Court File and Parties

COURT FILE NO.: CV-21-00671449-0000 DATE: 20240314 SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, as amended, sections 22, 55, 69, 70 and 71; AND IN THE MATTER of the property and personal care of DOROTHY MAY ROBINSON

RE: SHANTEE GRANT, Applicant AND: DOROTHY MAY ROBINSON, LOUIS ASHBOURNE ROBINSON and THE PUBLIC GUARDIAN AND TRUSTEE, Respondents

BEFORE: Justice A.P. Ramsay

COUNSEL: Athena McBean, for the Applicant, Shantee Grant Katherine Ballweg, for the Public Guardian and Trustee No one appearing for Dorothy Robinson Louis Ashbourne, In person

HEARD: March 8, 2024

Reason for decision

I. Introduction

[1] The applicant, Shantee Grant, commenced this application under ss. 22 and 55 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”), seeking an order appointing her as guardian of property and guardian of the person with respect to her grandmother, the respondent Dorothy May Robinson. Mrs. Robinson is currently in a long-term care home. Her grandson Shakur Grant, whom she appointed as her Attorney for Property, has not been carrying out his duties. Decisions with respect to treatment-related healthcare and management are being made by Mrs. Robinson’s sister, who lives in in the United States. No formal capacity assessment has been carried out, but healthcare practitioners have diagnosed Mrs. Robinson with advanced schizophrenia and dementia.

II. The Parties

[2] Mrs. Robinson has five grandchildren, including the applicant, Ms. Grant, and Mr. Grant, Mrs. Robinson’s Attorney for Property. The respondent, Louis Ashbourne Robinson, is Mrs. Robinson’s brother-in-law. Mrs. Robinson also has two sisters, Donnett Ferguson and Carol Lewis, who live in the United States.

III. Procedural Matters

[3] At the direction of the court, all persons required to be served pursuant to s. 69(6) of the SDA were served with the materials.

[4] By order dated November 30, 2023, I appointed the Public Guardian and Trustee (the “PGT”) as Mrs. Robinson’s temporary guardian of property pursuant to s. 27 of the SDA and authorized the PGT to carry out investigations pursuant to same.

[5] The investigative work of the PGT has been of tremendous assistance to the court.

[6] The PGT is not opposing the applicant’s appointment. Mr. Robinson is also not opposing the applicant’s appointment.

[7] I understand that the original application to appoint Ms. Grant was served on Mrs. Robinson.

[8] I am satisfied that all persons required to be served pursuant to s. 69(6) of the SDA have been served.

[9] At paragraph 42 of her affidavit, the applicant says that she advised Mrs. Robinson that the application was being brought and that she could oppose the application. I am satisfied, on the record before me, that the applicant has complied with s. 70(1) of the SDA.

[10] Mrs. Robinson had previously appointed her grandson Mr. Grant as her Attorney for Property. Counsel for the applicant submits that it was in the midst of these proceedings that Mr. Robinson disclosed that his sister-in-law, Mrs. Robinson, had granted a Power of Attorney for Property to Mr. Grant, which Mr. Robinson himself witnessed. She suggested that Mr. Grant may not even be aware that he has Power of Attorney.

[11] The court is not prepared to speculate. At the outset, there were several family members who participated in these proceedings, and I would be surprised if Mr. Grant remains ignorant of the existence of the Power of Attorney, especially as he was one of the interested parties that the applicant had to serve with her materials. There have been several court attendances over the past two years, including adjournments to ensure that all interested parties were served and would have an opportunity to respond to the application. Mr. Grant has not attended or participated in these proceedings in any manner.

IV. Synopsis of Disposition

[12] At the conclusion of the hearing on its merits on March 8, 2024, I indicated that I was satisfied that the applicant should be appointed as guardian of property and guardian of the person with respect to Mrs. Robinson. I have set out my reasons below.

V. Appointment of a Guardian

A. Guardian of Property

[13] Under s. 2 of the SDA, Mrs. Robinson is presumed to be capable.

[14] This court only has jurisdiction to appoint a guardian when an individual has been determined to lack capacity to make decisions for property or personal care and, as a result, requires decisions to be made on their behalf, and the court is satisfied that there is no alternative course of action that would not require a finding of incapacity and would be less restrictive of the person’s decision-making rights than appointing a guardian.

[15] Section 25(1) of the SDA provides that “[a]n order appointing a guardian of property for a person shall include a finding that the person is incapable of managing property and that, as a result, it is necessary for decisions to be made on his or her behalf by a person who is authorized to do so.”

[16] Section 22 of the SDA provides as follows:

Court appointment of guardian of property

22 (1) The court may, on any person’s application, appoint a guardian of property for a person who is incapable of managing property if, as a result, it is necessary for decisions to be made on his or her behalf by a person who is authorized to do so.

Same

(2) An application may be made under subsection (1) even though there is a statutory guardian.

Prohibition

(3) The court shall not appoint a guardian if it is satisfied that the need for decisions to be made will be met by an alternative course of action that,

(a) does not require the court to find the person to be incapable of managing property; and

(b) is less restrictive of the person’s decision-making rights than the appointment of a guardian.

[17] Under s. 1(1), “capable” means “mentally capable” and “capacity” is defined as having a corresponding meaning. The SDA also defines “incapable” as “mentally incapable” and indicates that “‘incapacity’ has a corresponding meaning.”

[18] Section 6 of the SDA governs incapacity to manage property. A person is incapable of managing property where the person lacks the ability to understand information relevant for making decisions in the management of their property and is not able to appreciate the consequences of making or not making a decision.

[19] The SDA does not set out the nature of the evidence that an applicant must file to show that an individual comes within the meaning of s. 6 of the SDA. Under s. 79(1), the court may order that Mrs. Robinson be assessed to determine whether she is capable of making the necessary decisions to manage her property or look after her own personal care.

[20] On the evidence before me, I find that there are reasonable grounds to conclude that Mrs. Robinson is mentally incapable and not able to manage her property. Her doctor’s diagnoses were secured by the work of the PGT. She is currently 81 years old and is a resident of a long-term care home, Kensington Health. She was admitted in July 2023. Mrs. Robinson has a number of health challenges, but the most cogent are those related to her cognitive function. She was diagnosed with schizophrenia in 2014 and was suspected of having dementia in 2021. The PGT has obtained a letter from Mrs. Robinson’s doctor, Dr. Ayesha Malik, as well as her clinical notes and records related to her care and management of Mrs. Robinson. In her letter dated March 1, 2024, Dr. Malik indicated that Mrs. Robinson has advanced Alzheimer’s dementia. She noted that she was unable to continue independent activities of daily living including leaving the facility or banking. I find that the source of Mrs. Robinson’s mental incapacity stems from her advanced Alzheimer’s dementia.

[21] Section 24(5) of the SDA outlines the criteria that the court must consider when appointing a guardian of property, namely: (a) whether the proposed guardian is the attorney under a continuing power of attorney; (b) the incapable person’s current wishes, if they can be ascertained; and (c) the closeness of the relationship of the applicant to the incapable person and, if the applicant is not the proposed guardian, the closeness of the relationship of the proposed guardian to the incapable person.

[22] A capacity assessment is an instructive process. There is sufficient medical evidence to suggest that Mrs. Robinson’s advanced Alzheimer’s and dementia have impacted her cognitive function, and, in the result, Mrs. Robinson is incapable of managing her property as she is unable to understand information that is relevant to making a decision in the management of her property, and, on the record, also not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[23] There is no evidence that Mrs. Robinson has a continuing power of attorney. However, Mrs. Robinson has signed a Power of Attorney for Property naming Mr. Grant as her Attorney. There is a strong presumption in favour of an existing and valid power of attorney: see SDA, ss. 22(3) and 55(2); Flynn v. Flynn, 2007 CarswellOnt 10220, at para. 6; and Glen v. Brennan, at para. 9. As a result of her current advanced dementia, it is highly unlikely that Mrs. Robinson’s current wishes can be ascertained.

[24] As Mrs. Robinson granted the Power of Attorney to her now-deceased husband and Mr. Grant, there is a presumption that the Power of Attorney is valid. The Notice of Application before me seeks an order terminating the Power(s) of Attorney for Property and Personal CAre and, in the result, I will make such order. While its existence appeared to have been discovered during these proceedings, the applicant has not questioned if Mrs. Robinson was capable of granting the Power of Attorney at the time. There is, however, sufficient evidence on the record to indicate that Mr. Grant has neglected his duties. Although there is some dispute between Ms. Grant and Mr. Robinson, on the evidence before me, it appears both were concerned about Mrs. Robinson and her living arrangements. Despite some unexplained delay, they appeared to have worked together in the past. Mr. Robinson deposed in in his affidavit:

[25] On the other hand, there is absolutely no evidence from Mr. Grant as to what steps he has taken during the time that he was Mrs. Robinson’s Attorney for Property. At the time the application was commenced, the nature and extent of Mrs. Robinson’s assets were unknown. Settlement funds from a motor vehicle accident were sitting in a lawyer’s trust account. There is no evidence that any attempt was made to pursue CPP or determine the extent of her assets and, to the extent necessary, safeguard those assets.

[26] Several family members had previously expressed concerns about Ms. Grant acting as Mrs. Robinson’s guardian of property because it was alleged that she borrowed money from her grandmother to purchase a house in Pickering in concert with others. Both Ms. Grant and Mr. Robinson have provided an adequate explanation on how the idea originated and the amount of money that was transferred from Mrs. Robinson towards the purchase of the home. While the idea originated from Mr. Robinson, on a review of the evidence before me, it may well be that both he and Ms. Grant were thinking about the prospect of housing Mrs. Robinson. Indeed, Mr. Robinson indicated that Ms. Grant had agreed to do so, but continually delayed without explanation. Ms. Grant says that Mr. Robinson sat her and her four children down and advised her that her late grandfather had left her money in his will, and that the funds could be used to purchase a home for her and her children. She says she later learned that there was insufficient money to purchase the home and the source of the funds would be from a building owned by her late grandfather, which was yet to be sold. She says she jokingly suggested to Mr. Robinson that he use some of her grandmother’s money but was not aware Mr. Robinson paid the deposits from Mrs. Robinson’s funds.

[27] I accept that Ms. Grant had no access to Mrs. Robinson’s back accounts. There does not appear to be any dispute in the evidence that both Ms. Grant and Mr. Robinson were the two individuals who were actively involved in caring for Mrs. Robinson.

[28] On the record, Ms. Grant has not had access to Mrs. Robinson’s property. I accept the applicant’s argument that there is no direct evidence to indicate that she mismanaged any funds. There is no evidence before me that the funds were mismanaged by Mr. Robinson, either. I note that he stepped in, after his brother’s death, to help bridge the gap in ensuring that his sister-in-law was cared for. I am concerned that Mr. Grant has not been carrying out his duties. On the evidence, these duties devolved to Mr. Robinson. Mr. Robinson indicates that he has not acted for Mrs. Robinson with respect to her property since this application was brought.

[29] There is no dispute that approximately $40,000 is owed to Mrs. Robinson. I am satisfied that Ms. Grant and Mr. Robinson will be returning the funds, especially now that Mrs. Robinson has been placed in a long-term care home. Indeed, the applicant has included the amount in the updated Management Plan as a receivable.

[30] I am satisfied that the appointment of a guardian of property is necessary and that there is no satisfactory alternative course of action under s. 22(3) of the SDA for the reasons above.

B. Guardian of Personal Care

[31] Admission to a long-term care home, consent to treatment, and personal assistance services for residents of long-term care homes is governed by the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (the “HCCA”).

[32] Mrs. Robinson’s sister, Ms. Ferguson, has been making and continues to make decisions for her with respect to her personal care needs in accordance with clause 7 of s. 20(1) of the HCCA. Ms. Ferguson appears to be the only person with whom the long-term care home has been communicating.

[33] For the reasons below, I have granted Ms. Grant an order appointing her as guardian of the person.

[34] Section 55 of the SDA provides that the court may, on application of an individual, subject to certain exceptions, appoint a guardian of the person for an incapable person. The relevant provision reads:

Court appointment of guardian of the person

55 (1) The court may, on any person’s application, appoint a guardian of the person for a person who is incapable of personal care and, as a result, needs decisions to be made on his or her behalf by a person who is authorized to do so.

Prohibition

(2) The court shall not appoint a guardian if it is satisfied that the need for decisions to be made will be met by an alternative course of action that,

(a) does not require the court to find the person to be incapable of personal care; and

(b) is less restrictive of the person’s decision-making rights than the appointment of a guardian.

[35] Ms. Ferguson lives in Florida, which makes it difficult for her to see directly and address in a timely fashion what is happening with her sister.

[36] The applicant also questions Ms. Ferguson’s suitability to perform her duties, and points to certain questionable decisions or the lack of decisions by Ms. Ferguson about Mrs. Robinson’s treatment, which, the applicant suggests, indicate are not in Mrs. Robinson’s best interests.

[37] One example of that concern was highlighted by the healthcare nurse practitioner. She explained to Ms. Ferguson that palliative care was not only limited to end-of-life care but overall well-being of the resident, including symptom management like pain and social well-being for Mrs. Robinson and her family members. Ms. Ferguson was apparently not prepared to heed the advice of the practitioner. She declined the consultation with the doctor. Counsel for the applicant also points to a recent entry in the records dated February 20, 2024, which noted that Mrs. Robinson was at a “very high risk of aspiration and death, but the family is not yet ready for palliative care”. I am persuaded by counsel’s argument that this could only refer to Ms. Ferguson, who is the only person who has the authority to deal with the healthcare practitioners about Mrs. Robinson’s health, as, on a review of the medical records, she is noted as the “SDM”, though reference is made to her granddaughter who lives in Toronto.

[38] There was also a statement which was said to be made by Ms. Ferguson, in which she told the nurse that she understood every individual was different, but the difference was that “Dorothy ‘is not functioning in her mind well’”. It was noted that she continued to say: “[W]hen she gets sick, take her to the hospital” and “I would rather have her go to the hospital and resuscitation done.”

[39] While I appreciate Ms. Ferguson has not provided any affidavit evidence – though she has attended previous hearings and attended today – and even though the statements in the clinical notes and records are hearsay, I am able to rely on the fact that they were said. The notes also make clear that they relate to Ms. Ferguson.

[40] Mrs. Robinson requires a family member who is readily available, can respond in real time to requests for information, can consent to treatment by her healthcare practitioners, and is able to put her best interests first. She has no power of attorney for personal care. A review of the record indicates that she is not able to consent to treatment. There is no less restrictive alternative option available.

VI. Posting a Bond

[41] While I agree with the applicant that the requirement to post a security bond is not mandatory, I am not persuaded by the applicant’s argument that because the PGT does not require a bond to be posted, that should be the end of the story. The court does not delegate the ultimate determination to the PGT, as the applicant appears to suggest. I am however satisfied that the applicant need not post a security bond at this time. As noted by Corthorn J. in Connolly v. Connolly and PGT, 2019 ONSC 4148, at paras. 32-33, in the context of appointing a litigation guardian in a personal injury action, this issue may be addressed from time to time. While I recognize that there is no ongoing litigation, I am satisfied that there are sufficient statutory safeguards under the SDA and other supervisory safeguards in this order to ensure some level of transparency and accountability of Ms. Grant’s guardianships.

VII. Disposition

[42] For the reasons above, I make the following disposition:

i. The respondent, Dorothy May Robinson, is incapable of managing her property and as a result, it is necessary for decisions to be made on her behalf by the applicant, Shantee Grant, whom the court is appointing as the authorized person to do so.

ii. The applicant is hereby appointed as the guardian of property of Mrs. Robinson, subject to the terms below.

iii. The Power of Attorney granted by Mrs. Robinson to Shakur Grant is hereby terminated.

iv. The updated Management Plan submitted by the applicant is approved, subject to an amended Management Plan being delivered, as specified in paragraph (v) below.

v. The applicant shall serve and file an amended Management Plan for Mrs. Robinson with the Office of the Public Guardian and Trustee pursuant to s. 32(11) of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, within three months of the date of the hearing.

vi. The applicant is hereby appointed as the guardian of person of Mrs. Robinson.

vii. The applicant shall provide an accounting to the PGT, including an updated Management Plan, within six months of her second anniversary of acting as Mrs. Robinson’s guardian or death, whichever occurs first, and every two years thereafter.

viii. Any person who satisfies the statutory requirement may bring the appropriate application for a passing of accounts in accordance with s. 42 of the Substitute Decisions Act upon the death of Mrs. Robinson, of if the requirement is triggered by any statutory requirement.

ix. The applicant shall (must) consult from time to time with Louis Ashbourne Robinson regarding the management of Mrs. Robinson’s property.

x. The applicant may consult with supporting relatives regarding Mrs. Robinson’s care.

xi. The requirement for the applicant to post a bond may be revisited at another time.

xii. The applicant and Mr. Robinson must repay all portion of the $40,000.00 borrowed from Mrs. Robinson shall be repaid by the applicant and Mr. Robinson, to the extent of the loan borrowed by either of them, and shall be included in any updated Management Plan as an account receivable until the debt is paid off.

[43] Counsel for the applicant may submit a draft judgment, which complies with r. 59 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to my judicial assistant, Ms. Diamante, for signing.

VIII. Costs

[44] After hearing submissions with respect to costs, I am not inclined to award any costs against Mr. Robinson, which was sought in part by the applicant. First, the applicant was required to bring this application to obtain the appointment. The court may only appoint a guardian of property once a determination is made that a person is incapable. Mr. Robinson did not deliver any materials contesting the appointment, but rather affidavit evidence contesting the applicant’s version or characterization of certain facts. The disputed facts were not germane to this court deciding the substantive issues to be determined and, had they been, the application process would not have been a suitable vehicle to have this matter determined.

[45] The PGT is also entitled to its costs, as without its investigative work the nature and extent of Mrs. Robinson’s assets would still be unknown. The PGT worked diligently and within the timeframe under the SDA while a temporary guardian to provide a better picture to the court as to what was happening with Mrs. Robinson’s assets. I commend the PGT for their helpful affidavits and the evidence they compiled.

[46] In the result, I make the following disposition with respect to costs:

i. The applicant Ms. Grant shall have her costs on a partial indemnity basis in the amount of $22,959.98, payable from Mrs. Robinson’s estate.

ii. The PGT shall have its costs on a partial indemnity basis in the amount of $4,457.40 payable from Mrs. Robinson’s estate.

A.P. Ramsay J. Date: March 14, 2024