Court File and Parties
COURT FILE NO.: CV-14-5820 DATE: 2015/11/16 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: K.R. (Applicant) AND: Y.R., M.R., N.B. and THE PUBLIC GUARDIAN AND TRUSTEE (Respondents)
BEFORE: Justice I. F. Leach
COUNSEL: Ian N. McLean, for the applicant (and respondent to counter-application) K.R. James McIlhargey, for the respondent (and counter-applicant) Y.R. Philip Cornish, for the respondent (and counter-applicant) N.B. Mary E. Cull, for the respondent M.R. No one otherwise appearing for the respondent Public Guardian and Trustee
HEARD: August 6, 2015
ENDORSEMENT
Overview
[1] Before me are two competing applications, brought primarily pursuant to the Substitute Decisions Act, 1992, S.O. 1992, c.30, ("the SDA"), requesting formal authority to look after the property and person of M.R., (commonly known as "T.").
[2] T. is currently 56 years old. By all accounts, she is a delightful person who is liked by everyone she meets, and much loved by relatives and friends.
[3] However, as discussed in more detail below, it also is not disputed that T. has significant cognitive and developmental limitations which, since childhood, have rendered her incapable of managing property or looking after her personal care.
[4] From her birth in 1959 until December of 2013, (more than 54 years), T. lived happily in the unchallenged primary care of her mother Y.R., ("Y.R."), who assumed and carried out the role of T. unofficial guardian. That role was shared by T. father Albert, until his death in 1994.
[5] However, since December of 2013, (approximately the past two years), T. has been at the centre of significant disagreement and resulting formal litigation between the remaining members of her immediate family, who now have competing and fundamentally different views as to who should be entrusted with formal authority to look after T. and her affairs. In that regard:
a. An application has been brought by T. younger brother K.R., ("K.R."), now 51 years old, who seeks his appointment as the exclusive guardian of property and exclusive guardian of personal care in relation to T.. Although not a formal party to the proceedings, K.R.'s application is actively supported by his wife and T. sister-in-law, J.R., ("J.R."). Both have provided sworn affidavits in the course of this litigation.
b. K.R.'s application is opposed by T. mother Y.R., (now 86-87 years of age), and by T.'s older sister N.B., ("N.B."), who is currently 55 years old. By way of counter-application, they ask that Y.R. be appointed T. guardian of property and guardian of personal care, either exclusively or jointly with N.B.. In support of their counter-application, Y.R. and N.B. rely upon their own affidavits, as well as affidavits sworn by Reverend S.T.S.T. (the Pastor of the G. church regularly attended by Y.R. and T.), and by a number of other friends from the same church community; i.e., C.M.1., C.M., and D.S..
[6] Over the course of the litigation, the Public Guardian and Trustee assisted in securing the appointment of independent counsel to ascertain the wishes of T., and to represent T. in these proceedings.
[7] Through her counsel, T. has indicated that, while she is interested in continued contact with K.R., her preference is to remain with her mother Y.R. and participate in a plan that contemplates a transition to N.B. assuming sole guardianship of T. when Y.R. dies.
Findings of incapacity
[8] Before turning in more detail to the background and merits of the dispute as to who should be appointed guardian or guardians of T. property and personal care, I confirm my independent view that such an appointment is warranted in the circumstances.
[9] The largely undisputed evidence I rely upon in that regard includes the following:
Y.R. indicates that there were complications during her pregnancy with T., and that T. was born with a relatively low birth weight followed by delayed milestones in her early years. Those challenges then were complicated by a head injury T. suffered in October of 1960, when she was just 16 months old. (Medical reports refer to T. falling down a short flight of stairs, hitting her head and being rendered unconscious.) Whatever the cause of the injury, T. thereafter experienced spells and seizures.
T. has been the subject of regular medical care throughout her life, and I was provided with numerous medical reports, generated through the years, which comment on T. condition. For example:
A report from 1960 confirms that T. was a premature infant, who experienced a convulsive episode prior to sustaining a fall that was followed by further epileptiform seizures. The provisional diagnosis was grand mal epilepsy.
A report from 1962, (when T. was approximately 3 years old), made further reference to Y.R.'s prolonged illness during pregnancy with T., T. delayed milestones, and her head injury. A mental age assessment confirmed a relatively low intelligence quotient, (suggesting that T. would have difficulty profiting from normal schooling), and she continued to suffer from brief seizures and loss of consciousness. The report confirmed that T. was "a moderately mentally retarded child who has repeated convulsive seizures if not on suppressive medication". In addition to medication, minimizing environmental stress was strongly recommended.
A report from 1970, (when T. was approximately 11 years old), confirmed the view that T. suffered from "mental retardation with a convulsive order". Although she had been free from seizures for approximately two years, a more recent convulsion had been precipitated by a high fever, and her suppressive medication was adjusted accordingly.
A report from 1986, (by which time T. was approximately 27), confirmed T. history, and indicated that she had not experienced a seizure since the age of 12, when there was an attempt to reduce her anticonvulsant medication. The report goes on to mention that T. was able to happily complete her school years as a "Special Education Student", (echoing Y.R.'s sworn evidence that T. was placed in segregated and special programs for children with similar mental impairments), following which T. attended a "sheltered workshop" to which she nevertheless did not adjust well. The 1986 report was generated in the wake of T. having experienced a sudden and prolonged motivational and personality change upon learning of her grandmother's death overseas, following which she became even more dependent on her mother Y.R.. The formal diagnosis included "Mild Mental Retardation" and "Reactive Depression".
A letter addressed "To Whom It May Concern", written in 1988 by Dr Hevenor, (when T. was approximately 29 years old), confirmed that T. suffered from "reactive depression, mild mental retardation and polyclonal hypergammaglobulinemia", rendering her incapable of signing forms or caring for herself.
In January of 2014, a letter was provided by Sue Leddy, a Nurse Practitioner at the Maitland Valley Medical Centre in G.. The letter confirmed that T. had been a patient in Ms Leddy's family practice since April of 2007. It also confirmed Ms Leddy's understanding that T. had a seizure disorder, epileptic in nature, and suffered a head injury in October of 1960 which left her with a mild cognitive impairment, making her reliant on others for her care. Ms Leddy also was aware of T. history of severe reactive depression, which nevertheless was in remission. Ms Leddy confirmed her view that T. does not have capacity to sign forms, or make decisions for herself regarding her care, as she would be unable to understand the implications of such decisions.
A formal psychological assessment of T. was carried out in March of 2014, to evaluate her cognitive and adaptive functioning, and academic abilities. The findings and conclusions set forth in the report include indications that T. cognitive abilities are in the profoundly deficient range, and lower than 99.9% of others her age, with an impoverished memory below 99.83% of others her age. In terms of adaptive functioning, T. is operating at the level of a 5-year-old child, and her academic achievement effectively was at the kindergarten level. The report confirmed a diagnosis of moderate mental retardation, and that T. needs assistance with skills development "in all adaptive behaviour areas". Her intellectual abilities generally were said to be weak, and "pose problems for even semi-independent living", with a risk that others might take advantage of her "if she does not have continuous support and supervision". Examples of specific limitations included an inability to understand the specific value of any particular sum of money, warm soup, or turn on a television.
Correspondence from the Ministry of Consumer and Social Services confirmed that T. has been receiving Ontario Disability Support since 1977; i.e., since she turned 18.
Evidence from Y.R., (echoed to some extend in the evidence provided by K.R.), indicates that, following completion of her segregated and special school programs, T. engaged in a number of Community Living programs, which exposed her to some unpaid work environments. She also briefly attempted a few odd jobs, (e.g., on a farm and for a hair dresser), but such employment never worked out. T. life thereafter has been largely devoted to home activities and hobbies, such as television, travel with her mother, regular church attendance, participation in a knitting group, shopping, going for walks, and visiting friends.
Y.R. confirmed that, while T. helps with chores, she is not permitted to use electrical appliances, (as they can be dangerous for T.), and that T. needs assistance with very basic matters such as ensuring safe and appropriate water temperatures, and prompting to select and wear different clothes each day. While T. is in Y.R.'s care, she is never left alone, as she is a vulnerable person who could easily be misled.
K.R. confirmed that T. cannot live on her own, and needs daily supervision and reminders; e.g., as she has no concept of time, cannot cook, read or write, and will forget to take her medications, change her clothes or have a bath. He too indicated that T. has problems with ensuring safe and appropriate water temperatures.
There is no dispute that T. condition requires ongoing medication; medication which T. herself does not understand or regularly take without prompting and supervision.
[10] In the circumstances, I have no hesitation in finding that T. lacks capacity to manage property, in the sense outlined by section 6 of the SDA. In particular, she is incapable of managing property, as she is not able to understand information relevant to making a decision in the management of her property, and is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
[11] To the extent necessary, and in accordance with s.25(1) of the SDA, I also find that, as T. is incapable of managing property, it is necessary for decisions to be made on her behalf by a person who is authorized to do so. In other words, appointment of a guardian of property is necessary and appropriate.
[12] In particular, having regard to the evidence before me, I find that there is no alternative course of action available, short of finding T. incapable of managing property and imposing significant restrictions on her decision-making rights, to ensure that necessary decisions will be made on her behalf in that regard. The prohibition set forth in s.22(3) of the SDA accordingly does not apply.
[13] Such an appointment also should be for an indefinite rather than a limited period, as T. condition seems destined to remain the same for the balance of her life.
[14] Similarly, I have no hesitation in finding that T. lacks capacity to look after her personal care, in the sense outlined by section 45 of the SDA. In particular, she is not able to understand information that is relevant to making a decision concerning her own health care, nutrition, shelter, clothing, hygiene or safety, and is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
[15] To the extent necessary, and in accordance with s.58(1) of the SDA, I also find that, as T. is incapable of looking after her personal care, she needs decisions to be made on her behalf by a person who is authorized to do so. In other words, appointment of a guardian of the person is necessary and appropriate.
[16] In particular, pursuant to ss.58(3) and 59(1) of the SDA, I find that full guardianship of T. person is necessary and appropriate, as T. is essentially incapable of all the functions referred to in s.45 of the SDA.
[17] Without limiting the generality of the foregoing, I find that there is no alternative course of action available, short of finding T. incapable of personal care and imposing significant restrictions on her decision-making rights, to ensure that necessary decisions will be made on her behalf in that regard. The prohibition set forth in s.55(2) of the SDA accordingly does not apply.
[18] The appointment of a guardian of the person similarly should be for an indefinite rather than limited period, as T. condition seems unlikely to change or improve as she gets older.
Selection of guardian or guardians
[19] The real focus of the application and counter-application before me centres on who should be appointed T. guardian of property, pursuant to s.22(1) of the SDA, and who should be appointed T. guardian of the person, pursuant to s.55(1) of the SDA.
[20] As noted above, the presented alternatives in that regard are K.R., on the one hand, and Y.R., (with or without N.B. as an additional joint guardian), on the other. Each "side" has filed competing management plans in that regard, in compliance with s.70(1) and 70(2) of the SDA.
[21] There was no suggestion made by any party that guardianship of T. property and guardianship of her person should be divided; i.e., with the former being granted to one candidate for appointment, and the latter being granted to a different candidate for appointment. However, I independently find that such a division of guardianship would be inadvisable in this case, as it almost certainly would foster further disagreement and litigation.
[22] Before turning to a more detailed consideration of the particular circumstances of this case, I pause to note a number of general principles and considerations to be borne in mind when the court is called upon to select a guardian pursuant to the SDA. They include the following:
The SDA provides criteria for the type of person that the court may appoint as a guardian of property or a guardian of personal care. In particular, except in the case of an application by summary disposition, the court shall consider: (a) whether the proposed guardian is the attorney under a continuing power of attorney or power of attorney for property; (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. See ss.24(5), 57(3) and 77 of the SDA.
However, the overarching and fundamental factor in appointing a guardian or having one replaced or removed is what is in the best interest of the incapable person. See, for example: Bennett v. Gotlibowicz, [2009] O.J. No. 1438 (S.C.J.), at paragraph 19; Chu v. Chang, [2009] O.J. No. 4989 (S.C.J.) at paragraph 26; and Consiglio v. Consiglio, [2012] O.J. No. 3797 (S.C.J.), at paragraph 37.
In selecting an appropriate person for appointment, the court also may consider the duties of a guardian of property and guardian of the person, and indications of whether or not a suggested appointee is likely to fulfil such responsibilities. Such duties include obligations to act as a fiduciary and in good faith, (focusing on the best interest of the incapable person rather than the guardian's own interest); to ascertain and consider the incapable person's wishes; to consult from time to time with supportive family members and friends of the incapable person; and to foster regular personal contact between the incapable person and his or her supportive family members and friends. A candidate for appointment who demonstrates an inclination to act in a manner not consistent with such duties, (e.g., by permitting his or her ego or self-interest to take precedence over the welfare of the incapable person, by engaging in petty bickering or gamesmanship, and/or by making plain a determination to shun or limit communication with other family members), is unlikely to be a suitable guardian. See, for example: ss.32 and 66 of the SDA; Oberg v. Presta, [2004] O.J. No. 700 (S.C.J.), at paragraphs 18-20; and Chu v. Chang, supra, at paragraphs 26 and 30.
The court may, with their consent, appoint two or more persons as joint guardians of property and/or joint guardians of the person. See ss.24(6) and 57(4) of the SDA.
[23] With the above considerations and principles in mind, I now return to selection of an appropriate guardian or guardians for appointment, in relation to management of T. property and looking after her personal care.
[24] In that regard, I was presented with a considerable amount of material, essentially putting forth two competing and conflicting narratives.
[25] On the one hand, K.R.'s application and position, (actively supported by his wife J.R.), may be summarized as follows:
He claims to have enjoyed a close, caring and active relationship with T. throughout his life. For example, he says that he volunteered at T. school, generally lived at home with T. and his parents in Tillsonburg until 1989, and returned with J.R. to live with T. and his parents for two more years after his marriage before moving to a home within 5 km from T. and his parents, whom he continued to see several times a week. He says that, when he and his family relocated from Tillsonburg to G. in 1995, there were continued visits back and forth between the two communities over the next ten years, during which time it was common for Y.R. and T. to visit K.R.'s home in G. for several days at a time. The material filed by K.R. suggests that bond grew closer when Y.R. and T. moved from Tillsonburg to G. in 2005, to live in a house across the road from K.R. and his family. K.R. also suggests that, although he and his family relocated to North Bay in 2013, they continued to visit with Y.R. and T. in G. "on an ongoing basis".
K.R. says that "problems" with T. care "developed" when he learned that Y.R. was forced to enter hospital on December 25, 2013, for treatment of stomach problems and "stomach cancer". In particular, after travelling from North Bay to visit Y.R. in hospital, K.R. and J.R. also learned that T. was staying with friends (C.M.1. and C.M.) in Clinton. According to K.R., he then attended in Clinton to visit T., after realizing that Y.R. "was not returning to her residence", and asked T. if she wished to stay where she was in Clinton. K.R. says he then acted on T. expressed desire to instead go with him; i.e., by taking his sister to the G. home of Y.R. and T., where K.R. and J.R. then stayed with T. for several days.
K.R. acknowledges that, after taking T. to visit Y.R. in hospital on December 28, 2013, T. then was taken back to his home in Bonfield, Ontario, (a town approximately 30 kilometres southeast of North Bay), where she would live with K.R., J.R. and one of the couple's three daughters, (Victoria), who was still at home while completing high school. In his affidavit material, K.R. suggests this was done because Y.R. was "continuing to receive ongoing treatment for her serious condition", and because he and Y.R. had discussed having "joint guardianship" over T. "some considerable time ago".
Prior to early February of 2014, (i.e., within a month of her relocation to Bonfield), T. then was enrolled in, and began to attend, a North Bay program called "New Horizons" run by the local school board. The program's webpage indicates that it is designed for "developmentally disabled adults", to assist in their learning of skills related to "independent living", "healthy habits", "language and communication", and use of community resources.
In early February of 2014, K.R. then brought his formal application, (commenced in North Bay but subsequently transferred to G.), to have himself appointed T. sole guardian. He did so on the stated basis that Y.R. is "in a state where she is not capable of continuing to care" for T., because of Y.R.'s "serious health issues" and "ongoing serious medical complications". K.R. also asserted that N.B. had left home in 1976 and, following "sporadic" contact until 1995, thereafter had ceased to have any contact with the family, such that she had no known interest in having "any type of relationship" with T., Y.R., K.R. or his family.
By March of 2013, T. also had begun attending another North Bay Program called "PADDLE"; an acronym for "Providing Adults with Developmental Disabilities Lifelong Experiences". A report generated in January of 2015 opined that T. was enjoying her participation in the PADDLE program, where she was happy with a new "best friend", and seemed more willing to express her opinion and feelings over time.
Through initial and subsequent court filings, K.R. and J.R. emphasized that, after her relocation from G., T. thereafter enjoyed a comfortable and appropriate new environment with K.R. and his family in and around Bonfield, which T. is said to have regarded as her new "home". They also say that the move permitted T. to escape the "tyranny of Y.R." and enjoy new freedoms and privileges; e.g., growing her hair, making friends, and having her "own room and own clothes for the first time in her life". They criticize Y.R.'s attempts to communicate with T. by telephone, particularly insofar as Y.R. would say things which were perceived to be attempts at encouraging T. return, which in turn were said to distress and upset T..
K.R. and J.R. say that their new and appropriate arrangement for T. was then improperly brought to an end by Y.R.; i.e., when Y.R. refused to return T. to their care at the scheduled conclusion of a carefully negotiated and arranged return visit by T. to Y.R.'s G. home in December of 2014. J.R. in particular complains that Y.R. "unilaterally broke the agreement" prepared by solicitors, and thereafter "retained" T. without further notice.
[26] In short, the overall narrative presented by K.R. and J.R. is that of a dutiful brother who selflessly stepped in to rescue and provide more appropriate care for his sister T., with whom he has always enjoyed a close relationship.
[27] On the other hand, the evidence and narrative presented by Y.R. and N.B., (and others who have provided them with supportive affidavits), suggests quite a different characterization of events. Their position may be summarized as follows:
For an uninterrupted period from T. birth in 1959 until December of 2013, T. always had lived with her mother Y.R., who remained primarily responsible for T. care. Throughout that period, Y.R. was diligent in providing T. with a loving, safe and supportive environment. This included arrangements for regular and appropriate health care, monitoring of medications, and actively assisting T. with her daily personal care and routines. However, Y.R. also ensured that T. consistently engaged in schooling, hobbies and other social and extra-curricular activities suited to T. abilities and interests. In that regard, Y.R. essentially was not only a mother, but also a constant companion and friend to T..
In that regard, Y.R.'s role as T. principal and diligent care provider and companion was accentuated and solidified following the 1994 death of Y.R.'s husband (and T. father). In particular, over the decade or so that followed, Y.R. lived alone with T. in Tillsonburg, (where T. had been born and raised), and effectively cared for T. with little or no help from her other children. In particular:
Although N.B. had enjoyed a close relationship with her mother and sister, she became estranged from Y.R. (and therefore T.) in or around 1995, primarily because Y.R. had extended maternal and financial support to K.R. when he was charged with having sexually assaulted N.B.'s young daughter. (The charges did not proceed to trial.)
As for K.R., he moved away from the Tillsonburg area in or around 1995 and, according to Y.R., had never enjoyed a close or involved relationship with Y.R. or T. in any event. However, Y.R. continued to extend financial support to K.R. and his family from time to time; e.g., by helping to fund his successive home purchases through maternal gifts totalling approximately $145,000.
In or about 2005, Y.R. decided to relocate with T. to G., where there was an opportunity to purchase a home located across the street from where K.R. lived with his family. According to Y.R., she hoped the move would result in closer family relations, but the effort failed. In that regard, Y.R. candidly acknowledges that there were no arguments or "bad relations" with K.R. and his family. However, according to her, the sad reality is that there also was little contact with K.R. and his family before Y.R. and T. moved to G. and, after the move, the two branches of the family generally continued "to leave each other alone". For example, Y.R. says that, despite assertions to the contrary, K.R. rarely visited or helped Y.R. and T. before or after their move to G.. Moreover, on the limited occasions when there was interaction with K.R. and his family, Y.R. felt that K.R. and J.R. ignored or spoke inappropriately to T.; e.g., telling T. that she should "shut up", and that she would never be "smart enough" to swim in the family swimming pool.[^1]
In the result, Y.R. and T. instead grew closer to others in and around G.. They did so by frequent participation in various church-related activities, (including worship, participation in a knitting group, and a "Friendship" program for mentally disabled people), and other regular activities, (such as extended walks, shopping excursions and visitation), that brought them an apparently devoted circle of helpful friends. Such friends included Pastor S.T. Mr D.S., and the M. family, all of whom would regularly visit with Y.R. and T. at their home. Over time, Y.R. and T. became particularly attached to C.M.1. and C.M., and their four children, all of whom seem to have extended significant and selfless support and affection to Y.R. and T. over the course of many years.
By 2010, Y.R. had not spoken with N.B. for many years, and it seemed clear that N.B. neither needed nor expected any help from her mother. Despite his receipt of substantial financial assistance from Y.R., K.R. also had grown quite distant from his mother and sister, and Y.R. was not happy with the way K.R. and J.R. treated T. during their limited interaction. Y.R. therefore was no longer content to entrust T. to their care after Y.R.'s death.
In the result, Y.R. decided to alter her estate arrangements. In particular, she contemplated leaving her entire estate to T. through creation of a "Henson trust"; i.e., a trust designed to benefit disabled persons without a vesting of property that would end their ongoing entitlement to ODSP benefits. Y.R. approached C.M.1. and C.M. to see if they would be willing to assume the role of trustees and guardians in relation to T.; a move which would allow T. to remain in G. and enjoy the "new" circle of friends she had acquired after leaving Tillsonburg. After serious reflection and consideration, (bearing in mind that they already had four children), the Ms agreed to accept that considerable responsibility. Y.R.'s otherwise confidential will was changed accordingly, in July of 2010.
In early 2013, N.B. reached out to Y.R. and T., and the three began to rebuild their relationship. Such efforts included a successful holiday visit by T. to stay with N.B. and her family in Eden, (near Tillsonburg), in May of 2013. Over time, Y.R. informed N.B. of her estate arrangements and plan for T. care after Y.R.'s death. N.B. confirmed that she was happy with the contemplated arrangement, but also agreed to assist with her sister's care if T. staying in G. with the M. family proved unworkable.
In contrast, K.R. and his family remained distant, and Y.R. learned they were relocating to North Bay in June of 2013 only when she saw a "for sale" sign posted in their yard across the street.
On Christmas Day, 2013, Y.R. required hospitalization and surgery because of a stomach ulcer. Notwithstanding her need for medical treatment, Y.R. made arrangements for T. care. In particular, she entrusted T. to the care of C.M.1. and C.M., who agreed to have T. live with them at their home in Clinton while Y.R. remained in hospital. In due course, Y.R. also made arrangements for the temporary redirection of T.'s ODSP payments, to assist the Ms with their care of T..
However, K.R. and J.R. then interfered with Y.R.'s plans and wishes for T. care. In particular, according to Y.R.:
K.R. and J.R. paid an initial visit to Y.R. in hospital, in London, after learning where she was through Y.R.'s church friends. During that initial visit, K.R. and J.R. informed Y.R. that they would be staying at Y.R.'s home in G.. J.R. also asked to take Y.R.'s purse, (which contained Y.R.'s keys), for the stated reason that it was unsafe to leave valuables in the hospital. Y.R. told her son and daughter-in-law where T. was, and asked them to leave T. there. Notwithstanding that direction, K.R. and J.R. then stopped by the M. residence en route from London to G., and took T. back to G. with them without Y.R.'s consent or approval.
While K.R. and J.R. were staying at Y.R.'s home with T., they then used Y.R.'s keys to search the residence, including normally locked chests and containers. In doing so, they located and reviewed Y.R.'s otherwise secured and confidential personal documents, including a copy of her 2010 will. This prompted severe disappointment and anger on the part of K.R. and J.R., whose displeasure with Y.R.'s estate arrangements then was communicated to Reverend S.T. and the M. through extremely hostile complaints and accusations. Such statements included indications that K.R. and J.R. now intended to take T. to North Bay, where she would be kept and not returned.
In late December of 2013, K.R. and T. then did take T. to North Bay, along with many of Y.R.'s personal documents and belongings. Shortly thereafter, they began these legal proceedings.
Notwithstanding Y.R.'s complete recovery from surgery, and full restoration of her ability to care for T., (as confirmed by reports provided by Y.R.'s physicians as soon as February of 2014), K.R. and J.R. steadfastly refused to return T. to G. and Y.R.'s care.
Moreover, K.R. and J.R. became increasingly belligerent and entrenched in their position; e.g., failing to facilitate any visits by T. with her mother, informing Y.R. that she was no longer "family", threatening Y.R. with trespass if she attempted to visit T. at K.R.'s home, restricting and controlling Y.R.'s efforts to speak with T. by telephone, demanding funding for T. care, (which Y.R. facilitated by further redirection of T.'s ODSP payments), and questioning Y.R.'s use of a joint bank account she held with T., (which K.R. and J.R. apparently had started using to fund purchases for T., shortly after her relocation to North Bay). In the meantime, all of Y.R.'s efforts to secure the return of T. to G. were frustrated and delayed.
Given the timing of K.R. and J.R.'s sudden and determined interest in retaining custody of T., and the corresponding onset of their malevolent behaviour, Y.R. feels compelled to conclude that K.R. and J.R. are motivated by their displeasure with Y.R.'s estate arrangements, and view possession of T. as an indirect means of accessing Y.R.'s assets.
Y.R. candidly acknowledges that the belatedly arranged return of T. to G. in December of 2014 was to be temporary. However, in light of complaints made by T. to Y.R. and N.B., indicating that T. generally was being left on her own and otherwise neglected in North Bay, and that T. very much wanted to "come home" to her mother's care, Y.R. could not bear to send T. back to North Bay as contemplated. Despite the contemplated return arrangement, T. therefore has since remained in Y.R.'s renewed care.
In the meantime, relations between Y.R., T. and N.B. have continued to improve, with significantly increased communication and visitation, to the point where Y.R. now contemplates returning with T. to the Tillsonburg area. As T. spent the first 36 years of her life there, she already is familiar with the community, and continues to have many friends there, in addition to N.B.'s family.
New plans for T. future, (revised with the full support of C.M.1. and C.M.), now contemplate her staying with Y.R. in Tillsonburg, (in a rented apartment), until Y.R.'s death or incapacity. At that time, N.B. will assume primary care for her sister. In the meantime, a joint guardianship arrangement with Y.R. would facilitate N.B.'s progressive involvement in caring for T. and her affairs.
[28] In this case, when choosing between competing applicants for guardianship of T. property and person, the statutory consideration mandated by s.24(5)(a) and 57(3)(a) of the SDA has no application in the circumstances. None of the proposed guardians is an attorney under a continuing power of attorney or power of attorney for property, in relation to T..
[29] To the extent they can be ascertained and expressed, particularly through the objective voice of her appointed lawyer, the current wishes of T. favour appointment of Y.R. and N.B. as her formal guardians, having regard to ss.24(5)(b) and 57(3)(b) of the SDA. She says she was worried about her mother and wanted to stay at home with Y.R. in G.. She now seeks reassurance that she can stay with Y.R. and N.B.. She says she is interested in having contact with K.R., but expresses no interest in moving back to his home.
[30] When considering closeness of the relationship of the proposed guardians to the incapable person, pursuant to ss.24(5)( c) and 57(3)(c) of the SDA, there arguably is one degree of separation between T. and each of her mother, sister and brother. However, in my view, the maternal bond between T. and Y.R. is entitled to more weight, in terms of duration and intensity. Moreover, the application for joint guardianship by Y.R. and T. is numerically superior to the application by K.R. in terms of "closeness", in the sense that it would result in T. having two immediate blood relations formally caring for her rather than one.
[31] Beyond these mandated considerations, in my view there are numerous other reasons supporting a conclusion that it would be in T. best interest to award guardianship of T. property and person jointly to Y.R. and N.B., rather than to K.R.. Those considerations include the following:
In my view, the evidence before me provides no legitimate basis for doubting that Y.R. has been an entirely devoted mother to T. throughout her life, or for suggestions that Y.R. has ever failed or neglected to manage T. affairs and/or look after T. personal care in anything less than a capable and admirable way. In that regard:
The sample medical records filed in evidence underscore the fact that Y.R. has been diligent in seeking out appropriate treatment and professional care for T. over the course of many decades.
The sworn evidence supplied by third parties, (who may be friendly with Y.R. and T. but otherwise have no immediate stake in the outcome of these proceedings), all indicates that T. was quite happy and content in the devoted care of her mother. It also indicates that Y.R. made consistent efforts to ensure that T. has led as active and engaging a life as possible, consistent with her limitations.
I think it quite telling that there is no evidence whatsoever of K.R. and J.R. expressing any concern about Y.R.'s care of T., or taking any measures to actively intervene and alter the arrangements for T. care, at any point prior to their discovery of Y.R.'s will arrangements. The absence of such evidence is all the more glaring, given their supposed maintenance of close contact and interaction with T. over the decades.
Similarly, the court material initially filed by K.R. contains no criticism whatsoever of Y.R.'s earlier care for T., let alone anything resembling later suggestions that Y.R. was somehow "tyrannical" in that regard. Initially, the only proffered basis for assuming care over T. was Y.R.'s health situation.
Such considerations persuade me that Y.R. consistently has acted in T. best interest. Belated, inaccurate and inherently cruel suggestions to the contrary, by K.R. and J.R., make me question the accuracy of their other evidence, and their present motives.
On balance, I think the evidence supports a conclusion that K.R. and J.R. had indeed shown little interest or involvement in the life of Y.R. and T. prior to their discovery of Y.R.'s will in December of 2013. In that regard:
I am inclined to rely on the more objective indications from non-parties, (i.e., Reverend S.T. Mr D.S. and the Ms), that K.R. and his family were rarely seen around the G. home of Y.R. and T. during extensive visitation there by such witnesses over the course of many years.
The same witnesses provide persuasive indications, not denied by K.R. and J.R., that Y.R. and T. received most of their practical assistance, (in relation to such matters as home maintenance and transportation), from people other than their relatives who lived just across the street.
The documented 2010 estate arrangements also provide a compelling indication that, long before eruption of the current dispute, K.R. and J.R. had grown sufficiently distant, and/or had displayed other behaviour, to convince Y.R. they would not be suitable guardians for T.. Y.R.'s sense of disillusion with K.R. and J.R. in that regard is mirrored in the statements she made to non-parties prior to onset of the present dispute; evidence which, to me, rebuts any express or implicit suggestion of recent fabrication on Y.R.'s part in relation to such matters.
I also think it telling that, during the day leading up to Y.R.'s hospitalization, she had a number of discussions with C.M.1. and C.M. about arrangements for T. care, and also went to the trouble of showing Mr M.C.1. the location of her will and other documentation and valuables, (so that he would know where to find them "in the event something happened to her"), but declined to notify K.R. and J.R. in any way that she was going into hospital. (It seems that K.R. and J.R. discovered something unusual was happening only when they were unable to reach anyone at the home of Y.R. and T. during attempts to call on Christmas day.)
Suggestions by K.R. and J.R. that T. did not have her own room or friends before her relocation to North Bay, and that N.B. re-established contact with Y.R. and T. after the onset of the current dispute, seem completely at odds with the underlying realities. That in turn reinforces the impression that K.R. and J.R. had little knowledge of T. actual life and activities before December of 2013.
I find it striking that K.R. and J.R. professed to assume care and control of T. because of Y.R.'s supposedly dire health problems, but then failed to return T. to Y.R.'s care despite repeated indications, (including written confirmation from Y.R.'s treating physicians in February and May of 2014), that Y.R. had returned to good health and once again was "entirely capable" of looking after T.. To me, their failure in that regard, in the face of such objective confirmations, is strongly indicative of bad faith.
There also unfortunately are indications that K.R. and J.R. are indeed motivated by dissatisfaction with Y.R.'s estate arrangements, and a focus on monetary matters, rather than any genuine concern for T. welfare and what would be in T. best interest. In that regard:
K.R. and J.R. do not deny assertions that they used the keys they obtained from Y.R. to search her home and review her personal documents, including a copy of her otherwise confidential 2010 will. Nor do they deny allegations that they took documentation and numerous items of property from Y.R.'s home, leaving it in a state where it appeared to have been ransacked by an intruder. (Leaving aside the absence of such denials, I agree that an intruder with no familial connection would have had little incentive to remove items such as family photographs, as well as documentation relating to Y.R.'s medical records for T., some of which surfaced in the application material filed by K.R..) In my view, the lack of respect shown for the property and privacy of K.R.'s temporarily incapacitated mother does not inspire confidence that respect would be shown for the property or person of his permanently incapacitated sister.
There also were no denials of the detailed evidence of Reverend Tamming indicating that J.R. called him on December 28, 2013, yelling at him in a "loud", "abrupt" and "extraordinary" way, admitting that she had gone through Y.R.'s paperwork and found Y.R.'s will, repeatedly expressing disbelief and displeasure that J.R. and K.R. were not in Y.R.'s will, and complaining about Y.R.'s perceived mistreatment of K.R. and his children. In the same loud and angry call, J.R. indicated there was "no way" the Ms were going to be T. guardians, and that K.R. and J.R. would be taking T. with them and applying to the court for custody of T..
Similar indications are found in the evidence from C.M., who says that J.R. was very open about her plans to access Y.R.'s money through T.; i.e., by controlling the financial provision made for T. in Y.R.'s will.
J.R.'s own text messages to the Ms, sent in late January of 2014, expressly complain of "that sorry excuse for a will" Y.R. had made. They also confirm K.R. and J.R.'s determination to block any attempt to have that will probated.
I am troubled by the fact that K.R.'s management plan for T. contemplated and then implemented deficit spending from the outset, (i.e., with expenses for T. exceeding her ODSP income), and that assumption of T. care by K.R. and J.R. was followed in relatively short order by unauthorized use of a joint bank account maintained by Y.R., criticism of Y.R.'s use of that joint account, and unsupported requests for funds beyond T.'s ODSP payments, (which Y.R. redirected to K.R. and J.R. while T. was in their care).
I think it quite disturbing that a letter signed by T. was provided to the Canada Revenue Agency in March of 2014. That letter, supposedly from T., made reference to the disability certificate on file for her, and asked that a credit for T. disability go to K.R. for 2013 and future years. All the evidence before me indicates and confirms that T. was and is quite incapable of preparing or understanding the import of any such documentation. K.R. knew or certainly ought to have known this, but he or those acting on his behalf nevertheless apparently pressed ahead with creation of such documentation for T. signature, in order to promote K.R.'s personal financial interest. Such actions are not the hallmark of someone likely to respect fiduciary obligations.
I also think it noteworthy that, while the record before me contains a great deal of detailed evidence concerning efforts by Y.R. and N.B. to visit or communicate with T. while she was in the care of K.R. and J.R., there is little or no indication that K.R. and J.R. have been trying to communicate with T. after her return to G., (beyond their litigious efforts to have T. returned to their care and control). To me, this is revealing of actual priorities, in terms of professed concern for T..
The conduct of K.R. and J.R. in removing T. from the care of the M. family, and their subsequent relocation of T. to North Bay while imposing severe restrictions on visits and telephone contact from Y.R., are also disturbing. In that regard:
Their suggestion that T. had the capacity to make an informed and guiding decision to leave the M. residence with K.R. and J.R. for G., and then relocate with K.R. and J.R. to the North Bay area, despite Y.R.'s express instructions and wishes to the contrary, is troubling. As noted above, T. has the intellectual capacity of a 5-year-old child, or kindergarten student. A responsible guardian, or someone truly familiar with T. limitations, would not have allowed T. to control such decisions.
Similarly, it seems to me that someone truly familiar with T. limitations and history, and having any sensitivity to T. feelings, would not have subjected her to such a precipitous and drastic relocation. In very short order, T. was told by K.R. and J.R. (in the presence of the Ms) that her mother had cancer, and then was transported to distant and completely unfamiliar surroundings where she knew almost no one, while simultaneously being separating and cut off almost entirely from the mother who had been her constant companion for more than 55 years. Moreover, all that was done in circumstances where T. last memory of Y.R. was seeing her mother hospitalized; something which, (along with the indication that Y.R. had cancer, and J.R.'s stated belief that Y.R. would not live more than a few days and definitely not into 2014), no doubt played a large role in T. apparently coming to believe that her mother had died. In my view, it unquestionably would have been cruel to subject a 5-year-old kindergarten student to such treatment. However, such an experience almost certainly would be worse for T., given her far more extensive and prolonged period of dependency on her mother, and T. history of reactive depression when learning about the death of her far more distant grandmother. In my view, the situation brought about by the actions of K.R. and J.R. also was inherently insensitive and cruel vis-à-vis Y.R.. Disposition to such insensitivity and cruelty, especially in relation to an incapable person, is not the hallmark of a suitable guardian.
The willingness and determination of K.R. and J.R. to make decisions in relation to T. without consulting Y.R. or respecting her wishes, (notwithstanding Y.R.'s five decades of experience in actively attending to T. needs), and their subsequent determined efforts to prevent or severely limit further communications with Y.R. and contact between Y.R. and T., would be a concern in any event. As noted above, a guardian has a statutory duty to consult from time to time with supportive family members and friends of the incapable person, and to foster regular personal contact between the incapable person and his or her supportive family members and friends. However, it seems to me that, from the outset of the present dispute, K.R. and J.R. consistently have demonstrated an overtly adversarial and belligerent approach making it clear that Y.R., N.B. and T. friends would be treated as enemies from whom further input or contact was and would be unwelcome. In addition to the subjective accounts by Y.R. and N.B. of their being subjected to rude and abusive communications, more objective examples of such highly adversarial conduct by K.R. and J.R. include the following:
The tone of reproduced text messages sent by J.R. to the Ms, in January of 2014, is remarkably hostile. The Ms were told they had "made mistakes", that T. was "none of their business", that they were not true Christians, and that they were "doing the work of the Devil". I see no rational basis in the evidence for communicating such comments and accusations to people who frankly seem to have been motivated by nothing but kindness and charity.
The tone of correspondence from J.R. to Y.R. similarly leaves much to be desired, in terms of civility.
As noted above, J.R. threatened to contact the police and have Y.R. charged with trespass if Y.R. attempted to visit K.R. and J.R.'s home. J.R.'s own text messages confirm that threat, making it clear that the threat extended not only to Y.R. but to all members of the M. family as well.
Beyond the threat of trespass charges, there are further worrisome indications of a ready inclination by K.R. and J.R. to promote police involvement in what is essentially a non-violent family disagreement. In saying that, I am mindful of the reality that the police were contacted by the Ms and Y.R. in the early stages of the dispute, to investigate and address what initially appeared to be a burglary of Y.R.'s home. However, I think that particular involvement of the police was understandable in the circumstances. Far less understandable are threats apparently made to have Y.R. charged in relation to her operation of the joint bank account, the formal complaints made by K.R. and J.R. to the police about Y.R.'s attempts to reach T. by telephone, and their apparent request to have the police attend when K.R. eventually dropped T. off for an arranged visit with Y.R. and N.B. in December of 2014. Such escalations of the dispute seem entirely unnecessary and inappropriate. I also am troubled by K.R. and J.R.'s formal complaint to the police about alleged historical sexual misconduct by N.B. vis-à-vis K.R.; a complaint which Y.R. and N.B. vehemently deny, and which the police apparently thought unworthy of further investigation and dispute. That complaint was advanced only after N.B. became involved in this litigation and indicated support for Y.R.'s plans in relation to T.. While there certainly is no set rule or common practice as to when victims of sexual abuse may come forward with such revelations and accusations, the timing of the complaint about N.B. in this case gives rise, I think, to legitimate suspicion that its purpose was not unrelated to these civil proceedings.
K.R. and J.R.'s own evidence and correspondence confirms that Y.R.'s calls with T. were being monitored, controlled and directed. In my view, such conduct, (especially J.R.'s documented and lengthy attempts to dictate precisely what Y.R. could and could not say to her own daughter), was extraordinary and deplorable, and speaks far more to what was upsetting K.R. and J.R. rather than what was upsetting T..
The affidavit evidence from K.R. and J.R. is critical of Y.R.'s conduct in visiting T. (with N.B.) at the PADDLE program in North Bay "directly" and "without notice". However, it seems to me that the actions of K.R. and J.R. effectively left Y.R., (as a loving mother deprived of contact with the daughter she had lived with and cared for over the course of so many decades), with little choice.
I find it quite remarkable that K.R. and J.R. made no arrangements for T. to pay a return visit to the G. area, to visit Y.R. or any of T. other G. friends, for almost a year. To me, the inescapable impression is that K.R. and J.R. were intent on burning bridges that might lead T. back to G., and away from their control.
There are other worrisome indications that the care received by T. while she was in North Bay was less than adequate or appropriate. For example:
The available evidence indicates that no effort apparently was made to secure transfer of T. most recent medical records to health practitioners in North Bay. I find that troubling, given T. medical history, and prior indications that she is prone to recurrence of seizures if her medication is not carefully controlled, and/or if adjustments are made to her medication.
J.R.'s own correspondence indicates that T. apparently was experiencing a recurrence of "mini mal" seizures while in North Bay. While J.R.'s correspondence asserts in vehement terms that such seizures were occurring before T. move to North Bay, and her affidavit suggests an understanding that T. "has suffered from some form of seizures for the twenty five years" J.R. has known her, in my view there is no other evidence to support the suggestion, and the available medical documentation from objective sources, (particularly from Ms Leddy, the nurse practitioner who has been actively involved in T. medical care since 2007), provides strong indications to the contrary. Moreover, given the apparently minimal interaction between T. and K.R.'s family before T. relocation to North Bay, opportunities for J.R. to make any reliable or significant observations in that regard were correspondingly limited.
During the visit made by Y.R. and N.B. to the PADDLE program in North Bay to see T., it was noted that the lunch necessarily brought with her from K.R.'s home left much to be desired, in the way of nutrition. (It consisted of some timbits, an apple and some cheesies.) K.R. does not dispute this, but says that was an unusual situation as he was "running late" and permitted T. to make her own lunch on that occasion. In my view, such a lapse in care nevertheless does give rise to legitimate concern about the extent to which care for T. was being regarded as a priority.
It seems undisputed that T. gained significant weight during her time in North Bay, suggesting that her time there was characterized by an inappropriate diet and/or less activity than she had enjoyed while living with her mother in G..
On her return to G., T. herself seems to have complained of her life with K.R. and his family while in North Bay; e.g., saying that she frequently was left on her own while others were sleeping, and expressing her unhappiness with the family's pets and associated uncleanliness. I am mindful of the fact that evidence of T. alleged comments in that regard comes through the filter of Y.R. and N.B.. However, the detailed notes N.B. is said to have made in that regard, (in narrative format as well as a rough transcription of comments being made back and forth), seem genuine and compelling. Moreover, the comments do raise and address subjects of which Y.R. and N.B. otherwise would have little or no knowledge. In any event, T. has indicated to and through the more objective filter of her own lawyer that she wishes to stay with Y.R. and N.B., and expresses no desire to move back into K.R.'s home.
[32] For all these reasons, I believe T. should remain in the company and care of Y.R. for the balance of Y.R.'s life, and that Y.R. should be granted formal authority over T. and her property while Y.R. remains capable of exercising such responsibilities.
[33] I also am satisfied that such formal authority should be granted jointly to N.B., to facilitate a transfer of T. into her care when Y.R. dies or otherwise becomes incapable of continuing to provide such care. In that regard:
Y.R.'s wishes and preferences in that regard are certainly not binding on the court, but in my view, they are entitled to considerable deference. For more than 55 years, she admirably has looked after T. welfare, and has gained the greatest experience of what is likely to work best in that regard, given T. capacities and character.
A joint guardianship by Y.R. and N.B. is what T. currently desires, albeit with a hope that she will remain in contact with K.R., (while not returning to his home).
A joint guardianship will ensure that T. remains in contact with Y.R. for the balance of Y.R.'s life, (even if Y.R. becomes incapable of caring for T.), thereby providing T. with the continuity and reassurance she desires in that regard.
The evidence before me indicates that N.B. has maintained stable and long term employment and residence in the Tillsonburg area for many decades, and that she is actively involved in the community there. That no doubt will be of considerable assistance in facilitating T. return to the familiar surroundings where she was born, and where she spent her first 46 years. Transition from the care of Y.R. to the care of N.B., by way of survivorship between T. joint guardians, is then unlikely to involve a significant change in T. life.
The evidence before me suggests that N.B. has been keenly aware of the advisability of introducing change into T. life in a gradual way. For example, she has not tried to force herself back into T. life in a sudden or dramatic way, but has instead co-operated in incremental and progressive reintroduction and visitation. Such sensitivity to T. needs and limitations, (which stands in contrast to the actions of K.R. and J.R.), commends N.B. as an appropriate guardian for T..
In contrast to K.R. and J.R., there are no troublesome indications that N.B. is motivated by anything but a desire to assist her mother and sister, and continue the significant steps that have been taken to rebuild and resume their personal relationships. In that regard, I find it striking that N.B. was equally content with Y.R.'s earlier plans to have T. remain in the care of the Ms. N.B. lent her active support to her mother's plans in that regard. To the extent N.B. now is willing to accept the role of joint guardian for T., and facilitate T. relocation to Tillsonburg, it seems to me that she is simply continuing to honour the wishes and preferences of Y.R. and T., which now have changed. I also note that, in contrast to the management plan filed by K.R., N.B.'s management plan does not contemplate regular deficit spending on T. care.
Conclusion
[34] For the reasons set forth above, an order shall go:
a. dismissing the application brought by K.R.;
b. declaring that the respondent M.R. is incapable of managing property, and that it accordingly is necessary for decisions to be made on her behalf by a person who is authorized to do so;
c. appointing Y.R. and N.B. jointly as guardians of property of M.R.;
d. declaring that the respondent M.R. is incapable of personal care, (and specifically, her own health care, nutrition, shelter, clothing, hygiene and safety), and that it accordingly is necessary for decisions to be made on her behalf by a person who is authorized to do so;
e. appointing Y.R. and N.B. jointly as the guardians for personal care of M.R.; and
f. requiring K.R. to pass accounts for the period between December 26, 2013 to December 21, 2014, inclusive, during which he had de facto care and control of M.R..
Costs
[35] Because my decision was reserved, the parties were unable to make any submissions regarding costs of the application and counter-application. If the parties are unable to reach an agreement on costs in that regard:
a. the cross-applicants Y.R. and N.B., the respondent M.R., and the respondent Public Guardian and Trustee[^2] may serve and file written cost submissions, not to exceed five pages in length, (not including any bill of costs), within two weeks of the release of this decision;
b. the applicant and respondent to cross-applicant, K.R., then may serve and file responding written cost submissions, also not to exceed five pages in length, within a further two weeks thereafter; and
c. the parties identified in sub-paragraph (a) then may serve and file, within a further one week thereafter, reply cost submissions not exceeding two pages in length.
[36] If no written cost submissions are received within four weeks of the release of this decision, there shall be no costs of the application or cross-application.
Justice I F. Leach
Date: November 16, 2015
[^1]: D.S. gave evidence that he personally witnessed such treatment of T. by J.R. at a "pool party". C.M.1. and C.M. gave evidence of having later witnessed K.R. and J.R. treating and speaking to T. in a similarly insensitive and disrespectful manner, in Y.R.'s absence; i.e., on the evening when T. was removed from their care, in the circumstances outlined below.
[^2]: As noted above, the office of the Public Guardian and Trustee ("PGT") did not participate in the hearing before me. However, the PGT was a formal party to these proceedings, and the filed material makes it clear that the PGT was involved in these proceedings to some extent. To ensure that the PGT is made aware of this endorsement, and my directions regarding cost submissions, T.'s counsel Ms Cull is hereby asked and directed to ensure that the PGT receives a copy of this endorsement within two business days of its release to counsel who participated in the hearing.