Denardi v. Opie

CITATION: 2014 ONSC 1412

COURT FILE NO.: 12-37617; 14-45819

DATE: 2014-03-04

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Julie Christine DeNardi, applicant

AND: Janice Opie, respondent (12-37617)

AND RE: Janice Opie, applicant

AND: Julie Christine DeNardi, respondent (14-45819)

BEFORE: Mr Justice Ramsay

COUNSEL:
Mr Brad J. Wiseman for Julie DeNardi

Ms Margaret Hoy for Janice Opie

HEARD: 2014-03-03

ENDORSEMENT

[1] Anne Brittain is the incapable person. She is 63 years old. She has mobility issues caused by cerebral palsy and she is mentally challenged to the point that she operates at the level of a five-year-old. It is common ground that Ms Brittain is incapable and needs a guardian. Her niece, Julie DeNardi and her sister, Janice Opie, both apply for guardianship under the Substitute Decisions Act, 1992. I shall refer to Mrs DeNardi as the applicant and Mrs Opie as the respondent.

[2] Anne Brittain’s father took care of her until he died. Her octogenarian step-mother did not wish to continue taking care of her. Residence in a group home was arranged. Since Anne’s father’s death, the applicant has taken care of many of Anne’s personal needs while the respondent has taken care of her money. Anne’s money is limited to about $2,000 or so in a joint account with the respondent and a settlement that will pay her $30,000 on her step-mother’s death. There is mention in the evidence of a $25,000 fund that the respondent intends to leave to Anne through a trustee, but I am satisfied that this is the respondent’s money, not Anne’s. Anne has a small income from ODSP and from a job that she has done through Community Living for many years. Anne is emotionally bonded to both parties, primarily to the respondent and secondarily to the applicant.

[3] The applicant takes issue with the handling of Anne’s money in some ways, but to my mind none of them is decisive. Anne’s cash should be held in a trust account, not a joint account, but that could be remedied. While the respondent was entitled to use Anne’s money to sue her father’s estate to obtain the $30,000 settlement, she appears to have used some of Anne’s money in the present application, although her entitlement to do so has not been determined. Again, this could be remedied.

[4] The parties fell out after the applicant bridled at what she felt were unreasonable demands in connection with taking Anne to appointments. She also became frustrated by the time and energy involved in making expenditures for Anne and then getting reimbursed. Once the applicant brought the litigation, the respondent replied with fury and poisoned the relationship with her niece permanently. At this point there is no prospect of the parties working together in the long term. None of the other relatives bothers about Anne. She needs a guardian and it will have to be the applicant or the respondent. Whichever one it is, I expect that the each will continue the relationship with Anne, without interference by the other.

[5] The respondent has demonstrated a commitment to advocating on behalf of Anne. She took on her father and step-mother at considerable cost to herself. Closer to home, however, she has not shown such commitment.

[6] In March 2010 the staff of the group home where Anne was then staying reported to the respondent that her husband was found in a compromising position with Anne. Anne did not object to sexual contact with her brother-in-law. She likes him and, I think, sees him as a sort of boyfriend. Anne is not able to understand the implications of this sort of relationship and she lacks the capacity to consent to sexual contact. The respondent now says that she forced her husband to take counselling as a result of his conduct. A few months ago, however, when asked in cross-examination on her affidavit whether she had heard about any inappropriate contact between her husband and Anne the respondent replied under oath in the negative. I consider this to have been a deliberate lie. She then resisted attempts by the applicant to find out from the group home whether anything had happened. The applicant had to get a court order to find out the truth. The respondent continues to reside with her husband and to take Anne to her home on visits. She appears to be complying with the order of Carpenter-Gunn J. not to leave the husband alone with Anne at any time, difficult as that must be.

[7] To me this is decisive. When I have a reasonable alternative, how can I give guardianship to a person who is living with a husband who had sexual contact with the incapable person, with whom the incapable person would like to continue a relationship, and whose reaction to discovering the improper conduct was to cover it up?

[8] The applicant is the reasonable alternative. It is in Anne Brittain’s best interest for the applicant to be appointed guardian of her person and her property. I grant Julie DeNardi’s application and I dismiss Janice Opie’s application. It will be for the guardian to say, but I doubt whether Anne should visit the respondent’s home when the husband is on the premises.

[9] The parties may make brief written submissions to costs, the applicant within 10 days and the respondent within 10 days thereafter.

J.A. Ramsay J.

Date: 2014-03-04