COURT FILE NO.: Brampton CV-19-3583
DATE: 2022-07-27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Raymond Tanti
Applicant
– and –
Paul Tanti and Sharon Joseph
Respondents
William R. Gilmour, for the Applicant
Kathleen Kinch, for Paul Tanti
Joy Nwawe, for Sharon Joseph
Sarah Jones, for the Public Guardian and Trustee
HEARD: March 23, 2022
conlan j.
[1] Mr. Paul Tanti turned 92 years old in January 2022. This Court is in Paul’s corner. I wish that I had the chance to meet him in person. I am trying to do the best that I can for him.
I. The Order of The Honourable Mr. Justice Harris – September 12, 2019
[2] By Order made on September 12, 2019 (the “Guardianship Order”), my colleague Mr. Justice Harris, among other things, adjudged that Mr. Paul Tanti (“Paul”) is incapable of personal care and incapable of managing property, and that Paul’s son, Raymond Tanti (“Raymond”), is appointed as the sole guardian of property for Paul and the sole guardian of the person of Paul.
[3] The Guardianship Order was made after a very brief hearing at the Superior Court of Justice at Brampton on September 12, 2019. It was made on the basis of materials filed by Raymond, submissions made by Raymond’s counsel, and a letter dated September 9, 2019 from the Office of the Public Guardian and Trustee.
[4] The Guardianship Order was not made in the presence of or on the basis of any materials filed by or submissions made on behalf of Sharon Joseph (“Sharon”), Paul’s then wife, or Sharon’s counsel.
[5] The handwritten Endorsement of Justice Harris from September 12, 2019 provides, in full, “Order to go as asked. Costs of $10,000”.
[6] The transcript of the proceeding before Justice Harris on September 12, 2019 (“transcript”) indicates that His Honour had not had an opportunity to read the file before the matter was heard in Court. Counsel for Raymond advised His Honour that a Notice of Appearance had been delivered by Sharon, and that Sharon and her lawyer were present at the courthouse in Brampton earlier that day but had apparently chosen to leave before the case was called. Counsel, Ms. Nwawe, was paged but did not respond. When asked by His Honour what Sharon’s position on Raymond’s application was, counsel for Raymond indicated that Ms. Nwawe wanted an adjournment to file materials. Counsel for Raymond then stated that “I indicated that as long as an order went covering the interim that I would be happy that she [Ms. Nwawe] return the matter, and I drafted an order accordingly. I offered her [Ms. Nwawe] a copy of that order and my factum earlier today, and she declined to take it”.
[7] All of the above is contained at pages 1 and 2 of the transcript.
[8] Counsel for Raymond then summarized for His Honour the alleged facts and circumstances. Those alleged facts included that “$600,000 that he [Raymond] formerly had control over as Power of Attorney for his father was no longer there or no longer available to him”, and that Sharon left for Trinidad for two weeks without having made arrangements for Paul’s dialysis or his care, and consequently Raymond removed Paul from his home and took Paul to Raymond’s residence and then commenced the application (page 4 of the transcript).
[9] The penultimate submission made by counsel for Raymond before Justice Harris was that “[t[hese are somewhat difficult circumstances, and the allegations are, in my submission, quite serious, and clearly, the applicant [Raymond] has concern that the $600,000 that seems to have disappeared may have made its way to Trinidad during the abandonment of his father” (page 6 of the transcript).
[10] Then, after some brief back and forth between His Honour and counsel for Raymond, at page 9 of the transcript, the hearing concluded with the Court stating, in part, “order to go as asked”.
II. The Issues for This Court to Decide
[11] In Her Honour’s Endorsement dated March 2, 2021, my colleague Madam Justice McSweeney, at paragraph 10 therein, clearly defined what this Court has been tasked to decide – should the Guardianship Order be set aside and, if so, what should replace it?
III. The Discrete Hearing Before This Court
[12] The hearing before this Court was delayed one day through no fault of anyone but rather due to legitimate health issues being experienced by counsel for Raymond.
[13] After the false start, the hearing began on March 23, 2022. The entire hearing was conducted remotely, utilizing the Zoom platform.
[14] On March 23rd, opening statements were delivered. Ms. Nwawe, counsel for Sharon, argued that the Guardianship Order should be set aside because (i) it was improperly before Justice Harris as an unconfirmed matter and (ii) it was based on false, misleading, and incomplete information. If set aside, the previously granted power(s) of attorney from Paul to Sharon would govern, Ms. Nwawe submitted.
[15] Mr. Gilmour, counsel for Raymond, submitted that the Guardianship Order should not be set aside and, further, if it was set aside then a vacuum would be created because there has been no judicial determination of the validity of the alleged power(s) of attorney from Paul to Sharon.
[16] Ms. Kinch, appointed as counsel for Paul under section 3 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, as amended (“SDA”), such appointment coming after the Guardianship Order was made, indicated that neither she nor the Office of the Public Guardian and Trustee took any position on whether the Guardianship Order should be set aside but that this Court should be concerned about the lack of any specific plan being outlined by Sharon to deal with Paul’s continuing need for steady and constant supervision.
[17] As Sharon is the moving party asking for the Guardianship Order to be set aside, she presented her case first at trial. Sharon was the only witness called by her side.
[18] After the case for Sharon was completed, Raymond presented his side’s evidence. Both he and his wife, Carol Anne Tanti, testified.
[19] After the case for Raymond was completed, Ms. Kinch was given an opportunity to present evidence on behalf of Paul. Two items were filed as exhibits – a position letter from the Office of the Public Guardian and Trustee dated May 13, 2021 and an affidavit from Ms. Kinch’s law clerk which attached thereto documentation regarding Paul’s ongoing medical issues.
[20] The lengthiest portion of the trial, by far, was Ms. Nwawe’s cross-examination of Raymond. That cross-examination seemed aimed at painting Raymond as an uncaring son who attempted to deliberately mislead Justice Harris and who has financially mismanaged his father’s affairs ever since September 12, 2019.
[21] I accept neither of those propositions. Equally important, neither is necessary to a determination of what is before this Court.
[22] Closing submissions from counsel were delivered on day seven of the hearing, June 29, 2022. Each counsel also filed on CaseLines some helpful written materials as part of her/his closing argument, including references to the law, and this Court has reviewed those written materials.
[23] In oral argument, Ms. Nwawe again submitted that the Guardianship Order should be set aside, leaving in its place to govern the previously granted powers of attorney. Ms. Nwawe referred to the document at CaseLines B-2-125, the alleged Power of Attorney for Personal Care granted by Paul to Sharon dated October 18, 2017, and the document at CaseLines B-2-128, the alleged Continuing Power of Attorney for Property granted by Paul to Sharon dated July 31, 2019. Ms. Nwawe referred to various Rules of Civil Procedure as the bases for setting aside the Guardianship Order: 59.06(2)(a) – fraud or facts arising or discovered afterwards, and/or 38.09(1)(a) – service requirements for an application which Ms. Nwawe argues were not met when the matter was before Justice Harris, and/or 37.10.1(1) – confirmation requirements which Ms. Nwawe argues were not met when the matter was before Justice Harris, and/or 39.01(6) – the requirement on an ex parte matter for full and fair disclosure of all material facts which Ms. Nwawe argues was not met when the matter was before Justice Harris. Ms. Nwawe also made a series of allegations about Raymond having breached the fiduciary duties and failed to adhere to the responsibilities that he has as Paul’s court-appointed Guardian.
[24] I accept neither of the latter propositions and, again, I note that neither is necessary to a determination of what is before this Court.
[25] Mr. Gilmour again submitted that the Guardianship Order should not be set aside and focussed on what he described as being an “untenable” situation if it was set aside. There would be two powers of attorney in existence, in favour of two different persons, both of which are disputed in terms of their validity by the other side. There would be the 2019 Continuing Power of Attorney for Property in favour of Sharon, but there would also be the document at CaseLines B-2-466 – that is the alleged Power of Attorney for Personal Care granted by Paul to Raymond dated November 14, 2017 (which revoked the October 2017 Power of Attorney for Personal Care granted by Paul to Sharon). That untenable situation would be contrary to Paul’s best interests, Mr. Gilmour submitted.
[26] Ms. Jones, counsel for the Office of the Public Guardian and Trustee, who did not take part in the hearing before its final day, reiterated that the said Office takes no position on whether the Guardianship Order should be set aside. Ms. Jones also confirmed that the legislation, section 22 of the SDA, makes clear that there is a general preference for resort to a valid power of attorney over that of the more restrictive guardianship order. Finally, Ms. Jones suggested that, if Raymond remains as Paul’s court-appointed Guardian, this Court should make some specific orders about the need for Raymond to provide an updated or amended management plan.
[27] Ms. Kinch cares very deeply for Paul and provided helpful submissions to this Court. Her dedication to Paul’s best interests was evidenced by the manner in which she spoke about him; she even cried at times during her closing address. She took no position on whether the Guardianship Order should be set aside but argued that (i) the evidence of Paul’s incapacity is overwhelming – I agree, and (ii) we have no detailed evidence about the current plan of Sharon for where she and Paul will live together, the suitability of the Dalegrove residence to Paul’s current medical needs, and how Sharon will attend to Paul’s medical services such as his dialysis – I agree, and (iii) the competing 2017 powers of attorney for personal care, one in favour of Sharon and the other in favour of Raymond, contain very different end-of-life provisions for Paul, which is odd and very significant for Paul – I agree, and (iv) this Court has an insufficient evidentiary foundation to determine the validity of any of these various powers of attorney in existence – I agree, and (v) for certain Raymond and Sharon cannot cooperate with each other, and thus, it cannot be that one has control over Paul’s personal care while the other has control over Paul’s property – again, I agree.
[28] I agree with all of those submissions made by Ms. Kinch, and I make all of those conclusions.
[29] On the first point, which is the only one of the five that could possibly be disputed by Sharon, I accept and adopt the helpful chart prepared by Ms. Kinch and found at CaseLines B-1-104 and B-1-105, summarizing the uncontroverted, independent, professional medical evidence to support that Paul is incapable of managing both his personal care and his property, as found by Justice Harris and continuing to this day. Sharon elected through her counsel not to present any of her own medical evidence to the contrary, and she also elected through her counsel not to demand that any of these professional witnesses attend the hearing to be cross-examined, and she also elected through her counsel not to ask for any adjournment of the hearing once the reports were ruled admissible by this Court, and she also elected through her counsel not to adjust her strategy after the admissibility ruling was made even though there was a very lengthy hiatus in the middle of the hearing before this Court.
[30] With respect, the issue of Paul’s incapacity should have been conceded by Sharon. It is not enough to rely upon some handwritten note allegedly authored by Paul during one of his visits with Sharon as purported evidence of Paul’s capacity and of his wishes (see the document at CaseLines B-2-435). In fact, it is unnecessary for this Court to even rule on the admissibility of that letter. Assuming without deciding that the note is admissible, it does not change any of this Court’s conclusions or its ultimate disposition of the matter.
[31] In her reply submissions, Ms. Nwawe argued that the validity of the powers of attorney allegedly granted by Paul to Sharon was in fact already determined by my colleague, Madam Justice Mandhane. I disagree.
[32] I have read several times the very thorough decision of Justice Mandhane, Tanti v. Tanti et al., 2020 ONSC 8063. Clearly, there was one insular issue before Her Honour – whether Paul was capable of marrying Sharon (paragraphs 3 and 99). There was one insular conclusion reached by the Court – Paul was capable of marrying Sharon and, thus, the marriage was declared valid (paragraphs 5 and 75).
[33] The hearing before Justice Mandhane, and the subsequent appeal to the Court of Appeal for Ontario, which resulted in the decision of Her Honour being upheld [Tanti v. Tanti, 2021 ONCA 717], had nothing to do with the validity of the various powers of attorney that were filed in this Court. In fact, the Court of Appeal expressly stated, at paragraph 8, that “the only issue before this court is Mandhane J.’s decision on the validity of the marriage”.
IV. The Guardianship Order Must be Set Aside
[34] I have concluded that the Guardianship Order must be set aside. Frankly, the parties have wasted a great deal of time and money to get to this stage; the Order should have been set aside on consent.
[35] There is good reason why this Court, above, outlined in detail what transpired before Justice Harris on September 12, 2019. This is not complicated.
[36] The Guardianship Order was clearly intended by everyone, including Raymond and his counsel, to be a temporary one. An interim one. A stopgap measure, requested on an urgent basis, to halt the alleged bleeding from Paul’s finances and to ensure his care after his wife allegedly absconded.
[37] The Guardianship Order was never intended to be in place for nearly three years. There has, to date, never been a proper guardianship hearing. There has, to date, never been an opportunity for Sharon, Paul’s wife, to be properly heard on whether Raymond should have ever been permitted to manage Paul’s person and/or his property. It is absurd that this Guardianship Order, made in the absence of Paul’s own wife and her counsel and in the absence of any materials filed by or on behalf of Sharon, has been allowed to become the status quo de facto.
[38] Although Raymond’s proceeding before Justice Harris was brought with notice to Sharon, the unfolding of events effectively meant that the matter was dealt with ex parte. That is not in the interests of justice. Nor is it in the best interests of Paul, who deserved to have both of his loved ones, Raymond and Sharon, heard before an order was made that we now know would be in place for three years.
[39] It does not matter why or when Sharon and her lawyer left the Brampton courthouse on the day in question. What matters is whether Sharon intended to abandon her opposition to Raymond’s request for guardianship, and this Court has no hesitation in concluding that Sharon had no such intention. I would go further and find that Sharon and her lawyer never would have left the Brampton courthouse that day if they thought that the matter would be dealt with and an order made.
[40] Thus, for reasons of procedural fairness alone, the Guardianship Order must be set aside.
[41] As Justice Binnie stated at paragraph 15 of the Supreme Court of Canada’s seminal decision on the duty of a trial judge to give sufficient reasons in a criminal case, R. v. Sheppard, 2002 SCC 26, “[t]he courts frequently say that justice must not only be done but must be seen to be done…”; there is no appearance of justice in having something as important as elder care decided on a quasi-permanent basis (three years running) and with only one side participating in the hearing.
[42] The Guardianship Order must be set aside for another reason as well. Again, this is simple. Again, once this became clear in the evidence before this Court, the Guardianship Order should have been set aside on consent, with terms.
[43] During Ms. Nwawe’s cross-examination of Raymond, on June 27, 2022, two crucial admissions were made. Ms. Nwawe took Raymond to the transcript of the appearance before Justice Harris on September 12, 2019 and pointed out the clear references to $600,000 missing and Sharon possibly having stolen the money. On both points, Raymond acknowledged that he now knows that neither is true.
[44] Of course, we also know that the third major allegation that grounded the Guardianship Order, that is that Sharon had essentially fled the area and had abandoned Paul, is also not true.
[45] Imagine that. The very underpinnings of the Guardianship Order – (i) that there was a massive amount of missing money, and (ii) that Sharon was likely responsible for the draining of the funds, and (iii) that Sharon seemed to have taken off to Trinidad to harbour the money and herself, thereby abandoning her elderly and sick husband, all turned out to be untrue.
[46] This Court need only resort to one Rule, 59.06(2)(a) of the Rules of Civil Procedure, to set aside the Guardianship Order on the basis of “facts arising or discovered after it was made”. There is no need to find the existence of fraud, and this Court specifically makes no finding of fraud.
[47] As Justice Doherty stated for the Court of Appeal for Ontario in Mujagic v. Kamps, 2015 ONCA 360, “the language of the rule [59.06(2)(a)] is so clear”, and “[f]acts come from evidence, including new testimony and exhibits” (paragraphs 9 and 10).
[48] The new testimony of Raymond during the hearing before this Court has revealed facts on the most crucial of matters, facts that arose or were discovered after the Guardianship Order was made, and thus Rule 59.06(2)(a) is the ideal authority to set aside the Guardianship Order. It cannot possibly be disputed by any right-minded person that the Guardianship Order would never have been made in the first place if Justice Harris had known what this Court knows.
[49] In summary, whether on procedural fairness grounds or on the basis of Rule 59.06(2)(a), or both, the Guardianship Order must be set aside. This Court so orders.
V. The Setting Aside of the Guardianship Order Must be Temporarily Stayed
[50] The setting aside of the Guardianship Order cannot take effect immediately, however, as there must be certainty as to who will manage Paul’s person and his property.
[51] Unfortunately, this Court cannot decide that issue today. That is because there is no guardianship request being advanced by Sharon. And there is no proper evidentiary foundation to determine the validity of the competing powers of attorney allegedly granted by Paul to Sharon and to Raymond.
[52] Consequently, this Court orders that the decision to set aside the Guardianship Order is stayed for a period of ninety (90) calendar days from the date of these reasons.
VI. Costs and the Next Steps
[53] If the parties cannot settle the issue of costs, then they may file written submissions. Any party seeking costs shall file within twenty (20) calendar days of the date of these reasons. The other side may respond within ten (10) calendar days of her/his counsel’s receipt of the submissions seeking costs. No reply is permitted by any party. Each submission shall be strictly limited to three pages in length, excluding attachments.
[54] This Court requests that Ms. Kinch remain involved in the file as section 3 counsel for Paul. This Court requests further that Ms. Kinch ensure that the Office of the Public Guardian and Trustee be made aware of the within decision.
[55] This Court orders that, within thirty (30) calendar days of the date of these reasons, Raymond shall deliver to Sharon, Ms. Kinch, and the Office of the Public Guardian and Trustee, and file with the Court, an updated or amended management plan.
[56] This Court orders that, between the date of these reasons and the date that the stay is lifted, the parties shall do one of three things: (i) arrive at a consent order that disposes of the entire matter on a final basis, by appointing Sharon or Raymond as the guardian or power of attorney, for example, (ii) arrive at a consent order that does not dispose of the entire matter but which sets out the next step in the case, a hearing to determine the validity of the competing powers of attorney, for example, or (iii) if neither of those consents is forthcoming, schedule a court appearance before me or another judge to determine whether the stay must be extended, which should be avoided, and what the next step should be.
[57] The parties need to cooperate as best that they can, for Paul’s sake. Time is of the essence. Stop wasting money, which includes Paul’s money, for endless litigation including appeals that stand no reasonable chance of success.
[58] On how to proceed from here, I recommend that the parties first ask themselves whether they want to pursue guardianship or have resort to her/his power(s) of attorney. The Court will not accommodate both. Absent a consent order that finally disposes of the entire matter, either the parties have a further hearing to determine the validity of the competing powers of attorney, or the parties have a fresh hearing to determine guardianship on a final basis. Not both.
[59] Whatever happens after today, there shall be no more litigation in the Superior Court of Justice on the issue of Paul’s incapacity. The medical evidence is plentiful, relatively current, uncontroverted, and overwhelming (again, reference should be had to the chart prepared by Ms. Kinch, referred to above, which accurately summarizes the professional reports dealing with this issue). This Court orders, on a final basis, that Paul Tanti is incapable of managing both his person and his property.
[60] Finally, the Judgment/Order that emanates from these reasons shall be formally taken out without delay. If neither Ms. Nwawe nor Mr. Gilmour does that quickly, then this Court requests that Ms. Kinch prepare the Judgment/Order and have it issued.
[61] Today, this is the best that I can do for Paul.
Conlan J.
Released: July 27, 2022
COURT FILE NO.: Brampton CV-19-3583
DATE: 2022-07-27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Raymond Tanti
Applicant
– and –
Paul Tanti and Sharon Joseph
Respondents
REASONS FOR JUDGMENT
Conlan J.
Released: July 27, 2022