CITATION: Galvez v. Galvez, 2016 ONSC 8085
COURT FILE NO.: ES-605-16
DATE: 2016-12-23
SUPERIOR COURT OF JUSTICE – ONTARIO
IN THE MATTER OF THE ESTATE OF JOSEPHA GALVEZ, DECEASED
AND IN THE MATTER OF THE ESTATE OF ANTONIO GALVEZ, AN INCAPABLE PERSON
RE: Joseph Galvez, Applicant
AND:
ANTONIO GALVEZ JR., in his personal capacity and in his capacity as Estate Trustee for the Estate of Josepha Galvez, MANUEL GALVEZ, in his personal capacity and in his capacity as Attorney for Property and Attorney for Personal Care for Antonio Galvez Sr., FERNANDO GALVEZ, in his personal capacity and in his capacity as Attorney for Property and Attorney for Personal Care for Antonio Galvez Sr., and OFFICE OF THE PUBLIC GUARDIAN AND TRUSTEE, Respondents
BEFORE: The Honourable Mr. Justice D.J. Gordon
COUNSEL: Shayna A. Beeksma, Counsel for Manuel Galvez and Fernando Galvez
Antonio Galvez Jr. and Joseph Galvez, Appearing in Person
HEARD: December 15, 2016
ENDORSEMENT
[1] The sole issue requiring determination in this motion is whether Antonio Galvez Sr. should be restricted from leaving Lanark Heights Long Term Care for reasons unrelated to medical appointments.
[2] Antonio Galvez Sr. (“father”) is 85 years of age. He was admitted to Lanark Heights on October 14, 2014 as a result of dementia. His wife, Josepha Galvez, died on February 10, 2015. There are four sons, Antonio Galvez Jr. (“Antonio”), Manuel Galvez (“Manuel”), Joseph Galvez (“Joseph”) and Fernando Galvez (“Fernando”). Manuel and Fernando are the attorneys for father pursuant to a Power of Attorney for Property and a Power of Attorney for Personal Care, both dated November 17, 2005. As Fernando resides in Louisiana, U.S.A., it appears Manuel deals with most day-to-day matters. For reasons unknown, there is conflict between the attorneys and the other brothers.
[3] Lanark Heights is a long term care residence accredited by the Ministry of Health and Long-Term Care and is located in Kitchener.
[4] Joseph commenced this proceeding by notice of application, issued June 3, 2016, seeking, inter alia, an order removing Manuel and Fernando as attorneys for property and personal care and appointing Joseph and Antonio as guardians in replacement thereof and other relief.
[5] This motion, first returnable July 14, 2016, was initiated by counsel for Manuel and Fernando. Orders were requested prohibiting Antonio and Joseph from removing father from Lanark Heights and that their access to father be supervised, production of medical, banking and other records, a litigation timetable and related relief.
[6] Prior consent orders have addressed the litigation timetable and production of documents. I am advised a case conference is scheduled with RSJ Arrell for January 25, 2017.
[7] The most recent interim order, granted on consent, or unopposed, by Reilly J. on November 9, 2016 prohibits all four of the sons from removing father from Lanark Heights save that Manuel is permitted to take him to medical appointments. The order also allows Antonio and Joseph to attend a meeting with Dr. Sharad, the resident physician for Lanark Heights, on November 8, 2016. The motion was adjourned to December 15, 2016.
[8] Manuel and Fernando, in essence, seek to continue the aforementioned order prohibiting the removal of father from Lanark Heights, save for medical purposes. Antonio and Joseph oppose that request as they wish to take father on outings and family visits.
[9] The medical evidence presented thus far, in my view, is of critical importance on the issues raised in this motion. This includes the evidence in the affidavits of Lisa McKee, sworn June 30, 2016 and Nidia Flores, sworn July 4, 2016. Both deponents are registered practical nurses employed by Lanark Heights and are involved in the care of father. Of further importance are the reports of Dr. Sharad dated August 22, 2016 and December 14, 2016, being exhibits to the affidavit of Maria Ciarmoli, legal assistant to Ms. Beeksma, sworn December 14, 2016.
[10] In his oral submissions, and in prior correspondence to Ms. Beeksma, Antonio raised the issue of a second medical opinion. He has not pursued that request nor did he ask for an adjournment to present a motion in this regard. In result, I decline to address the purported issue.
[11] Considerable material has already been served and filed in this proceeding. It is premature to address the merits of the various claims or even the evidentiary record other than matters pertaining to father’s medical status and residency.
[12] In this regard, Antonio and Joseph clearly do not accept the opinion of Dr. Sharad, or the evidence of the nurses previously mentioned. Yet they have not sought out any other medical evidence, presenting only their personal view or opinions. Having regard to the medical reports of Dr. Sharad, as hereafter discussed, the positions taken by Antonio and Joseph, in my view, are not supported by credible evidence. This is of particular concern when they did attend at the meeting with Dr. Sharad, along with Manuel, on November 8, 2016. Despite the brief passage of time, Antonio and Joseph have taken no steps to advance or support their position with relevant evidence.
[13] Dr. Sharad reports that father has advanced dementia as well as a number of physical ailments or limitations. Father’s health has remained stable but he requires assistance in all activities of daily living, save that he is able to feed himself. He requires a walker for mobility. The nursing staff at Lanark Heights indicate father is incoherent 80-90 per cent of the time and sometimes has agitated outbursts. Dr. Sharad opines that father’s prognosis is guarded with likely progression of mental decline. Dr. Sharad supports the position of Manuel and Fernandes, saying it would be in father’s best interests to remain at Lanark Heights and should be taken out by Manuel only for medical reasons. The evidence of the nurses also supports that request. It is of some interest that the nurses report father to now speak almost entirely in Spanish, commenting on such language regression being observed in other elderly patients with dementia.
[14] With advanced dementia, great care must be taken in all dealings with father. Language problems now compound his declining mental health. Outbursts are common with dementia patients, requiring trained health care providers. Long term care is of obvious necessity and, despite the complaints of Antonio and Joseph, I am satisfied father is receiving excellent care at Lanark Heights. I anticipate most of father’s medical requirements can be addressed by the staff nurses and by Dr. Sharad on his weekly rounds. It appears all parties at this time are content with Manuel taking father to any outside medical appointments.
[15] Given the high conflict that has developed between the sons, I am not persuaded father’s residency should be altered. I conclude father must remain at Lanark Heights, save for medical appointments, particularly in the winter months, with his mobility limitations.
[16] In result, a further interim order is granted as follows:
Joseph Galvez, Manuel Galvez, Fernando Galvez and Antonio Galvez Jr. will not remove Antonio Galvez Sr. from Lanark Heights Long Term Care, pending further order, with the following exception:
(a) Manuel Galvez is permitted to take Antonio Galvez Sr. to scheduled medical appointments.
[17] Ms. Beeksma, counsel for the moving parties, also seeks a cost award. Her bill of costs reports full indemnity and disbursements of $31,127.06, $19,706.86 on a partial indemnity scale. Presumably these amounts include all matters raised in the original motion, much of which were resolved on consent. Given the serious allegations raised by each of the parties and the remaining outstanding issues, I decline to award costs of such a magnitude. In my view, only the trial judge on a full evidentiary record and in the circumstances of this case, will be able to properly address the issue of costs.
[18] Only one issue required determination on this motion. It ought to have been resolved by the parties, acting reasonably, given the evidence tendered. This court appearance was a waste of time as Antonio and Joseph did not present evidence relevant to the medical issues, nor did they contradict or challenge the medical evidence that was presented by Manuel and Fernando, other than presenting their own personal views.
[19] In result, the moving parties are entitled to a cost award, but only for the court appearance on December 15, 2016. Costs otherwise are reserved to the trial judge. I award costs of $1,500, inclusive of HST and disbursements, payable by Antonio and Joseph, jointly and severally, within 30 days of the release of this decision.
D.J. Gordon J.
Date: December 23, 2016