Court File and Parties

COURT FILE NO.: 75736/18ES DATE: 20190429 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BMO TRUST COMPANY, in its capacity as Guardian of Property for Eileen Vera Childs / Applicant AND MICHAEL CHILDS, in his capacity as Litigation Guardian for Eileen Vera Childs / Respondent

BEFORE: Justice C.T. Hackland

COUNSEL: David Morgan Smith, Counsel for Michael Childs in his capacity as Litigation guardian for Eileen Vera Childs, the Applicant/Moving Party Peter Childs, Andrew Childs and Caroline Childs, in person

HEARD: April 9, 2019 (Ottawa)

Endorsement

[1] This motion for direction arises in the course of a passing of accounts in the estate of Eileen Vera Childs, an incapable person. Mrs. Childs, currently 92 years of age suffers from Alzheimer’s disease, and lives in her own home under the care of her daughter Caroline, who is her guardian for personal care. Mrs. Childs also has 3 sons Michael, Peter and Andrew Childs. Michael is her litigation guardian and jointly with Caroline, is also her guardian for personal care. Mrs. Childs’ guardian for property is BMO Trust Company.

[2] The above-noted guardianship appointments under the Substitute Decisions Act, 1992 were made by Tranmer J. of this court in a judgment dated December 16, 2015 and reported at 2015 ONSC 4036. There was a subsequent motion to vary the original order, with reasons for judgment reported at 2015 ONSC 6616. The original court order required BMO Trust to pass its accounts in respect of the administration of Mrs. Childs’ property for the period April 29, 2015 to June 25, 2017.

[3] The passing of accounts for this period has still not taken place, primarily because Justice Tranmer’s order appointing BMO Trust as property guardian and Michael Childs as litigation guardian was appealed by Peter and Caroline Childs to the Court of Appeal and subsequently Peter Childs sought leave to appeal from the order of the Court of Appeal to the Supreme Court of Canada, which was dismissed in May of 2018.

[4] Peter and Caroline Childs contended in the original trial of this application that they should have been appointed guardians of Mrs. Childs’ property. On appeal they attacked the conduct of the motions judge and of Michael Childs and BMO Trust Company as well as the professional conduct of counsel appointed under section 3 of the Substitute Decisions Act to represent Mrs. Childs. Their appeal to the Court of Appeal was rejected in reasons for judgment dated June 20, 2017, reported at 2017 ONCA 516, which I will refer to later in these reasons.

[5] In his Notice of Objection filed in the present passing of accounts Peter Childs again seeks to have BMO Trust Company removed as guardian of property, with that responsibility transferred to himself and his sister Caroline and an order removing Michael Childs as litigation guardian for the passing of accounts, to be replaced by himself (Peter Childs). In support of this relief he raises allegations of collusion, conspiracy and an alleged secret agreement between the litigation guardian and BMO Trust Company as guardian of property. He has filed no affidavit evidence in support of these extremely serious allegations. His brief affidavit simply identifies and attaches a number of documents filed in prior proceedings.

[6] The litigation guardian submits that Peter Childs is a vexatious litigant in these proceedings and is engaged in a bad faith attempt to re-litigate matters finally determined by the Court of Appeal. Peter Childs also seeks to put forward further argument and evidence which was or should have been put before the Court of Appeal. The so-called new evidence has not been put before the Court of Appeal and instead Peter Childs seeks to introduce it in this passing of accounts, which would amount to a collateral attack on the Court of Appeals’ prior decision.

[7] In my view, the litigation guardians’ position is correct and the arguments Peter Childs seeks to advance on this passing of accounts is an abuse of process which can only have the effect of turning what should be a simple accounting and oversight exercise into a lengthy and unproductive re-litigation of positions previously rejected by the court.

[8] I begin by quoting this important statement from the Court of Appeal’s reasons in this case, at para. 50:

[50] In our view, there is no merit to these appeals. They are the culmination of unnecessarily protracted litigation that has depleted Mrs. Childs’ estate, wreaked havoc on the emotional and financial health of all concerned, wrongfully maligned Section 3 Counsel, and wrongfully impugned the applications judge. It is past time for the litigation over Mrs. Childs to end.

Notwithstanding the Court of Appeal’s observations, Peter Childs then unsuccessfully sought leave to appeal to the Supreme Court of Canada. He filed his leave application in September of 2017 followed by two motions in the course of the leave application to admit fresh evidence in January and March of 2018. The application for leave to appeal to the Supreme Court sought to challenge the grounds for appointment for both the property guardian and the litigation guardian.

[9] Before the Court of Appeal, Peter and Caroline Childs sought to impugn the conduct of section 3 counsel and alleged bias and impropriety against the motions judge. The Court of Appeal held, at para 93 “On the record, both Section 3 Counsel and the applications judge discharged their professional obligations well and with patience, dignity and integrity”. The Court elaborated as follows:

[96] Of the many instances of alleged “misrepresentations” to the court, we will speak only to that concerning Section 3 Counsel’s conduct on the vary motion. Peter and Caroline’s position on this is untenable. All those at the vary motion, other than Caroline and Peter’s counsel, agreed that the June 2015 Letter was inconsistent with the guardianship plan that Caroline had presented on the Applications and that was the finding of the applications judge. The other alleged misrepresentations are nothing more than a difference of opinion on certain matters.

[98] The allegation of an improper relationship between Section 3 Counsel and BMO reflects another attempt by Caroline and Peter to circumvent an order to which they consented. The record demonstrates that Section 3 Counsel initially proposed that Michael engage BMO as guardian of property, but that Peter and Caroline asked Section 3 Counsel to undertake that task instead. Furthermore, as Section 3 Counsel points out, she had no personal or banking relationship with BMO. She engaged BMO on the parties’ consent and in compliance with Mrs. Childs’ expressed preference that a bank manage her money.

[99] There is absolutely no merit to the allegation that Section 3 Counsel prolonged the litigation in service of her own pecuniary interest. Section 3 Counsel demonstrated her commitment to protecting Mrs. Childs’ interests at all steps of the proceedings including by initiating settlement discussions, negotiating consent orders wherever possible, and attempting to resolve concerns raised by the June 2015 Letter without recourse to the courts.

[100] This ground of appeal is flatly rejected.

[10] On my review of the 21 page (90 paragraph) Notice of Objection filed by Peter Childs on this passing of accounts (Tab “D”, motion record), supported by his oral submissions on this motion, I am satisfied that he seeks primarily to re-litigate the appointment of BMO Trust Company as the property guardian of Mrs. Childs’ estate and to remove his brother Michael Childs as litigation guardian. He seeks in particular to impugn the conduct of Section 3 Counsel and that of BMO Trust Company on a variety of issues which he advanced before the original motion judge and before the Court of Appeal and which were found to have no merit.

[11] I accept the litigation guardian’s submission that the doctrine of abuse of process prevents a party to earlier litigation from re-litigating issues already decided against them in a prior proceeding. The leading case is Toronto (City) v. CUPE Local 79, 2003 SCC 63, [2003] 3 SCR 77. The Supreme Court of Canada stated at para. 23:

Issue estoppel is a branch of res judicata …which precludes the relitigation of issues previously decided in another court proceeding. For issue estoppel to be successfully invoked, three preconditions must be met: (1) the issue must be the same as the one decided in the prior decision, (2) the prior judicial decision must have been final, and (3) the parties to both proceedings must be the same…

[12] I would also observe that Peter Childs and Caroline Childs have no standing as of right to participate in this passing of accounts. Mrs. Childs’ interests are represented by her litigation guardian Michael Childs. While the four Childs siblings are residuary beneficiaries under Mrs. Childs’ will and her will is unlikely to be changed given her status as an incapable person, a will speaks from the time of death and as of the present time Mrs. Childs’ children have an expectation interest only. I would acknowledge that in many cases it will be in the interests of the incapable person that one or more of her children be accorded standing in a passing of accounts. I can see no such interest when the child and future beneficiary of the incapable person wishes to put forward vexatious arguments that can only cause family strife, further delay and expense and which will dissipate Mrs. Childs’ assets, which she may well need for her health care and well-being over the balance of her life.

[13] It is also intolerable that a person appearing in a proceeding such as this can be permitted to put forward allegations of conspiracy, an undisclosed litigation agreement, criminality and breach of trust without a shred of evidence to support such allegations and without providing an affidavit setting out these allegations.

[14] In summary, for the foregoing reasons I exercise my discretion to refuse Peter Childs leave to participate in this passing of accounts and I order that his Notice of Objection to Accounts be struck from the record in this proceeding.

[15] As further evidence of Peter Childs’ vexatious conduct he has purported to file a motion for leave to appeal this court’s procedural order directing that this motion for directions take place. The purpose of this motion for directions is to determine issues of standing and whether the appointments of BMO Trust Company as property guardian and Michael Childs as litigation guardian are proper issues to address in this passing of accounts. This 18 page motion for leave to appeal seeks my removal for alleged bias, a stay of the passing of accounts, an order to produce transcripts of a case conference and a further attack on the property guardians’ handling of several issues that were or could have been argued in the Court of Appeal. Notwithstanding this Peter Childs did not ask for an adjournment of the current motion for directions, nor did he raise the issue of bias. He instead complained of delays in the passing of accounts caused by his various appeals and repeated his scandalous and vexatious allegations against the guardian of property.

[16] There is then the issue of the Notice of Objection filed by Caroline Childs and her standing to participate in the passing of accounts. Caroline Childs is Mrs. Childs’ guardian for personal care and she and Mrs. Childs reside together in Mrs. Childs’ home. I think it is very important, given the nature and closeness of her relationship with the incapable person that Caroline should have standing at this passing of accounts. I arrive at this conclusion with some hesitation in view of the observations of the original motion’s judge and the Court of Appeal about Caroline Childs’ interaction with the property guardian and her brother, the litigation guardian.

[17] Unfortunately Caroline Childs, in her Notice of Objection suggests BMO Trust is unfit to be her mother’s guardian of property on the basis of issues previously before the court and which have been the subject of previous final orders. One example is the issue of who should be in possession of Mrs. Childs’ stamp and coin collection. This issue was argued before Justice Tranmer and is the subject of a final court order. She also appears to seek to attack the actions or the accounts rendered by Section 3 Counsel, a matter argued previously before the Court of Appeal. The court will not engage in a collateral attack on the previous orders of the motion judge or the order of the Court of Appeal.

Disposition

[18] In summary, I order that Peter Childs will not be accorded standing in this passing of accounts on the basis that he is a vexatious litigant in this proceeding in that his primary objective is clearly to re-litigate issues which are the subject of previous final court orders. His Notice of Objection to Accounts will be struck from the record. Caroline Childs will be accorded standing in this passing of accounts but will not be permitted to re-litigate the appointment of BMO Trust Company as Mrs. Childs’ guardian of property or her brother Michael’s appointment as Mrs. Childs’ litigation guardian, nor matters which are the subject of final court orders or collateral attacks on such orders.

[19] At this time it is essential that the guardian of property (BMO Trust) proceed to file its response to the remaining Notices of Objections and a date set before me for the passing of accounts. If there is a perceived need for a further case conference to discuss and resolve any issues, this can be arranged on written request to the trial coordination office.

[20] If the litigation guardian wishes to seek costs of this motion for directions against Peter Childs he may do so within 14 days of the release of this endorsement and Peter Childs may respond within 14 days of being served with the litigation guardians’ costs submissions. These submissions shall not exceed 5 pages in length.

[21] I conclude with an expression of concern about the conduct of BMO Trust Company in regard to this motion. As guardian of property they are officers of the court. They failed to appear on the return of the motion, nor did they file materials, nor did they communicate with the court in any way. This is notwithstanding that my order of December 10, 2018 specifically made the litigation guardian a party to the motion and the bulk of the objections filed by Peter and Caroline Childs were misconduct allegations against BMO Trust Company.

[22] The guardian of property could have arranged to have the litigation guardian speak for them on the issues in this motion for directions but expressly refrained from doing so. Counsel for the litigation guardian, at the court’s request, produced a letter (Exh. 1) from BMO Trust’s counsel to counsel for the litigation guardian and to Peter, Caroline and Andrew Childs which stated “BMO Trust does not currently intend to take a position, file materials or attend on that motion”. The letter goes on:

BMO Trust’s intention not to attend does not indicate agreement with, acquiescence to, or ignoring of any of the arguments advanced or factual allegations made by any party. Rather, BMO Trust does not believe it can provide assistance to the Court on the return date which would justify the additional cost to Eileen Childs.

If ordered to defend Peter Childs’ and Caroline Childs’ objections, BMO Trust will take a very different approach, particularly concerning objections which are Res Judicata, objections alleging dishonesty and criminal behaviour, and other objections which are not within the proper ambit of objections on a passing.

[23] The difficulty with the property guardian’s position is that the purpose of this motion for directions is to decide what objections will be permitted to go forward at the passing of accounts. The time to take a position on these issues was at the return of this motion. It would have been of considerable assistance to the court to have the property guardian’s position on exactly what issues it asserts are res judicata. At least some written communication with the court was required. In any event, the issue of the property guardian’s non-participation in this motion can be re-visited in the context of fixing the property guardian’s compensation at the passing of accounts.

Justice C.T. Hackland Date: April 29, 2019