White v. White, 2017 ONSC 4550

CITATION: White v. White, 2017 ONSC 4550

COURT FILE NO.: ES-696-16

DATE: 2017/07/27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Mitchell White

Applicant

– and –

Helen White

Respondent

Gwendolyn L. Adrian, for the Applicant

Clarke L. Melville, for the Respondent, Raymond White

HEARD: May 19, 2017

THE HONOURABLE MR. JUSTICE G.E. TAYLOR

REASONS FOR JUDGMENT

Introduction

1Helen Mary White (“Helen”) is 87 years of age. She has been residing at Sunnyside Home Long Term Care (“Sunnyside”), in the City of Kitchener, Ontario since 1996. Helen is in the advanced stage of dementia. Helen’s sons, Mitchell and Raymond, have different ideas about how Helen’s property and personal care should be managed. They have therefore applied to the court for directions.

2Mitchell seeks to be appointed Guardian of Property and Guardian of Personal Care for Helen. Raymond seeks to be appointed Guardian of Personal Care for Helen. There is currently an Enduring and Continuing Power of Attorney which was executed by Helen appointing Mitchell and Raymond as joint and several attorneys for property.

Evidence on the Applications

3The evidence on the applications consisted of three affidavits sworn by Mitchell dated July 7, November 23 and December 13, 2016 and two affidavits sworn by Raymond dated September 18 and December 6, 2016. Mitchell and Raymond were cross-examined on their respective affidavits.

4Other than some excerpts from the records of Sunnyside which were attached as exhibits to the affidavits, no medical evidence was filed, although Mitchell and Raymond agree that Helen is incapable, as result of dementia, from managing her affairs.

5Helen was married to Ted White (“Ted”) for approximately 47 years. Helen and Ted had two sons: Mitchell who was born January 30, 1962 and Raymond who was born April 16, 1965. Helen and Ted lived in Burlington, Ontario and operated Ted White Pharmacy. In 1996, because of her dementia, Ted made arrangements for Helen to become a resident at Sunnyside. Shortly thereafter Ted sold the matrimonial home in Burlington and purchased a home in Kitchener, near Sunnyside. In approximately 2010, Ted became a resident at Sunnyside. Ted died in January 2013.

6In 1985, Helen executed a Will which appointed Ted as her executor with Mitchell and Raymond as alternate executors. In 1994, Helen executed an Enduring and Continuing Power of Attorney pursuant to which she appointed Ted to be her attorney and after his death appointing Mitchell and Raymond as her attorneys, jointly and severally. In 2011, Ted executed a Will pursuant to which he appointed Raymond to be his executor. Ted’s Will provided for a life interest in favour of Helen and upon the death of the survivor of Ted and Helen, to pay one third of his estate to Mitchell, one third of his estate to Raymond, and the remaining one third of his estate to be divided equally amongst the children of Mitchell and Raymond.

7Ted was responsible for managing Helen’s financial affairs and making health care decisions on her behalf until the date of his death. Thereafter, Mitchell and Raymond have been responsible for managing Helen’s financial affairs pursuant to the Power of Attorney. There is no Power of Attorney for Personal Care in existence for Helen.

8Mitchell has lived in Ottawa since 1989. Raymond has resided in Kitchener-Waterloo since before Helen began to live at Sunnyside.

9When Ted moved to Kitchener, he acquired a home on Sleepy Hollow Court of which he was the sole beneficial owner. In 2010, Ted sold the home on Sleepy Hollow Court to Raymond in return for a vendor take back mortgage. At the date of Ted’s death, the only asset in his name alone was the mortgage on Sleepy Hollow Court which was slightly in excess of $300,000. The remainder of Ted’s assets were in the joint names of he and Helen. The value of the assets which passed to Helen by right of survivorship was slightly less than $565,000.

10Pursuant to a Certificate of Appointment of Estate Trustee with a Will, dated January 3, 2014, Raymond was appointed trustee of Ted’s estate. At Mitchell’s request, Raymond applied to pass the accounts of the management of both Helen’s and Ted’s assets for the period from January 23, 2013 to October 31, 2014. The Applications to Pass the Accounts were resolved by Minutes of Settlement dated September 30, 2015 which were incorporated into Judgments dated November 18, 2015.

11The Minutes of Settlement for the Application to Pass the Accounts for the management of Helen’s financial affairs contained the following paragraph:

Raymond White and Mitchell White agree to continue to act as attorneys for property for Helen Mary White and they agree that they shall not claim compensation as attorneys for property. The future management of the assets of Helen Mary White shall be consistent with past practices, including the continued investments with BMO Nesbitt Burns. Raymond White and Mitchell White agree that any change to the investment strategy with BMO Nesbitt Burns shall require consent of both of them, and that BMO Nesbitt Burns shall be so advised.

12As of the date of the commencement of this application, Helen’s assets exceeded $900,000. Her income is approximately equal to her annual expenses.

13Mitchell commenced the present application on June 27, 2016.

14Mitchell’s position is that he and Raymond are unable to work cooperatively to manage Helen’s financial affairs or to make decisions regarding her personal care. He describes the current situation as “entirely unworkable”. He refers to the attempts by he and Raymond to jointly provide for Helen’s care to be “a struggle at best and a battleground at worst”.

15While acknowledging that he and Mitchell have differences, Raymond’s position is that they have to date cooperated, and can continue to work together, to successfully manage Helen’s financial affairs and make healthcare decisions on her behalf. He refers to the relationship between he and Mitchell as “functional”.

16Mitchell says that Raymond misappropriated the sum of $5,650 from Helen’s assets in order to pay a tax liability in relation to Ted’s estate. Raymond’s response to this allegation is that, pursuant to the Minutes of Settlement, virtually the entirety of Ted’s estate was transferred to Helen but after the transfer was completed, it was learned that there was a remaining tax liability which arose out of the advice of an accountant to await the completion of the passing of accounts before paying the final tax bill owing by Ted’s estate. Therefore, according to Raymond, it was appropriate that this liability be paid from Helen’s assets.

17Mitchell complains that Raymond refuses to agree to purchase needed clothes for Helen. He says he believes that Helen would benefit from having someone read to her and to have someone come in to provide her with companionship, but Raymond refuses to authorize expenditures for these purposes. Mitchell wishes to have Helen’s blood pressure tested but he says Raymond will not agree. Mitchell says that Raymond refuses to cooperate in addressing his concerns about Helen’s obesity. Mitchell says that Raymond refuses to respect Helen’s long time adherence to the Roman Catholic faith.

18Raymond says that he and Mitchell attend annual care conferences at which Helen’s care is discussed with multiple members of the Sunnyside care provider team. These care conferences are generally scheduled to suit Mitchell’s convenience. At the care conferences Mitchell questions Helen’s health care providers in some detail. Raymond says he believes it is appropriate to follow the recommendations of Helen’s health care providers. According to Raymond, Helen’s physician does not feel that additional blood testing is required. In December 2016, Mitchell discussed a possible change in Helen’s diet with the nutritionist at Sunnyside. It was agreed that certain changes would be made to Helen’s diet on a trial basis.

19Mitchell acknowledges that he reimbursed himself from Helen’s bank account for the cost of new clothing which he had purchased for her.

20Mitchell would like to move Helen to a facility nearer to him in Ottawa.

21Both Mitchell and Raymond have provided Sunnyside with Emergency Care Plans. Mitchell has directed Sunnyside to provide acute care hospital for routine life-prolonging hospital care. Raymond has directed that care for Helen be provided at Sunnyside unless hospitalization is required to keep her comfortable. Sunnyside has taken the position that the two Emergency Care Plans are incompatible. Raymond says that the Emergency Care Plan which he has provided to Sunnyside is consistent with a similar directive provided by Ted regarding Helen’s care.

Legal Principles

22Pursuant to section 32(1) of the Substitute Decisions Act an attorney for property is a fiduciary who is required to act with diligence, honesty and integrity and in good faith for the benefit of the incapable person.

23An attorney for property who was appointed by a person who subsequently became incapable should only be removed based on strong and compelling evidence of misconduct or neglect on the part of the attorney. A second issue relates to whether the attorney is acting in the best interests of the incapable person. The analysis of these issues is contextual. (Teffer v. Schaefers, [2008] O.J. No. 3618 at paragraphs 24 and 25 and McMaster v. McMaster, [2013] O.J. No. 877 at paragraphs 22 and 23)

24With respect to the applications for the appointment of a guardian for personal care for Helen, the following sections of the Substitute Decisions Act are applicable:

55(1) The court may, on any person’s application, appoint a guardian of the person for a person who is incapable of personal care and, as a result, needs decisions to be made on his or her behalf by a person who is authorized to do so.

57(4) The court may, with their consent, appoint two or more persons as joint guardians of the person or may appoint each of them as guardian in respect of a specified period.

58(1) An order appointing a guardian of the person shall include a finding that the person is incapable in respect of the functions referred to in section 45, or in respect of some of them, and, as a result, needs decisions to be made on his or her behalf by a person who is authorized to do so.

66(1) The powers and duties of a guardian of the person shall be exercised and performed diligently and in good faith.

68(1) If an incapable person has a guardian of the person or an attorney under a power of attorney for personal care, the court may give directions on any question arising in the guardianship or under the power of attorney.

Discussion and Analysis

25By executing a Power of Attorney appointing both Mitchell and Raymond as attorneys for property following the death of Ted, I am satisfied that Helen wished to have both her sons involved in making decisions relating to her financial affairs. Mitchell seeks to have Raymond removed as one of Helen’s attorneys. He must therefore present strong and compelling evidence of neglect or misconduct on Raymond’s part. I am not satisfied that he is presented such evidence.

26In my view, Mitchell overstates the extent of the disagreement between he and Raymond. While they may have differing views about expenditures that should be made for or on behalf of Helen, the evidence satisfies me that both are acting in good faith on Helen’s behalf. Although Raymond may not agree with some expenditures proposed by Mitchell, Mitchell has access to an account from which such expenditures can be paid. I do not find that Raymond is acting in bad faith in disagreeing with some of the expenditures proposed by Mitchell.

27It is significant that approximately nine months before commencing the present application, Mitchell acknowledged, in signing the Minutes of Settlement, that he and Raymond would continue to act as attorneys for Helen “consistent with past practices”.

28I do not find that the payment of the tax liability on behalf of Ted’s estate from Helen’s funds was an act of dishonesty on the part of Raymond. The settlement of the passing of accounts applications resulted in a significant financial benefit to Helen. Raymond did not act unreasonably in waiting until the conclusion of the litigation to finalize Ted’s estate. It is only appropriate that the final tax liability be paid from funds transferred from Ted’s estate to Helen.

29I also conclude that both Mitchell and Raymond have Helen’s best interests in mind when making health care decisions on her behalf. I do not fault Raymond for choosing to follow the advice of the healthcare professionals at Sunnyside. I do not fault Mitchell for questioning and indeed challenging the advice and recommendations of the healthcare professionals at Sunnyside.

30However, I do not think it appropriate that either Mitchell or Raymond be appointed Helen’s guardian for personal care to the exclusion of the other.

31I am satisfied that Helen is incapable of making personal care and health care decisions for herself. Although Mitchell expresses concern about some aspects of Helen’s present care, the absence of any medical evidence that her health care needs are not being met is a telling omission. I conclude that there is no such evidence because Helen’s health care needs are being appropriately addressed. Sunnyside is where Ted decided Helen should reside. On the evidence before me there is no reason for her to be moved to another facility.

32In my view it is appropriate for Mitchell and Raymond to be appointed guardians for personal care for Helen. I assume both will consent to that appointment but if I am wrong and only one consents, then he shall be the sole guardian of personal care for Helen.

33I am of the view that it is appropriate to provide directions with respect to the conflicting Emergency Care Plans. The evidence before me, which is not disputed, is that Ted chose Option A when he was making decisions regarding Helen’s care. I therefore think it appropriate that Option A be the Emergency Care Plan to be provided to Sunnyside with respect to Helen’s care.

Costs of the Public Guardian and Trustee

34At the request of the Public Guardian and Trustee the following paragraph shall be included in the formal Order:

THE COURT ORDERS THAT the Public Guardian and Trustee’s fee for reviewing this application, as approved by the Attorney General in the amount of $250.00 plus HST $32.50 shall be paid to the Public Guardian and Trustee from the property of Helen Mary White.

Disposition

35For the foregoing reasons:

a) the application to terminate the Enduring and Continuing Power of Attorney dated March 24, 1994 and appointing Mitchell White as guardian of the property of Helen Mary White is dismissed;

b) Mitchell White and Raymond White are jointly appointed guardians of the person of Helen Mary White;

c) Option A of the Emergency Care Plan for Helen Mary White shall be the operative option and Sunnyside Home Long Term Care shall be instructed accordingly.

Costs

36It seems to me that counsel should be able to agree on the appropriate disposition for costs of the applications. If however, counsel are unable to agree on the appropriate disposition as to costs they may make written submissions. Brief written submissions, not to exceed three pages in length exclusive of a Bill of Costs and Costs Outline may be submitted within 28 days of the release of this these Reasons.