COURT FILE NO. 6/16
DATE: 20191230
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
The Public Guardian and Trustee
Applicant
– and –
Erin Kelly, Alex Vincent Kelly and Ruth Downham
Respondents
Dermot Moore, for the applicant
Alvin Schiek for the respondent Erin Kelly
Alex Vincent Kelly and Ruth Downham, in person
Heard: May 14, 2019
Bale J.:
[1] In February 2016, I found Erin Kelly to be incapable of managing both property and personal care, and made an order appointing the Public Guardian and Trustee as her interim guardian. While I had expressed hope that the parties would be able to come to an agreement following the interim order, I am now advised that Erin’s father, Alex Kelly, has, in the interim, brought more than a dozen motions, including contempt motions against counsel for Erin, counsel for the PGT, and a lawyer for Toronto Western hospital, and a motion requesting a police investigation, all of which motions were dismissed. He continues to oppose the application.
[2] At the time of the motion for interim guardianship, Erin was twenty-three years old and had been living in the neurology ward at Toronto Western Hospital for approximately two years. She has a developmental disability, and suffers from myoclonic-astatic epilepsy, also known as “Doose Syndrome.” The disease causes “drop seizures” which are losses of consciousness and motor control that happen without warning and can result in serious head and facial injuries.
[3] The hospital, and Mr. Kelly, agreed that Erin was not receiving the care and treatment she required, but as a result of a rift that had developed between Mr. Kelly and the University Health Network, they were unable to move forward. At that point, the PGT became involved.
[4] The interim order included a provision permitting the PGT to consent on Erin’s behalf to placement at a facility operated by the Reena Foundation. Mr. Kelly objected to the placement because he had not been involved in the process that resulted in the recommendation of the Reena placement, and because Reena is a Jewish organization – he and his daughter are Christians. Shortly following the making of the interim order, Erin was moved to Reena with the result that I now have several years of her experience at Reena to guide me in disposing of the PGT’s application.
[5] Mr. Kelly continues to oppose the application and argues that he should be Erin’s guardian. The PGT, while being the guardian of last resort, argues that it is not in Erin’s best interests that her father be appointed. In doing so, the PGT raises a number of legitimate concerns. The question for the court is whether those concerns are such that the continued intervention of the PGT is required.
[6] The PGT’s first concern is that Mr. Kelly disagrees with the treatment plan employed by Erin’s medical team, and in particular, the use of Vagal Nerve Stimulation treatment.
[7] VNS treatment was recommended by Erin’s neurosurgeon, Dr. Valiante, in whose opinion VNS is the best course of action. Erin’s neurologist, Dr. Andrade, concurs “absolutely” and recommends that it continue indefinitely. There is no evidence to the contrary.
[8] However, in an addendum to his management plan, Mr. Kelly says that VNS treatment is causing Erin to have seizures, and in his affidavit sworn April 23, 2019, he says:
The TWH (Toronto Western Hospital) took advantage of the PGT who has NO knowledge on Erin enough to make informed treatment decisions, has wrongly allowed TWH to have restarted the VNS implant that the neurology team knows has failed Erin, and that the VNS has made her seizures and overall health worse … .
[9] Mr. Kelly has a number of other disputes with Erin’s health care team including her diet, and the type of helmet she should wear to guard against head injury.
[10] When asked on cross-examination whether he would discontinue the VNS treatment if he were appointed guardian, Mr. Kelly responded that he did not agree with VNS based upon historical information, but that he did not have sufficient current information to provide an informed response to the question.
[11] None-the-less, based upon Mr. Kelly’s opposition to VNS, the PGT is concerned that Mr. Kelly would, if appointed guardian, interfere with Erin’s treatment.
[12] The PGT’s second concern is that Mr. Kelly continues to disapprove of Erin’s placement at Reena. In his management plan, Mr. Kelly says that Reena is not the right placement for Erin, and in his affidavit sworn April 23, 2019, he says that the PGT and Erin’s lawyer have harassed him and Ruth because of their shared opinion that Reena is not the correct placement. In a long letter dated March 13, 2019 to Erin’s lawyer, Alvin Schiek, Mr. Kelly says such things as Reena (a place he apparently has never visited) “reeks of hate”, and that “the aloofness and terseness and emptiness of their promises/commitments is hate-filled emptiness that both feels and kneads like a cold slap of the soul with a steel beam flecked with barbs.”
[13] Karen McDuffie is a Treatment Decision Consultant employed with the Office of the Public Guardian and Trustee and is assigned Erin’s personal care guardianship. At Ms. McDuffie’s request, Erin was assessed in March of this year by a psychologist, Brandie Stevenson. Ms. Stevenson found Erin to be “bright and easily engaged.” “She spoke about her participation in various activities at Reena (e.g. swimming, hanging out with friends, community involvement etc.). She was proud to show off her apartment and spoke highly of staff and her housemate whom she refers to as her sister.” Ms. Stevenson’s resulting opinion is as follows:
Reena has been able to provide Ms. Kelly with a supportive living environment that not only is able to care for and assist her with her medical needs, Reena provides her with social engagement, functional activities, promotion of life skills, and opportunities for personal growth. Ms. Kelly appears genuinely happy in her Reena environment and does not appear to be suffering from any major mood disorder. It is possible that her seizure disorder and medications cause her increased sleepiness which may impact her ability and willingness to participate in activities she would otherwise find enjoyable. Regardless, her overall quality of life appears good and she appears happy. At this time, I do not believe that she requires any additional clinical intervention and should continue to work with Ms. Henderson. At the time of this consultation, Ms. Kelly did not appear to be at risk of suicidal behaviours.
At this time, I would recommend that Ms. Kelly continue to reside under the care of Reena where she will continue to develop life skills, social relationships and receive support and care for her medical conditions.
[14] Erin’s counsel agrees that it would be a “terrible loss”, if Erin were to lose the benefit of living in a facility such as Reena.
[15] Having reviewed the evidence filed on the application, and having considered the submissions of all parties, I am satisfied that Erin is doing exceedingly well, and that there is no basis upon which to doubt the appropriateness of her placement at Reena or her medical treatment.
[16] Although he is opposed to Erin’s placement, her treatment, and other aspects of her care, Mr. Kelly says that if appointed guardian, he would not seek to remove her from Reena, and would follow the recommendations of her medical team. While I believe that Mr. Kelly is motivated solely by love for his daughter and has her best interests in mind, I am unable to reconcile his fervent opposition to her medical treatment and placement, with his pledge not to interfere. I see no benefit to changing Erin’s guardianship at this time, and despite his best intentions, I am concerned that if appointed, Mr. Kelly would interfere with the care that I find to be in her best interests.
[17] There is no real issue relating to the PGT’s management of Erin’s property. Her only sources of income are an ODSP allowance and a small Ontario Trillium benefit, the total of which is approximately $1,170 per month. From that amount, the PGT pays rent to Reena of $1,021 and the balance is used to pay for drugs and a top-up of Erin’s allowance. Erin also receives Passport funding which goes directly to Reena to cover day-programming provided to her. I have reviewed the accounts provided by the PGT and see no difficulty with the management of her funds by either the PGT or Reena.
Disposition
[18] For the reasons given, I am satisfied that the Public Guardian and Trustee remains in the best position to manage both Erin’s personal care and her property and ask that counsel for the PGT serve and file a draft judgment for my consideration. If Mr. Kelly or Erin’s counsel have any comments concerning the draft, they may deliver them to monica.mayer@ontario.ca, within 20 days following service.
“Bale J.”
Released: December 30, 2019
COURT FILE NO. 6/16
DATE: 20191230
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
The Public Guardian and Trustee
Applicant
– and –
Erin Kelly, Alex Vincent Kelly and Ruth Downham
Respondents
JUDGMENT
Bale J.
Released: December 30, 2019