COURT FILE NO.: CV-21-87613

DATE: 2023/05/29

ONTARIO

SUPERIOR COURT OF JUSTICE

In the Matter of the Substitute Decisions Act, 1992 S.O. 1992, c. 30 and Powers of Attorney of Perminder Kaur Mehta

BETWEEN:

Rimpi Simpson

Applicant

– and –

Perminder Kaur Mehta, Sukhbinder Mehta, Victor Mehta, Jeane Mehta, and Teena Mehta-Aziz

Respondents

Martin Diegel for the Applicant

Alexander Bissonnette for the Respondents

Vasu Naik, Section 3 Counsel for Perminder Kaur Mehta

Heard: May 8, 2023, oral decision given May 29, 2023

REASONS FOR DECISION ON APPLICATION

Justice P.E. Roger

Introduction

1At the conclusion of the hearing of this Application, on May 8, 2023, I indicated that I would deliver my decision the next day. The lawyers were not available, and today’s date was agreed upon. Given the intervening time, I prepared this written decision which was read to the parties today.

Background Facts

Background Facts

2The Applicant brings this Application seeking to manage the personal care of her mother, Perminder Kaur Mehta (“Mrs. Mehta”). At the hearing of this Application, the Applicant sought relief as per the following paragraphs of the Notice of Application: (a), (b), (e), (g) only for in person meetings, and (h) to attend at the Temple and at the Applicant’s home as may be recommended by an occupational therapist. This includes seeking a declaration that the Applicant be entitled to manage the personal care of Mrs. Mehta based on the power of attorney of August 19, 2019; in the alternative, an order appointing the Applicant as guardian of Mrs. Mehta's; an order declaring the powers of attorney appointing the Respondent Sukhbinder to be invalid and unenforceable; and orders for visits between the Applicant and her mother.

3Mrs. Mehta is 84 years old, and in poor health. She lives with her 88-year-old husband of over 60 years, the Respondent Sukhbinder Mehta (hereinafter “Mr. Mehta”) and their adult son, the Applicant’s brother, the Respondent Victor Mehta. The other two Respondents are the sisters of the Applicant, the daughters of Mr. and Mrs. Mehta, the Respondents Jeane Mehta and Teena Mehta-Aziz.

4The Applicant alleges that Mrs. Mehta’s health issues are related to her lack of care at Mr. Mehta’s residence. She wants Mrs. Mehta to move to the Applicant’s home where the Applicant says she and her husband will treat Mrs. Mehta better. For several years, up until about March 2020, the Applicant played an important role in Mrs. Mehta’s care, took her to medical appointments, and interacted with her mother’s medical service providers. However, in recent years, the relationship between the Applicant and the Respondents deteriorated to the extent that the Applicant brought this Application.

5The Applicant alleges that Victor and Mr. Mehta are not properly caring for Mrs. Mehta. She alleges that they do not provide nutritious meals, ignore her needs, and isolate Mrs. Mehta. The Applicant alleges that Mrs. Mehta’s de-conditioning is caused by her poor treatment at the hands of the Respondents.

6The Respondents deny the Applicant’s allegations. Each has provided a detailed affidavit explaining the care provided to Mrs. Mehta. I find that the Respondents’ affidavits provide a balanced perspective of the various roles of the parties and the care provided to Mrs. Mehta. For example, Victor and Teena concede some of the care provided by the Applicant. They also describe the care provided to Mrs. Mehta, which includes Victor’s regular involvement, that of his father, sisters, and personal support workers who attend at Mr. Mehta’s home to look after Mrs. Mehta three times a day. The Respondents describe a good relationship and a level of cooperation between all Respondents to provide care to Mrs. Mehta, with the assistance of personal support workers. They describe a difficult, adversarial, and now non-existent relationship with the Applicant, which they attribute to the Applicant’s confrontational personality.

7Three powers of attorney for personal care are relevant. The first is dated August 2019 and is in favour of the Applicant. The other two are respectively dated December 2020 and December 2021. They each appoint Mr. Mehta and if he is incapable, Teena, or Teena and Victor, as the case may be.

8The Applicant alleges that the December 2020 and December 2021 powers of attorney for personal care are invalid. She alleges that Mrs. Mehta did not have the required capacity to give a power of attorney for personal care in December 2020 or 2021. She points out that a capacity assessment of August 18, 2021, found Mrs. Mehta incapable of managing property. She also references the medical records which describe Mrs. Mehta’s advancing severe stage dementia. Her lawyer argues that Mrs. Mehta’s lack of capacity is apparent from her progressively shakier signature observed on the powers of attorney. Her lawyer also argues that the circumstances of Mrs. Mehta signing the 2020 and 2021 powers of attorney are suspicious and result in a finding of undue influence, which reverses the onus. Amongst others, her lawyer points out that Mrs. Mehta was isolated by Mr. Mehta, that Mr. Mehta made the arrangements to see the lawyers, accompanied Mrs. Mehta to the lawyers, and remained present during the lawyer’s explanations and Mrs. Mehta’s signing, all of which is argued point to a finding of undue influence. Her lawyer relies upon Graham v. Graham, 2019 ONSC 3632 and Goodman Estate v. Geffen, 1991 CanLII 69 (SCC), [1991] 2 S.C.R. 353 to argue that a presumption of undue influence arises from Mr. Mehta’s position of dominance.

9Alternatively, the Applicant argues that she should be appointed guardian of Mrs. Mehta’s person.

Issues

Issues

10The issues include the validity of the December 2020 and 2021 powers of attorney over personal care, whether the Applicant should be appointed guardian of Mrs. Mehta’s personal care, and whether orders should be made requiring some level of access between the Applicant and her mother.

Analysis

Analysis

11For the following reasons, this Application is dismissed.

12Dealing firstly with the powers of attorney, I find that the evidence does not establish that Mrs. Mehta did not have capacity to make or grant a power of attorney for personal care in December 2021, or earlier in December 2020.

13Although there are circumstances that could tend towards a finding of undue influence, these are explained or contradicted by the evidence.

14For example, in the circumstances of this case, with a limited Mrs. Mehta, it is normal that others would make arrangements and schedule meetings with lawyers when Mrs. Mehta indicated to the Respondents that she wanted to remain in her home with her husband, Mr. Mehta, and not live with the Applicant. That Mrs. Mehta wants to reside at her home, with her husband is not only mentioned by each of the Respondents, this also finds its way into some of the clinical notes and records. As well, it is what Mrs. Mehta told the section 3 counsel. Mrs. Mehta recently told the section 3 counsel that she wants to continue to reside at home with her husband and son. Mrs. Mehta also mentioned in her affidavit and to the section 3 lawyer that she can make her own decisions about her personal care, but that if ever she was found incapable, she would want her husband to make these decisions.

15The documents and Mrs. Mehta’s evidence are consistent in that regard and sufficiently dispel allegations of undue influence that could otherwise arise from the circumstances outlined above relating to the independence of her stated opinion. Similarly, how and where the December 2020 power of attorney was signed, and in the presence of Mr. Mehta, is also explained by the above and by the fact that December 2020 was in the midst of severe COVID-19 restrictions. It is also explained by the fact that the lawyer who attended signed that he had no reason to suspect that Mrs. Mehta was not capable. Similarly, for the December 2021 power of attorney, not only did that lawyer sign that she had no reason to believe that Mrs. Mehta was incapable of giving the power of attorney, that lawyer also swore an affidavit to that effect.

16The lawyer and the articling student who attended to the preparation and signing of the December 2021 power of attorney swore an affidavit describing how the power of attorney was prepared and signed. The lawyer confirmed that although Mr. Mehta was present, he only spoke to reiterate what the lawyer said so Mrs. Mehta could hear better as masks were worn because of the COVID protocols. She said that Mr. Mehta did not make any other comment or contribution. The lawyer said she was satisfied that Mrs. Mehta understood and was able to give instructions. Related meetings with the lawyer who prepared the December 2021 power of attorney occurred over three attendances at the Mehta’s home, and Mrs. Mehta confirmed to the lawyer that she wanted to stay in her home, and have her spouse be her attorney. This was confirmed by the articling student, who speaks Punjabi. Further, there were no cross-examination to challenge these affidavits.

17On another point that was argued, no expert or other evidence was provided relating to any meaning that could be ascribed to Mrs. Mehta’s signature, and I am unable to arrive at any conclusion from looking at her signature on the various documents.

18As well, the evidence does not establish that Mrs. Mehta was incapable of giving the powers of attorney for personal care. The only capacity assessment filed relates to her incapacity to manage property. The relevant tests for capacity are outlined in the Substitute Decision Act, 1992 S.O. 1992, c. 30 (“SDA”), and the evidence does not establish that Mrs. Mehta did not understand whether the proposed attorney had a genuine concern for her welfare and may need to make decision for her. On the contrary, Mrs. Mehta showed insight when she expressed to her s. 3 counsel some embarrassment that this matter had to be resolved by a judge and said that she wishes that her family could get along. As well, a mere diagnosis of dementia is not sufficient, see for example, Johnson v. Johnson, 2022 ONCA 682 at para 13 and Lewis v. Lewis, 2019 ONCA 690.

19Next, dealing with the Applicant’s request for guardianship, the evidence does not establish that Mrs. Mehta is incapable of personal care and that she needs decisions to be made on her behalf. Sections 45 and 58 of the SDA are applicable and not made out. Incapacity is a high threshold and clear and compelling evidence has not been presented, see: The Public Guardian and Trustee v. Golyzwiak, 2021 ONSC 4524 and Elmi v. Hirsi, 2015 ONSC 6003.

20In the alternative, I note that the December 2021 power of attorney for personal care would, in the event of incapacity, be an alternative course of action that is less restrictive, see s. 55 (2) of the SDA. Powers of attorney granted when the donor had capacity should be respected unless there is strong and compelling evidence of misconduct or neglect by the attorney, see Crane v. Metzger, 2018 ONSC 5382. Here, the Applicant’s allegations are denied by the Respondents and her allegations do not constitute strong and compelling evidence of misconduct by the Respondents. Further, no medical opinion or evidence has been provided despite Mrs. Mehta being in frequent contact with health professionals. The information and belief evidence provided is not sufficient, and a standard of perfection for those providing care is not required. In the further alternative, the Applicant has not established that she could provide better care that that provided by the Respondents. In that regard, the Applicant’s evidence is vague about her current ability to look after her mother despite the Applicant working full-time, albeit remotely.

21With regards to the Applicant’s request for visits with her mother, at the Temple or at activities such as aqua fitness, Mrs. Mehta has not been found incompetent of personal care and there is no evidence that she is in need of protection. Consequently, the Court should not exercise its parens patriae jurisdiction.

22This request is opposed by the Respondents on the basis, they allege, that there is no factual, legal, or jurisdiction for the Court to make any orders in the face of a valid power of attorney, and that the attorney is best positioned to determine what is in the best interests of Mrs. Mehta. However, through her s. 3 counsel, Mrs. Mehta expressed that although she wishes to live at her home with her husband and son, she also wishes to see the Applicant when possible, and, if possible, at the Temple and at fitness classes, as they did before the pandemic. I have no evidence whether such activities are currently possible for Mrs. Mehta, but I know from s. 3 counsel that Mrs. Mehta was able to visit with s. 3 counsel on four occasions, with the help of a support person. Furthermore, although there is a valid power of attorney for personal care, all Respondents have said that Mrs. Mehta is capable of personal care. As such, Mrs. Mehta’s express wishes of seeing the Applicant when possible and doing possible activities, including at the Temple and at aqua fitness, should, if possible, be respected by the other Respondents, and reasonable efforts should be made to facilitate Mrs. Mehta’s stated wishes of seeing the Applicant, if, how, and when that may be possible. However, it would not be appropriate on the evidence presented to make an order forcing the Respondents to do so.

23It would not be appropriate to make an order for visits because the parens patriae powers of the Court should be used sparingly to protect children and, in this case, other vulnerable persons, when there is prima facie evidence of incompetence, evidence that person needs protection, and a legislative gap. Here, Mrs. Mehta has been not found incompetent of personal care, she is not in need of protection, and the SDA is applicable. This does not mean that her reasonable wishes to see the Applicant should not be reasonably accommodated by the Respondents, but I make no order in that regard for the reasons stated above.

24The Application is therefore dismissed.