SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 15-64909
DATE: 20150901
RE: Robert Louis Robillard, Robert Carl Robillard, Applicants
AND
Marina Robillard, Monica Fraser and The Public Guardian and Trustee, Respondents
BEFORE: Madam Justice L. Sheard
COUNSEL: Gail S. Nicholls Counsel for the Applicants
No One Appearing for the Respondents
HEARD: July 30, August 21 and 28, 2015
ENDORSEMENT
[1] This Application was originally brought before Justice Toscano Roccamo on July 30, 2015. The Applicants were ordered to file additional materials. A supplementary application record was filed and on August 21, 2015, the matter was again brought on for hearing before me. At that time, I asked counsel to submit additional affidavit material to address the Applicants’ request for the waiver of surety bond. I also asked counsel to provide a draft order in WORD format.
[2] By email received by this Court on August 26, 2015, the following additional materials were filed:
the affidavit of Robert Louis Robillard, sworn on August 25, 2015,
the affidavit of Robert Carl Robillard, sworn on August 26, 2015, and
a Draft Order
[3] This is an application brought by the brother and nephew of the Respondent, Marina Robillard (“Robillard”). The Applicants seek to be appointed as guardians of the person and of the property of Robillard on the basis that she is incapable of managing her property and in respect of her personal care, including her health care, nutrition, shelter, clothing, hygiene and safety, and that as a result, it is necessary for decisions to be made on her behalf by persons who are authorized to do so.
[4] The evidence of the Applicants is that Robillard lives with her partner of many years, Monica Fraser (“Fraser”), to whom Robillard had given her Power of Attorney for Property and for Personal Care. Robillard is now 80 years of age and Fraser is 76. Fraser had a severe stroke several years ago and can no longer speak coherently. Apparently Robillard is the sole caregiver for Fraser.
[5] In his affidavit sworn July 3, 2015, Robert Louis Robillard states that the home shared by Robillard and Fraser at 697 Richman Road, Ottawa, “smells of urine and is in a deplorable condition.” They have little food in the refrigerator and both consume alcohol excessively. Robillard has been unable to keep up with bill payments and has incurred hydro-arrears and bounced her checks payable to her condo Corporation.
[6] Two affidavits were filed by Laura Lee Lewin, M.D. (“Lewin”) who is the family doctor for both Robillard and Fraser. Lewin has been the family doctor for Robillard and Fraser for over 20 years. She made a housecall upon Robillard and Fraser in March of this year. She noticed that Robillard was “extremely vague and mildly suspicious.” She could not tell Lewin what medications had been prescribed to her, but in any event, had stopped taking them.
[7] Lewin made a second housecall on June 19, 2015. At that time, she noticed the home to be dirty and that the carpets were covered in dog hair despite that the dog had died long ago. The home smelled of urine and there appeared to be urine stains on the furniture. Neither Robillard nor Fraser was oriented to date. Neither was taking their prescribed medications. In Lewin’s opinion, Robillard has developed dementia over the past 1 to 2 years. She does not believe that either Fraser or Robillard is is capable of making personal care or financial decisions for themselves or each other.
[8] In her supplementary affidavit sworn August 13, 2015, Lewin provided additional information concerning her medical qualifications and training that would allow her to identify dementia and or incapacity in her patients. She also included an assessment of Robillard conducted at the request of the Ottawa Hospital by the Regional Geriatric Program of Eastern Ontario dated April 10, 2014 (“the RGP Assessment”). The RGP assessment supports Lewin’s observations of Robillard and her conclusion that Robillard suffers from dementia.
[9] The RGP Assessment was requested after Robillard removed Fraser from a retirement home. It was reported that Robillard drank 2 to 3 bottles of wine, became verbally aggressive towards staff and became incontinent of urine on two occasions and did not notice. The RPG Assessment took place in 2014 and reported that the home was dirty and dusty and smelled of urine. Robillard was given the Montréal Cognitive Assessment (MOCA) and scored a 13/30. According to the RGP Assessment, a normal score is 26 or higher.
[10] The RGP Assessment states that Robillard has a Master’s Degree and was the Director of Transport Canada with the Federal Government. At the time of the Assessment, Robillard could not draw a clock, had forgotten that a PSW was coming to assist Fraser and had memory problems.
[11] In her own notes, Lewin records concerns about dementia and alcohol abuse. She cancelled Robillard’s driver’s licence on April 17, 2015. In the notes she made on June 19, 2015, she records that Robillard did not know what year it was, could not recall details of her past medical history and appeared to have no insight into her or Fraser’s deficits.
[12] The application record was served upon the Public Guardian and Trustee (“the PGT”). In his letter to the lawyer for the Applicants, counsel for the PGT set out concerns regarding the application. Those included a request that the application be served upon Robillard and other appropriate persons and that someone explain to Robillard the nature of the application and her right to oppose it. The PGT did not oppose the proposed management plan but requested that it be updated in 3 months’ time when the Applicants had more information concerning Robillard’s assets and liabilities.
[13] The PGT did not oppose the guardianship plan as filed. The PGT noted the request to waive the requirement to post security and asked that any order be made without prejudice to security being reconsidered at a later date, should Robillard’s financial circumstances warrant it.
[14] The PGT noted the request for authorization to authorize the guardians to apprehend Robillard, with the assistance of a police officer, if required. The PGT took no position on this “extraordinary” relief.
[15] Based on the anecdotal evidence as set out in the Applicant’s affidavit and the medical evidence set out in the two affidavits filed by Lewin, I am satisfied that Robillard is incapable of managing property and is also incapable of all aspects of her personal care. For that reason, I am satisfied that it is necessary for property and personal care decisions to be made on behalf of Robillard by persons who are authorized to do so.
[16] Based on the affidavits filed, I am satisfied that the Applicants are suitable to act as Robillard’s guardians of property and person. I share the concerns identified by the PGT with respect to the management plan. It is devoid of details, owing to Robillard’s refusal to allow the Applicants access to the information upon which they could prepare a more complete management plan. However, the overall structure of the management plan is to liquidate the assets and to invest the assets so as to fund Robillard’s long-term care. I am satisfied that, with the assistance and oversight of the PGT, Robillard’s assets will be properly managed.
[17] I have reviewed the guardianship plan. Again, based on the affidavit evidence filed, it appears clear that Robillard cannot continue to live independently in her home. Moreover, she is no longer a proper caregiver for Fraser. For that reason, it would appear to be in the best interests of Robillard that she be placed with Fraser if possible, in a long-term care facility. The guardianship plan contemplates involving the assistance of Community Care Access Corporation. Clearly, the Applicants have already liaised with the family doctor, who will also likely be of great assistance to the Applicants.
[18] The Applicants have also asked for an order allowing them to enlist the assistance of a police officer in the execution of their obligations. I have granted that order based on the evidence that Robillard has refused the Applicants entry to her home and has resisted the advice and help offered by the Applicants and, also, by the other available community supports, including the family doctor. The authority for making that order is found in section 59(3) of the Substitute Decisions Act, 1992, S.O. 1992. C. 30.
[19] The affidavits filed via email on August 26 included the affidavits of Robert Louis Robillard, sworn August 25, 2015 and Robert Carl Robillard sworn August 26, 2015.
[20] In his affidavit, Robert Louis Robillard states that he and his wife own an $80,000 US Florida property and a home at 1296 Notting Hill Avenue Ottawa; it is mortgage-free and is valued at approximately $375,000. He has savings of $201,000 and an annual pension income of $55,696.
[21] In his affidavit, Robert Carl Robillard states that he and his wife own their own home at 115 Greenfield Avenue, Ottawa; this property is mortgage-free with an approximate value of $600,000. He further states that he is an accountant and employed by Air Canada at an annual income of $63,000.
[22] As the Applicants have not had access to Robillard’s financial records, they have not put a dollar value on her assets. In view of the fact that the Applicants are Robillard’s brother and nephew, and that each of them owns their own home with their spouse and has a good income, I am satisfied that it would be appropriate to postpone the posting of a surety bond for at least six months. That will allow the Applicants time to locate and realize Robillard’s assets. For the same reasons, I have determined that it is appropriate to waive the posting of a bond unless Robillard’s assets exceed $100,000. In that event, a surety bond will have to be posted in an amount equal to two times Robillard’s assets and paid from her property.
[23] In addition to the above, based on the affidavits filed, it appears that Robillard and Fraser own their property together and may have a mortgage that is equal to the equity in their property. Unless she has significant assets, it would appear to be in her best interests to have all her income available for her own needs rather than to divert any of it to cover the cost of obtaining a bond, to protect assets of modest value.
[24] At the conclusion of the hearing on August 21, 2015, the lawyer for the Applicants filed her Bill of Costs. Counsel advised that her Bill was intended to cover the costs of the entire application; the work she had done to that date to the completion of the court application. I have fixed the Applicants’ costs on that basis in the amount of $8,430.54.
[25] As per the usual request made by the PGT, I also award her costs of $250.00 plus HST of $32.50, for a total of $282.50.
[26] All costs are to be paid from the property of Robillard.
[27] For the reasons set out above, I make the following orders:
THIS COURT DECLARES that the respondent, Marina Robillard, is incapable of managing property and that, as a result, it is necessary for decisions to be made on her behalf by persons who are designated to do so.
THIS COURT DECLARES that the respondent, Marina Robillard, is incapable of personal care and, specifically, in respect of her own health care, nutrition, shelter, clothing, hygiene and safety and that, as a result, it is necessary for decisions to be made on her behalf by persons who are authorized to do so.
THIS COURT ORDERS that the Power of Attorney For Property given by Marina Robillard, and dated June 26, 1989, in favour of the Respondent, Monica Fraser is hereby terminated.
THIS COURT ORDERS that the Power of Attorney for Personal Care, given by Marina Robillard, and dated August 9, 1995, in favour of the respondent, Monica Fraser, is hereby terminated.
THIS COURT ORDERS that the Applicants, Robert Louis Robillard and Robert Carl Robillard be and are hereby appointed as joint guardians for property and for personal care of the respondent, Marina Robillard.
THIS COURT ORDERS that, except as is set out in paragraph 7, below, or otherwise ordered by the Court, the applicants shall manage the property and the personal care of the respondent, Marina Robillard, in accordance with the Guardianship Plan and the Management Plan filed at Tabs 5 and 6, respectively, of the Applicants’ Application Record.
THIS COURT ORDERS that, in addition to their obligations under Subsections 32(11) and 66(16) of the Substitute Decisions Act, 1992 the applicants shall submit an amended Management Plan to the Public Guardian and Trustee for approval pursuant to s. 32(11) of the Substitute Decisions Act, 1992, within three months of the date of this Judgment and file the Amended Management Plan once approved by the Public Guardian and Trustee, or if not so approved, apply for direction under s. 39 of the Substitute Decisions Act, 1992 on notice to the Public Guardian and Trustee for Court approval of the Amended Management Plan.
THIS COURT ORDERS that the applicants/guardians of property shall be allowed a period of six months from the date of this Judgment to determine the location and assets of the respondent, Marina Robillard, during which period they shall not be required to post security by way of a bond. On or before the expiration of that six-month period, the applicants shall serve the Public Guardian and Trustee with a statement listing the assets of Marina Robillard and shall file that statement with the Court, with proof of service.
THIS COURT ORDERS that, unless a Court orders otherwise, if the assets of the respondent, Marina Robillard, as set out in the statement referred to at paragraph 8. above, exceed $100,000, the applicants/guardians of property shall post security by way of bond in an amount equal to twice the value of the assets set out in the asset statement filed as per paragraph 8., above, for the proper performance of their duties as joint guardians of property of Marina Robillard and the premium for the bond shall be paid from the property of Marina Robillard.
THIS COURT ORDERS that, unless a Court orders otherwise, the applicants/guardians of property of Marina Robillard shall apply to pass their accounts within five years of the date of this Judgment, and shall serve that Application upon the Public Guardian and Trustee and upon the beneficiaries of the estate of Marina Robillard as named under in her Last Will and Testament or upon those who would take upon an intestacy.
THIS COURT ORDERS that, if it is necessary to apprehend Marina Robillard, incapable person, Robert Louis Robillard and Robert Carl Robillard, as her court-appointed guardians of the person, may with the assistance of a police officer, enter the premises occupied by Marina Robillard, namely 697 Richmond Road, Ottawa, Ontario, between the hours of 9 a.m. and 4 p.m. in order to search for and remove Marina Robillard, using such force as may be necessary.
THIS COURT ORDERS that the applicants’ costs of this proceeding shall be paid from the property of Marina Robillard, on a full indemnity basis, fixed in the amount of $ 8,430.54, inclusive of H.S.T.
THIS COURT ORDERS that the Public Guardian and Trustee's fee for reviewing this application, as approved by the Attorney General, in the amount of $250.00 plus HST of $32.50 shall be paid forthwith to the Public Guardian and Trustee from the property of Marina Robillard.
Judge
Date: September 1, 2015
COURT FILE NO.: 15-64909
DATE: 20150901
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Robert Louis Robillard, Robert Carl Robillard, Applicants
AND
Marina Robillard, Monica Fraser and The Public Guardian and Trustee, Respondents
BEFORE: Madam Justice L. Sheard
COUNSEL: Gail S. Nicholls Counsel for the Applicants
No One Appearing for the Respondents
ENDORSEMENT
Sheard J.
Released: September 1, 2015