to testify) said that Wray and his mother had a close relationship and that the home was “livable, seemed clean and sanitary/reasonable”. He said he had helped Sunny move out of the home twice on short notice.
[12] Retired neonatologist, Dr. John Deacon, said that he had purchased a computer from Wray in the fall of 2003 and had had dinner with Wray and his mother on the porch (he did not say when), and noted a warm and attentive relationship between Wray and his mom.
[13] Paul Williams said that he had seen Jessie at her home once in about 2006 and while it was messy (boxes of clothing), too cluttered for his comfort; he did not feel it was unhealthy.
[14] None of these witnesses said much about Sunny’s condition or his previous role with his mother.
[15] The respondents maintain that the conditions of the home were deplorable and with no working heat or water and boxes piled to the ceiling. Sandra spoke of mold and continual flooding; bad wiring; a cracked foundation; needing a new roof. She said that her mother had wanted to sell it and move out for years.
[16] Only photographs of the exterior of the house were introduced by Wray Anderson. I was not provided any photographs of the interior of the house. I was provided quite markedly different accounts of its conditions by the parties/witnesses. I do note that the affidavit of purchaser Kathy Lynn Renee describes as a “fixer upper” that she spent $47,000.00 to refurbish.
[17] The state of the house factors prominently in two ways – the respondents say that is why “Jessie begged them to get her out”. As well, the Attorneys sold the home (forcing Sunny’s eviction) to Kathy Lynn Renee on May 29, 2009 and have failed to adequately account for the proceeds. Mr. Anderson said that he first learned of the sale agreement at discovery.
[18] The property was sold for $47,000.00 with a $23,000.00 deposit on a rent-to-own basis to Ms. Renee (who had previously been a party but is no longer). As her affidavits were included in the trial record, I reviewed those. Similarly, although applicants’ counsel objected to the inclusion of the exhibits to the affidavits; Justice Ramsay’s order did not make such distinction (although it was a consent order) and the exhibits were included as attachments to the trial record prepared and filed by Mr. Osier’s office. As such, I was provided no adequate reason not to review same. As all the affidavits of all but Sandra and Raul are clearly untested I will deal with these via the weight to be applied. I do not accept that the exhibits should be entirely ignored by me as they were included in the trial record and appended to the affidavits of the respondents who did take the stand. As many were not adduced in evidence either in Chief or Cross, very little weight can be attached to them.
[19] While some accounts have been tendered by Mr. and Ms. Montero, they are woefully inadequate. Certainly the monies received from the sale of Ms. Jamieson’s home were largely unaccounted for. I was told that some of the funds had been used to buy medical equipment to assist in Ms. Jamieson’s care when she moved into the Montero home in Guelph, but inadequate answers were provided when the attorneys were asked about potential resale value of this equipment. This is particularly relevant given that Ms. Jamieson didn’t remain at the Montero home terribly long.
[20] Most troubling to me is that the cash received from the sale was not deposited into Ms. Jamieson’s bank account but kept at Ms. Montero’s home. Clearly this is not the approach expected of attorneys who owe a fiduciary responsibility to both account for, and utilize all of the funds on behalf of the individual whose property they are responsible to administer. Raul Montero explained that the cash was kept in the house as both and Sunny and Wray were taking money out of Ms. Jamieson’s Canadian and American bank accounts. No one explained to me why, if such were the case, the accounts were not changed/made inaccessible.
[21] All of that being said, Mr. Montero conceded that by November 2011, all of the $47,000.00 was gone – between legal fees for this litigation as well as other costs ‘popping up’.
[22] The accounting had been requested but is still incomplete; the latest documents appear to date back to 2011. Although Ms. Montero spoke of a “ledger book” at trial in her testimony (the inference being that she did keep current books but forgot to bring them to court); same was not produced to the applicants nor to the court at this trial. I was provided no explanation for this non-production.
[23] Moreover, Raul Montero said that the books were never complete and it would be impossible to recreate them now. He agreed that both the principal and any interest on the house purchase or sale had been lost via their approach. Neither Raul nor I know how Ms. Jamieson will ever get this $47,000.00 back.
[24] Raul Montero did say that if I found that the money was owed, that he would take on the debt. Given the lack of explanation as to the whereabouts of those proceeds it is hard to conclude anything else.
[25] The applicants rely not only the financial “uncertainty”, failure to account, and breaches of trust, but also raised the failure of the respondents to ensure that the relationships of each of Ms. Jamieson’s children with their mother was maintained and fostered.
[26] It is apparent that Wray Anderson only discovered the whereabouts of his mother after engaging the services of a private investigator. Clearly this is less than ideal. While I accept the behaviour of Sunny at least caused real concern for caregivers at various locations, he still would be entitled to know the whereabouts of/have some interaction with his mother. This obviously applies more acutely to Wray.
[27] At the end of the day, I find that both Raul Montero and Sandra Montero fell significantly below the standard/duty imposed upon them in law.
[28] While I accept that Jessie is now in a comfortable and stable environment, where her needs are being met, her financial affairs have been entirely mismanaged and she has lost the benefit of time with her sons. Given these circumstances, I feel I have no choice but to terminate the powers of attorney granted by Jessie Jamieson to Sandra and Raul Montero in July of 2008.
[29] The more thorny issue derives from what should happen next. I understand that the Public Guardian has refused to become involved but I was provided nothing whatsoever of their position or the role taken since they filed their notice of appearance back in 2009.
[30] The court ordered a Section 79 assessment – Janice Woynarski found Ms. Jamieson incapable of caring for herself or managing her property. I would indicate that this is consistent with the previous finding of Dr. Legere in Guelph on September 4th, 2008. I have thus been satisfied of Jessie Maracle Jamieson’s incapacity and so make that finding.
[31] While his counsel argues that Wray Anderson has no intention of moving Ms. Jamieson, his own evidence was not terribly convincing on this front. While he spoke of bringing her native heritage to Jessie by newspapers, books and performers (things he quite touchingly said his mother loved and got positive attention from, as people got to see her in what he believed to be a better light). Mr. Anderson said that he was willing to pay any excess if the costs at her current home exceeds her pensions and she has no other assets. (He currently pays $77.00 per month for her television out of his own pocket for instance).
[32] My concern about her being moved from this quite stable environment derives from Mr. Anderson’s evidence about having his mom where she could be maintained in her native language, with cultural ties, to work with doctors to ensure they see his mom for who she is. Wray went on to say that he would help friends and family go to Guelph to visit as best as he could; would bring people who speak Mohawk (to a limited degree due to the distance). Mr. Anderson said his mother was a good communicator but her dinner companions were not. He spoke of a cultural divide as the facility did not have many native residents and Ms. Jamieson’s native customs were important to her.
[33] While Mr. Anderson pledged financial support if needed, in cross-examination he confirmed that he’d refused to provide financial assistance when asked to help with Jessie’s care costs at Heritage House. He explained that he did so as it did not make sense and he did not agree with this placement; wanting her instead at Tranquility House. He went on to say that he would take her to a place with access to community services such as Tranquility House (and a couple of other places closer) in Brantford.
[34] I find that despite the assurances of his counsel, Mr. Anderson is indeed contemplating a move for his mother.
[35] Mr. Anderson’s February 5, 2012 Management Plan (Exhibit #8) and an undated Guardianship Plan (Exhibit #7) specifically details a stated intention to move his mother. At page 5 of form 2 for instance, he states “I expect that residential costs to increase when she is placed in a more permanent; more suitable place where she can feel safe to speak freely; in close proximity to her homeland to encourage visits with her close family member, friends, and community members who love and care about her; that is more appropriate for her cultural and spiritual needs; and one that doesn’t act and feel like a native residential school.”
[36] Furthermore, Mr. Anderson’s amended application record has an affidavit attached sworn by him on June 5, 2009. Paragraph 19 of that document is entitled “Plan of Care”. It proposes that Ms. Jamieson be placed in a 24 hour care facility close to her property (he said he was looking at Iroquois Lodge and other nearby facilities) or alternatively, depending on her condition, that he might be able to acquire a residence premise in which his brother Sunny can live with his mother and care for her.
[37] I heard nothing about any of these possibilities at trial and have grave concern about both suggested options. It may well be that Mr. Anderson’s trial position was different than that articulated in his application, but he did not make any efforts to clear up any confusion.
[38] I do not feel that a move at this time is in Ms. Jamieson’s best interests. Moreover, given the stated concerns about Sunny, I am shocked to hear that Mr. Wray Anderson seeks to be guardian, yet would even contemplate turning the care of this frail elderly woman who requires a Hoyer lift for movements to his admittedly challenged brother.
[39] At the end of the day, I have absolutely no confidence that Wray Anderson will not move Ms. Jamieson from what appears to have been a stable environment for a number of years. I do not accept that such would be in her interests given her age and somewhat fragile state.
[40] While Mr. Anderson is critical of the number of times his mother has been moved prior to her placement at St. Joseph’s, (which was indeed most unfortunate even if the result of the CCAC system as I was told), he seems unconcerned about exposing her to yet another move after three years of stability.
[41] Moreover, I have an overriding concern that none of these children (or grandchildren) have Ms. Jamieson’s financial interests at heart. The evidence before me demonstrates a routine depletion of all of the funds from the American bank account where her social security is deposited. Her account on the Six Nations is similarly depleted. The proceeds from her house are unaccounted for, as are many other assets she may have accumulated through her years working in the United States as a registered nurse.
[42] I heard that Ms. Jamieson loaned Wray Anderson money to start up his business; clearly her prerogative. I do not know anything about that sum/the amount/the date or any repayment requirements etc. Mr. Anderson said nothing about this, nor was he asked.
[43] While Ms. Jamieson may well have intended her children to have everything she had, I am concerned that she have sufficient funds to allow her to maintain herself for so long as she lives.
[44] I have been left, due to the absence of accounting and financial information from her powers of attorney, to attempt to ferret out Ms. Jamieson’s income and expenses at St. Joseph’s Health Centre in Guelph. The only evidence I had of this expense is derived from Exhibit #16, handwritten accounts. I “deduce” that the entries labelled “LTCNH” commencing June 6th, 2011 refer to St. Joseph’s Health Centre as a Section 79 assessment of Janice Woynarksi confirms that she had been a resident there since June 13th, 2011 having been admitted with diagnosis of depression, Alzheimer’s, and arthritis. The handwritten entries reflect payments to this facility of $1189.98, $1125.98, $1125.98 for June, July and August 2011. Although the Monteros had the wherewithal to get annual statements of payment from each of the other care facilities prior to the 2011 move to St. Joseph’s Health Centre, they did not do so from 2011 forward. I thus have no information whatsoever detailing the expenses subsequent to that time or indeed at the time of trial. Clearly the St. Joseph’s accounts must have been paid as she has been allowed to remain at the facility to date.
[45] As may be evident, I have more questions than answers at the end of this matter despite my efforts to review each piece of documentation submitted to me several times. In terms of income, I have deduced that Jessie Jamieson receives an Old Age Pension and Guaranteed Income Supplement of at least $1116.47 per month (as per government confirmation letter dated April 30th, 2009), as well as Social Security from the United States Treasury in the amount of $548.00 per month (as is demonstrated in bank records from an Amherst New York bank account made Exhibit #16).
[46] Those same records reveal ATM withdrawals virtually depleting this income within days of receipt via an M&T ATM machine at Military Road, Niagara Falls, New York, dating from July to December 2008 (when Ms. Jamieson was in an institutional setting). Ms. Montero apparently viewed the bank photos at the ATM and identified Sunny Anderson as the individual making the debits from the bank machine.
[47] I saw a police report that was filed in connection with these withdrawals. I was forced to gather these numbers from my own review of documents submitted in the absence of legal assistance, and more importantly, any accounting since 2011.
[48] If St. Joseph’s Health Centre is still billing Ms. Jamieson in the vicinity of $1,100.00 to $1,200.00, it would appear that both her Canadian and U.S. pensions would be sufficient to cover her care there.
[49] As may be evident, I have significant concerns about giving anyone guardianship over Ms. Jamieson. I do not find the approach of any of her children to be exemplary.
[50] That being said, the Act does not permit me to unilaterally force the Public Guardian to become involved. Section 25 (2)(c) does, however, permit me to make an order appointing a guardian of property while imposing “such other conditions on the appointment as the court considers appropriate”. Similar language is employed in s. 58(2)(b) as it relates to personal care. That section reads that “An order appointing a guardian may…impose such other conditions on the appointment as the court considers appropriate.”
[51] It is thus with some reservation that I would accede to the request of Wray Anderson and appoint him as guardian of Ms. Jamieson’s property and person. This guardianship shall be limited by the following conditions:
Ms. Jamieson shall not be moved from her St. Joseph’s Health Care facility in Guelph unless her doctors deem it necessary, for example, hospitalization.
Mr. Anderson shall ensure that the funds from Mrs. Jamieson’s pensions cover payment of the St. Joseph’s Health Care facility on a monthly basis;
Mr. Anderson shall ensure that there is a complete accounting of monies in and out on an annual basis. Such accounts shall be forwarded to myself and the Public Trustee on or before the 15th day of March of each year;
A copy of this decision shall be served on the Public Trustee for their information.
Mr. Paul Osier shall inform St. Joseph’s Healthcare about the change in Guardianship for both Property and Person Care as well as the restrictions thereupon within 15 days of receipt of this judgment.
[52] While I accept and understand that Ms. Jamieson as a Clan Mother had tremendous ties with her people, at this point in her life I cannot say that yet another move from a current stable facility would be in her best interest. It is my fervent hope that Mr. Anderson will ensure that he augment her time at St. Joseph’s with the Native resources that she seems to so very much to enjoy and so richly deserves.
[53] If the parties are unable to agree on costs of this proceeding, they shall provide me with three pages of written reasons within 30 days of the receipt of this decision.
Milanetti J.
Released: March 21, 2014
COURT FILE NO.: CV-09-451
DATE: 2014-3-21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Scott WWray Anderson and Sunny Anderson
Applicants
- and –
Jesse Maracle J. Jamieson and Sandra Patricia Drinkwater Montero and Raul Montero also known as Rauly (Raulee) Montero, and Kathy Lynn Renee and The Department of Indian and Northern Affairs
Respondents
REASONS FOR JUDGMENT
Milanetti J.
JAM:mw/vt
Released: March 21 2014