Court File and Parties
BARRIE COURT FILE NO.: CV-20-239-A1 DATE: 20200629 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ann Corbet, by her Attorney for Property Drude Corbet, Plaintiff AND: Damon Shawn Corbet and Carrie-Anne Nolan, also known as Carrie-Anne Corbet, Defendants AND: Drude Corbett, Third Party
BEFORE: Justice J. R. McCarthy
COUNSEL: David Harris-Lowe, Counsel for the Defendants/Moving Parties Judith Turner, Counsel, for the Plaintiff/Responding Parties
HEARD: June 15, 2020 Motion heard via teleconference
Reasons
[1] This is a motion by the Defendants for an order that Ann Corbet be returned to reside at 4348 Tottenham Road, Alliston (“the Defendant’s home”) immediately. As a result of the closure of the courts during the Covid-19 crisis, the motion was heard via teleconference. The motion is brought under s. 68 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”).
[2] Ann Corbet was born on August 27, 1927 and is currently 92 years old. She suffers from dementia and is now residing at Bradford Valley Care Community (“Bradford Valley”), a long-term care facility.
[3] Ann Corbet appointed Drude Corbet her power of attorney for both property and personal care on April 25, 2008. Drude is the only son of Ann Corbet. He resides in the USA. The Defendant Damon Corbet is the son of Drude Corbet; the Defendant Carrie-Anne Nolan is Damon’s spouse.
[4] In 2015, Ann’s family doctor found her to be suffering from a dementia syndrome which left her incapable of making informed decisions regarding her personal health care. In January 2020, an assessment by a LHIN case manager found that Ann had advanced dementia and several other cognitive problems enough to qualify her as incapable. She was placed on a crisis list for placement into long term care. She was placed into Bradford Valley on January 23, 2020. Prior to being placed in that care facility, Ann Corbet resided at the Defendants’ home.
[5] Sub-section 66 (1) of the SDA provides that the powers and duties of an attorney shall be exercised and performed diligently and in good faith.
[6] Sub-section 66(3) of the SDA sets out the principals that an attorney should consider when making decisions; meanwhile subsection 66 (4) lists the factors that are to be taken into consideration by the attorney in deciding what the incapable person’s best interest are for the purposes of the attorney’s decision making under para. 4 of subsection 66 (3).
[7] The scheme of the SDA was fairly summarized in the case of Sly v. Curran at para. 14:
…the SDA was designed to allow someone to designate a person of his or her choice to act on personal care decisions in the event of incapacity…The attorney…is then delegated a range of decision-making powers and is legally authorized to act so long as the action are in the best interests of the incapable person. The court is not to micromanage the day to day decisions of the substitute decision maker.
[8] I am not prepared to grant the order on an interlocutory basis for the following reasons:
i) Drude Corbet is acting under a valid power of attorney for personal care. Ann Corbet entrusted her only son with that role at a time when she had capacity. ii) I agree with the proposition set out in the Sly case that a court should not attempt to micromanage an attorney’s day to day handling of the affairs of an incapable person unless there is clear evidence that the attorney is not acting in good faith. iii) It is clear from the evidence that Drude took the decision to place Ann Corbet in Bradford Valley only after consultation with the family doctor, a consideration of the situation at the Defendants’ home and a comprehensive assessment by the LHIN case manager had been conducted. The assessment confirmed that Ann was incapable; the case worker made the referral to a long-term care facility based on a “crisis care” rating. iv) I am not satisfied that Drude Corbet has failed to be governed by the principles and guidelines set out in the SDA. The evidence tends to establish that Ann Corbet is not able to give any clear and consistent instructions. The court is satisfied that this lady has no real insight into her current situation. She was deemed incapable by her own GP 5 years ago. The recent assessment reveals that Anne has advanced dementia, struggles with short term memory and will forget conversations within a five minute window. In terms of wishes and preferences, the assessment revealed that she expressed her understanding and agreement for a long-term care plan but when questioned about it five minutes later, had forgotten the conversation and that she had signed the paperwork. The assessment also revealed struggles with comprehension and communication. While it is always the attorney’s obligation to determine the wishes and preferences of a person under a disability, I find that, at present, those views and preferences of Ann Corbet cannot be ascertained with sufficient clarity for them to be given much weight. v) Ann’s expressed wish that she wants to “go home” must be looked at realistically and in context. It is clear from the evidence that what Ann perceives as her “home” was in fact the home that she shared with her late husband in Adjala. She expressed the desire to leave and go home while she was residing at the Defendants’ residence. Thus, I am not satisfied that she considers the Defendants’ home to be her actual home or the place that she wants to go home too. vi) The power of attorney for personal care did contain Ann’s stated preference that she not to go to a care facility until she was unable to stay with relatives or friends who were capable of looking after her. However, the determination of whether the Defendants are capable of looking after her is open to debate. Based on the evidence from the journal entries, from the caregiver Heather Howe, from Drude Corbet’s own assessment of the living arrangements and in light of Ann’s serious dementia, increasing care needs and the Defendants’ employment obligations, it is more likely than not that the Defendants were not willing or capable of caring for Ann by January 2020. Regardless, I find that it was not unreasonable or unwarranted for Drude Corbet to have determined that it was no longer possible to accede to Ann’s preference to live with relatives in light of: the living conditions at the Defendants’ residence; Ann’s care needs and advanced dementia; and with the twin issues of neglect and misappropriation of Ann’s funds still unresolved. vii) There is no evidence that Drude Corbet failed to consider the best interests criteria listed at s.66 (4) of the SDA once he determined that Ann was not receiving adequate care from the Defendants. The parties are involved in litigation partly involving the alleged misuse and misappropriation of Ann Corbet’s funds by the Defendants. It cannot be in the best interest of an incapable person to be in the charge of a party to this kind of litigation when a perfectly safe and healthy alternative is available to her and is something that she can afford. There is no evidence that she is be neglected or deprived of the essentials of life at the Bradford Valley facility. viii) It remains to be determined whether the Defendants are in fact supportive family members. The allegations that the Defendants mistreated or neglected Ann and that they have misused or misappropriated her money are serious, if still unproven allegations. The court will want to fully determine these matters before it can finally determine whether these individuals are “supportive family members” with whom the attorney should consult within the meaning of the SDA. ix) An order to return Ann to the Defendant’ home would be disruptive and possibly prejudicial to Ann’s interests. She has now been at Bradford Valley for more than 5 months. While she has expressed a desire not to be at the facility, I am not satisfied that she has any real insight into her situation or that she is capable of understanding and appreciating what is in her best interest.
[9] It was the Defendants’ onus to demonstrate to the court that the Drude Corbet was not acting in accordance with the statutory principals governing decision making. They have failed to do so. Overall, I am satisfied that Ann Corbet is incapable of providing any reliable and consistent views and preferences. Her previously expressed intention to remain living with relatives is subject to those relatives being able or willing to care for her. Drude Corbet has determined that the consistency or level of care she was receiving at the Defendants’ home was inadequate or otherwise unsatisfactory. After consultation with her physician and relying upon the assessment of her professional case worker, he decided to have his mother placed in a licensed long-term care facility. I cannot find that this decision was contrary to her realistic preferences, that it was taken in bad faith or was arrived at without consideration of Ann’s best interest. I also find that it was not an unreasonable decision.
[10] In my view, in the absence of compelling proof that an attorney acted in bad faith; that he acted without regard for the discernible, realistic and manageable preferences of the incapable person; that he failed to act in the best interest of the incapable person; or that he failed to adhere to the statutory requirements, a court should be reluctant to give directions to an attorney.
[11] For the above reasons, the motion of the Defendants is dismissed.
[12] If the parties are unable to agree on the issue of costs, they shall provide the court with written submissions according to the following schedule:
a) submissions of the Plaintiff, limited to three pages, on or before July 15, 2020; b) submissions of the Defendants, limited to two pages, on or before July 29, 2020; c) reply submissions of the Plaintiff, if any, limited to one page, on or before August, 5, 2020.