COURT FILE NO.: CV-17-5515 DATE: 2018 09 13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: WENDY CRANE – and – LESLY METZGER, and, NIGEL CASON, and, THE PUBLIC GUARDIAN AND TRUSTEE
BEFORE: Lemon J.
COUNSEL: Wendy Crane, the Applicant, on her own behalf Shawn Campbell, for the Respondents, Lesly Metzger and Nigel Cason
HEARD: August 23, 2018, in Brampton
E N D O R S E M E N T
The Issue
1Ms. Crane seeks an order declaring her mother, Lesly Metzger, incapable of managing her property and appointing Ms. Crane as sole permanent guardian of property and of the person of Mrs. Metzger.
2Ms. Crane also seeks the removal of Mr. Cason, her uncle, as attorney for the personal care and property management of Mrs. Metzger. Mr. Cason presently acts pursuant to a power of attorney executed by Mrs. Metzger.
3Ms. Crane and Mr. Cason agree, following the completion of two separate assessments, that Mrs. Metzger is presently incapable of managing her property or person. There is no suggestion that she was incapable when she appointed Mr. Cason as her guardian of property and person.
4Mr. Cason denies that he has acted improperly, and, in any event, any allegations against him do not rise to the level necessary in law for him to be removed as Mrs. Metzger’s attorney.
5The Public Guardian and Trustee was served with the materials. Through correspondence to the parties, an agent of the PGT advised that it “does not take a position on the validity of the Powers of Attorney or whether they ought to be terminated.”
6At the end of argument, I advised the parties that I would be dismissing the application for reasons to follow.
7These are those reasons.
Authorities
8In Teffer v. Schaefers (2008), 93 O.R. (3d) 447 (S.C.), Fragomeni J. said:
21In Glen v. Brennan, the court states, at para. 9:
The courts have generally taken the view that a written power of attorney executed by the donor at a time when he was apparently of sound mind (and there is nothing in the material to suggest otherwise) is simpler to deal with and gives the donee more flexibility in dealing on behalf of the donor. Also favouring a continuation of the appointment respects the wishes of the person who made the grant. Chief Justice Hickman of the Newfoundland Supreme Court Trial Division in the case of Re Hammond Estate said:
There must be strong and compelling evidence of misconduct or neglect on the part of the donee duly appointed under an enduring power of attorney before a court should ignore the clear wishes of the donor and terminate such power of attorney.
22In Hammond (Re), the court states, at paras. 25, 31 and 33, as follows:
A preference expressed by a person in anticipation of becoming mentally incompetent is particularly important, and should be respected unless this would clearly not be in the person's best interests. The expression of such a preference might take the form of statements to friends and relatives, and arguably is implicit in the grant of a general power of attorney prior to becoming incompetent." [Citations omitted.]
9Fragomeni J. then outlines two considerations at paras. 24–25 in determining whether to terminate a power of attorney:
There must be strong and compelling evidence of misconduct or neglect on the part of the attorney before a court should ignore the clear wishes of the donor; and
The court must be of the opinion that the best interests of an incapable person are not being served by the attorney.
Background
10This is a dispute over the control of the property and personal care of Lesly Metzger, who is a mentally incapable person under the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “Act”).
11Mrs. Metzger is 84 and has vascular dementia. Her estate is valued at $700,000.00. She is currently in a long-term care home, Grace Manor, operated by Holland Christian Homes.
12Ms. Crane is Mrs. Metzger’s daughter. Mr. Cason is Mrs. Metzger’s brother. Mr. Cason was appointed under a continuing power of attorney for Mrs. Metzger’s property and personal care. That document was executed on November 22, 2013.
13In April of 2016, Mrs. Metzger was hospitalized and Mr. Cason commenced his duties as Ms. Metzger’s attorney under the power of attorney for property and personal care. In September of 2016, Mrs. Metzger was assessed and found incapable. Later that month, Ms. Crane arranged another assessment. Again, Mrs. Metzger was found incapable.
Positions of the Parties
14In her original application, Ms. Crane was represented and sought several orders naming her as her mother’s sole permanent guardian of property and personal care. In her supplementary affidavit, she added requests for a capacity test of Mr. Cason, a complete audit of Lesly Metzger’s finances, and “transparency of Lesly Metzger’s medical records.”
15Ms. Crane has advanced a lengthy list of grievances about Mr. Cason’s handling of her mother’s care and finances, stating that he has not acted in Ms. Metzger’s best interests.
16Ms. Crane argues that Mrs. Metzger’s current care situation is below her previous standard of living and lifestyle. She believes that her mother’s current care home is substandard and does not suit her advanced needs.
17Ms. Crane also argues that Mr. Cason is not adequately consulting Ms. Crane about decisions regarding her mother, and accuses him of liquidating her assets. She also accuses him of being inaccessible and unconcerned with providing proper care. Ms. Crane wishes that her mother be able to access her money in order to enjoy things like theatre, concerts, shopping, dining out, and other activities.
18Mr. Cason responds that Ms. Crane has behaved recklessly with regard to her mother’s care, and views her mother’s assets as her own. He submits that he has been a prudent manager of Mrs. Metzger’s property and personal care.
19Further, Mr. Cason argues that the court should dismiss the application with costs. Under s. 39(3) of the Act, Ms. Crane requires leave of the court to apply to become an incapable person’s guardian. She has also failed to file a management plan or post a security bond.
20Mr. Cason also submits that the court may revoke a continuing power of attorney, but when considering whether to do so, the court must have strong and compelling evidence of misconduct or neglect, and should not ignore the clear wishes of the donor. The court must consider the best interests of the incapable person. Even in the face of some misconduct, the test for removal of a continuing power of attorney requires the court to find that the attorney is not acting in the donor’s best interests.
Analysis
The Record
21I only have the affidavits and the arguments of the parties. Ms. Crane has filed two affidavits of her own, an affidavit of a care giver to Mrs. Metzger, and an affidavit from one of her two sisters. Mr. Cason has filed two affidavits of his own and an affidavit of Ms. Crane’s other sister.
22At the outset of the hearing, I confirmed with the parties that they were ready to proceed and did not want an adjournment to file any other material. No cross-examination has occurred on any of the affidavits. All are full of hearsay allegations and unsworn letters or statements. There are a number of disgraceful emails and Facebook posts. There are allegations and denials by both Ms. Crane and Mr. Cason. While Mr. Cason has responded to most, Ms. Crane has not. She has been unrepresented since filing her application. It may be that she is not aware of the significance of failing to respond to Mr. Cason’s evidence. I do not believe that it is necessary to find an adverse inference against her on that basis.
23Normally, it is impossible to determine credibility without the in person evidence of the parties along with cross-examination. Here, however, for reasons set out below, reliable evidence has damaged Ms. Crane’s credibility such that she cannot meet her burden of proving, on a balance of probabilities, misconduct or neglect on the part of Mr. Cason or that it is clearly in the best interests of Mrs. Metzger to remove Mr. Cason as her attorney.
Procedural Issues
24Mr. Cason raises two procedural issues.
25First, he submits that Ms. Crane requires leave to bring this application pursuant to s. 39(3) of the Act. He points out that she has failed to ask for that leave in her materials. For that reason, the application should be dismissed.
26In my view, dismissing the application on that basis would not be a satisfactory end to the dispute; the parties need a resolution on the merits rather than on a technical point. If necessary, I grant leave to bring the application, but, as I have said, the application is then dismissed for the reasons below.
27Second, he points out that for Ms. Crane to be appointed as Mrs. Metzger’s attorney, she must file a management plan with respect to Mrs. Metzger’s funds. She is also required to post a security bond subject to the presiding judge’s discretion. Ms. Crane was advised of this by the PGT in January of 2018, but she nonetheless failed to file a proper management plan or anything in regard to a bond. I agree that, for those reasons, Ms. Crane cannot be appointed the attorney.
28But the real issue between the parties remains as to whether Mr. Cason should be removed as Mrs. Metzger’s attorney.
Removal of Attorney
29As the applicant, Ms. Crane bears the onus of proving her allegations on a balance of probabilities. There are two events that make her position untenable.
Trip to Seattle
30Mr. Cason argues that Ms. Crane took Mrs. Metzger to Seattle from June 19–28, 2017, under the pretense of taking her to a cottage in Wasaga Beach. Mr. Cason further contends that Ms. Crane secured a passport for Mrs. Metzger under false pretenses, which was then revoked by Passport Canada.
31It is to be remembered that Ms. Crane had Mrs. Metzger assessed and found to be incapable in September 2016. Ms. Crane’s has filed her sister’s affidavit in support of her claim. It sets out that:
Before going in for my cancer surgery, I asked if Wendy could bring my mother to visit me in Seattle, and after getting clearance from Dr. Varageuse (Holland Christian Homes’ resident physician) for my mother to travel, I asked Nigel to allow this, and he forbade it without any reasonable explanation. This was very upsetting to my mother, and despite his objection, Wendy obtained my mother’s passport and made the weeklong trip with her on June 20, 2017.
32In Mr. Cason’s affidavit he sets out that he wanted Ms. Crane to provide proof that she had medical insurance for her mother to travel. He was concerned that her health would be imperiled by the trip. In my view, that request was entirely reasonable given her age and health. If she required medical assistance while in Seattle, the cost would have been significant. There is no evidence from Ms. Crane that she obtained such medical insurance.
33Mr. Cason has filed an email sent to him from Ms. Crane dated June 15, 2017. There, she asked to take Mrs. Metzger to a cottage in Wasaga Beach so that she could visit with her sister from Seattle. This was apparently to be instead of a trip to Seattle. Mr. Cason agreed to the visit as he thought it would be good for Mrs. Metzger. Instead, as confirmed by her sister’s affidavit, Ms. Crane took her mother to Seattle. This clearly shows that Ms. Crane cannot be trusted to properly care for Mrs. Metzger’s physical well-being.
34For my purposes, Ms. Crane’s material and the objective email confirm that Ms. Crane obtained her mother’s passport while she knew that Mrs. Metzger was incompetent. Ms. Crane’s affidavit includes correspondence from Citizenship and Immigration Canada revoking the passport because of Mrs. Metzger’s lack of capacity to apply for the passport.
35Looking only at the materials filed by Ms. Crane, it is clear that she is prepared to ignore the power of attorney, the truth and the law to get her way. That fundamentally destroys her evidence with respect to the balance of her case.
Bank Withdrawals
36Further, the objective record confirms that Ms. Crane took Mrs. Metzger to the bank in July of 2017 to withdraw funds while knowing that she was incompetent to do so even as far back as September of 2016. Indeed, when the withdrawals were brought to the attention of the bank, more than $10,000.00 was returned to the account by the bank. The bank agreed that they were at fault for allowing the withdrawal by Mrs. Metzger and Ms. Crane.
37There is no explanation in the record for those withdrawals. There is no explanation as to why Ms. Crane would think that she would have the authority to have those funds removed. Clearly, Ms. Crane cannot be trusted to deal with the financial welfare of Mrs. Metzger.
Other Concerns for Mrs. Metzger’s Care
38For those reasons, where there is a conflict between the evidence of the parties, I accept Mr. Cason’s evidence and reject that of Ms. Crane.
39On the whole of the evidence, it is obvious that the residence in which Mrs. Metzger is residing is not ideal. It appears that there have been failings by the residence staff. Sadly, that is the state of many of our institutions caring as best as they can for the sick and elderly. Mr. Cason cannot be faulted for their errors.
40Ms. Crane has made a number of complaints about the residence to the provincial authorities. Those investigations have been carried out. I have no doubt that the institution will be all the more vigilant with respect to Mrs. Metzger as a result of Ms. Crane’s complaints. However, Ms. Crane should not be surprised that her relationship with the residence staff might be strained.
41The record discloses that Mr. Cason is doing the best he can in the circumstances. He has no financial interest in the estate and he is not claiming any compensation for his duties. Mrs. Metzger’s accounts are in order and there is no evidence in this record to suggest any financial mismanagement by Mr. Cason. Indeed, as set out above, he has been able to rectify some of the mismanagement by Ms. Crane.
42Ms. Crane objects to the manner in which Mr. Cason pays or does not pay the expenses that she has claimed. From my review of the records, his decisions have been correct.
43I have no doubt that Mrs. Metzger benefits from the personal contact she has with Ms. Crane. Ms. Crane is to be credited for her continued dedication to her mother. However, she must learn to leave the decisions relating to her mother to Mr. Crane and stop involving her mother in whatever dispute they might have. Ms. Crane must also heed the warnings of Mrs. Metzger’s doctors and caregivers with respect to her health and diet.
44Based on these findings, Ms. Crane has failed to provide strong and compelling evidence of misconduct or neglect on the part of the attorney or that the best interests of Ms. Metzger required the removal of Mr. Cason as her attorney.
Result
45Accordingly, the application is dismissed and the powers of attorney appointing Mr. Cason remain in effect.
Costs
46If the parties cannot agree on costs, Mr. Cason shall provide his costs submissions within the next 15 days. Ms. Crane shall provide her responding submissions within 15 days thereafter. There shall be no reply submissions unless I ask for them.
47Each submission shall be no more than three pages, not including any Bills of Costs or Offers to Settle.
48Written submissions shall be forwarded to me at my office at the Superior Court Office, 74 Woolwich Street, Guelph, Ontario, N1H 3T9.
Lemon J.
DATE: September 13, 2018