Court File and Parties
Court File No.: 03-81/14 Date: 20170111 Ontario Superior Court of Justice
Between: ANNA KAM WONG and STELLA KAM WONG Applicants – and – THE OFFICE OF THE PUBLIC GUARDIAN AND TRUSTEE, SHU PAK WONG, WINNIE SHUK KUM YAU, SAMUEL LUN CHEUNG WONG and SHUI WAH WONG Respondents
Counsel: Angelique Moss, for the Applicants Winnie Shuk Kum Yau and Samuel Lun Cheung Wong, in person
Heard: January 5, 2017 Before: F.L. Myers J.
Endorsement
[1] The four children of Shui Wah Wong are in a dispute as to which two of them will be the substitute decision makers for personal care and for the property of their mother. The respondents Winnie Yau and Samuel Wong are the oldest daughter and the youngest (and only) son in the family. The applicants are the two middle sisters. Justice Penny established a process whereby the two sets of siblings each ask to be appointed as their mother’s guardians.
[2] Mrs. Wong is 89. All of the parties agree that she is completely incapable of managing her own affairs.
[3] The children’s father is the respondent Shu Pak Wong. He is in his 90s. He lives in Hong Kong. Although Mr. and Mrs. Wong have not lived together in decades, they did not divorce or formally break up as a family unit. Mr. Wong, through his son Sam, has continued to provide for and care for Mrs. Wong, despite their lack of physical proximity.
[4] The parties agreed on very few facts. As this is an application on a written record, it is not a good process for the court to make credibility findings. In light of the thorough cross-examinations, much has been illuminated however. In my view, the competing applications can be resolved without express findings on conflicting evidence. Accordingly, for the reasons and on the terms that follow, Winnie Shuk Kum Yau and Samuel Lun Cheung Wong are appointed guardians for property and for personal care of Shui Wah Wong.
[5] I accept the basic law as set out in the applicants’ factum. Under ss. 24 (5) and 57 (3) of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, the court shall consider: whether there is an attorney for the incapable person under a continuing power of attorney; the incapable person’s wishes (if they can be determined); and (c) the closeness of the relationship between the proposed guardian(s) and the incapable person.
[6] In addition, case law establishes that the overarching factor in the application for the appointment of a guardian is the best interests of the incapable person. The court should consider the fitness of the proposed guardian to carry out the duties of the office including: the obligation to care for another as a fiduciary; the obligation to consult with supportive family members; and the obligation to foster personal contact between the incapable person and supportive family members. Bennett v Gotiblowicz, [2009] O.J. No. 1438 (S.J.J.) at para. 19. Chu v Chang, [2009] O.J. No. 4989 (S.C.J.) at para. 26. K.R. v. Y.R. et al., 2015 ONSC 6874.
[7] Mrs. Wong executed a form of power of attorney for property in favour of Sam in 2005. The document appears to be lacking a necessary formality. However, even if invalid, it shows an intention that is corroborative of the decision that I have reached.
[8] Mr. and Mrs. Wong have shared their personal assets and financial circumstances with Sam since the early 1990s. Sam has been responsible to care for them ever since that time. He takes direction from his father. The parents have not shared the details of their finances with their daughters. In this family, the father was the principle breadwinner and both parents have authorized and empowered their sole son to be the financial head of the household for a very long time.
[9] Mrs. Wong doted on Sam after he came to Canada. While he was away at University of Waterloo, Mrs. Wong had the applicants drive her to see Sam to take food to him most weekends.
[10] In 1997-1998, Mrs. Wong decided to leave her children and go back home to live in her farming village in China permanently. Before she left, she transferred her house and bank account into joint tenancy with Sam. In fact, her daughters helped her do so. Now they say that the transfers were just for convenience and that Sam’s signature was only added to have someone who could act in case of emergencies. But Sam lived in California then and now. The applicants live here. If all that was required was to have a local presence for signing purposes, one of the applicants would have surely been selected by Mrs. Wong. In addition, Stella Wong says that she took her mother to the lawyer for the purpose of signing the house over to Sam. She says that she tricked her mother into thinking that she was just renewing her passport when she was really signing her house over to Sam in joint tenancy. Stella would rather admit to tricking her mother than admit that her mother deliberately gave Sam title to Sam. Stella forgets however that there was a lawyer involved. Absent evidence from the lawyer or his or her file, I am loathe to accept that the lawyer did not take steps to ensure that an elderly parent understood a transaction that on its face favoured one child.
[11] After she returned to China, Sam saw his mother each year and together with his father, saw to her financial needs. The applicants were in less frequent contact with their mother.
[12] In 2008, Mrs. Wong became ill in China and went to Hong Kong. The family decided that Mrs. Wong should return to Canada where she could be better cared for. Just prior to coming to Canada, Mrs. Wong signed over to Sam two properties that were held in her name in Hong Kong. The applicants say that Sam used undue influence over his mother who was recuperating from serious illness at the time. Sam says that the properties were purchased by their father and were moved at the instance of the father, with Mrs. Wong’s concurrence, to fund the parents’ care.
[13] I do not need to decide whether the signing of properties to Sam before Mrs. Wong left for China or before her return from China were lawful transactions. As noted above, I am not resolving competing factual stories whether one or the other seems more or less likely on its face. The issue on this application is not whether any of the property transfers may be voidable. The principal relevancy of the transfers at this stage is the applicants’ assertion that Sam has favoured himself as a fiduciary and has failed to account for his stewardship of his mother’s funds. As such, they say that he is unfit to be Mrs. Wong’s guardian.
[14] However this much is known to be true. When Mrs. Wong returned to Canada, Stella was living in her house with her for approximately 9 months. After Stella moved out she visited her mother only once every week or two, on Sundays, to take her out for lunch or to shop. Stella is very busy in her career. Anna dropped by fairly often. She bought some food and made occasional larger purchases for her mother. Meanwhile, Sam, living in California, took care of all financial aspects of his mother’s upkeep. He was in touch with her or her caregivers frequently. He came and moved in with her for one to two months per year in order to spell the live-in caregiver. The caregiver worked 24/7 for 11 months of the year and then had a month off. It was Sam who moved in to care for Mrs. Wong during those periods.
[15] The status quo seemed acceptable to all of the siblings until mid-2014. Shortly before that time, Winnie Yau had some health problems and had moved in with her mother to assist in looking after her but also to benefit from the caregiver and meal preparation. At the same time the position of the live-in caregiver was becoming problematic. Winnie had complained to the applicants that the caregiver had hit Mrs. Wong. Anna Wong wrote to Sam and asked him to tell the caregiver to stop hitting their mother. Anna also reported that the caregiver was feeding their mother inappropriate foods. She also had a gambling problem. Anna told Sam that the caregiver was stealing money that Sam was providing for food for the mother. Anna also raised a concern with Sam that there was some mold in the bathroom so that renovations were required. None of the siblings treated these issues with urgency. The applicants did nothing to fix the situation themselves except to tell their brother. Apparently it was difficult to find a caregiver who could speak to Mrs. Wong in Cantonese and would work 24/7 for 11 straight months.
[16] Sam came to Toronto in the summer of 2014. He applied to have his mother put on a waiting list for a CCAC retirement home. It can take several years for a spot to be offered at the one Chinese home that was deemed to be of sufficient quality for Mrs. Wong’s needs. CCAC required the names and details of everyone living with the applicant. Sam asked the caregiver to provide her name and Social Insurance Number to CCAC. The caregiver refused and said that she would quit rather than provider her SIN. Sam demanded the information and when she quit, Sam accepted her resignation. Something ignited the applicants at this time. Despite the long period of contentment with the status quo and their written, clear, serious concerns about the conduct of the caregiver, the applicants became enraged with Sam when he terminated or accepted the resignation of the caregiver. The police had to be called to remove the applicants from their mother’s house with the caregiver that night.
[17] After that incident, Sam once again moved in with his mother and Winnie until a new caregiver was retained many weeks later. The applicants would take turns coming over to the house each day for a few minutes. Many incidents occurred leading to the police being called.
[18] Once these proceedings commenced, counsel for the applicants proposed a schedule for the applicants to visit their mother. The respondents agreed. Yet from December 2014 to December 2015, the applicants did not visit their mother at all citing fear of having more incidents and police involvement. After December 2015 when the applicants recommenced visiting, they have attended only approximately 20% of their scheduled visits.
[19] The applicants are clear that they want to be appointed guardians of their mother so that they can visit at will and not on a schedule. Counsel also made a clear submission that once appointed as guardians, they intend to sue Sam on behalf of their mother to seek an accounting for her property. The applicants say that Sam has taken several hundred thousands of dollars of their mother’s funds. But, Sam notes, they give him no credit for paying the $6,000 or so per month that their mother has needed since her return to Canada (not to mention the amounts spent supporting her while she was in China).
[20] Once again, the issue before me is not whether Sam has properly accounted for his use of his mother’s funds or whether he is obliged to have done so. He says that the properties, and hence the funds that they have yielded, are properly his. The parents were content with Sam supporting them and they never wanted to share their financial affairs with their daughters. As mentioned above, the issue goes to Sam’s fitness to act in a fiduciary capacity.
[21] The applicants raise a number of concerns with the care being provided for Mrs. Wong. They says that she has been confined to a wheelchair when she should be encouraged to walk herself. The hearsay from CCAC and Mrs. Wong’s doctor do not support that complaint. They also complain about the manner in which Mrs. Wong’s undergarments and bathroom habits are cared for. They had no answer to Mrs. Wong’s inability to get herself to the bathroom however. I am satisfied that Mrs. Wong is being treated with compassion and dignity by the current arrangements. She is elderly and infirm. Some intrusions into her privacy and dignity are unavoidable.
[22] The care plans for both sides are similar. There are no real complaints with either side’s plans. The applicants have no proven way to fund Mrs. Wong’s care without access to assets. But all that appears to be in her name currently is her joint title to her house with Sam. Neither side wants to sell the house and force Mrs. Wong into a nursing home before it is necessary to do so. That leaves the applicants with a lawsuit against Sam to try to recover any remaining assets (if any) if they can prove that Sam has breached his mother’s rights. Alternatively, although first claiming that Mr. Wong deserted their mother decades ago, Stella now expresses the hope that her father would continue to provide support if Sam, Winnie (and he) are ousted by the applicants.
[23] To my mind, the most important pieces of evidence are found in the cross-examinations of the applicants. I note that Sam Wong conducted the examinations himself. This transcripts are excellent examples of how well a self-represented litigant can acquit himself in unfamiliar litigation circumstances.
[24] Starting at question 944 of Anna Wong’s cross-examination, the following exchange occurred:
Q. And you know – and also in affidavit you believe you do not believe the Dr. Tan’s report or medical examinations result, you do not believe CCAC is assess – does this assessment of mother. Basically you deny everyone’s assessments of mother’s health condition over your own assessment of mother. Why? A. No. Not deny.
Q, You said in affidavit that – they say all CCAC assessments cannot be true. They are generalizing it. And all my mother is a happier person they cannot be generalizing the thing the workers to tell--- A. Did you include us?
Q. The assessment --- A. I’m not going to base on your information.
Q. No, the assessment is --- A. I’m not---
Q. ---on mom it’s not assess you. A. I’m not going to base on your information, base on the paperwork to generalize mom’s health.
Q. So have you --- A. I know my mom.
Q. So you don’t believe --- A. I based on what’s wrong with my mom.
Q. So am I correct to say that you do not believe those people? A. Let’s be correct, okay. If you include Stella and I, everyone include those sessions, we wouldn’t have this lawsuit.
Q. So you’ve got no answer --- A. Okay.
Q. No I’m asking --- A. We better for our mother.
Q. No, I’m asking the --- the medical --- are you disagree with those medical report from all the professionals, medical professional, yes or no? A. I’m not disagree or agree because ---
Q. Okay, you do not agree or disagree. A. I’m not there, hasn’t invited --- Mr. Levine [counsel for the applicants] Okay. By MR. WONG:
956 Q. Okay, you already answer. Because you are not there so you don’t believe it? a. You haven’t include me. [Emphasis added.]
[25] In addition to objecting to being held to a visitation schedule, it is clear that Anna Wong objects most to being excluded from involvement by Sam and Winnie. She denies the healthcare evidence – not because it is not true – but because she was not invited to attend the appointments with CCAC and the doctor.
[26] In fact, Stella Wong makes it clear in her cross-examination that Sam has provided her with full information concerning CCAC’s involvement and that the applicants’ joint affidavit used a wrong word when they swore that Sam prevented them from being involved. Stella too says she wants to be more involved particularly in financial issues.
[27] The following exchange is found starting at question 473 of Stella Wong’s cross-examination transcript.
Q. And now we talk about now, right? Why you think that mother need money today? We – how about these question right, why do you think the mother need money today? I ask you, is mother short any money and you say no. And then – but you say that you want to know how much money mother – money – how much money mother has so that you can do – do some – plan something for my mother to better taking care of her than what we do now. So what do you have in mind? A. I have in mind it’s if you disclose all the information, all the money that goes in and coming out, and the total money that she has, if we needed to – if we don’t – if, let’s say mother doesn’t have enough money, okay, then we have to – but mind you, though, okay, all these years father did contribute financially.
Q, M’hmm. Yes. A. Okay. I have – we are now – we’re not denying that.
Q. M’hmm. Yes. A. Okay. And if mother herself, the money is not enough to take care of her for the rest of her life, I’m pretty sure that if our father has money, then he will contribute as what he does the last number of years.
Q. So then you say my mother would never be short of money, right? A. Yes.
Q. Then why you want to know how much money mother has now? A. No, I just want to know if mother – if mother’s own money is not enough for the rest of her years, then we have -- I – we are, as her daughters, okay, we entitled to know ---
Q. But you know – but not—you just want to know. A. But then we don’t – we don’t know. Because all this year has never been disclosed to us.
Q. So basically all you want is to know how much mother has; is that correct? A. For her remaining years.
[28] Stella Wong goes on to concede that she has only about $5,000 that she could contribute to her mother’s care. Her counsel refused to produce any back-up support even for that modest amount. She just wants to know if her mother has sufficient assets to cover her needs for the rest of her life. She accepts that her father will pick up the cost if the mother’s funds run out. She is concerned and wants to know the status of the funding available to her mother.
[29] The applicants’ counsel submitted that the case came down to two elements. First, the applicants want to be able to visit their mother when they please or at least with a more flexible schedule. Second, they want to ensure that their mother has financial security. In both of their cross-examinations, the applicants foreswore any interest in obtaining a portion of their mother’s estate. Yet they want to sue to challenge 20 and 10 year old transactions on their mother’s behalf. It is not lost on them that if they get assets put back in the mother’s sole name and she dies intestate, they will obtain a share.
[30] Finally, the Public Guardian and Trustee conducted an investigation of the affairs of Mrs. Wong pursuant to an order made by Wilton-Siegel J. dated March 25, 2016. It has declined to take a position in this proceeding. The conclusion of the PGT’s report to the court is as follows:
Mrs. Wong is completely reliant upon others for all aspects of daily living, including nutrition and hygiene. While she is mostly unresponsive and confined to a wheelchair, she appears to have a good appetite and enjoys attention. Mrs. Wong is extremely fortunate to still live in her own home as individuals with her care needs (24 hour attendant care) often reside in a long term facility.
By all accounts (including my own observations and CCAC opinion) Mrs. Wong is well cared for and in a clean and conformable environment. There are no apparent deficiencies and both Winnie and Sam, are open to suggestions and quick to act as required.
[31] The applicants’ concerns about past financial dealings by Sam and his parents have little to do with the quality of care being received by Mrs. Wong under Sam and Winnie’s watch. Sam is not the only recipient of funds from the parents. The applicants too have been beneficiaries of their parents’ largesse. But Sam has borne the principal responsibility for arranging and overseeing the care of his parents. Sam has surveillance cameras in place so he can monitor both parents. He produced telephone records showing very frequent, almost daily, contact with the mother’s caregivers. As guardians appointed under the statute, Sam and Winnie will have obligations to account on an ongoing basis. What their obligations were to this point is not before me. I tend to view Sam’s commitment as a dutiful son as throwback to a time in which children repaid their parents’ generosity. Whether he has spent more or less on his parents than what they provided him may be a question for others. But nothing proved before me undermines his and Winnie’s ability care for their mother as proven by years of having done so well as the PGT confirms.
[32] The father provided two affidavits strongly supporting Sam and Winnie’s position. He was not cross-examined and therefore I view the affidavits as mainly corroborative support for the principal evidence given by Sam and Winnie. The applicants attended at their father’s condo in Hong Kong and tried to cross-examine him without notice to the father’s counsel or to Sam and Winnie. No reporter was present to record the conversations. It was an inappropriate ambush that angered their father and Sam and thereby backfired on the applicants in any event.
[33] It is clear that there is much antipathy between the two camps. In my view Sam and Winnie have shown flexibility in offering to change the agreed visitation schedule to try to accommodate the applicants. While they have not invited the whole family to every medical appointment, they have left the CCAA binder with updated reports on the kitchen counter for the applicants to review whenever they attend. The applicants have never volunteered to take Mrs. Wong to a medical appointment. They want to drop by when the feel like it and object to having a schedule in place even though their lawyer suggested it. They do not seem to accept that caring for an elderly, infirm parent is difficult work. Routines need to be established and respected. People coming and going as they please can be disruptive. It takes both sides to cooperate. Winnie also finds it helpful to have a third party present when her sisters visit as this helps to avoid a scene. Sam and Winnie are not averse to having the applicants come over when they wish to do so provided they give reasonable notice so that proper plans can be made. But the applicants have not yet established an ability to stick to a schedule let alone enter into an agreed flexible notice protocol. I am afraid that what is at play is more an issue of ego and a fight for control among the siblings rather than a cooperative effort to care for Mrs. Wong.
[34] A very similar issue was dealt with by D.M. Brown J. (as he then was) in Chu v. Chang. At para. 26 of that case Brown J. wrote:
As I read Dr. Chu’s evidence, his complaint centres not so much on the care his grandmother is receiving, but on his involvement in her personal care. As he put it in his affidavit, he brought this motion “to pursue my rights as co-guardian” (emphasis added). With respect, Dr. Chu has misconceived how a court approaches these sorts of issues. Courts are interested in the best interests of the incapable person, not the “rights” of a guardian. Indeed, guardians labour under duties to the incapable person. Their position does not vest them with independent “rights” which a court will protect; their position affords them certain powers which they must exercise solely for the benefit of the incapable person. Put more bluntly, any guardian of an incapable person must check his or her ego at the door and focus all efforts in securing the best interests of the incapable person. A person who cannot do so should decline to act as a guardian.
[35] Sam and Winnie quite plainly expressed their duties and obligations to their mother. Anna and Stella, especially in the passages quoted above, are more concerned with their rights.
[36] It may well be that Sam and Winnie will be better able to accommodate the applicants’ visitation wishes once the uncertainty of this pending litigation is resolved. The current visitation schedule should be continued. But that is up to the guardians. I encourage Sam and Winnie to allow Stella and Anna to visit on other days if they give fair 24 hours notice or if their desire can be readily accommodated. I similarly encourage Stella and Anna to carry out their visits as scheduled and to recognize that until relations improve, more rather than less formality will be required. A guardian should communicate and encourage visits by supportive family. Anyone yelling, arguing, becoming physically aggressive to people or things, or making a scene will just result in the police being called.
[37] The parties should communicate by email rather than by text message so as to keep available a full and proper record of communications.
[38] Finally, I make no finding as to the propriety of Sam’s conduct with respect to his mother’s assets to date. In my view, given the concurrence of the father and the fact that Sam has consistently paid for the care of both parents, even if one or more voidable transactions occurred, I do not view that as undermining Sam and Winnie’s ability to act as guardians for their mother going forward. Each case is to be decided on its own facts. Sam has a form of power of attorney although it may be technically deficient. Inferences from past conduct lead me to find that Mr. and Mrs. Wong prefer for Sam to be in charge of their financial affairs and care. While neither side is currently very open to the other, in my view Sam and Winnie are as or more likely than the applicants to openly share information, seek supportive input if supportive input is offered, and offer reasonable visitation to supportive family. Moreover, Sam and Winnie’s plans and goals put Mrs. Wong’s interests first.
[39] In my view, considering the factors set out 24 (5) and 57 (3) of the Substitute Decisions Act and the facts set out above, it is in the bests interests of Mrs. Wong that Sam and Winnie be appointed jointly as the guardians of her property and for her personal care. I therefore do so. I approve the plans submitted by Sam and Winnie for those purposes.
[40] Sam asks for an order requiring the applicants to remove their used furniture and other stored material from the basement and garage of Mrs. Wong’s home. In light of the appointments made, no order is required for Sam and Winnie to give notice to the applicants to require them to remove their goods.
[41] As a condition of their appointments, Sam and Winnie are required to give notice to Stella and Anna by email at least 30 days prior to: a. the earlier of either selling Mrs. Wong’s house or listing it for sale; and b. moving Mrs. Wong into a different residence.
[42] In addition, as a condition of their appointments, Sam and Winnie shall provide notice by email to Stella and Anna within 12 hours of Mrs. Wong being taken to an emergency room in a hospital or being admitted to a hospital.
[43] Sam and Winnie are entitled to indemnity for a portion of their legal costs as a result of their success in this litigation. Both sides advised that they paid approximately $40,000 to lawyers. Costs in our system only provide indemnity for a portion of the costs incurred. The fixing of costs is a discretionary decision under section 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. These include the principle of indemnity for the successful party (57.01(1)(0.a)), the expectations of the unsuccessful party (57.01(1)(0.b)), the amount claimed and recovered (57.01(1)(a)), and the complexity of the issues (57.01(1)(c)). Overall, the court is required to consider what is “fair and reasonable” in fixing costs, and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice: Boucher v Public Accountants Council (Ontario), (2004), 71 O.R. (3d) 291, at paras 26, 37.
[44] In my view, it is reasonable for Stella and Anna to be jointly and severally liable to pay costs of $25,000 to Sam and Winnie jointly and severally and I do so order.
F.L. Myers J. Released: January 11, 2017