Court File and Parties

COURT FILE NO.: 03-239/19 DATE: 20200812 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: BARBARA LOCKHART personally and in her capacity as attorney for property of June Lockhart, Applicant/Moving Party AND: ROBERT LOCKHART personally and in his capacity as attorney for property of June Lockhart, and JUNE LOCKHART, Respondents/Responding Parties

BEFORE: Dietrich J.

COUNSEL: Kimberly Whaley and Matthew Rendely, for the Applicant/Moving Party Robert Lockhart, self-represented Respondent/Responding Party

HEARD: June 10, 2020

Endorsement

[1] Due to the COVID-19 crisis, this motion was heard by Zoom videoconference. The hearing of the motion was held in accordance with: (a) the Notice to the Profession issued by Chief Justice Morawetz on March 15, 2020 and the Update dated April 2, 2020; and (b) the “Changes to Commercial List operations in light of COVID-19” developed by the Commercial List judges in consultation with the Commercial List Users Committee. The Zoom videoconference facilities were arranged by the court to facilitate the hearing, as per the foregoing COVID-19 practice directions.

Overview

[2] This matter involves a dispute between a sister and a brother over their mother’s personal care. Each of the Applicant Barbara Lockhart and the Respondent Robert Lockhart believes that she or he should have exclusive decision-making authority in this domain.

[3] Their mother, June Lockhart is 89 years of age. In December 2004, Mrs. Lockhart contracted bacterial meningitis and suffered frontal lobe damage, with persistent symptoms of aphasia.

[4] Mrs. Lockhart resides at Wellesley Central Place (“WCP”), a long-term care facility in downtown Toronto. She has resided there for the past 15 years. At WCP, she has full-time assistance for all her personal care needs.

[5] Mrs. Lockhart’s husband Frank Lockhart predeceased her on October 2, 2018. While he was alive, as her spouse, he made personal care and treatment decisions for Mrs. Lockhart when she was not able to make those decisions for herself.

[6] Following Frank Lockhart’s death, the Applicant was unsuccessful in locating any Power of Attorney for Personal Care made by Mrs. Lockhart. The Applicant and the Respondent proceeded to make personal care and treatment decisions, on behalf of Mrs. Lockhart, jointly.

[7] Unbeknownst to the Applicant, the Respondent had prepared a Power of Attorney for Personal Care in which he alone was appointed as Mrs. Lockhart’s attorney for personal care. The Respondent arranged to have Mrs. Lockhart sign this Power of Attorney on December 28, 2018 (the “2018 Power of Attorney for Personal Care”) in the presence of Mrs. Lockhart’s friend, Anne Eagles, and Anne Eagles’ daughter, Patricia Eagles. The 2018 Power of Attorney for Personal Care was signed and witnessed at Mrs. Eagles’ apartment.

[8] At the same time, the Respondent arranged to have Mrs. Lockhart sign a Power of Attorney for Property, in which he was named as Mrs. Lockhart’s sole attorney for property (the “2018 Power of Attorney for Property”).

[9] It was not until some 17 months later, in April of this year, in the midst of the COVID-19 pandemic, that the Respondent revealed the existence of the 2018 Power of Attorney for Personal Care. At that time, the Applicant and the Respondent disagreed on whether Mrs. Lockhart should continue residing at WCP or move to the Respondent’s residence to live with him. The Respondent advocated for Mrs. Lockhart’s transfer out of WCP to reduce her risk of contracting COVID-19. When the Applicant did not agree with that approach, he attempted to cause the transfer by asserting his authority under the 2018 Power of Attorney for Personal Care.

[10] The Applicant challenges the validity of the 2018 Power of Attorney for Personal Care on the basis that Mrs. Lockhart was not capable of granting a Power of Attorney for Personal Care on December 28, 2018, among other grounds. She brings this motion to have it, as well as the 2018 Power of Attorney for Property, declared to be of no force and effect and void ab initio. The Respondent concedes that the 2018 Power of Attorney for Property is not a valid Power of Attorney.

[11] For the reasons that follow, I find that both the 2018 Power of Attorney for Property and the 2018 Power of Attorney for Personal Care are of no force and effect and are void ab initio. The Respondent has not demonstrated that Mrs. Lockhart had capacity to make the 2018 Power of Attorney for Personal Care. This dispute has less to do with Mrs. Lockhart’s interests and more to do with a power struggle between two siblings. If they are granted the authority to make personal care and treatment decisions under the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (the “HCCA”) on behalf of Mrs. Lockhart, I am satisfied that each of them would exercise that authority in her best interests. Accordingly, the Applicant and the Respondent shall be authorized to make such decisions jointly.

The Motions Before the Court

The Applicant’s Motion

[12] The Applicant seeks an order that: i) both 2018 Powers of Attorney, each purportedly granted by Mrs. Lockhart on December 28, 2018 to the Respondent, be set aside and declared of no force and effect; and ii) she, alone, be given sole authority to make personal care and treatment decisions under the HCCA, and the Respondent “be forever prohibited and enjoined from making any and all decisions pertaining to Mrs. Lockhart’s personal care needs and/or giving or refusing consent to treatment on her behalf in accordance with the HCCA.” As an alternative to ii), the Applicant seeks an order that she and the Respondent be ordered to make all personal care and treatment decisions, on behalf of Mrs. Lockhart, jointly.

The Respondent’s Motions

[13] More than two weeks after the deadline for filing pleadings in the Applicant’s motion, the Respondent filed a notice of motion seeking an adjournment of the Applicant’s motion and bringing motion to be heard at the same time as the Applicant’s motion. In the latter motion, he seeks a declaration that the 2018 Power of Attorney for Personal Care is valid or, in the alternative, an order that the Applicant be excluded from making personal care and treatment decisions on behalf of Mrs. Lockhart.

[14] I dismiss the Respondent’s motion for an adjournment, which, if granted, would be the third adjournment granted to him on this motion. He seeks the adjournment in order to obtain further evidence from the Applicant, whom he has already examined twice. The first examination was aborted owing to technical problems with his computer. Following the second examination, the Respondent made no request for answers to questions the Applicant had refused to answer.

Issues

[15] The issues to be determined on the Applicant’s motion are straightforward:

1. Is the 2018 Power of Attorney for Personal Care valid?
2. If the 2018 Power of Attorney for Personal Care is found not to be valid, who should have the authority to make personal care and treatment decisions on behalf of Mrs. Lockhart?

Positions of the Parties

[16] The Applicant asserts the 2018 Power of Attorney for Personal Care is not valid because Mrs. Lockhart did not have capacity to instruct on its preparation or the capacity to make it and/or she was unduly influenced by the Respondent to make it. The Applicant further asserts that she alone is best suited to make personal care and treatment decisions on behalf of Mrs. Lockhart. She asserts that the Respondent is not an appropriate substitute decision maker because, among other reasons, he put Mrs. Lockhart in danger by trying to remove her from WCP during the COVID-19 pandemic without a proper care plan in place and contrary to Mrs. Lockhart’s wishes. Alternatively, she asks that the substitute decision-making authority be granted to her and the Respondent jointly.

[17] The Respondent asserts that the 2018 Power of Attorney for Personal Care is valid. He asserts that Mrs. Lockhart had capacity to grant him the power to make personal care and treatment decisions on her behalf and that he exerted no undue influence over her. The Respondent further asserts that he is the ideal candidate to make personal care and treatment decisions on behalf of his mother because he has been heavily involved in her care for over 15 years and she has indicated a preference for him in this role.

Factual Background

[18] On June 27, 1994, Mrs. Lockhart executed a Continuing Power of Attorney for Property (the “1994 Power of Attorney for Property”) in which she appointed both the Applicant and the Respondent to act as her attorneys for property, jointly. The 1994 Power of Attorney for Property provides that the attorneys’ authority to act only arises in the event that Mrs. Lockhart is incapable of managing property.

[19] The Respondent admits that, on December 28, 2018, he took Mrs. Lockhart from WCP to Anne Eagles’ residence where he presented both the 2018 Power of Attorney for Property and the 2018 Power of Attorney for Personal Care to her for signature. The Respondent had prepared the 2018 Power of Attorney for Personal Care using a pre-printed form. Mrs. Lockhart signed both Powers of Attorney in the presence of Anne Eagles and Patricia Eagles.

[20] A couple of months later, the Respondent arranged for Mrs. Lockhart to undergo a capacity assessment by Alanna Kaye, a qualified capacity assessor. On March 7, 2019, the Respondent instructed Ms. Kaye to assess Mrs. Lockhart’s capacity to manage her property only, and specifically instructed her not to assess Mrs. Lockhart’s capacity to make or revoke a power of attorney.

[21] Unbeknownst to Ms. Kaye, the Respondent audio recorded Ms. Kaye’s interview with Mrs. Lockhart. He surreptitiously concealed an audio recorder in the basket of Mrs. Lockhart’s walker.

[22] On March 29, 2019, Ms. Kaye reported to Mrs. Lockhart that she found Mrs. Lockhart to be incapable of managing her property, and she provided Mrs. Lockhart with a copy of the Certificate of Incapacity.

[23] No one, including the Respondent, challenged Ms. Kaye’s March 29, 2019 report (the “Capacity Assessment”) at that time. The Applicant and the Respondent relied on the Capacity Assessment to permit them to manage Mrs. Lockhart’s property pursuant to the 1994 Power of Attorney for Property.

Legal Principles

[24] The Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”), at s. 2 and at s. 47, includes the following provisions relating to capacity:

2(1) Presumption of capacity – A person who is eighteen years of age or more is presumed to be capable of entering into a contract. …

(3) A person is entitled to rely upon the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable of entering into the contract or of giving or refusing consent, as the case may be.

47(1) Capacity to give a power of attorney for personal care -- A person is capable of giving a power of attorney for personal care if the person,

(a) has the ability to understand whether the proposed attorney has a genuine concern for the person’s welfare; and (b) appreciates that the person may need to have the proposed attorney make decisions for the person.

The Evidence

[25] The Applicant filed a factum and her own affidavit evidence, including an expert report by Dr. Kenneth Shulman. Dr. Shulman has been recognized in the Ontario Court of Appeal for Ontario as the leading authority on the assessment of testamentary capacity: Neuberger Estate v. York, 2016 ONCA 191, at para. 41.

[26] The Respondent is a practicing lawyer and appears as a self-represented litigant in these proceedings. He did not file a factum, but rather a “Response to and Review of the Factum of the Applicant by the Respondent”, as well as other materials. The Respondent’s pleadings in this matter amount to some 1,500 pages. Most of the pleadings were late filed. The Respondent also filed a number of audio recordings, none of which was authenticated.

[27] Included in the Respondent’s pleadings are several affidavits, including supplementary affidavits, of Meshal Asmati. Ms. Asmati is a friend of the Respondent. In her affidavits, she testified as to what the Respondent had told her and swore that she believed it to be true. The Respondent concedes that all of her evidence is hearsay, and, in some cases, double hearsay. For example, in the affidavit sworn by Ms. Asmati on April 28, 2020, she attests that the Respondent advised her that Anne and Patricia Eagles both “readily confirmed that they sincerely believed that June Lockhart was fully aware of and capable of understanding the implications of her signing the Power of Attorney for Personal Care in light of her statements and responses to questions at that time.”

[28] Attached as an exhibit to one of Ms. Asmati’s affidavits, dated May 26, 2020, is an incomplete transcription of the audio recording of Ms. Kaye’s interview with Mrs. Lockhart that formed the basis of the Capacity Assessment. This transcription was prepared by the Respondent himself and includes his own editorial comments throughout. The Respondent’s transcription excludes an exchange between Ms. Kaye and him regarding the scope of the assessment that took place prior to the assessment interview.

[29] Attached as an exhibit to another of Ms. Asmati’s affidavits, sworn June 1, 2020, is a transcript of the audio recording of the assessment interview, certified by Robyn Knox of Certified Court Transcripts, dated May 28, 2020. This transcript includes the exchange between Ms. Kaye and the Respondent that preceded Ms. Kaye’s interview of Mrs. Lockhart. This latter affidavit was filed on June 1, 2020, well after the deadline for filing pleadings had passed. The Respondent admits that Ms. Kaye did not consent to the audio recording of the interview. There is no reliable evidence that Mrs. Lockhart consented to the recording.

[30] The Respondent also filed affidavit evidence of both Anne Eagles and Patricia Eagles, as witnesses to the 2018 Power of Attorney for Personal Care. The affidavits appear to have been prepared by the Respondent for use on this motion and he commissioned each of them. In substance, they are virtually identical. The Respondent also filed an affidavit sworn by his niece and Mrs. Lockhart’s granddaughter, Elizabeth Lockhart, and an affidavit sworn by his sister, Mrs. Lockhart’s other child, Christine Lockhart.

The Validity of the 2018 Power of Attorney for Personal Care

[31] To support her assertion that the 2018 Power of Attorney for Personal Care is not valid, the Applicant asked Dr. Shulman to provide a retrospective assessment of Mrs. Lockhart’s capacity to grant the 2018 Power of Attorney for Personal Care. Dr. Shulman was asked to assess Mrs. Lockhart’s capacity to instruct counsel; her capacity to understand and appreciate the consequences of her decision to grant the 2018 Power of Attorney for Personal Care to the Respondent without naming an alternative attorney; and Mrs. Lockhart’s susceptibility to undue influence at the time of granting the 2018 Power of Attorney for Personal Care. Dr. Shulman’s report focused primarily on the Capacity Assessment.

[32] In his report, Dr. Shulman states:

The severity and extent of June Lockhart’s cognitive deficits as described by Ms. Kaye with respect to the capacity to manage property reflect a global picture of significant impairment that is diffuse and involves key cognitive function such as memory, language (communication) and especially executive brain functions. These affected cognitions subsume judgment including the ability to weigh risks and benefits and appreciate the impact of a specific decision.

[33] In the Capacity Assessment, Ms. Kaye states that:

Mrs. Lockhart endorsed reduced understanding and ability to speak. She attempted to respond to all questions asked of her by nodding in the affirmative, saying yes/no, and sometimes speaking phrases and short sentences. It was noted that she was often unable to accurately respond yes/no to the same question asked in different ways. She denied symptoms consistent with depression (reduced mood, changes in sleep or appetite, etc.) however, she quickly reacted with tears when tired or in response to some discussion with her son following the assessment. … From a cognitive perspective, Mrs. Lockhart exhibited disorientation to time (month, year), place (my office, the major street outside the office), reduced concentration (serial seven’s), language (naming pen), visuospatial deficits, following a three-stage command. Additionally, reduced memory and executive functioning (planning, insight, judgment, ability to weigh risks/benefits, etc) … e.g., she wishes to take a vacation but did not factor in the need to pay for a caregiver as she did not feel she would require any assistance; she later changed her mind stating she would need help but did not connect the need to pay for this help.

[34] Ms. Kaye concluded that Mrs. Lockhart did not “meet the legal requirements of ‘understand’ and ‘appreciate.’” In the Capacity Assessment, Ms. Kaye expresses her opinion regarding Mrs. Lockhart’s inability to understand and appreciate as follows:

Mrs. Lockhart suffered from bacterial meningitis in 2004 which affected her ability to communicate and understand information (expressive and receptive aphasia). Interview with Mrs. Lockhart reveals that while she is able to make herself understood, she exhibits significant cognitive deficits including memory, language and executive functioning. Her memory and language deficits impairs (sic) her ability to retain and understand financial (and numerical) information. Additionally, her reduced executive functions (including abstract thinking, insight and judgment, planning, organization, etc) significantly impede her ability to reason logically and appraise the likely outcome of a given decision/lack of decision.

[35] The Respondent is critical of both Dr. Shulman’s report and the Capacity Assessment. He asserts that Mrs. Lockhart is “remarkably cogent and coherent” and questions why Ms. Kaye reached the conclusions she did. In argument, he offers his own explanation for why Mrs. Lockhart was not able to answer Ms. Kaye’s questions correctly. He explains Mrs. Lockhart’s inability to correctly answer questions about the number of siblings she had or when her husband died with reference to the “aphasic dynamic.” He asserts that Mrs. Lockhart’s aphasia and word-finding challenges do not reflect on Mrs. Lockhart’s cognition. He asserts that Ms. Kaye is “entirely wrong” when she finds that Mrs. Lockhart has receptive as well as expressive aphasia.

[36] The Respondent also asserts that the Capacity Assessment is “full of strange fallacies” and he relies on the audio recording to demonstrate these “fallacies.” For example, the Respondent asserts that for Ms. Kaye to have found that Mrs. Lockhart had receptive aphasia, there would had to have been instances during the interview when Mrs. Lockhart was confused by a question or could not understand what was being asked of her. He asserts that there were no such instances. Yet, based on the audio recording, it appears that when Ms. Kaye asked Mrs. Lockhart whether she found it hard to understand sometimes, Mrs. Lockhart responded with “very, very.”

[37] Despite the Respondent’s criticism of the Capacity Assessment and Dr. Shulman’s reliance on it in his expert report, the Respondent did not challenge the Capacity Assessment when it was made, and he did not seek to examine Ms. Kaye. In fact, the Respondent (and the Applicant) relied on the Capacity Assessment for the purposes of engaging the 1994 Power of Attorney to allow them to manage Mrs. Lockhart’s property. The Respondent, who is not a medical expert, did not provide any expert evidence to refute the findings made by Ms. Kaye or Dr. Shulman. I can give no weight to his unsworn evidence on Mrs. Lockhart’s cognitive abilities.

[38] The Respondent also asserts that Ms. Kaye was retained to provide an opinion on Mrs. Lockhart’s capacity to manage her property, and that it would be inappropriate for the court to rely on an extrapolation of the finding that Mrs. Lockhart lacked capacity to manage property to find that Mrs. Lockhart was globally impaired in all areas of decision making.

[39] I agree that the test to determine whether an individual has capacity to manage property is a different test than the test to determine whether an individual has capacity to make a Power of Attorney for Personal Care. The former test requires an assessment of whether the grantor is able to understand information that is relevant to making a decision in the management of her property and is able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision: SDA, s. 6. The latter test requires an assessment of whether the grantor of a Power of Attorney for Personal Care has the ability to understand whether the proposed attorney has a genuine concern for her welfare; and whether she has the ability to appreciate that she may need to have the proposed attorney make decisions for her: SDA, s. 47(1). Ms. Kaye did not apply the latter test in assessing Mrs. Lockhart. She was specifically instructed to assess Mrs. Lockhart’s capacity to manage property only.

[40] Dr. Shulman, in conducting a retrospective assessment of Mrs. Lockhart’s capacity to grant a Power of Attorney for Personal Care, did not examine her. He also did not have any opportunity to probe into whether Mrs. Lockhart could understand whether a proposed attorney for personal care had a genuine concern for her welfare or whether she appreciated that she may need to have the proposed attorney make decisions for her. Dr. Shulman concluded, based largely on the Capacity Assessment, that Mrs. Lockhart’s “affected cognitions subsume judgment including the ability to weigh risks and benefits and appreciate the impact of a specific decision.” An inability to weigh risks and benefits and appreciate the impact of a specific decision could affect Mrs. Lockhart’s ability to understand whether the Respondent had a genuine concern for her welfare and that she may need to rely on him to make decisions for her, but I do not find that it is determinative.

[41] The Respondent submits that the audio recording of Ms. Kaye’s interview with Mrs. Lockhart provides helpful evidence in assessing Mrs. Lockhart’s capacity to make the 2018 Power of Attorney for Personal Care. He asks the court to consider a comment allegedly made by Mrs. Lockhart in the interview when Ms. Kaye asked her whom, as between the Applicant and the Respondent, she would prefer to have as her attorney for property. Mrs. Lockhart appears to indicate a preference for the Respondent, because, she says, he is “more understanding.”

[42] I am disinclined to ascribe much weight to the audio recording. It was made by the Respondent without the consent of either Ms. Kaye or Mrs. Lockhart and has not been authenticated. Further, Ms. Kaye has not had the opportunity to review the audio recording, provide context for, or clarify, comments she made in the interview that did not form part of the Capacity Assessment.

[43] The Respondent asserts that Mrs. Lockhart’s comment on her preference for himself, as opposed to the Applicant, as her attorney for property (as opposed to her attorney for personal care) is important evidence. He asserts that it is proof of her capacity to understand that he, as a proposed attorney for personal care, had a genuine concern for her welfare when she signed the 2018 Power of Attorney for Personal Care. Specifically, the Respondent asserts that Mrs. Lockhart’s comment that she finds him to be “more understanding” is evidence of Mrs. Lockhart’s appreciation that he is empathetic and compassionate, and therefore would have a genuine concern for her welfare.

[44] I cannot accept this assertion or the Respondent’s unsworn evidence. Mrs. Lockhart’s response is elicited in the context of a discussion regarding suitable candidates to act as her attorney for property. There is nothing in the evidence to suggest that, during the interview with Ms. Kaye, Mrs. Lockhart was asked about or thinking about appointing an attorney for personal care. I reject the Respondent’s further submission that Mrs. Lockhart’s alleged recollection that the Respondent would advertise “in the paper” for her late husband’s missing will is evidence of Mrs. Lockhart’s appreciation that the Respondent may need to make personal care decisions on her behalf.

[45] In my view, the optimum opportunity to assess Mrs. Lockhart’s capacity to make a Power of Attorney for Personal Care would have been at the time she signed the 2018 Power of Attorney for Personal Care. At that time, the Respondent himself could have asked his mother directly for her rationale for choosing him over the Applicant, notwithstanding that she had chosen both of them to act jointly as her attorneys for property. The Respondent, a lawyer, could have asked her probing questions, in the presence of the witnesses, to determine whether Mrs. Lockhart understood that he had a genuine concern for her welfare. He could have further probed to confirm and verify that she appreciated that he, as an attorney for personal care, may need to make care and treatment decisions on her behalf. There is no evidence of such questioning, probing or verifying by the Respondent or the witnesses at that time.

[46] Each of the witnesses swore an affidavit dated the 21st day of April 2020 in support of the Respondent’s position in these proceedings. Each of them offers the opinion that “[Mrs. Lockhart] had the ability to understand whether or not her son Robert had a genuine concern for her welfare, and that she understood that Robert might need to make decisions for her in the future …”. The affiants further attest that “June understood what a Power of Attorney for Personal Care is, and what it means to give someone Power of Attorney, and that she gave it to Robert voluntarily.” These statements are, in essence, legal conclusions made by laypersons.

[47] While the witnesses attest to having listened to the Respondent ask Mrs. Lockhart questions and to having listened carefully to her responses, they offer no evidence as to what questions were asked or what responses were given, or whether such questions and answers were responsive to the test set out in s. 47(1) of the SDA. Accordingly, I find that their evidence is not persuasive. It is worth noting that, despite the Respondent’s tendency to audio record conversations relating to his mother’s care (e.g., conversations between himself and the Applicant, between himself and Mrs. Lockhart, between himself and staff at WPC, between himself and his sister Christine, and between himself and his niece Elizabeth), which recordings he submits for the court’s consideration, it seems he did not record the questions he allegedly put to Mrs. Lockhart, and her responses to those questions, when he presented her with the 2018 Power of Attorney for Personal Care for signature.

The Presumption of Capacity

[48] The Applicant submits that if Dr. Shulman’s report is not persuasive, then the 2018 Power of Attorney for Personal Care should be declared to be of no force and effect because the Respondent has failed to prove that Mrs. Lockhart had the capacity to make the 2018 Power of Attorney for Personal Care and he is unable to rely on the presumption of capacity as set out in s. 2 of the SDA. Specifically, she asserts that the presumption is not available to the Respondent because he had reasonable grounds to believe that Mrs. Lockhart was incapable of making a power of attorney for personal care.

[49] I agree that the Respondent had reasonable grounds to believe that Mrs. Lockhart did not have capacity to make the 2018 Power of Attorney for Personal Care. That document was signed on December 28, 2018, a little more than two months before Mrs. Lockhart underwent a capacity assessment with respect to her ability to manage property. If the Respondent believed that Mrs. Lockhart had capacity to make the 2018 Power of Attorney for Personal Care, it would follow that he would permit Ms. Kaye to assess Mrs. Lockhart for that purpose as well so that his belief could be verified.

[50] Instead, based on the portion of Ms. Kaye’s interview with Mrs. Lockhart, which the Respondent chose not to include in his transcription, there is an exchange between the Respondent and Ms. Kaye in which he insists that Ms. Kaye not assess Mrs. Lockhart with respect to her ability to make or revoke a power of attorney. In that audio recorded exchange, Ms. Kaye refers to a document written by a doctor regarding such an assessment and the Respondent responds by telling her to “stroke that out.” Ms. Kaye explains that he (the Respondent) cannot stroke out what the doctor has written, but she nonetheless agrees to limit the assessment to an assessment of Mrs. Lockhart’s capacity to manage property. The Respondent has provided no admissible evidence to explain why he prevented Ms. Kaye from assessing Mrs. Lockhart’s capacity to give or revoke a power of attorney.

[51] In one of Ms. Asmati’s affidavits, she includes as an exhibit an email from the Respondent to WCP, dated April 14, 2020. In this email, the Respondent offers an explanation as to why he did not disclose the 2018 Power of Attorney for Personal Care to the staff at WCP. He states: “I was advised and was concerned that revealing the power of attorney would lead to delay, with a formal capacity assessment and/or a challenge in court as to its validity … And with Mom’s aphasia I was concerned that her response to questions as to her preference to stay or leave [WCP] would be open to conflicting interpretations …” From this statement, it is reasonable to infer that the Respondent had some doubt about whether an assessment of Mrs. Lockhart’s capacity to make a Power of Attorney for Personal Care would result in a finding that she had such capacity.

[52] The Respondent was very involved in the preparation and execution of the 2018 Power of Attorney for Personal Care in which he alone was named as the Attorney. He also sought out the witnesses and commissioned their affidavits. It is alleged that he also likely drafted the affidavits, which support his view of Mrs. Lockhart’s capacity to make the 2018 Power of Attorney for Personal Care.

[53] Dr. Shulman concludes in his expert report that based on Mrs. Lockhart’s significant cognitive impairments and communication deficits, Mrs. Lockhart would have been extremely vulnerable to influence. If the Respondent were confident in Mrs. Lockhart’s capacity to make a Power of Attorney for Personal Care, it would have been more likely that he would have arranged for her to meet with a disinterested lawyer who could have given Mrs. Lockhart independent legal advice and probed to determine her rationale for appointing the Respondent, alone, as her attorney for personal care. A lawyer offering independent legal advice could also have assessed whether, in his or her view, Mrs. Lockhart had the capacity to make a Power of Attorney for Personal Care.

[54] Based on the record, the Respondent has not shown that Mrs. Lockhart had the capacity to make the 2018 Power of Attorney for Personal Care. In the circumstances of this case, the presumption of capacity does not assist the Respondent. Accordingly, I find that the 2018 Power of Attorney for Personal Care is not valid.

Appropriate Substitute Decision Makers for Mrs. Lockhart

[55] Pursuant to section 20(1) of the HCCA, a child of an incapable person may give or refuse consent with respect to treatment decisions. Having found that the 2018 Power of Attorney for Personal Care is not valid, I am asked to decide who shall have authority to make personal care and treatment decisions under the HCCA on behalf of Mrs. Lockhart. The Applicant submits that she alone should have this decision-making authority, and that the Respondent should not be granted any such authority pursuant to s. 20(1) of the HCCA. Alternatively, the Applicant submits that this court should grant the authority to the Respondent and her jointly. The Respondent submits that it should be he alone who is duly authorized to act, and the Applicant should be denied any such authority.

[56] The Applicant alleges that the Respondent’s conduct throughout the proceeding reflects a pattern of his unwillingness to co-operate with the Applicant in discharging his fiduciary duties. She points to unilateral steps taken by him: to make an election on behalf of Mrs. Lockhart under the Family Law Act, R.S.O. 1990, c. F.3; to interfere with the appointment of s. 3 counsel for Mrs. Lockhart; to arrange for Mrs. Lockhart to attend a capacity assessment; to frustrate the sale of Mrs. Lockhart’s real property; and to attempt to cause the staff at WCP to release Mrs. Lockhart into his custody during the COVID-19 pandemic when he showed up with paramedics and an ambulance to remove Mrs. Lockhart from WCP.

[57] With the exception of the Respondent’s attempt to remove Mrs. Lockhart from WCP, when he was fearful that it was an unsafe place for her to reside during the COVID-19 pandemic, the examples given of the Respondent’s conduct relate largely to issues affecting Mrs. Lockhart’s property as opposed to personal care or treatment.

[58] The Applicant also cites the Respondent’s withholding of the 2018 Power of Attorney for Personal Care as an example of a breach of his fiduciary duty. She further submits that the Respondent disregarded the Applicant’s attempts to work together with him to prepare a joint care plan and he accused WCP of criminal negligence when WCP would not release Mrs. Lockhart into his custody during the COVID-19 pandemic.

[59] The Respondent submits that the Applicant is not a suitable substitute decision maker for Mrs. Lockhart because he, and he alone, has been managing Mrs. Lockhart’s health care and liaising with her physicians since she contracted meningitis over 15 years ago. He asserts that the Applicant has only been involved in Mrs. Lockhart’s care to the limited extent of attending annual care conferences to which all family members were invited.

[60] The Respondent’s evidence that he has attended family conferences regarding Mrs. Lockhart’s care for the last 15 years and that he has been taking Mrs. Lockhart to the bulk of her medical appointments is unchallenged.

[61] The Respondent also relies on historic evidence, found in the medical records, of Mrs. Lockhart’s preference for him as her attorney for personal care. This stated preference is not contradicted by the Applicant; however, it is not current. The comment was allegedly made at a family meeting at Providence Health Care in April 2005 and reflected in the notes of a social worker. The Respondent asks the court to find that Mrs. Lockhart maintained that preference until 2018 when she executed the 2018 Power of Attorney for Personal Care and that he “could have got her to execute the Power of Attorney for Personal Care any time”, but he simply failed to arrange for it until 2018.

[62] Based on the record, I am satisfied that the Respondent is truly concerned about his mother’s health and has been interested and engaged in Mrs. Lockhart’s medical care and treatment over many years. He has communicated with her physicians and other care-providers and has acted as her advocate. He, personally, paid for some of her therapy. Each of his niece, Elizabeth Lockhart, and his sister, Christine Lockhart, swore an affidavit in which she attests that the Respondent has been very involved in Mrs. Lockhart’s care and has acted as an advocate for Mrs. Lockhart since 2005. Their evidence is unchallenged. I accept that the Respondent has taken an active role in Mrs. Lockhart’s care and that he has a genuine desire to continue to serve in that role.

[63] The record also shows that the Applicant and the Respondent do not always agree on a course of action regarding their mother’s care. In the face of conflicting informed views on whether residents of long-term care facilities should stay in the facility or be transferred to the residence of a family member during the COVID-19 pandemic, reasonable people might well disagree. The Applicant and the Respondent did disagree on that issue, which contributed to this dispute. Despite their disagreements in the past regarding Mrs. Lockhart’s care, ultimately, it appears that they have, in the main, come to decisions that have been in Mrs. Lockhart’s best interest and have kept her safe.

[64] Having reviewed the record and heard the submissions of both the Applicant and the Respondent, I am satisfied that each of them has a genuine interest in Mrs. Lockhart’s personal care and genuine concern for her wellbeing. I am also satisfied that each is an appropriate substitute decision maker to make personal care and treatment decisions under the HCCA on her behalf.

[65] Mrs. Lockhart appointed both the Applicant and the Respondent as her attorneys for property, to act jointly. It is appropriate that they also be given the authority to act, jointly, as her substitute decision makers for personal care and treatment decisions under the HCCA and otherwise at law.

Disposition

[66] The Applicant has succeeded in her motion and an order shall issue:

1. Declaring the 2018 Power of Attorney for Property executed by Mrs. Lockhart on December 28, 2018 to be of no force and effect and void ab initio.
2. Declaring the 2018 Power of Attorney for Personal Care to be of no force and effect and void ab initio.
3. Declaring that the Applicant Barbara Lockhart and the Respondent Robert Lockhart are authorized to make personal care, health care and treatment decisions under the HCCA and otherwise at law, on behalf of Mrs. Lockhart, jointly.

[67] Having found that the 2018 Power of Attorney for Personal Care is not valid, the Respondent’s motion for a declaration that it is valid is dismissed. Having found that the Applicant and the Respondent shall be granted the authority to make personal care, health care and treatment decisions under the HCCA, jointly, the Respondent’s motion to exclude the Applicant as a substitute decision maker for such decisions is also dismissed.

Costs

[68] The Applicant has succeeded on her motion and is entitled to costs. She submits that the Respondent has put her and her expert through three sets of cross-examinations and served on them approximately 1,500 pages of submissions in these proceedings, many served after the deadline for submitting pleadings. The Applicant submits that she has incurred costs, including disbursements and HST, on a partial indemnity basis, of $69,688.27, on a substantial indemnity basis, of $90,151.61, and on a full indemnity basis, of $105,460.86.

[69] The Applicant asserts that these costs were unnecessarily incurred. She submits that if the Respondent had not arranged for Mrs. Lockhart to sign the 2018 Power of Attorney for Personal Care, prepared by him, at a time when she did not have capacity to make such a Power of Attorney, all of these costs could have been avoided. She further submits that the withholding of the 2018 Power of Attorney for Personal Care only added to the legal costs incurred in resolving the matter of Mrs. Lockhart’s potential removal from WCP as it contributed to the confusion of the staff at WCP as to who had the authority to make care decisions on behalf of Mrs. Lockhart and the need for the Applicant’s counsel to become involved. The Applicant asserts that the Respondent had another opportunity to reduce or eliminate the costs in this matter. He could have permitted Ms. Kaye to assess Mrs. Lockhart’s capacity to make or revoke a power of attorney at the same time as she was assessing Mrs. Lockhart’s capacity to manage her property.

[70] The Applicant also submits that she offered to resolve the issues between the Respondent and her. In a letter to him dated January 29, 2020, the Applicant explained to the Respondent that she was hoping for a “global resolution” on matters pertaining to Mrs. Lockhart’s property and personal care, but the Respondent was not responsive to that suggestion.

[71] The Respondent submits that he did not disclose the 2018 Power of Attorney for Personal Care because he was seeking to avoid litigation. He asserts that at all times he was acting in good faith and motivated by the best interests of Mrs. Lockhart, especially as his actions related to his plan to transfer her out of WCP during the COVID-19 pandemic.

[72] I do not accept the Respondent’s rationale for failing to disclose the 2018 Power of Attorney for Personal Care. It is apparent that he was quite prepared to disclose it when it was to his advantage to do so.

[73] In awarding costs to the Applicant, I have considered the factors set out in rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The Applicant was represented by two counsel throughout the proceedings, resulting in considerable increased costs. Despite the Respondent’s voluminous pleadings, hearsay evidence and requests for an adjournment, I find that he would not reasonably have expected to pay $105,460.86 in costs relating to a two-hour motion. The issues were very important to the parties, but neither the issues nor the proceedings were complex. I fix the Applicant’s costs at $55,000 on a partial indemnity basis, inclusive of HST and disbursements. The Respondent shall pay such costs to the Applicant within thirty days.

[74] The Applicant submits that the difference between the costs to be paid by the Respondent and her substantial indemnity costs ought to be paid from Mrs. Lockhart’s property. I disagree. Mrs. Lockhart did not cause or contribute in any way to this dispute between her children.

Dietrich J. Date: August 12, 2020