CITATION: Childs v. Childs, 2015 ONSC 4036
OTTAWA COURT FILES NO.: 14-62156 and 15-63109
DATE: 2015 June 25
ONTARIO
SUPERIOR COURT OF JUSTICE
OTTAWA COURT FILE NO.: 14-62156
BETWEEN:
Michael Childs and Andrew Childs
Applicants
– and –
Peter Childs, Caroline Childs and The Public Guardian and Trustee
Respondents
J. Johnson, for Michael Childs and Andrew Childs
M. Vale Peters, for Peter Childs and Caroline Childs
W. Griesdorf, Section 3 counsel for Eileen Vera Childs
R. Coutinho, for The Public Guardian and Trustee
- AND -
OTTAWA COURT FILE NO.: 15-63109
BETWEEN:
Peter Childs and Caroline Childs
Applicants
– and –
Michael Childs, Andrew Childs, Eileen Vera Childs and The Ontario Public Guardian and Trustee
Respondents
M. Vale Peters, for Peter Childs and Caroline Childs
J. Johnson, for Michael Childs and Andrew Childs
W. Griesdorf, Section 3 counsel for Eileen Vera Childs
R. Coutinho, for The Ontario Public Guardian and Trustee
HEARD: June 18, 2015 at Ottawa
Both court files (14-62156 and 15-63109) heard together
Tranmer, J.
DECISION ON APPLICATION UNDER SUBSTITUTE DECISIONS ACT
[1] Eileen Childs, born September 15, 1926, is 88 years of age. She and her husband Philip have four children born within just over three years of each other. They are now in their late 50s early 60s.
[2] Mrs. Childs raised her four children with her husband. These four children cannot agree and cooperate on the care of their mother. Mrs. Childs suffers from Alzheimer's dementia and other health challenges. Her present stated wish is to continue living in her home on Sand Lake.
[3] Mrs. Childs’ assets, at the outset of this litigation, were approximately $1,400,000 deposited with BMO and HSBC, and her home, worth an estimated $400,000.
[4] The litigants are her children, Michael and Andrew versus Peter and Caroline.
THE ISSUES
[5] There is no issue as to whether Mrs. Childs suffers from an incapacity as to her property and her personal care. The materials establish this to be, unfortunately, the case.
[6] The deemed capable wishes of Eileen Childs are set out in the Factum and Authorities of Eileen Vera Childs filed by her s. 3 counsel, para. 2.
[7] There is no real issue as to whether Carolyn Childs should be appointed her guardian of personal care. Michael and Andrew are concerned about their mother's safety in continuing to live at her home in light of a recent OT report, dated June 12, 2015, indicating in particular, dizziness and shortness of breath on the part of their mother. They would like their mother committed to a care facility for her own safety. Eileen Childs’ doctor, Dr. Briggs, wrote a short note, dated April 29, 2014, indicating that she is no longer able to care for herself independently and that “she would benefit from moving to a care facility in order to provide a stable living environment with continuous care.” However, they do not make a strong case against the appointment of Caroline Childs as guardian of personal care, which is the position of the other parties, including s. 3 counsel and the OPGT. A capacity assessment dated May 25, 2015 determined that “there is no evidence to suggest that Mrs. Childs is unsafe in her present environment (living in her home with her daughter, Caroline) because she receives 24-hour care and supervision.” Caroline Childs has identified specific renovations to the home that will protect her mother and keep her safe. Caroline Childs recognizes there may come a time when her mother will have to move to and reside in a care facility, in her own best interests.
[8] The parties are agreed that BMO Trust Company be appointed as guardian of property subject to filing an amended Management Plan to be reviewed by the parties and the OPGT. Peter and Caroline submit that if the court does not accept this proposal that they be appointed guardians of property in accordance with their filed Management Plan which is not opposed by the OPGT. On the record before me, and in view of the submissions of the parties, it is in the best interests of Eileen Childs and I order that BMO be appointed as guardian of property subject to filing an amended Management Plan within 45 days of this order which is satisfactory to the parties and the OPGT and subject to passing accounts every two years.
[9] To facilitate the amendments to the BMO Management Plan, I order that the parties shall produce all necessary financial documents and the documents relating to the household expenses within 10 days of this order. A copy of the death certificate of Philip Childs shall be produced within 10 days and delivered to BMO.
[10] Section 3 counsel proposes that Michael Childs be appointed Litigation Guardian. He is prepared to do so without claiming fees. Peter and Caroline propose that Peter be appointed Litigation Guardian. On the material before me and on the basis of the submissions made to me, I order that Michael Childs be appointed Litigation Guardian as this is in the best interests of Eileen Childs.
[11] I further order that Caroline Childs circulate to her siblings a copy of any medical notes created as a result of an attendance by Eileen Childs for medical examination and/or treatment. Caroline Childs is also to advise her siblings in writing of any significant decision concerning Eileen Childs’ shelter and housing, and medical needs or treatment. It is ordered that all siblings are entitled to communicate with and receive information from third parties providing medical or health care to Eileen Childs. Caroline Childs has been providing weekly reports concerning her mother pursuant to para. 16 of Justice McLean’s order of April 23, 2015. I order her to continue to do so, but on a regular monthly basis commencing July 1, 2015, directly to her siblings.
[12] On the material before me, it unfortunately appears necessary that I order that all siblings are entitled to visit with their mother on reasonable notice and with reasonable regularity. I do not order, but it would appear appropriate that the entire family gather together at their mother's home with their mother, as long as she is able, at Christmas, on Mother's Day, on July 1 and Thanksgiving as a minimum. These children should recognize that that opportunity will not be open to them forever.
[13] It is not greatly disputed that any of the children who have incurred reasonable out-of-pocket expenses directly related to the care of their mother should be reimbursed from her assets. It is so ordered limited to claims incurred in the three years preceding the hearing of this application on June 18, 2015. All such claims are to be submitted to BMO within 10 days of this order.
[14] The legal costs claimed by s. 3 counsel and by the OPGT shall be submitted and filed within 30 days of this order and will be determined by the court.
ISSUES IN DISPUTE
[15] The issues in dispute which were the main focus of submissions are,
a. whether Caroline Childs is entitled to compensation for the care that she provided to her mother in her Sand Lake home from January 25, 2011 to October 30, 2013, and since the order of Justice McLean and going forward from this point in time and if so, the quantum of such compensation;
b. Michael and Andrew seek no compensation for similar care that they provided to their mother for shorter periods of time;
c. there is also the issue of whether Michael and Andrew and or Peter and Caroline are entitled to their costs of this litigation, and if so in what amount.
COMPENSATING CAROLINE FOR CARING FOR HER MOTHER
Position of Caroline
[16] It cannot be disputed that because of Caroline's in-house care for her mother, her mother has been able to remain living in her own home. This is in the best interests of Eileen Childs. It is also established that during Caroline's care, Eileen Childs’ wellness and well-being have improved and been maintained. This is clearly in the best interests of Eileen Childs.
[17] Counsel for Caroline made it clear that Caroline was not motivated to provide this care in the expectation of being compensated. She would have provided and will provide into the future such care without compensation.
[18] Caroline initially sought compensation to cover the costs of her home maintenance until she sold her home. In an e-mail dated October 27, 2012, Peter proposed a salary/honorarium of $60,000 per year. In an e-mail dated October 31, 2012, Michael agreed they should compensate fairly, but based on the cost to have live-in help. Andrew has never agreed to compensate Caroline. In a letter dated January 28, 2014, a lawyer representing Michael and Andrew proposed compensating Caroline at the rate of $150 per day for the time that she spent caring for her mother from July 5, 2011 until October 31, 2013.
[19] No compensation has been agreed upon or paid.
[20] Caroline now argues through her counsel that she should be compensated in the amount of $133,000, for the period that she provided care from July 25, 2011 to October 30, 2013, at a rate of $170.22 per day.
[21] She claims compensation at the same rate from April 23, 2015 to the present time.
[22] She also claims that commencing this date, she should be paid at the rate of $53,620 per annum. She submits this is less than one-half of average market cost for a third party to provide such care.
Position of Michael and Andrew
[23] They are both prepared to waive any similar claim for compensation.
[24] They submit that looking after your mother is what you do, although you should not be out of pocket.
[25] They oppose any compensation for past care provided by Caroline, but are agreeable to paying her a stipend of $500 per month plus room and board while Caroline lives with and cares for their mother. They also submit that there should be daily professional care provided.
Position of s. 3 Counsel
[26] Section 3 counsel submits this fight between siblings over compensation money is not in the best interests of Eileen Childs. It has broken down the family and Eileen Childs is distressed over it. There should be no past compensation.
[27] With respect to future compensation for Caroline, s. 3 counsel submits that the quantum should be conservative, not jeopardize the assets of Eileen Childs and be in the best interests of Eileen Childs. She submits that Caroline is to be the manager of the future care, not the caregiver, in her capacity as guardian of personal care. She should be compensated for that role. Counsel submits that a stipend in the order of $500 per month is appropriate together with room and board.
Position of OPGT
[28] Counsel points out that the power of attorney is silent as to compensation, as is the Substitute Decisions Act with respect to personal care, although it does address compensation with respect to property.
[29] He submits that it is an exceptional case where such compensation for personal care is claimed and granted. He submits that the primary factor to consider is the best interests of the incapable person, such as improved health, remaining at home in accordance with her wishes. He submits that when courts go to grant personal-care compensation, it is usually in a modest amount. Others factors to consider include market rate and whether the estate will be diminished dramatically by such compensation.
ANALYSIS
[30] In Re Brown 1999 CarswellOnt 4628 (Ont. S.C.J.), this Court found that there was jurisdiction to award compensation for legitimate services rendered by a committee of the person to an incapable person provided there is sufficient evidence about the nature and extent of the services provided and evidence from which a reasonable amount can be fixed for compensation. The hallmark of such compensation must be reasonableness. The services must have been either necessary or desirable and reasonable. The amount claimed must also be reasonable. There must be an evidentiary foundation to support entitlement to the claim and the quantum of the claim.
[31] In Kiomall v. Kiomall, Court File No. 03-002105, Ont. S.C.J., this court accepted the principle that compensation may be awarded for personal care where the services performed were a benefit to the incapable person and the amounts claimed are demonstrably reasonable. The reasonableness of the amount of compensation awarded to a Guardian of the person must be assessed in the context of the specific financial circumstances of the incapable person. The amount awarded must not only be reasonable in relation to the services performed, it must be proportional to the means of the incapable person. Its payment should not pose a risk to the overall financial affairs of the incapable person. Justice Brown awarded the guardian of personal care reasonable compensation in the sum of $3575 per year for personal care services which were for 20 hours a month working on arranging for paid care services.
[32] In considering this issue, important factors include that the care and services performed by Caroline did benefit her mother and were in her mother's best interests. She did not act with the expectation of being compensated nor was she motivated by the compensation possibility. She would have done the same, compensation or not. Eileen Childs is lucky to have her daughter to help her remain in her own home because otherwise she could not. Eileen Childs has significant liquid assets. However, her in-home care needs will increase and become significant and the cost of the proper facility will be significant. These expenses are in her future in all likelihood. I have also considered that Peter and Michael both thought compensation was appropriate.
[33] A child should not be paid to care for an ailing mother. Eileen Childs was not paid for raising her four children.
[34] I repeat that Caroline, through her lawyer, indicates that she provided the care with no expectation of payment and she would do so into the future, even if not paid. This is commendable. It is the way it should be. Lawyers make reference to the phrase “natural love and affection.” That is what children are owed and deserve and are entitled to from their parents and parents are owed and deserve and are entitled to from the children.
[35] However, the crux of the dispute between these parties is Caroline’s claim for compensation in the amount of $133,000, and her claim for $53,600 per year going forward.
[36] There is no evidence before the court of any sacrifice made by her or loss suffered to undertake the care of her mother, for example, she left the job or she left a happy established life in England. Such factors are traditionally important considerations for a court, despite the comments of the s. 3 counsel and counsel for the OPGT. This is not a case where the child’s position is that she will not or cannot afford to undertake the care of her mother unless she is paid.
[37] The three boys have not been as much help to their mother on the record before me. Two of the three boys agreed that the sister should be compensated.
[38] The care provided by Caroline to this point in time is of priceless value to her mother. One really cannot place a dollar figure on it. Even if it enhanced Eileen Childs’ life for one day or one hour, the value is beyond measure.
[39] In my view, Caroline is entitled to and has earned recognition and thanks. To the extent that she is able to, I am certain that Eileen has done so, but the self-satisfaction in knowing that she has done the right thing really should be enough for Caroline.
[40] The Court recognizes her significant contribution to her mom’s ongoing quality of life. To the extent that money may assist in a material way to that acknowledgment, there is no evidence before this court of Caroline’s quality-of-life, for example, the need for a break or vacation, the cost of that, money for her to fund professional care for her mother so that she can get a break.
[41] In Peter v. Beblow 1993 CanLII 126 (SCC), [1993] 1 S.C.R. 980, at p. 904, in a family law, constructive trust, unjust enrichment context, the Supreme Court of Canada said: “It is precisely where an injustice arises without a legal remedy that equity finds a role.” There is no unjust enrichment or resulting injustice in the case before me, but there is a role for equity.
[42] It is fair and reasonable from the perspective of Eileen Child’s best interests that Caroline be paid the sum of $25,000 in recognition of her efforts, which to some extent two of three brothers have acknowledged. This is for her personal care services for the 2½ years between 2011 and 2013 and for the past two months since the order of Justice McLean.
[43] This is in Eileen’s best interests to end this dispute between her children.
[44] Caroline should not have brought this claim to court to litigate against her family, but she should not have had to do so either. The $150,000 incurred by this family for legal fees could have been more constructively utilized within the family. The litigation also took a toll on all concerned emotionally. We have heard submissions that Eileen is upset by this family feud.
[45] With respect to the compensation for Caroline as guardian of the personal care of Eileen Childs, that is a distinct issue from the direct caregiving that has taken place to date.
[46] Going forward as guardian of her mother's personal care, Caroline's role is as the manager of personal care rather than the primary personal care attendant. There are sufficient assets available to permit proper homecare to be provided for Eileen Childs in her home. Caroline will have to manage accessing the proper services and care givers and she should do so to provide fully for the best interests of her mother.
[47] I find that a fair proper and reasonable compensation from this time forward is as suggested during the submissions to me namely, the sum of $500 per month, recognizing that Caroline is entitled to room and board and reimbursement for expenses directly incurred on her mother's behalf.
[48] Finalizing this issue of compensation for care is in the best interests of Eileen Childs. The court hopes that her children can now put aside their differences and work cooperatively together to make her future as happy and comfortable as possible.
[49] Counsel shall prepare the order to reflect this decision on the issues raised in these two applications and the order shall apply to both applications.
[50] If counsel are unable to agree on the issue of costs, after bona fide efforts to reach agreement, then Michael and Andrew Childs may make written submissions within 21 days limited to two pages and a costs outline, and Peter and Caroline may respond within seven days thereafter limited to two pages and a costs outline. The parties should bear in mind the principles set out in Fiacco v. Lombardi, Court File No. 03-85/88 when addressing costs.
Honourable Mr. Justice Gary W. Tranmer
Released: June 25, 2015
CITATION: Childs v. Childs, 2015 ONSC 4036
OTTAWA COURT FILE NOS.: 14 – 62156 and 15 – 63109
DATE: 2015 June 25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Michael Childs and Andrew Childs
Applicants
– and –
Peter Childs, Caroline Childs and The Public Guardian and Trustee
Respondents
–AND–
Peter Childs and Caroline Childs
Applicants
– and –
Michael Childs, Andrew Childs, Eileen Vera Childs and The Ontario Public Guardian and Trustee
Respondents
decision on application under substitute decisions act
Tranmer J.
Released: June 25, 2015