Court File and Parties

COURT FILE NO.: 12-35737 DATE: 2016-09-09 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Clidan Trevor Hamilton, Applicant A N D : Trevor Clidan Hamilton and Juliet Eastlyn Hamilton, Respondents

BEFORE: The Honourable Mr. Justice A.J. Goodman

COUNSEL: S. Heeley, for the Applicant T. Nemetz for Nicole Hamilton A. Snelius, for the Respondent Trevor Clidan Hamilton

HEARD: August 25, 2016

E N D O R S E M E N T

[1] This is another application to vary the guardianship for personal care of Juliet Eastlyn Hamilton under the provisions of the Substitute Decisions Act, 1992, S.O. 1992, c.30 (“SDA”). The applicant seeks sole guardianship.

Background:

[2] On January 16, 2013, Milanetti J. granted guardianship of the person of Juliet Eastlyn Hamilton (“Juliet”) to Clidan Hamilton (“Clidan”) and Nicole Hamilton (“Nicole”) until a further order of the court.

[3] Five months later, on June 11, 2013, Kent J. granted Clidan Hamilton guardianship of property for Juliet.

[4] On February 20, 2013, Juliet was placed at Tansley Woods Nursing Home (“Tansley Woods”), a long-term facility by Clidan and Nicole. Clidan picked Tansley Woods because of its neutral location, between Hamilton and Toronto to facilitate the opportunity for all family members to attend.

[5] Between 2013 and 2014, Juliet had been admitted to hospital for various medical concerns. On most occasions, Clidan was the only family member present.

[6] On December 18, 2014, a medical examination, including chest x-rays, blood work and emergency physician assessment of Juliet confirmed the diagnoses of Aspiration Pneumonia. There was a brief family discussion at Joseph Brant Hospital regarding advanced directives. No conclusive decision or treatment option came about for a month regarding Juliet’s care.

[7] On December 31, 2014, the hospital staff phoned Clidan to advise him that multiple phone calls from Nicole and their siblings were received daily demanding updates of Juliet’s care and treatment. Throughout Juliet’s hospital admission there has been conflicting treatment demands and requests for pain management.

[8] The attending Joseph Brant physician, nurses and counselors have all met with the family on numerous occasions between December 2014 and January 2015 to move forward in implementing and providing a treatment plan for Juliet. Apparently, Juliet was a day away from losing her hospital bed before a decision was agreed upon between Clidan and Nicole.

[9] On or about January 5, 2015, medical staff assessed that Juliet was incapable of swallowing safely and that a permanent alternative method to feeding needed to be implemented. Clidan understood that the nasogastric tube was only temporary and so informed his siblings.

[10] Clidan expressed his concern in regard to Juliet’s decline and wished for her to be put on a temporary nasogastric tube so that she could eat. Nicole was apparently unsure of the procedure and needed to reflect on the matter, as a result, decided against or withheld consent for treatment for three days which is claimed to have starved Juliet for that period and almost resulted in a loss of Juliet’s hospital bed.

[11] Clidan contacted a nursing home in Trinidad West Indies to implement appropriate end of life care and pre-planning for Juliet. Clidan has also met with Smiths Funeral Home to arrange for her transportation home to Trinidad. Clidan has spoken with the pastor of St. Mary’s Baptist Church to confirm a burial site.

Positions of the Parties:

[12] Clidan says that Nicole vacillated or refused to consult with him on any medical issue and bases her mother’s medical treatment decisions on the family siblings having a majority wins rule. Clidan adds that Joseph Brant Hospital and Tansley Woods staff have all expressed their concerns about the situation.

[13] Clidan fears that Nicole’s actions and decisions, including her unreasonable delays has and will continue into negatively impacting on other treatments and planning for Juliet’s end of life well-being and health. As a co-guardian, Clidan submits that Nicole has not acted responsibly and is not actively involved or present for most of Juliet’s treatments and hospital admissions. Fundamentally, Clidan submits that Nicole is not acting in Juliet’s best interests.

[14] In response, Nicole does not disagree that her brother Clidan and her have enjoyed a less than good relationship but the root cause of their discord is her disagreement and dispute as to his unwillingness to act in accordance with her mother’s previously stated wishes; namely, for everyone to work together as a family and his refusal to adhere to her values and beliefs.

[15] In her affidavit Nicole stated that she is the oldest child and until her mother became ill, had been her primary confidant. Nicole submits that she knows what her mother would want happen to her and how she would like to be treated at this stage of her life.

[16] Nicole adds that Clidan is also trying to shut her out of the decision making as a way of avoiding having to explain how he has used our mother’s money for which he holds sole guardianship. Nicole submits that she is acting in her mother’s best interests in accordance with her mother’s and family’s wishes.

Discussion:

[17] In this application, I considered the affidavits filed from both Clidan and Nicole. I have also reviewed the Motion Record filed including the exhibits to Clidan’s affidavit. Juliet’s spouse, Trevor Hamilton (Trevor”) did not file an affidavit for this motion. Although I heard submissions from Mr. Snelius, on Trevor’s behalf, there is no evidence before me in support of Trevor’s position.

[18] There is a clear dispute shared between the various family members on the proper plan of care and whether a palliative treatment plan should be in place or whether all possible steps ought to be taken to prolong Juliet’s life. Most, if not all, of the siblings and family members have had varying involvement with the medical staff at Joseph Brant Hospital and Tansley Woods Nursing home.

[19] At the root of this application for sole guardianship is Clidan’s well-known request that a “Do Not Resuscitate” (“DNR”) direction be placed on Juliet’s chart should the need arise. Nicole and Trevor, and some other family members disagree with that action based upon what they know of Juliet’s values and wishes, consistent with their understanding of her religious beliefs.

[20] There is no dispute between the parties that Juliet was always a very religious person, practicing a Baptist/Anglican faith. According to Nicole, Juliet believed that one must fight for every breath and never quit.

[21] Nicole submits that Clidan does not have these same values and has no interest in applying their mother’s beliefs and values to the decision making process. He only wishes to apply his own values. Turning again to her affidavit, Nicole deposed that “although my brother and I are the guardians of our mother, we have two other siblings, both of whom live in the United States. My brother and I are the only siblings living in Canada. When decisions are necessary I feel it is important to discuss the issues with our other siblings and that is why, on one occasion only, a decision had to wait approximately 2 weeks. I had been told at the time that I should take my time to make the decision and do the necessary research as the decision would have an impact on our mother’s life. At no time did this delay put her well-being or health at risk”.

[22] Nicole goes on to state: “I am also concerned that my brother’s ongoing actions have negatively impacted or will negatively impact on the care of our mother. I have been advised on more than one occasion that my brother has not followed the home’s instructions and thereby put our mother’s life at grave risk. Specifically, he was feeding her. I have been advised by the Nursing Home that my mother’s residence costs are now almost one and a half year[sic] behind and that, despite requests made to my brother, he has delayed paying the costs”.

[23] Mr. Nemetz, on behalf of Nicole submits that this case is akin to applications regarding end of life care and more recently, those considered post- Carter , [1] regarding applications for medically assisted end of life applications. Mr. Nemetz submits that, in effect, there is no distinction – or it is a distinction without a difference - in what is being requested in this motion under the SDA.

[24] With respect, I must disagree. This is not a request under the Health Care Consent Act, 1996, S.O. 1996 c.2. (“HCCA”). Clidan’s rationale for his request for sole guardianship under the SDA is well known. Ultimately, if successful, he is not seeking an order to actively terminate his mother’s life or withdraw life support, but merely not to prolong it should the natural course of events intervene.

[25] Mr. Nemetz provided the case of Barbulov v. Cirone , [2009] O.J. No. 1439 (S.C.) . In my review of Brown J’.s endorsement and the facts and legislation referenced in that case, the case is distinguishable.

[26] That being said, according to Janzen v. Janzen, [2002] O.J. No. 450 (S.C.) , a case specifically dealing with a request to withdraw life support involving competing guardianship applications by family members, the jurist embarked on an analysis, referring to s. 21(2) of the HCCA on the question of “well-being”. [2]

[27] In Barbulov, Brown J. disagreed with the analysis in Janzen as it pertained to the discussion of “quality of life”. Justice Brown commented that “quality of life” is not encompassed in s. 21 of the HCCA . I accept Brown J’.s analysis and in particular the purposeful approach in the discussion found at para 87:

That the Legislature omitted the concept of “quality of life” from Part II of the HCCA dealing with “treatment” may very well signal that it was alive to the possible dangers associated with the use of that term, especially in the context of end-of-life treatment. Dignity attaches to a person from the beginning through to the end of his or her physical existence, irrespective of a person’s ability to act on the various capacities he or she possesses as a human being. Dignity surrounds the unresponsive, dying person, just as it does the active one. To the extent that one equates the notion of “quality of life” with one’s ability to pursue an “active life”, one risks diminishing the innate dignity of those whose ability to act on their human capacities may be impaired through temporary illness, handicap, or the approach of death. A person at death’s door possesses a dignity as robust and worthy of protection as the active one. The difference between a healthy, self-conscious human being and an incapacitated, or impaired, human being is not one of kind, but only one of degree. To fold the concept of “quality of life” into the statutory concept of “well-being” in section 21(2) of the HCCA risks losing sight of this innate dignity when considering the appropriateness of treatment plans at the end of life.

[28] I recognize that we are not dealing with an issue of consent or refusal of a course of treatment. However, in deciding the merits of this application in contemplation of Clidan’s expressed motivations for sole guardianship, it may be prudent to consider the merits of the competing guardianship interests on the “best interests” criteria as found in s. 21(2) of the HCCA .

[29] Section 21(2) of the HCCA provides:

In deciding what the incapable person’s best interests are, the person who gives or refuses consent on his or her behalf shall take into consideration,

(a) the values and beliefs that the person knows the incapable person held when capable and believes he or she would still act on if capable;

(b) any wishes expressed by the incapable person with respect to the treatment that are not required to be followed under paragraph 1 of subsection (1); and

(c) the following factors:

1. Whether the treatment is likely to,

i. improve the incapable person’s condition or well-being,

ii. prevent the incapable person’s condition or well-being from deteriorating, or

iii. reduce the extent to which, or the rate at which, the incapable person’s condition or well-being is likely to deteriorate.

2. Whether the incapable person’s condition or well-being is likely to improve, remain the same or deteriorate without the treatment.

3. Whether the benefit the incapable person is expected to obtain from the treatment outweighs the risk of harm to him or her.

4. Whether a less restrictive or less intrusive treatment would be as beneficial as the treatment that is proposed.

[30] Much of the aforementioned criteria is not applicable to the facts of this case. I am advised that despite a prognosis to the contrary, Juliet has survived for a longer period than had been anticipated. Survival may not equate to quality of life. Nonetheless, Juliet’s dignity even at this late stage of her life is deserving of protection and consideration.

[31] Of significance is that the evidence presented in this motion did not provide for any specific written or oral instructions by Juliet to any party as to Juliet’s actual religious beliefs in relation to her future care. Nowhere in the materials filed does any affiant claim that Juliet specifically advised them about her intentions or expressed an applicable prior capable wish for her end-of life-care.

[32] Indeed, Juliet’s end-of-life care has been the subject of much discussion and documentation by treating professionals and medical staff. The exhibits attached to Clidan’s affidavit are replete with pages and pages of charting and medical information provided in the motion record, dating back to December 2014. While it is not my intention to regurgitate the information here, the following are some examples of the concerns and reductions in Juliet’s well-being and deteriorations in her health raised by the administrative staff and medical professionals. [3] A sampling of some of these medical records include:

[33] The medical records dated “12/01/15:

Reviewed previous SLP ax results – ø change over previous several weeks, given diagnosis unlikely to improve. Told Clyde that based on previous ax results, and diagnosis, swallow unlikely to improve to point where she will get adequate nutrition by mouth and not be at risk for aspiration.

[34] Medical records of 14/01/15:

They are aware swallow likely to fluctuate and decline overall given dementia/diagnosis. ------- Demonstrated safe swallow strategies when giving pt ½ tsp. of thin x 10 and ½ tsp. nector thick x 10. Pt continues to take minimal amounts from spoon and has severely ↓ hyolaryngeal excursion. Given swallow is so weak, suspect ↓ airway protection, ↓ cough/ability to eject, and pharyngeal residue→explained to pt’s family at bedside. One weak cough observed thin trials. Given previous SLP ax results and swallow physiology, ½ tsp. of nector thick liquids are safest to swallow. If family wants to give food, puree texture is safest, though ↑risk of pharyngeal residue given weakness (family aware).

[35] Doctor’s notes of Dec. 17, 2014 Report #: 2212-0056:

There are multiple family members and there have been several discussions already between myself and them with regards to her prognosis and direction of care. My opinion is that she is near the end of her life, probably with 3 months of life survival.

Family members had indicated that they wanted full resuscitative measures including intubation and ventilation. I have asked them to reconsider this as I did not think that this would be an appropriate decision given her advanced illness.

My opinion is that she is near the end of her life expectancy. Her pneumonia may not respond to antibiotics and fluids alone. There may be further deterioration. I therefore did ask them about end-of-life care. Clyde, who has power-of-attorney, would like her to be active care but allow natural death. His sister is in disagreement and asked that further discussions be held with her and her other sisters as well as with Clyde.

[36] Doctor’s notes of Dec. 17, 2014 Report #: 0801-0098:

I have met both separately with Nicole and Clyde. Their relationship at this time is such that they are often not comfortable speaking together and have given me separate directions about her care. In addition they are not on the same page as Clyde would like his mother fed but does not wish her to have extraordinary measures such as intubation or ventilation. Nicole on the other hand has requested that her mother be resuscitated including intubation, ventilation and ICU care.

[37] Medical records of Dec. 17, 2014 Report #: 0201-0170

There is no agreement between the family members and the two guardian’s[sic] Clyde and Nicole are not currently taking[sic] to each other. Nicole has requested that her mom not receive a percutaneous gastronomy tube, but that she receive nasogastric tube feeding for “another 7 days to strengthen her.” Clyde and I have met today for another long discussion. He understands that she cannot be returned to the long-term care facility with a nasogastric feeding tube. The reasons for this were discussed in outline, namely that these tubes are unstable, that they often migrate and that patients may pull them out. They may also cause nasal trauma. It has also been explained to him that percutaneous gastrostomy tubes may carry additional risk such as infection, failure to form a fistula with leakage, especially if the patient inadvertently pulls out the tube before the fistula tract is fully healed. Literature has also indicated these patients eventually die of aspiration pneumonia any way and that they also appear to have a higher incidence of decubitus ulcers because they are inevitably restrained or kept on their backs.

[38] Medical reports of Dec. 17, 2014 Report#: 1901-0124

Ms. Hamilton is a woman with advanced dementia who was living in a long-term care facility. She has had a recent decline in function and has been treated for fever and presumed pneumonia on 2 occasions. She also has a history of seizures. On this admission she did have evidence of right lower lobe pneumonia and was treated with antibiotics for 14 days. She had evidence of dysphagia and pocketing of food in her mouth and as such she did not appear able to meet her nutritional needs. There was an attempt to plan for her next level of care and engage the family.

[39] The Health Care Record for Tansley Woods of 18 Oct. 2015:

EATING: ____ has a tube feed and is NPO. Her feed runs from 0500-1200 and 1500-2200. Nurse starts and stops feeds. Please ensure incision area is covered at all times. Family is feeding as tolerated by mouth. TOILETING: Requires TOTAL assistance check and change Q4H and as needed… TRANSFERRING: Requires TOTAL assistance x 2 staff members using Hoyer life. Visual cues of pain ie. facial grimace, crying, moaning, holding head indicating headache. Observe for signs and symptoms of Dehydration: ie lack of skin turgor, confusion, decreased urinary output, dry mucous membranes. Treat fever with medications/tepid bath as required.

[40] This is usually a difficult decision for a judge when having to consider these types of issues. This case is no different. However, I am persuaded that Clidan appears to have Juliet’s best interests in mind when I consider the history of the litigation, the objective medical advice provided by the treating practitioners and Juliet’s health status in his request for the variation in guardianship for person care.

[41] In my opinion, this motion must succeed. Clearly from the uncontradicted medical records filed, Juliet cannot eat, tend to herself or her personal needs, has had repeated seizures and is unresponsive. I am persuaded that, based on the medical reports, Juliet is in demonstrated constant pain, and nothing that can be reasonably done will improve or prevent her condition from deteriorating.

Conclusion:

[42] It is clear that Juliet is incapable of understanding information relevant to decisions regarding her person care.

[43] Clidan’s request for sole guardianship is to facilitate timely, uniform and unambiguous advice to medical staff for reactive professional care for Juliet. Again, this is not a case where the applicant seeks to embark on a course of action to promote or create a situation to end a loved one’s life. Rather, the situation here is to permit Juliet’s life to continue in the normal course of aging with her associated health challenges along with a DNR direction to medical staff that they do not intervene to extend her natural progression.

[44] The applicant’s motion is granted. The Order of Milanetti J. dated January 16, 2013, shall be varied to reflect the appointment of Clidan Hamilton as sole guardian for the personal care of Juliet Hamilton, pending further order of the Court.

[45] The order of Kent J. dated June 11. 2013, is continued.

[46] As mentioned, this is an unfortunate case where the parties are compelled to come to court to have a judicial determination despite the undisputed fact that all family members love and care deeply for Juliet. It cannot be left unsaid that all members of the Hamilton family are well-intended and hold strong, compelling beliefs, albeit they cannot agree on the best interests of their mother or wife at this late stage of her life.

[47] That being said, and notwithstanding that the applicant has been successful, in my opinion, this is a proper case whereby each side ought to bear their own costs for this motion.

A.J. Goodman J.

Released: September 9, 2016

[1] Carter v. Canada (Attorney General), 2015 SCC 5, 2015 SCJ No. 5. [2] The Janzen case is referred to by Brown J. in Barbulov at para 86. [3] In reply, Mr. Heeley advised that there are up-to-date medical reports available, and while they were not filed, the nature of these reports is consistent with those presented from 2014 and 2015. All of the reports continue to demonstrate deterioration in Juliet’s health. There was no challenge offered to Mr. Heeley’s submission.