CITATION: Souter et al. v. Poitras, 2023 ONSC 6983

COURT FILE NO.: CV-20-140

DATE: 2023/12/11

SUPERIOR COURT OF JUSTICE – ONTARIO (North Bay)

RE: MICHELLINE SOUTER, ALICE VIBERT, MADELAINE POITRAS, Applicants

AND:

PHILIPPE POITRAS, Power of Attorney for Personal Care for Georgette Lucie Poitras, Respondent

AND:

THE PUBLIC GUARDIAN AND TRUSTEE, Respondent

BEFORE: Justice J.S. Richard

COUNSEL: Joseph D. Kennedy, for the Applicants Bradley Jackson, for the Respondent Philippe Poitras Merina Sebastien, for the Respondent Public Guardian and Trustee (not appearing)

REASONS FOR DECISION

I. FACTS

[1] This Application was commenced over three years ago. It involves a family dispute relating to the care of the parties’ mother, Georgette Lucie Poitras (“Georgette”). Georgette is 85 years old, and has been unable to live on her own since about January 2020. Georgette’s capacity is not in question. All parties agree that she suffers from dementia, and that she has not had the ability to care for herself or to manage her finances for some time. Georgette’s husband, the parties’ father, passed away in 2011.

[2] After residing mostly with some of her children for varying periods between 2011 and 2020, Georgette had a serious fall and was admitted to the North Bay Regional Centre in January 2020. Between March 2020 and July 2020, she transitioned back and forth between different facilities due to the pandemic. She was finally admitted into a long-term care home, the Algonquin Nursing Home (“ANH”), on July 13, 2020.

[3] The Applicants, Michelline Souter, Alice Vibert, and Madelaine Poitras are the sisters of the Respondent, Philippe Poitras. They have two other brothers who are not parties to these proceedings: Robert Poitras and Yvon Poitras. The siblings also had one brother, Jean-Paul Poitras, who passed away very recently. For ease of reference, since many of the people involved in this case have the same last names, I will refer to individuals by their first names.

[4] The Respondent, Philippe, is Georgette’s Power of Attorney for Property and her Power of Attorney for Personal Care. While the Applicants initially sought to have the Respondent removed as Power of Attorney for both property and personal care, they now only seek to remove him as Georgette’s Power of Attorney for Personal Care, and they wish to take on that function themselves. It is agreed that the Respondent will continue as Georgette’s Power of Attorney for Property.

[5] The Applicants also seek an order requiring the Respondent to account for Georgette’s finances from February 1, 2016, to today.

[6] Although there was some background provided by the Applicants relating to Georgette’s execution of the Powers of Attorney, the validity of the documents was conceded.

[7] The Public Guardian and Trustee did not participate in the hearing.

The Applicants’ position

[8] The Applicants submit that the Respondent has failed to fulfill his obligations under the Substitute Decisions Act, 1992, S.O. 1992, c. 30. They further submit that they should instead be appointed as Georgette’s guardians.

[9] In a nutshell, they allege that the Respondent failed to fulfill his obligations by restricting the Applicants’ access to Georgette, which went as far as instructing nursing staff to limit Facetime contact between Georgette and the Applicants. They further allege that they were not provided with any information relating to Georgette’s health, and that the Respondent unilaterally relocated Georgette from the North Bay to Mattawa without consulting them.

[10] Evidence presented to the court showed that restrictions had been put on Georgette’s file at the long-term care home specifically preventing staff from sharing any information with the Applicants:

“All issues/occurrences to be discussed with POA only. Staff not to share information with other family members (sisters specifically)”

[11] The Applicants further submit that the Respondent failed to meet his obligations under the Substitute Decisions Act when he denied them access to Georgette during Thanksgiving weekend in 2021, despite COVID-19 safety measures being met by them.

[12] Finally, they assert that the Respondent is failing to meet his obligations by leaving Georgette in her current long-term care home, ANH, despite the fact that:

• Georgette was assaulted by a male resident on January 3, 2021, and the Respondent did not call the police or advise the Applicants;
• This facility is located in Mattawa, which is geographically further from North Bay, thereby limiting visits to Georgette;
• With the Respondent’s consent, this facility utilizes restraints to keep Georgette in her wheelchair;
• At times, between September 30, 2020, and February 3, 2021, Georgette asked nursing staff “to go home”, and has suffered depressive episodes since she moved there;
• Georgette suffered four falls between October 18, 2020 and July 2021;
• There were four incidents shortly after Georgette moved into the home where she became agitated and upset after speaking with her sons: August 10, 2020, August 14, 2020, and twice on October 16, 2020.

[13] While it is conceded by both sides that the parties do not get along, the Applicants argue that the Respondent has allowed his personal feelings towards them to interfere with their relationship with their mother, as well as with his obligations. As a result, they argue, he has failed to meet his obligations under the Substitute Decisions Act and should be removed.

[14] The Applicants submit, furthermore, that it would be in Georgette’s best interest to relocate her to a long-term care home in North Bay, and to have them appointed as her guardians.

The Respondent’s position

[15] The Respondent denies all claims relating to his failure to meet his obligations under the Substitute Decisions Act. He submits that shortly after Georgette executed her Power of Attorney documents in 2018, they went out for lunch, and she expressed some wishes to him. Specifically, he alleges that Georgette told him she wanted him to carry out the terms of her Will, to make sure Jean-Paul (now deceased) was taken care of, and to ensure that her medical and financial information would not be shared with anyone. The Respondent admits that these wishes were never documented or put in writing by Georgette.

[16] The Respondent’s evidence is that Georgette was adamant about not going to the Cassellhome long-term care home in North Bay. Accordingly, when completing her request for placement, he selected AHN in Mattawa and Eastholme Home for the Aged in Powassan as the preferred long-term care homes.

[17] In submissions, the Respondent emphasized that although AHN may be further for friends and family to visit Georgette, the majority of whom live in North Bay, it is only an extra 15-minute drive from where she used to reside in Bonfield. According to the Respondent, getting accepted into a long-term care home was especially difficult at the time due to the COVID-19 pandemic, and he chose to place her in the first of those three facilities that had an opening for Georgette.

[18] The Respondent takes the position that Georgette is well cared for and that she is happy at AHN. He further submits that he has been doing his best to carry out Georgette’s wishes, and to make decisions that are in her best interest. He relies on the fact that the parties’ two brothers, Robert and Yvon, do not support the Applicants’ position to replace him as Georgette’s guardian.

[19] Finally, the Respondent denies having taken steps or actions to separate the Applicants from Georgette, and argues that all decisions and actions were congruent with Georgette’s wishes and best interest.

Position of The Public Guardian and Trustee

[20] Although the Public Guardian and Trustee (the “PGT”) did not participate in the hearing, a letter authored by the PGT dated May 16, 2021, was filed as an exhibit to the Applicants’ evidence.

[21] The letter of May 21, 2021, moreover, states that the PGT does not take a position with respect to the request to have the Respondent pass accounts as this issue “will be decided by the trier of fact after the usual steps in litigation (…).”

[22] This same letter advises that the PGT will not be participating in the hearing, and suggests:

Given the dynamics outlined in the application record, it may be appropriate for the court to order the PGT to arrange for counsel for Georgette.

[23] No requests or order was made to have counsel appointed for Georgette. The Applicants submit that as her Power of Attorney, the Respondent is her legal guardian and that she therefore already has counsel.

[24] While it may be prudent to allow an incapable person to have independent counsel, based on the evidence before the court, Georgette would not have the ability to provide instructions to counsel. Counsel for both sides made tremendous efforts to gather a full and complete record of evidence that includes transcripts from the examinations and cross-examinations of parties, non-parties, and caregivers, as well as voluminous notes taken by AHN staff. The evidentiary record is largely uncontested. The diverging positions stem from a difference of opinion and interpretation of that evidence, and it is this court’s function to now determine how this evidence should be interpreted within the circumstances.

II. ISSUES

[25] The issues before the court are as follows:

a. Has the Respondent failed to meet his duties as Georgette’s Power of Attorney for Personal Care?

b. If he has, should he be removed and replaced by the Applicants?

c. Should the court order a full accounting of Georgette’s finances from February 1, 2016, to today’s date?

III. THE LAW

(a) Appointment

[26] Guardianship of persons is governed by Part II of the Substitute Decisions Act. Section 47(1) states:

47((1) 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. 1992, c. 30, s. 47 (1).

[27] Georgette executed her Power of Attorney for Personal Care appointing the Respondent and Jean-Paul (now deceased) on February 6, 2018. The only specific instructions provided in the document relate to her wish “not to be kept alive by medications, artificial means or ‘heroic measures’.”

[28] The Power of Attorney for Personal Care, furthermore, gives the Respondent the ability to make any and all decisions on her behalf, and his powers are in no way limited, as section III of the document specifically states that she wished to place no conditions or restrictions on the Respondent’s powers.

[29] The validity of the Power of Attorney for Personal Care is not contested, and all parties agree that Georgette was capable of granting this power at the time of execution. Thus, the Respondent was rightfully appointed on February 6, 2018.

(b) Duties of Power of Attorney for Personal Care

[30] Section 66 (2.1) of the Substitute Decisions Act states that any decision made by a Power of Attorney for Personal Care to which the Health Care Consent Act applies shall be made in accordance with that legislation. The Health Care Consent Act, moreover, specifically states that decisions relating to admission to care facilities, such as long-term care homes, shall be made in accordance with the incapable person’s wishes or instructions. If wishes are unknown, then they shall be made per the incapable person’s best interest (Health Care Consent Act, s.42).

[31] By reference to section 66 of the Substitute Decisions Act, section 67 then provides that a person acting as Power of Attorney for Personal Care shall, in all other decisions, make decisions for the grantor of the Power of Attorney for Personal Care in accordance with the following principles:

a. If the Power of Attorney for Personal Care knows of a wish or instruction applicable to the circumstances that the incapable person expressed while capable, the Power of Attorney for Personal Care shall make the decision in accordance with the wish or instruction;

b. The Power of Attorney shall use reasonable diligence in ascertaining whether there are such wishes or instructions;

c. A later wish or instruction expressed while capable prevails over an earlier wish or instruction;

d. If a Power of Attorney does not know of a wish or instruction applicable to the circumstances that the incapable person expressed while capable, or if it is impossible to make the decision in accordance with the wish or instruction, the Power of Attorney shall make the decision in the incapable person’s best interests.

[32] Thus, in summary, all decisions made on an incapable person’s behalf, whether under the Health Care Consent Act or under the Substitute Decisions Act, must be made in accordance with the incapable person’s wishes and instructions as they were at the time when the person was capable. The Power of Attorney has an obligation to try to ascertain such wishes and instructions, and if it is impossible to do so, then the Power of Attorney must make decisions that are in the incapable person’s best interest.

[33] Almost mirroring factors listed in the Health Care Consent Act, section 67(4) of the Substitute Decisions Act, sets out factors that must be considered when determining an incapable person’s best interest:

(a) the values and beliefs that the guardian knows the person held when capable and believes the person would still act on if capable;

(b) the person’s current wishes, if they can be ascertained; and

(c) the following factors:

1. Whether the guardian’s decision is likely to,

i. improve the quality of the person’s life,

ii. prevent the quality of the person’s life from deteriorating, or

iii. reduce the extent to which, or the rate at which, the quality of the person’s life is likely to deteriorate.

2. Whether the benefit the person is expected to obtain from the decision outweighs the risk of harm to the person from an alternative decision. 1996, c. 2, s. 43 (3).

[34] Then, the Substitute Decisions Act outlines other duties and responsibilities imposed upon a Power of Attorney for Personal Care, including:

• Keeping records of decisions made ( s.67, s. 66(4.1));
• Encouraging the incapable person to participate, to the best of her abilities, in the Power of Attorney’s decisions on her behalf (s.67, s.66(5);
• Seeking to foster regular personal contact between the incapable person and supportive family members and friends of the incapable person (s.67, s.66(6));
• Consulting from time to time with family members and friends who are in regular personal contact with the incapable person, and with persons from whom the incapable person receives care (s.67, s.66(7));
• Choosing the least restrictive and intrusive course of action that is available and is appropriate in the particular case;
• Not use confinement or monitoring devices or restrain the person physically or by means of drugs, and shall not give consent on the person’s behalf to those unless the practice is essential to prevent serious bodily harm to the incapable person or to others, or allows the person greater freedom or enjoyment (s.67, s.66(10)).

[35] If a court is satisfied that a Power of Attorney for Personal Care is not acting in accordance with the Substitute Decisions Act, then it has the ability to terminate their appointment and appoint a new guardian in their place ( Substitute Decisions Act, s.22 ).

[36] The test for doing so is set out in the 2008 Ontario Superior Court decision In the Matter of the Estate of Johanna Maria Schaefers, Incapable Teffer et al v Schaefers et al, 2008 ONSC 46929, 93 OR (3d) 447, 93 OR (3d) 447 (“Teffer”). Specifically, as explained at paragraphs 24 and 25:

The jurisprudence establishes that two issues require consideration. First, there must be strong and compelling evidence of misconduct or neglect on the part of the attorney before a court should ignore the clear wishes of the donor. With respect to this issue, the evidence has to establish that the donor was capable of granting a proper power of attorney.

The second issue relates to whether the court is of the opinion that the best interest of an incapable person are being served by the attorney.

IV. ANALYSIS

(a) Georgette’s wishes

[37] Both the legislation and caselaw emphasize the importance of respecting an incapable person’s wishes. Though there may have been perceptions and comments made by the Applicants in their evidence of Georgette being influenced in 2018 when she executed her Last Will and Testament, her Power of Attorney for Property and her Power of Attorney for Personal Care, the validity of these documents, all drafted by Georgette’s lawyer, is not being contested. Thus, the court accepts that it was Georgette’s wish to appoint the Respondent as her Power of Attorney, thereby bestowing upon him the responsibility to make decisions on her behalf.

[38] Relying on previous jurisprudence, as pointed out in Teffer at para 23: “If an enduring power of attorney was validly executed by a donor who had the mental capacity to do so at the time the power of attorney was granted, then it would be extremely difficult for any applicant (…) to show proof on the balance of probabilities (…) the power of attorney has misbehaved or not acted appropriately in certain respects.” While that case referred to the duties of a Power of Attorney for Property, the standards and principles are the same for a Power of Attorney for Personal Care.

[39] In order to disturb Georgette’s wish to have the Respondent make decisions for her, the Applicants must show proof, on the balance of probabilities, that the Respondent misbehaved or did not act appropriately.

[40] In fulfilling his duties, the Respondent had to first make decisions in accordance with Georgette’s wishes or instructions as she expressed them while capable (s.67, s.66(3)). The Respondent relied on wishes he alleges Georgette conveyed to him orally on the day she executed her Last Will and Testament and Powers of Attorney when they went out for lunch.

[41] Namely, he alleges she told him that: (1) she did not want to reside in the Cassellhome nursing home in North Bay, and (2) she did not want him to share any of her personal information with the Applicants, as this was “nobody’s business.” The Respondent explained in his evidence that Georgette felt the Applicants had given her “a hard time” concerning her finances in the past.

[42] There are no documents corroborating the Respondent’s evidence relating to Georgette’s specific wishes, and it is therefore impossible to know with absolute certainty what wishes or instructions were expressed to the Respondent, if any, during that lunch. There is strong evidence to suggest, however, that the Applicants had deep concerns about Georgette’s finances as far back as 2017 when they convened a “family meeting” to discuss these.

[43] In addition, the affidavit evidence of Robert and Yvon, both non-parties to these proceedings, give accounts of at least two separate occasions when Georgette was visibly distraught following visits from the Applicants. They each separately observed Georgette upset and crying.

[44] Although their evidence stating that Georgette explained that she was upset by the Applicants raising financial issues and the resulting family in-fighting with her may be admissible on the hearsay principled exception of necessity, what is undoubtedly clear from all of the evidence submitted by the parties is that there was deep mistrust between the parties on the issue of their mother’s finances, and that this resulted in high-level conflict.

[45] It is not implausible, therefore, that this would have caused Georgette great distress, and that she sought, as best she could, to try to prevent or minimize it by controlling the information that was shared between the parties, thereby also minimizing that which the siblings could fight about.

[46] With that said, plausible does not necessarily equate probable, and since Georgette’s specific wishes cannot adequately be ascertained independently, this court should review the Respondent’s actions within the context of Georgette’s best interest.

(b) Georgette’s best interest

(i) Admission to AHN

[47] This court accepts that there was no misconduct or neglect on the part of the Respondent in admitting Georgette to AHN. In addition to the fact that Georgette was admitted during the pandemic, which was an especially chaotic time for nursing homes, I give great weight to the supporting evidence of Robert and Yvon, who are not parties to these proceedings. In particular, Yvon indicates in his affidavit:

I travel to Mattawa from Toronto frequently to visit my mother. On several of those occasions, she has informed me that she is very happy with her current residence and that she is afraid to be relocated to another home (…)

I support the decisions that have been made for my Mother by my brothers, Philippe and Jean-Paul (…) and I do verily believe that they are acting in my mother’s best interest.

[48] In his affidavit, Robert states:

I have regularly visited my mom since she was admitted to the Algonquin Nursing Home. During my visits, she is normally very happy and content with her residency there.

[49] The Cassellhome nursing home in North Bay would indeed be closer for the Applicants and other family members to visit, but it is only 15 minutes further than where she used to live in Bonfield. I find this to be very reasonable.

(ii) Georgette’s requests “to go home”, and has suffered depressive episodes

[50] Georgette moved into AHN on July 13, 2023. Progress notes in evidence showed that at times, between September 30, 2020 and February 3, 2021, Georgette asked nursing staff “to go home.” During examinations on February 23, 2023, AHN director Jean Peteza indicated:

When you will go and approach her, she will give you a wide smile. And like, I do not hear any complaints that she’s depressed and – like she has had depressive episodes, which is, like, you know, since admission here, but like, with her medication and with activity that they provide, I think she’s – she’s good now.

[51] The Applicants argue that Georgette wants to go home, and that the Respondent has not acted on this, yet they concede that she is not capable of caring for herself and that going home would not be in her best interest.

[52] Secondly, their evidence suggests that these requests and complaints were made when she first moved in and has not done so since February 2021.

[53] Georgette’s requests are reasonable given the fact that she needed to adjust to a new and incredibly different environment – especially since she suffers from dementia. The evidence suggests that she did adjust and that she is now content. On this issue, the court finds no evidence of misconduct or neglect from the Respondent.

(iii) Upset from conversation with sons

[54] The Applicants rely on AHN’s progress notes indicating that there were four incidents during which Georgette was noted to be agitated and upset following conversations with her sons. These were noted on August 10, 2020, August 14, 2020, October 16, 2020, and again on October 16, 2020.

[55] Specifically, the notes state:

August 10, 2020 - Resident spoke with her son [Philippe] on the phone exhibited frustration towards son.

August 14, 2020 - Resident had an outdoor visit today with her sons and at the middle of her visit, she told her son that she needs to go to the washroom. PSW KJ went and took her from downstairs and when she brought to her washroom, she told A SB that she doesn't need to go to the washroom, she just wanted to end her visit with the sons.

October 16, 2020 - Received Georgette at 1430 sitting at the nurses station. She was agitated and shouting out. Attempts to distract resident were ineffective. She was insistent that she was going home and wanted her son Phil to come pick her up. She had just finished a visit with her two sons shortly before.

October 16, 2020 - Received a call from resident's son/POA stating that they did not have a good visit today. Resident was very upset and was yelling and screaming all them during the visit.

[56] These all occurred within the first three months of Georgette’s admission to AHN, and are indicative of a period of adjustment. This court finds there was no misconduct or neglect by the Respondent.

(iv) Assault of January 3, 2021

[57] Through the disclosure process of these proceedings, the Applicants learned that Georgette had been sexually assaulted by a male resident on January 3, 2021. Specifically, the ANH Progress notes indicate:

"It was reported to TL by UCP ER that male resident G.J was seen in the lounge at 1910 sitting close to Georgette. When UCP got closer to resident it was noticed that G.J had his hand in Georgette's shirt. UCP reported that Georgette was upset and crying. G.J. was asked what he was doing and he said, "What, she likes it." UCP separated the two residents.

Georgette's POAPC #1 Phil Poitras was called and made aware. He would like time to speak with his siblings to see if they would like police involvement. "

[58] Notes from the following day indicate:

Residents son -POAIC was visiting her this afternoon at ANH. Writer along with TL-D.M. approach him. Staff inquire about his decision to call opp. He refused to have police involved. He prefers his Mom to be kept away from Gerry and reported he is satisfied with that. Also says "there won't be a next time". Respecting his decision CN hasn't contacted OPP.

[59] According to the evidence, the Applicants were not informed of the incident. Certainly, learning of this incident through litigation would have been extremely difficult for the Applicants, and, understandably, they would have been greatly upset by this. However, per the standards of the legislation and caselaw, this court finds that not calling the police, not contacting the Applicants, and not relocating Georgette to another home does not constitute neglect or misconduct.

[60] In acting in Georgette’s best interest, the Respondent was required to consider the values and beliefs he knew Georgette held when capable. He also had to determine whether calling the police and relocating her to another home, where she would have to go through yet another adjustment, would improve her quality of life, and whether the expected benefit of doing so would outweigh the risk of harm to Georgette.

[61] Nothing in the Substitute Decisions Act requires wishes, instruction, values and beliefs, as understood and known by a Power of Attorney to be documented. According to the evidence, Georgette is a person who deeply values her privacy. Alerting the police would have likely upset her a great deal. In addition, relocating her would have unnecessarily disturbed the status quo when AHN was clearly able to manage the situation and prevent this isolated incident from reoccurring. No other incidents of this sort occurred afterwards.

(v) Falls and the use of restraints

[62] The Applicants rely on AHN progress notes showing that Georgette has suffered numerous falls since being admitted to AHN. They argue that the Respondent is not concerned with Georgette’s best interest, and that if he was, he would have her medications changed or he would relocate her to a more closely monitored nursing home.

[63] These falls occurred on October 18, 2020, October 20, 2020, June 21, 2021, and July 13, 2021. There is no evidence to show it has been happening since.

[64] The Applicants also take issue with the nursing home using restraints to keep Georgette from getting out of her wheelchair. No evidence was presented by the Applicants, however, to show that this measure was not an appropriate remedy to address the falls.

[65] I find that in consenting to this measure, there was no neglect or misconduct by the Respondent.

(vi) Interfering with the relationship between Georgette and the Applicants, and failing to consult them

[66] Sections 67, and 66(6) require a Power of Attorney to:

Seek to foster regular personal contact between the incapable person and supportive family members and friends of the incapable person.

[67] The Applicants argue that the evidence proves that the Respondent has breached his duties by interfering with their relationship with their mother. The evidence shows, however, that while the Respondent has not been informing the Applicants, or consulting with them, on decisions being made, Georgette’s family is able to visit her. During the pandemic, the Respondent designated the Applicants as “essential caregivers” so that they would be able to visit Georgette.

[68] The Respondent does admit that at one point constraints were put in place to moderate Georgette’s Facetime encounters to 15 minutes. He explains that he did so because AHN staff complained that excessive Facetime encounters initiated by the Applicants were causing excessive demand and distress on the staff. He also made this decision because in his view there appeared to be a pattern of distress for Georgette after these prolonged Facetime calls. He further relies on the fact that there is a 15-minute duration policy for all family members and AHN residents.

[69] The Applicants argue that the Respondent failed to meet his duty by the fact that he has not, and does not, consult with them on decisions. They rely on sections 67 and 66(7) of the Substitute Decisions Act, which states:

The guardian shall consult from time to time with,

(a) supportive family members and friends of the incapable person who are in regular personal contact with the incapable person; and

(b) the persons from whom the incapable receives personal care.

[70] This court finds that the Respondent was acting in Georgette’s best interest, as he ensured that her values and beliefs for privacy with respect to her medical care were prioritized. There is no evidence of misconduct or neglect.

[71] In addition, every person, capable or incapable, has a right to maintain confidentiality concerning personal affairs. A Power of Attorney for Personal Care simply steps into the incapable person’s shoes and makes decisions that are as close as possible to the decisions they would have made for themselves. If Georgette wished for everyone to be involved in her affairs, she could have either appointed all of the children as Powers of Attorney for Personal Care or instructed the Respondent to share her personal information. Having not done so, the Respondent fulfilled his obligations.

[72] Both sides make allegations against one another regarding Georgettes’ dietary needs at one point in time. These are not ongoing concerns, and need not be addressed by this court.

[73] With respect to Thanksgiving weekend in 2021, both sides presented a difference of opinion relating to safety measures relating to COVID-19. There was no expert evidence before the court addressing who was exercising judgment at the time. In any event, as this is not an ongoing issue, this court finds that even if the Respondent had been oversensitive to safety issues on that occasion given all of the information that was available to him, it would not constitute conduct sufficient to remove him of his function.

(c) Termination of Respondent’s Power of Attorney for Personal Care

[74] This court finds all of Georgette’s children love and care for her very much. There is, however, no reason to override Georgette’s wish and instruction to have the Respondent make decisions relating to her care on her behalf.

[75] While the court sympathizes with the Applicants that hurt feelings may have resulted from Georgette’s decision to appoint the Respondent, Georgette had every right to make it. In the absence of evidence of misconduct or neglect, this court must respect Georgette’s decision, and leave her Power of Attorney for Personal Care undisturbed.

(d) Accounting of Georgette’s finances from February 1, 2016, to today’s date

[76] The Applicants do not seek to remove the Respondent as Georgette’s Power of Attorney for Property, but request an order requiring him to provide full accounting since 2016.

[77] First, he was only appointed on February 6, 2018. Consequently, the court does not have the authority to request accounting back to 2016.

[78] Second, s.42 of the Substitute Decisions Act does allow a Power of Attorney for Property to pass accounts:

Passing of accounts

42 (1) The court may, on application, order that all or a specified part of the accounts of an attorney or guardian of property be passed. 1992, c. 30, s. 42 (1).

[79] Sections 42(2) and s. 42(4) do not allow non-dependent children to make such applications, however:

Attorney’s accounts

42(2) An attorney, the grantor or any of the persons listed in subsection (4) may apply to pass the attorney’s accounts. 1992, c. 30, s. 42 (2).

Others entitled to apply

42(4) The following persons may also apply:

1. The grantor’s or incapable person’s guardian of the person or attorney for personal care.

2. A dependant of the grantor or incapable person.

3. The Public Guardian and Trustee.

4. The Children’s Lawyer.

5. A judgment creditor of the grantor or incapable person.

6. Any other person, with leave of the court. 1992, c. 30, s. 42 (4); 1994, c. 27, s. 43 (2).

[80] Leave of the court was not sought by the Applicants.

[81] Despite these provisions, such an order could be made under s.39(4) of the Substitute Decisions Act:

39(4) The court may by order give such directions as it considers to be for the benefit of the person and his or her dependants and consistent with this Act. 1996, c. 2, s. 26.

[82] The Applicants are not Georgette’s dependents. Such an order can, therefore, only be made if it is for the benefit of Georgette.

[83] The Respondent has indicated that he has records of all financial decisions made on Georgette’s behalf. While this court has no reason to suspect any wrongdoing on behalf of the Respondent at this time, it is clear from the evidence that the conflict between the siblings is causing Georgette’s last years of her life to be unnecessarily stressful and painful. It would therefore be in her best interest to add transparency to the issue, in order to allow the siblings to put their suspicions aside and to focus on making the years Georgette has left with them as pleasant and as peaceful as possible.

[84] The Respondent shall therefore provide a full informal accounting of Georgette’s finances from February 6, 2018, to the date of this order, to the Applicants.

[85] It is further ordered, under s.39(4) of the Substitute Decisions Act, and pursuant to Rule 38(10)(1)(a) of the Rules of Civil Procedure, that none of the Applicants shall raise questions relating to the accounting, and or these court proceedings, with Georgette directly. They shall all be addressed to the Respondent, who shall make best efforts to answer. If there are issues that remain concerning, then they may address them with the PGT and the court.

Order

[86] Accordingly, the following is ordered:

1. The Applicants’ application to remove Philippe Poitras as Power of Attorney for Personal Care of Georgette Lucie Poitras is dismissed;

2. Philippe Poitras shall provide a full informal accounting of all monies of Georgette Lucie Poitras from February 6, 2018 to the date of this order, to the Applicants, within 45 days;

3. The Applicants shall not discuss these proceedings with their mother, Georgette Lucie Poitras, and shall address all questions to her Power of Attorney for Property, Philippe Poitras;

4. The Applicants shall not discuss their mother’s finances with their mother, Georgette Lucie Poitras, and shall address all questions to her Power of Attorney for Property, Philippe Poitras;

5. Costs submissions, limited to no more than 1 page, single spaced, plus a bill of costs, shall be submitted to the court, within 45 days of this order.

I thank counsel for the outstanding work they did in gathering and presenting evidence to the court.

Justice J.S. Richard

Date: December 11, 2023