COURT FILES NO.: CV-15-0416-00 and CV-15-0417-00
DATE: 2015 Dec 16
ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-15-0416-00
BETWEEN:
Michael Childs and Andrew Childs
Applicants
– and –
Peter Childs, Caroline Childs and The Public Guardian and Trustee
Respondents
M. Green, for Michael Childs and Andrew Childs
Peter Childs and Caroline Childs, appearing in person
W. Griesdorf, Section 3 counsel for Eileen Vera Childs
A. Mayeski, for BMO Trust Company
- AND -
COURT FILE NO.: CV-15-0417-00
BETWEEN:
Peter Childs and Caroline Childs
Applicants
– and –
Michael Childs, Andrew Childs, Eileen Vera Childs and The Ontario Public Guardian and Trustee
Respondents
Peter Childs and Caroline Childs, appearing in person
M. Green, for Michael Childs and Andrew Childs
W. Griesdorf, Section 3 counsel for Eileen Vera Childs
A. Mayeski, for BMO Trust Company
HEARD: October 20, 21, 22 and November 13, 2015 at Kingston
Both court files (CV-15-0416-00 and CV-15-0417-00) heard together
MOTION TO VARY
Tranmer, J.
DECISION ON MOTION TO VARY DECISION OF JUNE 25, 2015
BACKGROUND
[1] I have set out in detail the background to this motion to vary proceedings in my decision Evidentiary Ruling #1, dated November 13, 2015 (Childs v. Childs, 2015 ONSC 6603). However, that background should be repeated in these reasons.
[2] The parties appeared before me on June 18, 2015. At the outset of that hearing, I was informed that much of the dispute between the parties had been agreed upon and settled. Those agreements were identified in my subsequent decision of June 25, 2015. In particular, it was agreed, subject to the comments that I made in my decision about concerns on the part of Michael and Andrew Childs, that Caroline Childs would be the guardian of care for her mother, Eileen Childs.
[3] The appointment of Caroline Childs as guardian of care was supported by the other parties on the basis of the Guardianship Plan, January 20, 2015, which she prepared and filed. The plan contemplated that Caroline would continue to provide the care that she had been providing to her mother. The plan provided more specifically, as follows. The plan contemplated that Eileen's “care needs would increase, but that these would be accommodated by gradual and responsive adaptation of the amount and kind of third-party care.” Caroline indicated that she would return to live with her mother at her mother's home. She would make the appropriate medical appointments for her mother. She would arrange for this CCAC and the social worker to come assess her mother for all of her needs and implement the recommendations. She indicated that she would begin to employ, part-time at first in-home third-party care introducing this slowly to her mother in order for her to adapt to other caregivers than family. She indicated that her mother would accept third-party care if it was as unobtrusive as possible. She indicated that she would encourage her mother to be more active by doing simple exercises and going for walks. She would get her mother back in touch with friends and family and use Skype to assist in that regard. She would make sure that her mother's food was tasty and nutritional. She stated that her goal was to support her mother living in her own home for as long as she is content to be there and that it was beneficial to her. She stated that “I will keep Eileen as active, socially, physically and mentally as it is enjoyable and good for her. She is able to join me in any outdoor activities, which she has enjoyed in the past. I will encourage her to do so and facilitate her participation… Eileen will be encouraged to socialize as much as she has always done. Friends and family will be welcomed for visits whenever they want.” She stated that she would respect, enable and facilitate her wishes and encourage her to do any activities, socializing keep contact and consult with family members and friends.
[4] In my decision, I identified that because of Caroline's in-house care for her mother, in contrast to the care provided at Andrew’s home, Eileen Childs was able to continue living in her own home. It was clear and not disputed that this was in the best interests of Eileen Childs on the evidence at that time. I also found that it was established that during Caroline’s care, Eileen Childs’ wellness and well-being had improved and been maintained. I further found that the care provided by Caroline was of priceless value to her mother and the court recognized her significant contribution to her mother's ongoing quality of life.
[5] I also found as a fact, having been expressly told so by counsel for Caroline Childs, that she was not motivated by the expectation of compensation to provide such excellent care to her mother. I was expressly told that Caroline would have provided and will continue to provide such future care without compensation, if the decision of the court was that there should be no compensation for such care.
[6] The issue at the hearing at that time was whether Caroline Childs was entitled to compensation for the care that she had provided to her mother and going forward from that point in time, and if so, the quantum.
[7] In my June 25, 2015 decision on compensation, I awarded $25,000 for past care and $500 per month going forward as the guardian of Eileen Childs’ personal care, together with free room and board and reimbursement of expenses.
[8] By letter dated June 30, 2015, counsel on behalf of Caroline Childs advised the parties that Caroline was in the process of arranging professional care for her mother on a permanent, full-time basis, “Mrs. Childs must be attended to 24 hours per day in order to be safe.” Counsel advised that a number of PSW workers would be required to fulfil all of the responsibilities necessary to provide proper care for Eileen. Counsel continued in her letter, “with no direct duties while the professional caregivers are on-site and with a very small stipend and pass compensation at significantly less than minimum wage, I trust that you understand that Caroline will seek employment outside the house.” Counsel advised that her clients worried about how Eileen Childs would adapt to so many different caregivers. In a subsequent letter dated July 7, 2015 to the court, counsel for Caroline Childs stated that her client was arranging for 85 hours per week of professional care for her mother, that is 12 hours per day, 7 days per week.
[9] As a result of that letter, s. 3 counsel brought a motion pursuant to Rule 59.06(2)(a) on the basis that the facts set out in the June 30, 2015 letter demonstrated new facts arising or discovered after my decision was released. The formal order pursuant to my decision has not yet been signed, issued or entered.
[10] Following a hearing held on August 21, 2015, and for the oral reasons given, I found that the Rule 59.06(2)(a) applied and that the court would hear the motion to have my decision varied on the grounds of facts arising or discovered after June 25, 2015.
[11] At this stage of the proceedings, the motion is being heard. The background which I have stated provides the context for the hearing. It is in this context that I am called upon to make this ruling concerning affidavit evidence which has been filed on the motion to vary.
[2] In my decision of June 25, 2015, I identified the issues that had been agreed upon by the parties and were to be ordered on consent. The decision granted $25,000 to Caroline for her past care. This was far less than the $300,000 that she had claimed. The decision also granted her, as guardian of care, the sum of $500 per month going forward, together with free room and board and reimbursement of any expenses incurred. The sum awarded was far less than the $53,000 per year that Caroline was claiming. An order reflecting that decision has not yet been signed, issued or entered even in so far as the consent matters are concerned.
POSITION OF s.3 COUNSEL
[3] Counsel acknowledges the excellent personal care that Caroline Childs has provided for her mother and acknowledges that her mother has thrived under such personal, first-hand care.
[4] However, counsel withdraws her support that Caroline be appointed as guardian of care because, since the decision of June 25, 2015, Caroline does not appear to understand her responsibilities at law as the guardian of care. She submits that Caroline is not acting in accordance with the legal requirements imposed upon her under the Substitute Decisions Act, that she is not acting in her mother's best interests, that she is putting her best interests ahead of her mother and that she is not demonstrating a commitment to the fundamental qualities required of a fiduciary.
[5] Counsel submits that since June 25, 2015, Caroline’s conduct, while in the role of a fiduciary, has been inflammatory. She has not been proportionate in her decisions. She has acted outside of the requirements under the Substitute Decisions Act. She has been unreasonably critical of and disrespectful toward counsel and the court.
[6] More particularly, Counsel’s submissions are as follows.
[7] Firstly, Caroline is not abiding by the only Guardianship Plan that she has filed. She is taking steps to implement the plan set out in her June 30 letter, as disclosed in the letters dated June 30, 2015 and July 7, 2015 written by her lawyer on her behalf. This involves the immediate hiring of professional caregivers, 12 hrs/day, 7 days/week. Counsel submits that, therefore, she has breached ss. 66(15) and (16) of the SDA.
[8] Secondly, Caroline is taking steps to introduce new and many professional caregivers in the short term, but Caroline recognizes that it will be difficult for her mother to adapt to so many different caregivers. Caroline is acting in her own best interests, but not in her mother's. Such action is contrary to the best interests of Eileen Childs in view of the undisputed evidence that Eileen Childs is thriving on the personal care that Caroline Childs has been providing to her on a full-time basis.
[9] Thirdly, section 66(9) SDA mandates that the guardian shall choose the least restrictive and intrusive course of action that is available and is appropriate in the particular case. Counsel points to evidence in the record which discloses that Caroline refused to participate in a conference call to be held in an attempt to resolve this dispute. She declined to participate in crafting a joint letter to the court as the means of resolution or otherwise cooperate with her brothers and s. 3 counsel to find an early and effective resolution, to what Caroline and Peter Childs insist was a misunderstanding of the June 25, 2015 decision. Counsel says her conduct forced the formal motion heard August 21, 2015 and the continuing litigation. She submits that the position of Peter and Caroline that they were trying to understand and implement this court's decision cannot be accepted as credible in view of their subsequent conduct which demonstrates an unwillingness to cooperate, criticism of all concerned and efforts to change or manipulate a situation whereby Caroline is paid compensation for her caring for her mother.
[10] Fourthly, counsel submits that the conduct of Caroline indicates she clearly has no respect for the decision of the court. In the affidavit of Caroline’s lawyer’s assistant sworn July 30, 2015 in response to this motion to vary, it is stated at para. 23:
I'm advised by Caroline and Peter, and verily believe, that the appeal will proceed whether or not s. 3 counsel's motion is successful as the complexity and detail of the issues are beyond the scope of this motion.
[11] At para. 24, it is stated:
I'm advised by Caroline and Peter, and verily believe that if section 3 counsel’s motion is successful, they will seek a stay of proceedings pending the determination of the appeal.
[12] This is in the context of what was essentially a consent order, except for the compensation issue which Caroline did not succeed on.
[13] Fifthly, in her affidavit sworn October 13, 2015, Caroline swears in fact that she was forced into agreeing to BMO being appointed guardian of property and criticizes “someone” for requesting that there not be a transcriber at the hearing. She was represented by counsel at that time and had been for some two years.
[14] Sixthly, section 66(6) SDA requires that the guardian shall seek to foster regular personal contact between the incapable person and supportive family members and friends of the incapable person. In their affidavit material filed in these proceedings, Caroline and Peter go at great lengths to allege abuse by Andrew and Michael of their mother which had occurred while Eileen Childs lived with Andrew prior to April 2015. Counsel submits that the affidavits filed by Caroline and Peter disclose efforts to alienate their brothers from their mother by making the allegations which they do.
[15] As a seventh point, counsel submits that contrary to s. 66(7) SDA, Caroline has not consulted with Michael and Andrew as she should have. Indeed, Caroline submitted in court that her brother Michael had not consulted with her, although he proposed that she remain the primary caregiver for their mother. Caroline had known of that proposal for some time prior to making that submission on October 23, 2015 yet she did not initiate consultation in her then capacity of guardian of care.
[16] As her eighth point, counsel submits that contrary to s. 66(1), which imposes upon her the duty to exercise her powers and duties as Guardian diligently and in good faith, the record indicates a resistant and combative stance in respect of the efforts that BMO is trying to take as the appointed guardian of property, and an intransigent and uncooperative position with her brothers on the guardian of care and compensation issue.
[17] As her ninth point, counsel submits the record also discloses threatening behaviour as against s. 3 counsel rather than cooperation.
[18] Finally, counsel submits that the record discloses that Caroline is not acting in the best interest of her mother as mandated under s. 66(4) SDA. It is not disputed that her mother wishes this litigation between her four children to be over. It is common ground that the uncertainty as to the guardian of care and what the presently appointed guardian of property will or will not be able to do, which requires working together with the guardian of care, is contrary to the best interests of Eileen Childs.
[19] Counsel submits that these are 10 examples that clearly disclose that Caroline, rather than fulfilling the lawful requirements of a fiduciary, has acted to escalate the hostility between her siblings and precipitate continued litigation with them, as well as against s. 3 counsel and BMO.
[20] Counsel submits that such conduct is making it difficult to maintain Eileen Childs at her home on Sand Lake which is the present goal. However, Caroline Childs cannot recognize the negative affect of her conduct or is deliberately undertaking such adverse conduct.
[21] Section 3 counsel supported the initial guardianship plan put forward by Michael Childs on the variation proceedings whereby he would be appointed guardian of care and he would hire Caroline Childs at a salary as primary caregiver. In the course of the variation proceedings, Michael Childs amended this plan and now proposes that he and his sister Caroline be appointed joint guardians of care and that she be hired and paid as primary caregiver. Either plan returns Caroline's level of personal care to that prior to June 18, 2015, and contemplates gradual increased professional care as the need arises in the opinion of the social workers or the physicians. Section 3 counsel does not oppose this revised plan. However, she maintains her concerns about the ability of Caroline to understand or to commit to or to abide by the legal responsibilities that would be placed upon her as the guardian of care, given her conduct to this point in time.
POSITION OF COUNSEL FOR MICHAEL AND ANDREW CHILDS
[22] At the outset of this variation proceeding, Michael Childs had filed a guardianship plan in which he proposed that he be named guardian of care and that he would hire and pay his sister as their mother’s primary caregiver, thus returning their mother’s care to that which existed prior to the June 18, 2015 standard.
[23] During this hearing on October 23, 2015, I asked Caroline Childs whether, if she was not named guardian of care, she would agree to provide her same level of personal care for her mother if paid to do so. She answered that she would not do so.
[24] Michael Childs then amended his guardianship plan to provide that both he and his sister be named guardians of care jointly.
[25] Michael Childs’ guardianship plan sets out dispute resolution steps to be taken when there is disagreement with his sister as to Eileen Childs’ future care and shelter needs.
POSITION OF CAROLINE CHILDS
[26] When the variation proceedings commenced on October 20, 2015, Caroline and Peter Childs were representing themselves. At the request of Caroline and Peter Childs, the proceedings were adjourned following the submissions of s. 3 counsel and of counsel for Michael and Andrew Childs, to permit Caroline and Peter to obtain legal advice and to allow them time to prepare their submissions.
[27] The proceedings resumed on November 13, 2015, at which time they remained self-represented. Each of Caroline and Peter Childs made separate and detailed submissions to the court at that time.
[28] I summarize the submissions of Caroline Childs hereafter. Her written submissions are filed as Ex. A1, November 13, 2015.
[29] Caroline Childs advised that her mother is doing exceptionally well, that she is healthy, active, engaging and very happy to be at home. She made reference to a geriatric medical assessment, conducted August 17, 2015 in support of her statement.
[30] She wishes to be maintained as her mother's guardian of personal care. She submits that her brother Michael is not worthy of any form of guardianship of their mother. She also challenged the role of and the conduct of s. 3 counsel in these proceedings as well as the conduct of BMO in its capacity as guardian of property.
[31] She submits that her mother's present state of good health was achieved by the efforts of her and her brother Peter, but that it has been with great sacrifice and great cost, both emotionally and financially.
[32] She made submissions concerning examples of the poor care provided to her mother while she was residing under Andrew's care, and in his home, dating back to 2014.
[33] She submits that Michael Childs knew or should have known about the poor care that their mother was receiving at the hands of Andrew and the abuse she was suffering at the hands of Andrew and that he should have reported it to her and her brother Peter. She submits that this demonstrates that he is not a suitable guardian of personal care.
[34] She is highly critical of the actions of s. 3 counsel who was appointed pursuant to a consent order of this court dated January 22, 2015. She cites numerous examples of alleged misconduct on the part of s. 3 counsel, including failure to appropriately communicate with Eileen Childs, conflict of interest with Michael Childs and conflict of interest arising from her involvement with BMO.
[35] She and her brother Peter both claim that the steps that they took following receipt of my decision of June 25, 2015, and as described in a letter of June 30, 2015, were taken in sincere efforts to comply with that order.
[36] Contrary to her position taken at the hearing on June 18, 2015, through her counsel, she now states:
I have now been caring for my mother for almost 7 months, for most of every 24-hour day. I have not had one break, not for one day, not for a weekend. I have received nothing for caring for her, but if I had… I would be receiving $16.44 a day for my care. The PSWs make the same in one hour that I am to get for 24 hour care? Care that also involves all the household duties, house cleaning, grocery shopping, laundry, three meals a day, property, overseeing all appointments, etc. Slavery? (Submissions, Ex.A1, para. 37)
[37] She submits that:
I was also managing care and I took this to be what the monthly $500 stipend was to be for. But I couldn't live on them so somehow I would need to work and would be doing so during the time my mother was being cared for by the professionals. (Submissions, Ex.A1, para. 30)
[38] On this point, it should be observed that at the hearing on June 18, 2015, counsel for Caroline and Peter Childs assured the court, when specifically asked,
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. (Reasons June 25, 2015, para. 17)
[39] Contrary to their expressed position taken at the hearing on June 18, 2015, through their counsel, Caroline and Peter now submit that Caroline has suffered hardship with respect to the relationship with her husband, that she needs income to live on and that she needs income for her retirement:
I would also like to say that my sacrifice of my own life, in England with my husband, has never been acknowledged. I came over in April not intending to stay, but stepped in when it was necessary to have mom removed from Andrew's house… I have not seen my husband for five months now… . (Submissions, Ex.A1, para. 38)
[40] In her Affidavit sworn August 14, 2015, para. 59, she says:
I will need to seek employment as the judge was unaware of any sacrifice that I am making in caring for my mother.
[41] Peter Childs swears:
… she did not present any material or evidence to the court to document that she has been financially or otherwise disadvantaged by her support of our mother. However, I know she has willingly incurred significant expenses as well as personal sacrifices to accommodate mom’s needs, including foregoing any paid employment, enduring extensive periods away from her home in England, leaving her husband alone… . (Affidavit of Peter Childs, sworn August 14, 2015, para. 7)
[42] On this point, it should be observed that on June 18, 2015, when specifically asked by the court, counsel for Caroline and Peter Childs confirmed:
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 the court, despite the comments of 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. (Reasons June 25, 2015, para. 36)
[43] Contrary to her guardianship plan which I have summarized above in my Evidentiary Ruling Background, para. 3, Caroline now proposes:
…my mother would be receiving most, if not all, of her professional care during her waking hours. I would be with her during the evening and overnight. (Affidavit sworn August 14, 2015, para. 62)
POSITION OF PETER CHILDS
[44] Peter Childs filed two extensive affidavits on this variation proceeding. I summarize his submissions below. His written submissions were filed as Ex.B1 on November 13, 2015.
[45] Like his sister, Peter Childs also made submissions criticizing the conduct of s. 3 counsel including failing to communicate with Eileen Childs, failing to seek instructions from Eileen Childs, supporting Michael's “ill-conceived guardianship plan and the imposition of a property management plan that is still months away from completion” and her position with respect to the power of attorney provision in which Eileen Childs indicated a wish for no heroic measures.
[46] He criticizes the guardianship plan put forward by Michael which he says calls for their mother to be immediately transferred from her Sand Lake, and institutionalized. This, of course, as described above, is not Michael's current proposed plan. Peter Childs is also highly critical of the current proposed guardianship plan put forward by Michael including, listing their mother now for a suitable placement in the future when the need does arise, the compensation proposal. He is also suspicious of Michael's last minute acceptance of Caroline as joint guardian. He submits that it is Michael's proposal that when their mother ceases to reside at Sand Lake, Caroline would be dropped as a joint guardian of personal care. I do not see that in the current proposal. He is also critical of the dispute resolution mechanisms suggested in Michael's proposed plan.
[47] Peter Childs goes at length to criticize the conduct of BMO and submits that there was no consent in accordance with the legal requirements for consent, by Caroline and him, to the appointment of BMO as guardian of property and that therefore, BMO should be rejected as guardian of property. On this point, it must be observed that Caroline and Peter Childs had been represented by counsel since about June of 2013 and they were represented by counsel throughout the hearing on June 18, 2015. As recited in my reasons of June 25, 2015, they consented to the appointment of BMO as guardian of property. I completely reject the suggestion that they did so without full legal consent.
[48] Peter Childs also criticizes s. 3 counsel with regard to her involvement with BMO. By Order dated January 25, 2015, this Court ordered:
- …the Public Guardian and Trustee arrange for legal representation to be provided to the Respondent, Eileen Childs, pursuant to s. 3 of the SDA.
[49] By Order dated April 23, 2015, this Court, on the consent of the parties, ordered:
- That pending a determination of incapacity relating to Eileen Childs’ management of property, Wendy Griesdorf, as s. 3 counsel for Eileen Childs, shall engage the BMO Trust Company, through its en circle…to manage the assets of Eileen Childs.
[50] And further:
- That the parties shall take all necessary steps to provide Ms. Griesdorf with all information in their possession and control relating to the assets and expenses and any other information that may be required by Ms. Griesdorf for the interim management of Eileen Childs’ property.
[51] In my respectful view, the record discloses compliance by s. 3 counsel with the orders, and discloses no misconduct whatsoever in her dealings with BMO.
[52] Peter Childs also criticizes BMO directly for showing little interest in providing a guardianship plan. On the record before me, it is readily apparent that any action taken by BMO has been met with suspicion, resistance, criticism and lack of cooperation on the part of Caroline and Peter Childs.
[53] Peter Childs maintains that Caroline Childs should be appointed guardian of property because that is what their mother wants and is consistent with their mother’s wishes to remain as long as possible in her Sand Lake home.
[54] Peter Childs submits that this court should accept the property management plan put forward by his sister and him. The plan can be implemented immediately, is strongly tied to keeping their mother in her own home, and backed by five years of demonstrated fiduciary duty according to him. He submits that this plan is cost effective.
[55] He submits that he and his sister were honestly attempting to implement this court's decision of June 25, 2015, and in particular paragraph 46.
[56] Peter Childs submits:
I suggest that the purpose of the motion (to vary) was to have you change your decision. I am going to suggest that money was at the heart of the request. Our primary concern with your decision was not the cost. Mom should spend whatever she has to see her wishes achieved. It was with the quality of care. Bayshore may be professional - but the continuity of care as single primary caregiver provider is better. While the caregiver being guardian ensures the authority to implement whatever is in mom's interest, we were prepared to implement your decision and follow the legal process. This hearing is an end around that process. (Submissions, Ex.B1, p.20-21, para. 2)
[57] It is the opinion of this Court that in view of what facts precipitated the variation hearing and in view of Caroline’s and Peter’s complaint that Michael wishes to institutionalize their mother, one aspect of which is the cost, and also in view of Caroline’s and Peter’s concern regarding the cost of BMO as guardian of property, Peter Childs’ statement could well be an accurate reflection of the motivations of Caroline and Peter Childs, rather than of s. 3 counsel or Michael or Andrew Childs. Furthermore, the letter of June 30, 2015 can reasonably be viewed as having been written with the specific intended purpose of having this Court change its decision concerning compensation for Caroline.
[58] Peter Childs goes on to submit that s. 3 counsel has not met the burden of proving new facts arising or discovered after the hearing. However, the Court found in its decision of August 21, 2015 that new facts had arisen or had been discovered after the hearing and that decision will not be reconsidered now.
ANALYSIS
[59] This variation proceeding arose because,
a. A daughter was providing personal care on a full-time basis to her mother and her mother was benefiting greatly from such care; her mother was enjoying living in her own home and enjoying good quality of life as a result of her daughter's full-time personal care;
b. All of the main issues between the siblings including the appointment of a s. 3 counsel for Eileen Childs and the appointment of BMO as guardian of property were resolved on consent prior to a hearing before me on June 18, 2015; the only issues before me at the hearing were what, if any, compensation Caroline Childs was entitled to for having provided personal care to her mother in the past and going forward, and the costs of the litigation (see para. 15, Reasons June 25, 2015);
c. At the hearing, counsel for Caroline Childs and Peter Childs informed the court specifically firstly, that Caroline Childs had suffered no loss or hardship as a result of providing care to her mother and secondly, that she would have provided such care and would continue to do so whether she was compensated or not;
d. The court ordered modest compensation for past care and no compensation for personal care going forward for Caroline’s service as personal caregiver (although the court awarded $500/month to her as guardian of care); and
e. Within 5 days of receipt of that decision, Caroline Childs advised that she was going to seek full-time work outside of her mother's home, and hire professional help to cover 12 hours a day, 7 days a week for her mother; in doing so, she completely abandoned what had been her role of personal care, and the guardianship plan, which she had filed in support of her appointment as guardian of personal care, and exposed her mother to many different caregivers. In her lawyer’s letter of June 30, 2015, she expressly recognized doing so would prove hard for her mother to accept.
[60] Caroline and Peter Childs submit that this position was as a result of their understanding of my order of June 25, 2015. They submit that they were simply trying to implement the order.
[61] For the reasons that I set out below, I reject their submission in that regard.
[62] Firstly, the issue before me on June 18, 2015 was about how much Caroline Childs should be paid for her care of her mother. There was no suggestion whatsoever that the level of personal care being provided by Caroline Childs for her mother would not continue regardless of the decision on the compensation issue. It was certainly the understanding of this court, and I understood the submissions of the other parties to be the same, that regardless of whether I ordered compensation to be paid to Caroline Childs for her care, she would continue to provide the same level of excellent personal care for her mother. As I have indicated, at that hearing, that was the submission made by counsel for Caroline and Peter Childs in answer to the specific question asked by this court. Further, as I have indicated, counsel for Caroline and Peter Childs specifically indicated that there was no evidence of loss having been suffered by Caroline Childs, be it financial or relationship. Therefore, there was no reason for the court to suspect that the need for compensation as is now put forward was an issue lurking in the background. My decision was rendered in the context of counsel for the OPGT and s. 3 counsel urging only modest compensation and the submission by s. 3 counsel that a primary paid caregiver should not be appointed guardian of care as that would put her in a conflict position. Accordingly, understood in the proper context, and I note that Caroline and Peter Childs were present in court with their lawyer on June 18, 2015 to understand that context, my order clearly intended that Caroline Childs would be appointed guardian of personal care, that she would continue to provide the excellent personal care on a full-time basis for her mother, that there would be no compensation for her caregiving, and that in accordance with the guardianship plan that she had filed in January, she would arrange for such professional paid care, as was needed on a gradually increasing basis.
[63] Secondly, given the undisputed evidence as to how well Eileen Childs was doing with the full-time personal care being provided by her daughter in her own home, it cannot reasonably be suggested that I intended in my order to bring that to an end.
[64] Thirdly, in this context, paragraph 46 of my Reasons for Judgment of June 25, 2015 is reasonably understood to mean that Caroline would not be the primary paid professional personal care attendant (Emphasis added). It was certainly contemplated and intended that her care at the same level would continue, and without payment.
[65] There are other reasons why I reject the submission by Caroline and Peter that they were simply misunderstanding and seeking only to implement my order. It is no secret that in this proceeding, this court has and will make itself available to convene a hearing on an early and summary basis to deal with matters of true misunderstanding or needing interpretation. Indeed, in this case, the parties knew that I arranged for the August 21st date, 4 days in October and a further day in November to expedite the hearing and adjudication of this dispute. The court is aware that it is in Eileen Childs’ best interests that this litigation be resolved as soon as possible. The parties will know that these dates were secured in Kingston because no earlier dates could be scheduled in Ottawa where the litigation began. Despite this experience, and despite the obvious concern to have Eileen Childs’ care issues resolved as soon as possible, there is evidence on the record before me that Caroline and Peter Childs were resistant to, and uncooperative in, participating in an early and summary resolution of the issue. Firstly, they opposed the proceedings to vary. Secondly, they opposed the transfer of the files to Kingston, which would facilitate the October and November dates. After a hearing before Justice Hackland on this issue, at which the other parties urged such a transfer, the learned justice ordered that the files be transferred and ordered costs against Caroline and Peter Childs.
[66] Furthermore, rather than focus the issue on the proper interpretation of para. 46 of my decision, Caroline and Peter have put in issue again all of the issues that were pending before June 18, 2015.
[67] The issues which gave rise to the variation proceedings were simple and money driven. No compensation was ordered for Caroline Childs’ personal full-time care of her mother going forward. A new fact arose or was discovered, namely that Caroline Childs was going to abandon her guardianship plan for personal care, abandon what had been her caregiving role and seek work outside her mother's home, and introduce many professional caregivers, 12 hours per day, 7 days a week. (Reasons August 21, 2015).
[68] From my decision of August 21, 2015, it will be seen that the issues in this variation proceeding are:
Should Caroline Childs remain guardian of personal care, and if not, who should be appointed and under what plan;
Will Caroline Childs continue to provide personal care for her mother at the same level as has been the case since April 2015 and under which her mother has thrived;
If Caroline Childs continues to provide such level of care for her mother, should she be paid and if so, how much.
[69] It will be seen that Issues 1 and 2 were matters of consent on June 18, 2015, but that as a result of Caroline and Peter Childs’ actions since my decision as set out in their lawyer’s letter of June 30, 2015, Issue 1 is no longer supported by the other parties, Issue 2 is uncertain and Issue 3 is to be relitigated all over again. This situation has arisen, not from the actions of the other parties, but from the actions of Caroline and Peter Childs.
[70] Furthermore, despite the narrow scope of the June 18 dispute, and the narrow scope of the variation proceedings, the evidence filed by and the submissions by Caroline and Peter Childs have put all issues back into dispute to be relitigated and adjudicated upon, including not only Caroline’s compensation, but in addition, the appointment of s. 3 counsel and her role, the appointment of BMO as guardian of property, and the appointment of Michael Childs as litigation guardian.
[71] Clearly, it is in the best interests of Eileen Childs that this long outstanding dispute between her children be focussed, not escalated by returning to the breadth of the original disagreement.
[72] I acknowledge that Caroline and Peter Childs are self-represented and have been since prior to the commencement of the October 2015 variation proceedings. They are entitled to be heard. They are entitled to access to justice. I have listened carefully to them.
[73] Caroline and Peter were granted an adjournment at their request following the October proceedings to consult with counsel and to prepare their submissions. Caroline and Peter have had since October to consider the amended management plan put forward by Michael which included Caroline Childs as joint guardian of personal care with him and which provided for significant compensation, consistent with her demands, for continuing her role in providing personal full-time care for her mother. However, Caroline and Peter Childs are attempting to relitigate the entirety of their dispute with their brothers.
[74] While I have no doubt that Caroline and Peter are concerned about their mother's future and honouring their mother’s request to live in her Sand Lake home for as long as she can safely, the record discloses that this is about money and it is also about control:
a. Caroline Childs told the Court in the variation proceedings that if she is not paid compensation in the order of $50,000 per year to continue to provide care to her mother, she will not do so.
b. Caroline Childs advised the court in the variation proceedings that if she is not appointed the guardian of personal care even with payment at that level, she will not continue to provide that care.
c. These two positions were taken despite Caroline’s own evidence that her mother has improved and is doing exceptionally well under such care, and Caroline’s concern that the introduction immediately of many professional caregivers would upset and be disruptive to her mother.
d. The following is an excerpt from Caroline’s submissions on November 13, 2015:
MS. GREEN: Your Honour, can I just ask for clarification of that answer? Because she didn’t answer: would she still provide the care, if they were not Guardians of Property?
MR. CHILDS: … You know, I think we’re clear about the amount – because we’re not getting back into the $500 amount, either, because I think we’ve been clear that… And everyone has agreed that there is an amount in guardianship plans that are on the table. Both of them, actually, say the same amount.
MR. CHILDS: Well, I suppose, actually, that’s not true, because the…our guardianship plan, right now, has the cost of care-giving in our management plan – not in the guardianship plan.
MS. CHILDS: That’s right. So, it is integral, in that respect.
MS. GREEN: I’m going to see if I can say it. How I understand it is that she will still be a primary care-giver, if they are not appointed Guardian for Property, as long as she receives some form of compensation.
MS. CHILDS: That is the… That is the agreement that was originally in our guardianship…our management… Our property management plan is what everyone had agreed to, for any care-giver of my mother, in her home, way back in 2013, when Andrew was also the care-giver…and Peter. So –
THE COURT: Neither the lawyer nor I asked anything about how much.
MS. CHILDS: Well, I’m telling you “how much” – because I’m –
THE COURT: Oh.
MS. CHILDS: Well, I’m just saying that that’s what the agreement… I mean –
THE COURT: That’s actually what I thought you were doing. I thought that’s what this whole thing was about: that you were telling us how much. I absolutely understand that.
MS. CHILDS: Essentially, to me, the guardianship of my Mum is the most important thing to me.
THE COURT: It sounds like –
MS. CHILDS: And –
THE COURT: -- being the Guardian of Personal Care and the primary care-giver, with pay, in the amount indicated in the documents, is the most important thing to you.
MS. CHILDS: Well, it’s important for my mother, too, to… You know, it’s, like… You can’t… It… I looked after my Mum for two-point-four years, without receiving anything, really, at all. And, um, I got burnt out. I have no respite. I had, um… My brothers had promised me, and then they didn’t, then it was always provisional… I…I didn’t set the amount. I did not set the amount, at all. If they had come to me and said, “Look, Caroline, we’ll give you 15,000, or 20,000, or 5,000…? Maybe I would’ve said, “yes”. I didn’t set that amount. They set it; they came to it; they agreed to it. And then they retracted it…some of them.
So, that’s all… I can’t say anything more than that. So… But, believe me, taking care of someone full-time, it…it’s very difficult, and it does… And we know how much professional care-givers cost for it. …
[75] For all of these reasons on the record before me and having considered the submissions of all parties, I conclude that it is the actions of and position taken by Caroline and Peter that have caused this litigation to escalate. I reject the suggestion by Caroline and Peter Childs that they misunderstood my order or that their actions since that order were solely intended to comply with that order.
WHAT TO DO?
[76] The evidence is undisputed that Caroline Childs has the ability to provide the necessary full-time personal care that is required by her mother in order to permit her to continue to live in her home, at this time.
[77] However, Caroline Childs has demonstrated clearly that she is not suitable to take on the duties and responsibilities that come with the role of guardian of personal care by herself. In taking the positions, firstly that if she is not compensated in the order of $50,000 per year for her care, she will cease her care and secondly, that if she is not named guardian of personal care, she will cease providing care, she is putting her interests ahead of those of her mother.
[78] On the evidence before me, Caroline and Peter Childs have manipulated the situation such that in order to maintain the full-time personal care that is in the best interests of Eileen Childs, this court is forced to order that Caroline Childs remain as guardian of personal care, and reverse its initial decision to now provide that Caroline Childs be compensated.
[79] The Substitute Decisions Act, s. 57(4), provides that the court may, with their consent, appoint two or more persons as joint guardians of the person. I have also considered that there is sound law that an order for joint custody of children or for shared parenting should not be imposed on parents who are unable to communicate effectively or cooperate in the best interests of their children. The analogous fact situation is evident on the record before me. When asked specifically by the court on November 13, 2015, whether she would consent to act as a joint guardian of personal care with her brother Michael, Caroline Childs responded in a reluctant manner, that she would, on condition:
that she would act as primary caregiver,
that she got paid; and
that they could arbitrate shelter issues.
Her response could not be characterized as an enthusiastic commitment.
[80] The decision in this case is driven by the undisputed evidence that, at this point in time, it is in the best interests of Eileen Childs that she continue to live in her home under the personal full-time care of her daughter.
[81] Because her daughter will discontinue that care if she is not appointed guardian of personal care and if she is not compensated in the order of $50,000 per annum for such care, this Court is forced to continue her appointment as a guardian of care and to vary its original order that she not be compensated. Michael's guardianship plan now provides for the scenario that Caroline be paid. Section 3 counsel acknowledges that that is the reality. Accordingly, that order will be made.
[82] However, because the circumstances warrant it, and because it would be consistent with the competent wishes of Eileen Childs as set out in her Power of Attorney that all of her children participate jointly in decisions concerning her care and because s. 3 counsel supports it, and further, because it will mitigate against Caroline being in a conflict of interest in regard to her interest in compensation and her mother's real care and shelter needs, I also order that Michael Childs act jointly with Caroline Childs as guardian of personal care. As indicated, Caroline Childs consents to this.
[83] Michael and Caroline shall act as joint guardians of personal care pursuant to the most recent guardianship plan filed by Michael in his motion record dated October 9, 2015, which shall be amended to provide for joint guardianship. I have considered Peter’s criticism of that plan. I agree with the plan that it is prudent now to begin to investigate best options for future shelter and upon determining suitable shelter, it is prudent to arrange to waitlist Eileen Childs for when the need arises. The guardianship plan includes revised Schedule A which provides for the compensation that Caroline desires. As I indicated during submissions, paragraph 9 will require amendment in so far as presently worded it mandates third-party professionals to complete reports within a short timeframe which may well impose an impossible task on them.
[84] Exhibits A and B from October 22, 2015 are the draft judgments proposed by Caroline and Peter Childs. Exhibit C is the judgment proposed by the remaining parties, including s. 3 counsel and counsel for BMO. Except as hereinafter indicated, Exhibit C shall be the final form of judgment.
[85] The preamble to the Order should read as follows:
ORDER ON MOTION TO VARY
THIS MOTION was brought by s. 3 counsel appointed under the Substitute Decisions Act, pursuant to Rule 59.06(2)(a) as demonstrating facts arising or discovered after the release of the Decision of the Court on June 25, 2015, following the Decision of the Court of August 21, 2015, was heard October 20, 21 and 22, and November 13, 2015 at 5 Court Street, Kingston.
UPON READING the Notice of motion and supporting materials of s. 3 counsel, and on reading the materials filed by the parties on this Motion and on hearing the submissions of counsel and of Caroline Childs and Peter Childs, who represented themselves on October 20-22, 2015 and on November 13, 2015,
[86] With respect to paragraphs 4, 6 and 7, there is no basis to now add Peter Childs as a second litigation Guardian. Michael Childs shall remain as litigation Guardian.
[87] With respect to paragraph 14, I add the sentence proposed by Caroline and Peter namely, “in the event that these expenses total $1000, or more, at any time within the month, they can be submitted for immediate reimbursement.”
[88] With respect to paragraphs 17, 18 and 19, as I have already ordered, that both Caroline Childs and Michael Childs shall be guardians of personal care for their mother.
[89] With respect to paragraph 18, Michael's guardianship plan, including Schedule A shall be amended in accordance with this decision within 30 days, distributed to all parties and filed with the court. I accept the Schedule A proposed by Michael, with the amendments which I have indicated, and reject that proposed by Caroline and Peter, as it is too cumbersome and requires placing an arbitrator on immediate retainer. It is time for these parties to think about their mother and put aside their differences. They must communicate effectively with each other and not depend automatically on a third party sorting out what is their responsibility. With respect to para. 2 of the Revised Schedule A, the compensation shall be paid commencing May 1, 2015, out of the funds of Mrs. Eileen Childs. The sum of $10,000 referred to in para. 4 shall also be paid out of the funds of Eileen Childs.
[90] In paragraph 24, the reference to “pending further determination by this court on personal care guardianship”, shall be deleted as it will no longer be necessary.
[91] With these variations, paragraphs 1 through 27 of Exhibit C shall be the final order of this court. Paragraph 28 through 40 inclusive, are not necessary, subject to a paragraph concerning costs which I set out below.
BMO
[92] As I have indicated earlier in these reasons, and confirmed above in my judgment, there is no basis whatsoever to vary the original appointment of BMO is guardian of property. For the reasons that I have indicated, I reject the submission of Caroline and Peter Childs that they did not consent to that appointment. In my view, the difficulties that Caroline and Peter identify have arisen because of the uncertainty caused by their letter of June 30, 2015, which has now been resolved by this decision, and by the hostile, untrusting attitude exhibited by them to all concerned. It is costly to maintain BMO in this position, but the four children should understand that should they choose to cooperate together, communicate effectively together and work together in the best interest of their mother, an application could be made by them in the future to relieve BMO of this responsibility.
SECTION 3 COUNSEL
[93] As I said in my evidentiary ruling, this is a case that cries out for the appointment of the s. 3 counsel. The best interests of Eileen Childs were lost sight of by her four children who owe her, morally and legally, under her Power of Attorney, their focused selfless attention. Section 3 counsel assisted this court in presenting an independent, objective, balanced and reasoned perspective on behalf of Eileen Childs. Her interaction with BMO was appropriate and necessary pursuant to court orders and the obligations imposed on her by law. She cannot reasonably be criticized for bringing the variation proceedings when faced with the prospect that Caroline Childs was immediately abandoning the excellent full-time and personal care pursuant to which all agreed Eileen Childs was thriving. The reality is that as a result of s. 3 counsel initiating these variation proceedings, Caroline Childs maintained a measure of control, and secured a reversal of this court's original decision so that she is now being compensated at a level satisfactory to her. Clearly, these two issues were very important to Caroline and Peter Childs.
COSTS
[94] I have no doubt the costs incurred by the parties in this litigation are significant. The parties can take a first step toward cooperation and joint concern for their mother's future by discussing the costs issue in a constructive and conciliatory manner without distrust, anger, accusations or blame. Before this court will entertain submissions as to costs, it requires evidence that such discussions have been undertaken in a bona fide manner and that despite earnest and sincere efforts, resolution could not be achieved. In that event, the court will consider cost submissions limited to 3 pages plus a costs outline and any supporting legal authorities no sooner than January 15, 2016, and no later than January 31, 2016.
[95] The draft of this judgment shall be circulated for approval as to form and content by all parties. If approval cannot be achieved on or before January 31, 2016, an appointment may be taken out for a hearing in that regard scheduled cooperatively, upon consultation with the trial coordinator of this court.
Honourable Mr. Justice Gary W. Tranmer
Released: December 16, 2015
COURT FILES NO.: CV-15-0416-00 and CV-15-0417-00
DATE: 2015 Dec 16
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 motion to vary decision of June 25, 2015
Tranmer J.
Released: December 16, 2015