Court File and Parties
Court File No.: 15-64705 Date: 2016/05/26 Superior Court of Justice - Ontario
Re: Norman Willet and Sheri Willet, Applicants And Heather McAdam, the Office of the Public Guardian and Trustee, Incapable Person And George William Lewis McAdam, Respondent
Before: C.T. Hackland J.
Counsel: Russel A Molot, for the Applicants Rodrique Escayola, for the Respondent
Heard: In writing
Costs Endorsement
[1] The applicants brought a motion under the Substitute Decisions Act, 1992, S.O. 1992, c. 30 to be appointed guardians of H.A., a 27 year old incapable adult who is their niece, and who has lived with them or been under their care and control for many years. A declaration of incapacity was also sought. The respondent is H.A.’s father. He vigorously opposed this relief until shortly before the argument of the application before me on January 20, 2016. I was advised at the opening of argument that the respondent would “not oppose” a finding of incapacity concerning H.A. or an appointment of the applicants as her guardian. It was made clear that he was not consenting. I proceeded to make those orders.
[2] It is apparent to the Court that the respondent’s opposition to a finding that his daughter is incapable in respect of aspects of her personal care and aspects of her ability to manage her property and his opposition to having the Court confirm the applicants’ long standing role as H.A.’s guardians was tactical, ill considered, and without merit. Accordingly, in my view, he should bear the full substantial indemnity costs resulting from the applicants being forced to address these issues on a contested basis. On the other hand, the larger differences between H.A.’s guardians and her father relate to issues of support: has the respondent underpaid (or indeed overpaid) support for H.A. and should there be future support paid and in what amount? These issues were adjourned by me for disposition by way of trial in Family Court because 1) there was a lack of proper evidence filed before me by the applicants to properly ascertain H.A.’s needs and 2) the nature and complexity of H.A.’s needs and best interests requires viva voce evidence in a trial of this motion to change. H.A. is currently supported by the Ontario Disability Support Program (ODSP) and it is unclear what additional future support she will require and whether the respondent should continue to contribute.
[3] By way of background, the applicants were appointed guardians of H.A. by Order of Sheffield J. in 2003 under the Children’s Law Reform Act, R.S.O. 1990, c. C.12. The respondent paid support for his daughter H.A. to the applicants and continues to do so. Neither party realized that the guardianship order expired in 2007 when H.A. turned 18. In August of 2014, the applicants began a family law proceeding seeking to vary the existing support order of Cosgrove J. of May 7, 2007. They sought an increase in child support and extraordinary expenses, arrears in the amount of $24,800 and certain ancillary relief. The applicants subsequently recognized that an application was required to appoint a guardian for H.A. under the Substitute Decisions Act and the present application was issued on June 18, 2015. The applicants sought to consolidate or at least argue together the motion to change the support order and the guardianship application. It was apparently thought that this was an efficient way to proceed.
[4] Regrettably, the issues in the two proceedings became somewhat intermingled and resulted in an exchange of lengthy, abusive and disrespectful affidavits. The applicants sought to portray the respondent as an arrogant person unconcerned about his daughter’s welfare and generally unwilling to respect the disclosure requirements of Cosgrove J.’s order. For his part, the defendant accuses the applicants of exploiting his daughter and of unethical or improper management of H.A.’s funds to benefit themselves. My impression was that all of the mutual recriminations were unwarranted and that H.A.’s interests have actually been very well served by her father and by her guardians, the applicants. Presumably, this will be sorted out at the family law trial and, in addition, I directed a passing of accounts with respect to the applicants’ management of H.A.’s property, as recommended by the Office of the Public Trustee.
[5] The applicants seek their costs of the guardianship application. They claim fees and disbursements in the sum of $28,468 on a partial indemnity scale and $42,702 on a substantial indemnity scale. As noted, the respondents opposition to the requested order declaring H.A. incapable and opposing an order continuing the applicants as H.A. guardians was a reprehensible approach doomed to failure and was unsupported by anything beyond the respondents’ opinions. He should bear the cost of that aspect of the dispute. On the other hand, the applicants’ approach of transferring the Family Court support issues into the guardianship application was ill advised and generated substantial unnecessary costs. Furthermore, all the support issues have yet to be resolved in Family Court and therefore, the costs pertaining to the support issues have not been awarded.
[6] In my view, the reasonable expectation of the respondent would be that, if unsuccessful in his efforts to prevent a finding of incapacity in relation to H.A. and in his efforts to have the guardianship switched to himself, he would pay the costs attributable to those two issues. Given the manner in which the applicants have chosen to conflate the incapacity/guardianship issues with the support issues, I must somehow, arbitrarily attempt to identify and segregate the portion of the claimed costs attributable to the incapacity/guardianship issue. All of the balance of the fees (as well as the respondent’s claim for costs), can be considered costs of the support proceedings which a Family Court judge may deal with when the Family proceedings are adjudicated.
[7] I am of the view that approximately one third of the claimed costs could reasonably be said to relate to the incapacity/guardianship issues. I award the sum of $14,000 to the applicants for the guardianship application plus applicable HST payable by the respondent within 30 days. As noted, any additional fees are for consideration in the support proceedings which are ongoing.