Court File and Parties

BARRIE COURT FILE NOS.: CV-15-0277-ES and CV-19-0238 DATE: 20190607 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: COURT FILE NO. CV-15-0277-ES Derrick Kwok Applicant/Moving Party – and – Jiefu Kwok, Ellie Kwong and The Office of the Public Guardian and Trustee Respondents

Counsel: Rick Bickhram, for the Applicant/Moving Party, Derrick Kwok Jiefu Kwok, In Person Wayne Leacock, for the Respondent, Ellie Kwong Mary Phan, for the Respondent, The Office of the Public Guardian and Trustee

AND BETWEEN: COURT FILE NO. CV-19-0238 Ellie Kwong Applicant – and – Jiefu Kwok and The Office of the Public Guardian and Trustee Respondents

Counsel: Wayne Leacock, for the Applicant, Ellie Kwong Jiefu Kwok, In Person Mary Phan, for the Respondent, The Office of the Public Guardian and Trustee

HEARD: June 4, 2019

Reasons for Decision

CHARNEY J.:

Introduction

[1] This proceeding involves two related applications. The first is brought by the applicant, Derrick Kwok, for an Order to terminate his appointment as guardian for property and guardian of the person for the respondent, Jiefu Kwok.

[2] The second application is brought by Ellie Kwong, to be appointed as guardian for the property and guardian of the person for the respondent, Jiefu Kwok.

Facts

[3] On February 22, 2011, the respondent, Jiefu Kwok, was involved in two serious motor vehicle accidents. As a result of these accidents, Jiefu Kwok suffered a traumatic brain injury, which led to him being permanently unemployable.

[4] In 2012, Jiefu Kwok, through his litigation guardian, commenced two actions in relation to the motor vehicle accidents. A capacity assessment was requested by Jiefu Kwok’s litigation counsel to determine whether Jiefu Kwok was capable of managing his own property and his personal care.

[5] The capacity assessment was conducted by Dr. Graham Turrall on August 6, 2014. Dr. Turrall assessed Jiefu Kwok to be incapable of personally taking care of himself regarding his health care, nutrition, shelter, clothing, hygiene, and safety, and assessed Jiefu Kwok to be incapable of managing his property.

[6] After the capacity assessment, Derrick Kwok, Jiefu Kwok’s only child, agreed to take the responsibility as his father’s guardian for property and personal care. In 2014 Derrick Kwok commenced an Application to the Court seeking a declaration that Jiefu Kwok was incapable of managing his property and personal care and seeking to be appointed as the guardian of property and of the person for Jiefu Kwok.

[7] On April 7, 2015, the Court issued a judgment declaring Jiefu Kwok incapable of managing his property and his personal care with respect to health care, nutrition, shelter, clothing hygiene and safety, and appointing Derrick Kwok as guardian of property and guardian of the person for Jiefu Kwok.

[8] On June 5, 2017, Jiefu Kwok’s lawsuit in relation to the 2011 motor vehicle accident was settled and the Management Plan was amended to reflect the structured settlement.

Present Applications

[9] Derrick Kwok has filed an affidavit in the present application in which he indicates that his relationship with Jiefu Kwok has become strained due to Jiefu Kwok’s mental health, and as a result he is now having difficulties trying to manage his father and his father’s financial affairs. Jiefu Kwok has difficulty remembering things, is not capable of understanding abstract concepts, and becomes abusive when he does not get his way. Derrick Kwok is fearful that his father will one day become violent and physically attack him. When they have disagreements, Jiefu Kwok invokes his status as the father. Derrick Kwok is finding it harder and harder to act as his father’s guardian and is having difficulty carrying out his obligations. Accordingly, he has applied to be released from his obligation as the guardian of property and personal care for his father.

[10] Ellie Kwong has brought an application to be appointed as Jiefu Kwok’s guardian of property and personal care in place of Derrick Kwok. Derrick Kwok supports his mother’s application.

[11] Ellie Kwong and Jiefu Kwok were married in 1987, and separated in 2008, but have not divorced. Even though they are separated, Jiefu Kwok spends his weekends (Friday to Sunday) at Ellie Kwong’s residence. During the weekdays, Jiefu Kwok lives at his residence which is being held in trust for his benefit by Derrick Kwok.

[12] Ellie Kwong’s affidavit states that Jiefu Kwok is still not able to identify appropriate foods to ensure an adequate nutritional diet and does not understand the medications he has to take and what they are for. He has a continuing need for help with most hygiene activities and requires help entering the shower.

[13] Ellie Kwong retired from her position as a Case Worker with the City of Toronto in January, 2019, and will be able to devote her time to act as Jiefu Kwok’s guardian for property and personal care. She has filed a management plan and guardianship plan that was developed in consultation with Derrick Kwok, her legal counsel and Jiefu Kwok.

[14] Ellie Kwong has consulted with Jiefu Kwok about this application as required by s. 70(1)(c) and (2)(c) of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (SDA). These provisions provide:

70 (1) An application to appoint a guardian of property shall be accompanied by, (c) a statement signed by the applicant, (i) indicating that the person alleged to be incapable has been informed of the nature of the application and the right to oppose the application, and describing the manner in which the person was informed.

(2) An application to appoint a guardian of the person shall be accompanied by, (c) a statement signed by the applicant, (i) indicating that the person alleged to be incapable has been informed of the nature of the application and the right to oppose the application, and describing the manner in which the person was informed.

[15] Jiefu Kwok appeared in Court when this application was heard. Counsel for Derrick Kwok proposed that Jiefu Kwok be given an opportunity to address the court to state his position on the applications. Counsel for the Public Guardian and Trustee indicated that she had no objection to Jiefu Kwok speaking on his own behalf.

[16] I asked Jiefu Kwok whether he had any position with respect to Derrick Kwok’s application to be removed as his guardian and Ellie Kwong’s application to be appointed as his guardian. Jiefu Kwok replied that “Ellie is OK with me. She takes care of me.”

[17] Finally, counsel for Derrick Kwok filed, on consent of all parties, a letter from Dr. Robert Kwan, dated May 24, 2019. Dr. Kwan indicates that he has been Jiefu Kwok’s primary care physician since 2006, and confirms that the traumatic brain injury suffered by Jiefu Kwok in 2011 has had a “devastating effect” on him and has “left significant residual deficits in his higher cortical functioning”. He concludes: “This physician, based on his experience and assessment of [Jiefu Kwok] would not recommend that any matter pertaining to responsibility and judgment be turned over to Mr. Kwok to independently manage…This gentleman will need, long term, a competent individual to oversee and manage his activities especially those pertaining to financial and legal matters”.

[18] While Dr. Kwan is not a qualified assessor under the SDA, his letter is evidence that there has been no change to Jiefu Kwok’s condition since the assessment in 2014. Dr. Kwan’s letter also corroborates the capacity concerns expressed by Derrick Kwok and Ellie Kwong in their respective affidavits.

Position of the Public Guardian and Trustee – Appointment of Legal Representation

[19] The Public Guardian and Trustee takes no position on Derrick Kwok’s application to have his appointment as guardian terminated. The Public Guardian and Trustee takes the position, however, that before Ellie Kwong is appointed in Derrick Kwok’s place, the Court should order that counsel be appointed to represent Jiefu Kwok and ascertain his wishes in this matter in accordance with s. 3 of the SDA, which provides:

3 (1) If the capacity of a person who does not have legal representation is in issue in a proceeding under this Act, (a) the court may direct that the Public Guardian and Trustee arrange for legal representation to be provided for the person; and (b) the person shall be deemed to have capacity to retain and instruct counsel.

[20] Counsel for the Public Guardian and Trustee takes the position that the 2014 capacity assessment of Jiefu Kwok is dated, and that he might have improved, such that a more limited guardianship might be appropriate, in particular, with respect to the application for guardianship of the person. As such, the Court, out of an abundance of caution, should direct the Public Guardian and Trustee to arrange for legal representation to ascertain Jiefu Kwok’s position on this matter.

[21] Counsel for the Public Guardian and Trustee also points to portions of Derrick Kwok’s affidavit where he indicates that his father “does not accept that he is not capable of taking care of himself or his finances” and wants to “regain control over his finances”. Counsel argues that these statements might indicate Jiefu Kwok’s opposition to the present application.

[22] Counsel for both of the applicants oppose the appointment of legal representation for Jiefu Kwok. They argue that s. 3 is intended to apply in cases where capacity is an issue, in other words, cases where there has not already been an assessment of incapacity by a qualified assessor and a court order finding the person to be incapable. In this case, however, capacity is not an issue; there has already been an assessment and a court order finding Jiefu Kwok to be incapable of managing his property and his personal care with respect to health care, nutrition, shelter, clothing hygiene and safety. Given this court order, Jiefu Kwok cannot be “deemed to have capacity to retain and instruct counsel” as required by s. 3(1)(b) of the SDA.

[23] The applicants argue that although the Public Guardian and Trustee has attempted to make Jiefu Kwok’s capacity an issue, it has provided no evidence to support its position. The suggestion that Jiefu Kwok’s condition may have improved since his 2014 capacity assessment is speculative and contrary to the uncontroverted evidence of Dr. Kwan.

[24] Moreover, they argue, to the extent that the court wants to know Jiefu Kwok’s position on this application, he was present in court throughout these proceedings and indicated his consent to Ellie Kwong’s application to be appointed as his guardian.

[25] The primary reason for the applicants’ opposition to the appointment of counsel is the potential cost. Costs of counsel appointed under s. 3 must be paid by Jiefu Kwok pursuant to s. 3(2) of the SDA. Counsel for the Public Guardian and Trustee was not sure how much s. 3 counsel would cost, but acknowledged that it could be as much as $10,000. The applicants consider this to be an unnecessary expense in the circumstance of this case.

Analysis

[26] Counsel for the Public Guardian and Trustee relies on the decision of Raikes J. in Sylvester v. Britton, 2018 ONSC 6620. This case concerned a daughter’s application under the SDA, to be appointed guardian of the property and person of her mother, who was 89 years old and suffering from dementia arising from Alzheimer’s disease. One of the issues was the mother’s capacity to instruct legal counsel appointed under s. 3 of the SDA. The applicant brought a motion calling into question the capacity of her mother to instruct counsel arranged for her by the Office of the Public Guardian and Trustee under s. 3.

[27] In that decision Raikes J. concluded that the fact that the mother was suffering from dementia did not necessarily preclude her from instructing her legal counsel and making her wishes known. He stated, at paras. 71-72:

I do not agree that because there has been a finding of incapacity to manage property and finances, a party is necessarily incapable of providing instructions to counsel on all matters in issue in litigation. A person may be capable for one task yet incapable for another. The nature of the issues in the litigation will vary in complexity. A person with dementia may have very strong views as to where he or she wishes to live and which of his or her children or family members he or she wants to make decisions for them. Such determinations are based on a lifetime of experience and interactions which may be unaffected by the disease.

Dementia is an insidious and terrible disease. It does not, however, follow a uniform timetable or pattern for every person. In my view, it is inappropriate to apply a blanket rule that if a person is incapable of managing their property and finances, they are incapable of instructing counsel regardless of the nature of the issue. The determination of capacity to instruct is best made by counsel cognizant of the matters in issue and his or her responsibilities to the client and court.

[28] Counsel for the applicants relies on Miziolek v. Miziolek, 2018 ONSC 2841, which concerned the appointment of a lawyer under s. 3 of the SDA. In that case, Goodman J. stated, at para. 13:

The role of a Section 3 Counsel is to obtain instructions from the person whose capacity is in issue and absent instructions, counsel is not to act. Section 3 Counsel is not to take on the role of a Litigation Guardian.

[29] In Miziolek, Goodman J. rejected the appointment of s. 3 counsel, stating (at para. 30): “given the specific litigation as presently framed, I am persuaded that there is no beneficial role that Section 3 Counsel … could advance as advocated by the applicant”. He concluded, at para. 36:

[I]n this specific case, given the discrete issues at play, I am not convinced that the appointment of Section 3 counsel will be in Lynda’s best interests. I am persuaded that, based on Dr. Sadavoy’s thorough and detailed assessment, an appointment of s. 3 counsel will not only be ineffective at this stage of the proceedings, but would be a waste of resources and expense; and will not assist in advancing the litigation between Alexandra and Elizabeth to its eventual resolution.

[30] Section 3 of the SDA does not make the appointment of legal representation mandatory, and the Court must assess the specific facts and legal issues in deciding whether such appointment is appropriate in a specific case.

[31] I accept the position of the Public Guardian and Trustee that the appointment of legal representation in such cases is an important safeguard to protect the dignity, privacy and legal rights of persons alleged to be incapable: see Abrams v. Abrams, at paras. 48 and 49.

[32] I also accept the position of the Public Guardian and Trustee that the court has the authority to appoint legal representation even in cases in which there has already been a capacity assessment or a court order declaring a person to be incapable.

[33] In this case, however, it is my view that the appointment of s. 3 counsel will not be in Jiefu Kwok’s best interests and would be a waste of resources. I make this finding for the following reasons:

a. Firstly, this is not a case in which there is any dispute between Jiefu Kwok’s only relatives as to who should act as his guardian for property and personal care. Both his spouse, Ellie Kwong, and his son, Derrick Kwok, are in agreement that Ellie Kwong should be appointed as his guardian. There are simply no competing claims that require legal representation to determine which side Jiefu Kwok would support. In this regard, this case is very different than the Sylvester case, which involved a dispute among children regarding the care of their mother. b. There is no real evidentiary basis to question the continued validity of the 2014 assessment by Dr. Turrall. I agree with counsel for Derrick Kwok that the Public Guardian and Trustee has taken certain statements in Derrick’s affidavit out of context to suggest that they support the contention that Jiefu Kwok’s condition has improved since the 2014 assessment. Taken in context, these statements indicate that his condition and behaviour has become more difficult. c. Dr. Kwan’s evidence confirms that Jiefu Kwok’s condition has not improved since the 2014 assessment. d. The 2014 assessment led to the April 7, 2015, court judgment declaring Jiefu Kwok incapable of managing his property and his personal care with respect to health care, nutrition, shelter, clothing hygiene and safety. The order requested by Ellie Kwong maintains this status quo. e. In this case, Jiefu Kwok attended court and, to the extent that he is capable of expressing his wishes, stated unequivocally that he supported the appointment of Ellie Kwong as his guardian.

[34] Taking all of these factors together, I am of the view that the appointment of legal representation under s. 3 of the SDA is not appropriate or necessary in this case.

Conclusion

[35] Based on these considerations, this Court order that,

a. the application of Derrick Kwok for an Order to terminate his appointment as guardian for property and guardian of the person for the Respondent, Jiefu Kwok, is allowed; and, b. the application of Ellie Kwong for an Order appointing her as guardian for the property and guardian of the person for the Respondent, Jiefu Kwok is allowed.

[36] Counsel for the applicants have requested that costs of this application be payable from the assets of Jiefu Kwok, but have not made submissions regarding the quantum. Counsel may file submissions with regard to costs within 10 days of the release of this decision. These submissions are limited to two pages plus a costs outline.

[37] I have reviewed the draft Order prepared by counsel for Ellie Kwong, and will sign it once costs are fixed.

Justice R.E. Charney Released: June 7, 2019

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Derrick Kwok Applicant/Moving Party – and – Jiefu Kwok, Ellie Kwong and The Office of the Public Guardian and Trustee Respondents

AND BETWEEN: Ellie Kwong Applicant – and – Jiefu Kwok and The Office of the Public Guardian and Trustee Respondents

REASONS FOR DECISION Justice R.E. Charney Released: June 7, 2019