ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 4109/14
DATE: 2014-09-16

BETWEEN:

DAPHNE MCNUTT
Applicant

– and –

PETER MAINWARING DRAYCOTT, YOLIS DRAYCOTT, GEOFFREY DRAYCOTT, ANTHEA COLEBROOK, AND THE OFFICE OF THE PUBLIC GUARDIAN AND TRUSTEE

Respondents

Daphne McNutt, Self-Represented

Ken Wise, for Yolis Draycott and Geoffrey Draycott.
Anthea Colebrook, Self-Represented
No one for Public Guardian and Trustee

HEARD: September 10, 2014

REASONS FOR JUDGMENT

Gray J.

[1] Peter Draycott (“Peter”) is a 94 year old man living in his own home with two of his children, Geoffrey Draycott (“Geoffrey”) and Yolis Draycott (“Yolis”). His other two children, the applicant Daphne McNutt (“Daphne”) and the respondent Anthea Colebrook (“Anthea”), do not live with Peter, but dispute the quality of care that Peter is receiving. They want Peter to be placed in a long term care facility. Geoffrey and Yolis disagree.

[2] Peter has executed powers of attorney for personal care and for property. They are “continuing” powers of attorney, in that they would continue to operate if Peter were to be found to be incapable of making decisions regarding his personal care or, in the case of the power of attorney for property, he lacks capacity to manage property.

[3] Daphne has brought an application to be appointed the guardian of the person and guardian of property for Peter. The granting of the orders sought would automatically terminate the powers of attorney.

[4] For the reasons that follow, the application is dismissed.

Background

[5] Peter is 94 years old. He has four children, Yolis, Anthea, Geoffrey and the applicant, Daphne.

[6] Peter lives in his own home with Yolis and Geoffrey. He receives care from a personal support worker assigned by the Mississauga Halton Community Care Access Centre (CCAC).

[7] Peter executed a power of attorney for personal care on April 1, 2012, in which he listed all four children as attorneys. It contains the following:

I give my attorney (s) the AUTHORITY to make any personal care decision for me that I am mentally incapable of making for myself, including the giving or refusing of consent to any matter which the Healthcare Consent Act, 1996 applies, subject to Substitute Decisions Act, 1992, and any instructions, conditions or restrictions contained in this form.

[8] In the power of attorney, Peter gave his attorneys the authority to act jointly and severally.

[9] On July 26, 2003, Peter executed a continuing power of attorney for property, naming Geoffrey and Daphne as attorneys. It contains the following paragraph:

In accordance with the Powers of Attorney Act, I declare that this power of attorney may be exercised during any subsequent legal incapacity on my part. This indicates my intention that this document will be a continuing power of attorney for property under the Substitute Decisions Act, 1992, and may be used during my incapacity to manage property.

[10] Daphne alleges that Peter has suffered from neglect and abuse while under the care of Yolis and Geoffrey. Those allegations are denied. I will not go into the allegations and the denials in detail, because they are summarized in a helpful chart found at paragraph 33 of the affidavit of Geoffrey Draycott sworn August 11, 2014. I have attached that chart as Appendix A to these reasons.

[11] Daphne alleges that Geoffrey has no assets and is not working, and is taking advantage of Peter by living in his house rent-free.

[12] Daphne swears that she and Anthea have been looking at long term care facilities for Peter, but the CCAC has refused to do an evaluation of Peter for that purpose because Yolis and Geoffrey oppose Peter going to a long term care facility.

[13] In substance, Geoffrey swears that he and Yolis have adequately cared for Peter in his own home, and that Peter prefers to be in his own home rather than in an institution.

[14] Some ancillary documents have been filed. A capacity assessment of Peter was prepared on August 25, 2014 by Oli Hoffman pursuant to sections 22 and 55 of the Substitute Decisions Act, 1992. The assessor found that Peter is incapable of managing property and is incapable of personal care regarding health care, nutrition, shelter, clothing, hygiene and safety.

[15] Notes and an assessment protocol from the CCAC have been filed. In substance, the CCAC has assessed Peter in approximately the same fashion as the assessor, and the notes contain some indications of his level of care. In notes of a visit on March 10, 2014, the following is found:

Current patient status: Fit and agile for age. Dressed to the nines in suit jacket, tie and dress pants – stated he dresses this way every day “in case something comes up he is ready”. No mobility aid used inside the home. Does stairs to second storey bedroom about 10 X day. All ADLS completed by family. No physical aid provided by family in terms of dressing or hygiene. Third child present from Guelph as it was a visit day and coincided with my home visit.

Psychosocial: Family discord brought to surface during my visit with son and visiting daughter r/t meeting patient needs. Sons stated he refuses and does not feel need for any help in the house and discussion got heated between him and his sister. Third child moved to be with her Dad and brother last yr. She is hard of hearing and identified no needs for her Dad.

Physical Functioning: fir as stated physically. Goes to ADS Seneca program QW. Gave up bathing some time ago as well as shaving – beard long and unkempt. Denies incontinence. No note of foot issue until visiting dtr was doing foot care and found open draining wound on his foot and brought him to Dr. She also stated that last fall she was visiting and found large pool of dried fluid in his bed and looked and found abscess on skin was draining. Treatment was again sought by her not her brother or sister living w him/caring for him.

Cognition: Poor STM. Loss of procedural memory by still dresses self – noted to have layering at times. Up at different hrs during the nite and is fully dressed. Rummages and clothing in his room in disarray. No medications. Son states the Dr told his dad yrs ago he had diabetes and he has never done anything about it and he remains well.

Looks for food and drink. Family do as patient requests re his day to day wants.

Relevant Medical History: Dementia Polio NIDDM, foot infection.

[16] After a complaint by Daphne to the police, a police officer with the Halton Regional Police attended at Peter’s residence on March 27, 2014. The notes include the following:

a) Took writer to Peter’s room and writer observed it to be neat and orderly with a comforter on the bed.

b) Looked in the fridge, freezer and pantry and found there to be ample food available.

c) Spoke with Peter (a follow up will be submitted by them) and writer also spoke with Peter. Peter thought he was 40 years old and that he was living with friends who had offered him a place to stay. He stated he was happy with the arrangements and had no concerns. Peter thought he had been married and had children but hadn’t seen them in a while. There were no injuries of note on Peter and he seemed content. Writer had no concerns for Peter’s safety and both he and the residents appeared in order.

d) There is no criminal element to this occurrence.

e) On Friday, March 28, 2014, at 10:08 a.m., writer telephoned the complainant and informed her of the attendance of the Halton Regional Police Service to the victim’s home during the evening of Thursday March 27, 2014, and there were no concerns for the victim at this time.

[17] There was filed a report from the Halton Seniors Mental Health Outreach program regarding a visit on February 5, 2013. The following is found:

At this time the client does require queuing for his self-care such as bathing. He is still able to dress himself and there was no issues with ambulation since he does not use any assistive devices. There were no toileting issues or incontinence issues. He is able to feed himself. He does make his own breakfast and he can make do with his lunch when he is set up. He takes his own medications, but he is only on aspirin. His son assists with most of his IADLS. He lost his driving privileges about a year ago. He does attend the Seneca Day Program once a week. He has had some falls, but none recently.

[18] On September 2, 2014, counsel for Geoffrey and Yolis wrote to Acclaim Health and the CCAC requesting information as to any specific concerns regarding Peter’s care. The CCAC responded by letter dated September 9, 2014. In referring to the notes mentioned earlier, the following is stated:

Please note that the CHRIS notes are records made in the usual and ordinary course of business and represent the author’s belief of the state of affairs recorded. The MH CCAC is unable to offer an opinion as to the author’s beliefs expressed therein.

[19] Included in the material is a series of emails that make it clear that there is a great deal of conflict between Daphne and Anthea on the one hand, and Geoffrey on Yolis on the other hand, as to the care that Peter is receiving now and should get in the future. Daphne and Anthea accuse Geoffrey and Yolis of neglecting Peter and causing him harm. Those allegations are strongly denied. It is also clear that Daphne and Anthea want to place Peter in a long term care facility. Geoffrey and Yolis think Peter should remain in his own home, subject to their care.

[20] The Public Guardian and Trustee did not appear on the return of the application, but filed a letter through its counsel, dated September 8, 2014. The author states:

Whether the Court ought to terminate the attorneyship is a matter on which the Public Guardian and Trustee takes no position. Serious allegations against the attorneys have been made, and denied, and may require a finding from the Court.

Submissions

[21] At the opening of submissions, I noted that there had been no cross-examinations on any of the affidavit material. I advised Daphne that where the court is confronted with conflicting affidavit material it is often difficult, if not impossible, to make findings of fact. I asked Daphne if she wished to consider whether it would be preferable to have a trial, where the facts could be explored on a full record. I advised her that if she preferred to have the matter determined on conflicting affidavit material, she ran the risk that the court may simply be unable to make the necessary factual findings in her favour.

[22] Daphne advised me that she was aware of the risk, but preferred to have the matter heard on the existing record. Accordingly, I proceeded to hear the parties’ submissions.

[23] Daphne submits that her application for guardianship should be granted, both with respect to property and with respect to personal care.

[24] Daphne submits that Peter’s level of care is far below an acceptable standard, and it must be changed. She submits that Peter is clearly not able to look after himself or make decisions, and it is necessary that a responsible family member be charged with that responsibility.

[25] Daphne submits that that responsibility should be entrusted to her. She submits that Geoffrey and Yolis have not been looking after Peter properly, and it is clear that he has suffered as a result. She submits that Geoffrey and Yolis are content to live in Peter’s home rent-free, and take advantage of Peter.

[26] Daphne submits that it would be far preferable that Peter live in a long term care facility, where his needs can be properly looked after by professionals. While there will be a cost, the money will be well spent.

[27] Mr. Wise, counsel for Geoffrey and Yolis, submits that this application should be dismissed.

[28] Mr. Wise submits that the allegations made by Daphne have been denied under oath by Geoffrey and Yolis, in detail, and the court is simply in no position to sort out the differences based on a paper record. Mr. Wise submits that if the evidence of Geoffrey through his affidavit is accepted, as it should be, it should be concluded that Peter’s level of care is proper. Peter is happy living in his own home, surrounded by family members, which is preferable to being housed in an institution and being cared for by strangers. In addition to two of his children, Peter has the company of his beloved cats. It would be a tragedy if Peter were to be deprived of their company.

[29] Mr. Wise acknowledges that there are some documents that suggest that there are some deficiencies in Peter’s level of care, but he submits that there are an equal number of documents that suggest that that is not the case. In particular, Mr. Wise refers to the notes of the involvement of the Halton Regional Police, which found that there were no issues.

[30] In the final analysis, Mr. Wise submits that the applicant has not satisfied her onus to show that the application should be granted. He submits that it should be dismissed.

Analysis

[31] The relevant provisions of the Substitute Decisions Act, 1992, are as follows:

6 The continuing power of attorney is subject to this Part, and to the conditions and restrictions that are contained in the power of attorney and are consistent with this Act.

7. (1) A power of attorney for property is a continuing power of attorney if,

(a) it states that it is a continuing power of attorney; or

(b) it expresses the intention that the authority given may be exercised during the grantor’s incapacity to manage property.

7 (2) The continuing power of attorney may authorize the person named as attorney to do on the grantor’s behalf anything in respect of property that the grantor could do if capable, except make a will.

7 (4) If the continuing power of attorney names two or more persons as attorneys, the attorneys shall act jointly, unless the power of attorney provides otherwise.

7 (6) The continuing power of attorney is subject to this Part, and to the conditions and restrictions that are contained in the power of attorney and are consistent with this Act.

9 (1) A continuing power of attorney is valid if the grantor, at the time of executing it, is capable of giving it, even if he or she is incapable of managing property.

9 (2) The continuing power of attorney remains valid even if, after executing it, the grantor becomes incapable of giving a continuing power of attorney.

12 (1) A continuing power of attorney is terminated

(c) when the court appoints a guardian of property for the grantor under section 22;

22 (1) The court may, on any person’s application, appoint a guardian of property for a person who is incapable of managing property if, as a result, it is necessary for decisions to be made on his or her behalf by a person who is authorized to do so.

22 (3) The court shall not appoint a guardian if it is satisfied that the need for decisions to be made will be met by an alternative course of action that,

(a) does not require the court to find the person to be incapable of managing property; and

(b) is less restrictive of the person’s decision-making rights than the appointment of a guardian.

24 (5) Except in the case of an application that is being dealt with under section 77 (summary disposition), the court shall consider,

(a) whether the proposed guardian is the attorney under a continuing power of attorney;

(b) the incapable person’s current wishes, if they can be ascertained; and

(c) the closeness of the relationship of the applicant to the incapable person and, if the applicant is not the proposed guardian, the closeness of the relationship of the proposed guardian to the incapable person.

25 (1) An order appointing a guardian of property for a person shall include a finding that the person is incapable of managing property and that, as a result, it is necessary for decisions to be made on his or her behalf by a person who is authorized to do so.

31 (1) Any person who has personal information about an incapable person to which the incapable person would be entitled to have access if capable, including health information and records, shall disclose it to the incapable person’s guardian of property on request.

32 (1) A guardian of property is a fiduciary whose powers and duties shall be exercised and performed diligently, with honesty and integrity and in good faith, for the incapable person’s benefit.

32 (1.2) A guardian shall manage a person’s property in a manner consistent with decisions concerning the person’s personal care that are made by the person who has authority to make those decisions.

32 (6) A guardian shall, in accordance with the regulations, keep accounts of all transactions involving the property.

32 (7) A guardian who does not receive compensation for managing the property shall exercise the degree of care, diligence and skill that a person of ordinary prudence would exercise in the conduct of his or her own affairs.

38 (1) Section 32, except subsections (10) and (11), and sections 33, 33.1, 33.2, 34, 35.1, 36 and 37 also apply, with necessary modifications, to an attorney acting under a continuing power of attorney if the grantor is incapable of managing property or the attorney has reasonable grounds to believe that the grantor is incapable of managing property.

45. A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

46 (1) A person may give a written power of attorney for personal care, authorizing the person or persons named as attorneys to make, on the grantor’s behalf, decisions concerning the grantor’s personal care.

46 (4) If the power of attorney names two or more persons as attorneys, the attorneys shall act jointly, unless the power of attorney provides otherwise.

47(2) A power of attorney for personal care is valid if, at the time it was executed, the grantor was capable of giving it even if the grantor is incapable of personal care.

49 (1) A provision in a power of attorney for personal care that confers authority to make a decision concerning the grantor’s personal care is effective to authorize the attorney to make the decision if,

(a) the Health Care Consent Act, 1996 applies to the decision and that Act authorizes the attorney to make the decision; or

(b) the Health Care Consent Act, 1996 does not apply to the decision and the attorney has reasonable grounds to believe that the grantor is incapable of making the decision, subject to any condition in the power of attorney that prevents the attorney from making the decision unless the fact that the grantor is incapable of personal care has been confirmed.

49(2) The grantor is incapable of personal care and, if no method is specified, that fact may be confirmed by notice to the attorney in the prescribed form from an assessor stating that the assessor has performed an assessment of the grantor’s capacity and has found that the grantor is incapable of personal care.

51 (1) The attorney under a power of attorney for personal care shall, on the request of and on behalf of the grantor, assist in arranging an assessment of the grantor’s capacity by an assessor.

53 (1) A power of attorney for personal care is terminated

(b) when the court appoints a guardian for the grantor under section 55;

55 (1) The court may, on any person’s application, appoint a guardian of the person for a person who is incapable of personal care and, as a result, needs decisions to be made on his or her behalf by a person who is authorized to do so.

(2) The court shall not appoint a guardian if it is satisfied that the need for decisions to be made will be met by an alternative course of action that,

(a) does not require the court to find the person to be incapable of personal care; and

(b) is less restrictive of the person’s decision-making rights than the appointment of a guardian.

58 (1) An order appointing a guardian of the person shall include a finding that the person is incapable in respect of the functions referred to in section 45, or in respect of some of them, and, as a result, needs decisions to be made on his or her behalf by a person who is authorized to do so.

66 (1) The powers and duties of a guardian of the person shall be exercised and performed diligently and in good faith.

68(1) If an incapable person has a guardian of the person or an attorney under a power of attorney for personal care, the court may give directions on any question arising in the guardianship or under the power of attorney.

78(1) An assessor shall not perform an assessment of a person’s capacity if the person refuses to be assessed. [Emphasis Added]

[32] It is clear from sections 12 (1) and 53 (1) that once a guardianship order is made, either for property or for personal care, any pre-existing power of attorney for property or personal care, as the case may be, is automatically terminated.

[33] The starting presumption is that people are capable of making their own decisions as to their property and/or personal care. The ability of a person to make such decisions is only to be interfered with where the court is satisfied that it is necessary in that person’s interests to do so. Fundamentally, the court is to do so only where the person involved is incapable of making his or her own decisions.

[34] There is clearly an onus on an applicant for a guardianship order to show that the person is incapable. Further, the court must be satisfied that there is no appropriate alternative course of action. In many cases, an appropriate alternative course of action is provided through a continuing power of attorney, either for property or for personal care, or both.

[35] In view of the assessment that was conducted, there is little dispute that Peter is incapable of managing his property, and is incapable of personal care. Thus, the Court has jurisdiction to grant the orders sought.

[36] In this case, the real question is whether there is an alternative course of action that obviates the need to require guardianship orders. That really requires a determination of whether the existing continuing powers of attorney are adequate to provide for Peter’s personal care and managing his property.

[37] In Cates v. Forbes, [2003] O.J. No. 2154 (S.C.J.), Brennan J. stated at para. 7:

I am of the view that the court has jurisdiction pursuant to the Substitute Decisions Act, S.O. 1992, c. 30 to order a change of substitute decision maker in the best interests of the person if a valid grant of a power of attorney no longer serves the person’s best interests.

Agreeing as I do with Brennan J., the issue is whether it is necessary, in the best interests of Peter, to grant Daphne’s application and appoint her guardian of property and for personal care, thus terminating the existing powers of attorney.

[38] The relevant considerations were addressed by Somers J. in Glen v. Brennan, [2006] O.J. No. 79 (S.C.J.). At para.9, he stated:

The courts have generally taken the view that a written power of attorney executed by the donor at a time when he was apparently of sound mind (and there is nothing in the material to suggest otherwise) is simpler to deal with and gives the donee more flexibility in dealing on behalf of the donor. Also favouring a continuation of the appointment respects the wishes of the person who made the grant. Chief Justice Hickman of the Newfoundland Supreme Court Trial Division in the case of Re Hammond Estate (1998), 25 E.R.T. (2d) 188 said at para. 31:

There must be strong and compelling evidence of misconduct or neglect on the part of the donee duly appointed under an enduring power of attorney before a court should ignore the clear wishes of the donor and terminate such power of attorney.

[39] Can it be said that the existing powers of attorney are inadequate to provide for Peter’s proper care?

[40] I am not satisfied that Peter’s needs are not being addressed adequately under the current arrangements. As noted earlier, allegations that Peter is not being cared for properly by Geoffrey and Yolis are denied. There is no way, on this record, that the conflicting affidavit evidence can be resolved. The onus being on the applicant to establish her allegations, she has simply not done so.

[41] I am similarly not satisfied that the ancillary material is sufficient to establish that Peter is not being properly cared for. Even accepting that the CCAC notes can be considered to be accurate, they are somewhat equivocal. On the other hand, the reports from the Halton Police Service appear to be clear that Peter is being properly cared for.

[42] A standard of perfection is not required. What is required is that a person in Peter’s position, that is, a person who is 94 years old and has lost a good deal of his mental and physical agility, is being reasonably cared for. In my view, he is. At the very least, Daphne has not established, on the evidence, that he is not.

[43] It must be remembered that it was Peter’s wish, as expressed through his powers of attorney, that his children be responsible for his care, both with respect to his personal care and with respect to his property. His wishes should be observed unless it is clear that his interests are being harmed. It has not been shown that his interests are being harmed, and there is evidence that he is doing reasonably well in his own home.

[44] There are, of course, advantages to a person in Peter’s position being able to live in his own home, in comfortable surroundings with his children and with his pets, if that is possible. In my view, it has not been shown that that is not possible or desirable.

[45] What is clear, in my view, is that the attorneys are in conflict. The conflict is serious. They disagree about almost everything. The question is whether that conflict is sufficient to conclude that Peter’s best interests are being adversely affected.

[46] While not entirely analogous, the Court can have regard to cases in which it is contended that conflict between or among trustees should result in the removal of a trustee. In essence, that should be done only where the conflict is sufficient to result in the administration of the estate being brought to an impasse, or where the continued administration of the trust becomes improbable with due regard to the interests of the cestui que trust: see Re Joss, 1973 573 (ON SC), [1973] 2 O.R. 128 (H.C.J.); Crawford v. Jardine (1997), 20 E.T.R. (2d) 182 (Ont. Gen. Div.); Re Blow (1977), 1977 1274 (ON SC), 18 O.R. (2d) 516 (H.C.J.); and Re Consiglio Trusts (No. 1), 1973 681 (ON CA), [1973] 3 O.R. 326 (C.A.). It seems to me that where the interests of the donor of the power are being adversely affected as a result of a conflict among attorneys, the Court might well interfere.

[47] In my view, it has not been shown that the conflict, in and of itself, is adversely affecting Peter’s interests. Practically speaking, day to day decisions are being made by Geoffrey and Yolis, because they live with Peter. Unless it can be shown that those day to day decisions are causing harm to Peter, I do not think the mere fact that there is conflict is sufficient to require disturbance of the status quo.

[48] In my view, for the reasons articulated earlier, it has not been shown that Peter’s interests are being harmed. He is doing reasonably well in his own home. It was his express wish that his needs be looked after through the powers of attorney. I am not persuaded that the status quo should be disturbed.

Disposition

[49] For the foregoing reasons, this application is dismissed.

[50] I will entertain brief written submissions with respect to costs, not to exceed three pages, together with a costs outline or bill of costs. Mr. Wise will have five days to file submissions, and Ms. McNutt will have five days to respond. Mr. Wise will have three days to reply.

Gray J.

Released: September 16, 2014

APPENDIX A

(No. / Allegation / Reference to application record / Response — reproduced exactly as in the original decision.)

1
Peter stopped bathing and shaving
Tab 2, para. 5
Peter gest a bath once a week from his PSW and gets a shave once a month from the barber.

2
Peter has slept on a mattress with a large hole in it
Tab 2, para. 6
There was a depression in the mattress from regular use. The mattress was replaced when this depression was noticed. Peter never complained about this depression.

3
Peter has been deprived of proper bedding
Tab 2, para. 6
Peter sleeps with a large duvet. See picture in Exhibit “B”. Daphne purchased a different duvet which Peter refuses to use because he prefers his old one.

4
Peter suffered from an untreated growth on his side
Tab 2, para. 6
Peter had 3 growths which were treated as soon as they were found.

5
Peter suffered from an untreated foot ulcer.
Tab 2, para. 6
This was treated as soon as it was discovered.

6
Peter lived without lights in his bedroom
Tab 2, para. 6
There was a light that Peter dismantled. This was fixed right away.

7
Yolis has health issues.
Tab 2, para. 12
Yolis has no health issues that impact on her ability to care for Peter

8
Yolis and I moved in to live rent free.
Tab 2, para. 12, 14
Yolis and I moved in to care for Peter and because we love Peter and each other.
The fact that Yolis and I are willing to care for Peter is not only a better arrangement than having strangers care for him, it is also the cheapest arrangement.

9
Yolis smokes against Peter’s wishes
Tab 2, para. 13
Yolis stopped smoking in April 2014 and, before that time, she smoked with Peter’s permission.

10
Yolis’ cats have destroyed all the soft furnishings and are allowed to defecate throughout the house contributing to squalid living conditions
Tab 2, para. 13
The cats have caused only some minor damage to the edges of an old couch. If the cats make a mess, it is cleaned up immediately. The home is very neat and clean as found by the thorough police investigation that Daphne instigated.
It is to be noted that Peter deeply appreciated the cats. Every day, Peter strokes and pets the cats which gives him great satisfaction.

10
Yolis was a victim of an internet scam and has poor judgment
Tab 2, para. 15
Yolis had a misunderstanding over payments regarding the hosting of her web site. She believed that the web designer included hosting in the service.
Daphne’s allegation is consistent with her other malicious and divisive accusations, not to mention the intrusive nature of this complaint.

12
Yolis and I never looked at LTC facilities
Tab 2, para. 16
We looked at 3 facilities in Oakville.

13
Yolis and I are distrustful of LTC
Tab 2, para. 17
Yolis and I have specific articulable concerns with LTC.
My father-in-law was killed in a LTC facility by another resident and, although the situation today is better, it is far from perfect. Moreover, Peter is currently in the comfort of his familiar home surrounded by loving family which is an important consideration to be weighed against moving him into an LTC facility.

14
I refused to buy body lotion.
Tab 2, para. 19
I was hesitant to buy body lotion since Peter had never used it in his life. I eventually bought some to placate Daphne and, as expected, Peter never touched it.

15
I forced Peter to sit in a broken chair.
Tab 2, para. 19
There were 3 chairs in the family room with worn out springs. This did not bother Peter, who happily sat in his familiar chairs.
Daphne replaced one of the chairs and Peter continues to sit mostly in the other two (with the worn out springs). Peter can be particular about his chairs.

16
Yolis and I continue to interfere with the PSWs
Tab 2, para. 20
There is a lovely PSW who comes to the home every week and we have never had an issue with her.
On one occasion a PSW came to the home (arranged without my knowledge by Daphne) and I was unaware that one was coming. I asked him for some ID and he could not produce any so I sent him away. Also, this PSW was a male and Peter is unresponsive to male PSWs.

17
The CCAC insists that Daphne is present with the PSW visits
Tab 2, para. 21
The PSW has told me that this is untrue.

18
Yolis and I obstruct and cancel PSW appointments
Tab 2, para 21
This is flatly denied.

19
Peter is in a habitually foul and unhealthy state. He is in a state of filth and dishevelment.
Tab 2, para. 22
This has already been documents to be untrue by the police investigation. It is a testament to the steps Daphne will take to get her way.

20
There was once feces on Peter’s shirttails
Tab 2, para. 22
This may have happened. As mentioned, Peter will sometimes tuck his shirttails into his underpants. Of course, this is remedied as soon as it is noticed.

21
Yolis and I obstruct the PSWs access to that she won’t see the extent of neglect and maltreatment.
Tab 2, para. 26
As mentioned, there is a wonderful PSW who comes to the home once a week. There is no obstruction and certainly no neglect.

22
Yolis and I obstruct the physiotherapist
Tab 2, para. 27
The physiotherapist advised us that Peter was uncooperative and that there was no point in continuing his services. We never obstructed these visits.

23
Yolis leaves Peter stranded in the snow; Yolis and I do not hold Peter while he walks
Tab 2, para. 33
Yolis drove Peter to a clinic during the winter to care for his foot ulcer. In order to avoid making Peter walk from the parking lot, Yolis dropped Peter off closer to the door. Peter insisted that he walk himself to the door so that he does not feel like a burden. It is to be noted that he does not have any ambulatory issues as noted by Dr. Lam (tab 8 of the application record). Yolis and I do hold Peter at times, but we balance this by sometimes allowing Peter to walk on his own which is a boost to his dignity.

24
A gust of wind knocked over Peter
Tab 2, para. 35
This happened when Peter was in Daphne’s care.

25
The CCAC found signs of neglect
Tab 2, para. 36
This is denied and it is not borne out by the CCAC report in Daphne’s application record.
The CCAC’s concerns result mostly from Daphne’s emphatic and baseless accusations which, naturally, give the CCAC a cause for concern.

26
Yolis and I obstruct Daphne’s visits
Tab 2, para. 39
There is no question that Daphne’s behaviour has created tension and distrust between the siblings, however I never obstructed Daphne’s access to Peter’s home.

27
Yolis and I verbally attacked and threatened Anthea
Tab 2, para. 40
Because Anthea has sided with Daphne’s abusive rhetoric, she has also added to tension and distrust but Yolis and I never verbally attacked her.