COURT FILE NO.: 03-89/13

DATE: 20140321

SUPERIOR COURT OF JUSTICE – ONTARIO

ESTATES LIST

RE: The Public Guardian and Trustee, Applicant

• v. -

Peiyu Gan and Yunhong He, Respondents

BEFORE: Mr. Justice Stinson

COUNSEL: Phillippa Geddie, for the Applicant

Yunghong He, acting in person

No one on behalf of Peiyu Gan

HEARD: March 20, 2014

ENDORSEMENT

[1] In this application, the Public Guardian and Trustee (“PGT”) seeks an order appointing the PGT as permanent guardian of the person of the respondent Peiyu Gan (“Ms. Gan”) under s. 55 of the Substitute Decisions Act, 1992, S.O. 1992, c.30. The PGT was appointed the temporary guardian of the person of Ms. Gan by order of Frank J. dated August 9, 2013, which order was extended by order of Greer J. dated November 7, 2013 for the period up to January 17, 2014. That order was extended a further 90 days by way of the endorsement of Mr. Justice Wilton-Siegel J. dated January 10, 2014, which also adjourned the matter to a further hearing on March 14, 2014. The purpose of the latter adjournment was to permit Ms. Gan’s daughter, the respondent Yunhong He (“Ms. He”) an opportunity to address certain issues identified by Wilton-Siegel J. in relation to her proposal that she be appointed as her mother’s guardian and that her mother come to live with her in her Toronto condominium apartment and be cared for there.

[2] The parties appeared before me on March 14, 2014. It became apparent that, despite various efforts by her, Ms. He had not prepared the form of Guardianship Plan or Management Plan normally required where relief is sought under the Substitute Decisions Act, 1992, for the appointment of a guardian of the person or property for an incapable person. She had also not fully addressed some of the concerns that had been identified by the Community Care Access Centre (“CCAC”) in the supplementary report it prepared at the request of Wilton-Siegel J.

[3] I therefore adjourned the matter to return before me on March 20, 2014 to permit Ms. He an opportunity to prepare the requisite material. I specifically invited her to approach the matter on the basis that she try to demonstrate, on a trial basis, that she is indeed in a position to provide the required level of care for her mother at home. I also invited counsel for the PGT to endeavor to identify for Ms. He (both directly, and by way of communication with CCAC) specific deficiencies with her proposals so that she might address them.

[4] Following the appearance on March 14, counsel for the PGT identified for Ms. He the correct approach for her to follow in preparing proper guardianship and management plans. She also corresponded with CCAC (as did Ms. He) with a view to having that office clarify the extent to which it could provide assistance to Ms. He in relation to caring for her mother at home and any other concerns it might have. CCAC provided email responses to these queries, and expressed specific concerns regarding particular aspects of Ms. He’s plans.

[5] Ms. He and counsel for the PGT returned before me on March 20. In the meantime, Ms. He had prepared (in proper format, more or less) a Guardianship Plan and a Management Plan, which she supplemented with a document entitled a Care Plan. Not all of this material had been seen by CCAC prior to the attendance on March 20, and no-one from or on behalf of CCAC appeared on that occasion – nor were they required or expected to. Copies of emails from CCAC regarding certain aspects of Ms. He’s plans were filed with me, although no affidavit was filed from a CCAC representative.

[6] One specific difficulty identified by CCAC was its ability to assist in training Ms. He and Ms. Gan’s other proposed caregivers regarding certain aspects of her care needs, were she to move into Ms. He’s condominium. One area in which training would be needed in particular concerns her G-tube, upon which she relies for nourishment, and which may, if not correctly positioned and cleaned, create problems. Indeed, at one point in the past, while Ms. Gan was in a long term care home, she ended up in hospital with a pneumonia-related problem, which may have been due to incorrect positioning of her G-tube.

[7] The response so far from CCAC in relation to training is that it is unable provide this to Ms. Gan’s proposed caregivers at her current long term care facility (due to, among other reasons, liability issues), and it is unreasonable for such training to be provided at Ms. He’s condominium once Ms. Gan is in residence there. I appreciate that there are practical limits to the services that an agency such as CCAC can provide, and I do not wish to be seen as critical of such a valuable and important element of our healthcare delivery system. I am also anxious to avoid placing CCAC in an adversarial position in relation to its client(s), or imposing unrealistic demands or expectations regarding what it can or cannot provide. I understand - and I stressed to Ms. He - that both CCAC and the PGT are doing their best to discharge their respective duties to ensure that Ms. Gan receives safe and proper care, and that Ms. He should not regard them as adversaries merely because they are presenting the information to the Court that they consider relevant to the decisions the Court is required to make.

[8] That said, given the concerns expressed by CCAC in the past regarding the adequacy of the proposed plans of Ms. He for providing care for her mother at home, I believe it would be productive to request CCAC to meet with Ms. He and her proposed care team at her residence, with a view to trying, on a collaborative basis, to craft a plan jointly that will, to the greatest extent possible, address if not resolve the specific concerns raised to date. This would include attempting to resolve the “Catch 22” problem associated with helping to train the proposed caregivers. I am hopeful that, given the expertise of CCAC, and the input of the appropriate representative of the Office of the PGT, significant progress can be made towards a solution that would suit all parties. I therefore directed counsel for the PGT to facilitate such a meeting, and she agreed to endeavor to do so.

[9] On the foregoing basis, I have adjourned the matter to return before me on Friday, March 28, 2014, at 10:00 a.m. I invite a representative of CCAC to attend on that date (accompanied by counsel, if desired – although counsel is not required) with a view to potentially assisting the Court to better understand and, ideally, to resolve (to the largest extent possible) any remaining concerns so that the Court may make a fully informed decision regarding Ms. He’s proposal to move her mother home.

[10] In directing the foregoing process, I wish to make it plain that I have not reached any conclusion or decision regarding either the application of the PGT to have its appointment as Ms. Gan’s guardian of the person made permanent or Ms. He’s proposal to have her mother move into her condominium. I am nevertheless mindful of the provisions of the Substitute Decisions Act, 1992 that will bear on the ultimate disposition of this matter, including ss. 55(2.2)(c), 55(3)(c), as well as the duties of the guardian of the person as expressed in ss. 66(3) and 66(4), and in particular s. 66(4)(c). I invite all parties to have regard to these provisions as they try to devise an approach that will meet the goals of the statute and as well address the needs of Ms. Gan.

Stinson J.

Date: March 21, 2014