Court File and Parties
Court File No.: CV-24-00716505-00ES Date: 2024-07-16 Superior Court of Justice – Ontario
Re: In the Matter of the Person and Property of Lionel Bascus Del Lewicki, Applicant And: Gerda Bascus, Respondent
Before: Dietrich J.
Counsel: Liza Saad, for the Applicant/Moving Party Peter Neufeld and Lucinda Bendu, for the Respondent/Responding Party Nick Esterbauer, for the Non-Party, Richard Furlong
Heard: May 22, 2024
Endorsement
1The management of Lionel Bascus’s property and personal care is the central issue in this dispute between Mr. Bascus’s daughter, the moving party, Del Lewicki (“Ms. Lewicki”), and Mr. Bascus’s sister, the responding party, Gerda Bascus (“Ms. Bascus”).
2In brief, in 2022, Mr. Bascus granted a power of attorney for personal care and a power of attorney for property to Ms. Lewicki and a friend, Alexandra Robin (“Ms. Robin”), permitting them to act jointly and severally. In 2023, he revoked the power of attorney for property and granted a new power of attorney for property to Ms. Lewicki, solely, and he appointed his son-in-law, Grant Lewicki, as his alternative attorney for property (the “2023 Power of Attorney”). Subsequently, in early 2024, Mr. Bascus revoked the powers of attorney he made in 2022 and 2023, and he granted a power of attorney for property and a power of attorney for personal care to Ms. Bascus (the “2024 Powers of Attorney”). At the same time, he transferred his residence, a condominium unit at 1 Belvedere Court, in the City of Brampton (the “Condominium”), to Ms. Bascus, alone, for no consideration.
3Ms. Lewicki commenced an application in which she pled, among other things, that Mr. Bascus did not have the capacity to make the powers of attorney appointing Ms. Bascus as attorney for property and attorney for personal care. In the application, Ms. Lewicki also seeks orders for production, orders respecting the interim preservation of Mr. Bascus’s property (including the Condominium), and orders respecting the management of Mr. Bascus’s property and personal care.
4When the Canadian Imperial Bank of Commerce (“CIBC”) became aware of legal proceedings regarding the validity of powers of attorney for property made by Mr. Bascus, it confirmed that it would await the outcome of those proceedings before accepting the authority of any attorney for property to act for Mr. Bascus.
5In the within motion, Ms. Lewicki seeks an order giving directions regarding the management of Mr. Bascus’s affairs pending the determination of her application. Though not included in the notice of motion, she also seeks an order for production of Mr. Bascus’s medical records, financial records, and the files of Richard Furlong, the solicitor who prepared the 2024 Powers of Attorney and the documents facilitating the transfer of the Condominium, as well as the files of other lawyers who may have advised Mr. Bascus regarding his property.
6Counsel to Ms. Lewicki prepared a draft order covering both the issues relating to the ongoing management of Mr. Bascus’s property and personal care and the production of documents. Counsel to Ms. Bascus has reviewed and commented on the draft order. Counsel to Mr. Furlong does not object to the scope of the production sought by Ms. Lewicki.
7For the reasons that follow, I find that this is a case in which the court should, for the benefit of Mr. Bascus, make an order for directions regarding his personal care; and the court should order limited production of Mr. Bascus’s medical records and solicitors’ records.
Background Facts and Evidence
8Mr. Bascus is currently 92 years of age. He resides at Seasons Retirement Community (“Seasons”) in Milton, where he has been living since May 2023.
9Mr. Bascus’s wife, Gwendolyn Bascus (“Gwendolyn”), predeceased Mr. Bascus on December 10, 2021. Ms. Lewicki retired from nursing on November 1, 2021, to make herself available to care for Gwendolyn.
10Before moving into Seasons, Mr. Bascus was living alone in the Condominium. Between January 2023 and June 2023, Mr. Bascus experienced several falls and was admitted to the hospital numerous times. On March 27, 2023, on admission to hospital, Mr. Bascus was diagnosed with a subdural hematoma, likely caused by a fall. At that time, he was found to be incapable of managing his own care, and his hospital stay was extended while Ms. Lewicki looked for a care home for him.
11On May 12, 2023, Mr. Bascus was discharged from hospital to Seasons. Given Mr. Bascus’s care needs, Ms. Lewicki arranged for additional supports, including a personal support worker (“PSW”).
12In addition to arranging for the PSW, Ms. Lewicki also arranged for a driver for Mr. Bascus, who also provided companionship to Mr. Bascus.
13On June 4, 2023, Ms. Lewicki visited Mr. Bascus at Seasons and found bruising on his right arm, which she says he confirmed was the result of a fall in the shower. Subsequently, Seasons sent Mr. Bascus to the hospital where he was diagnosed with a fractured rib, swollen right inner elbow, and a subdural hematoma.
14On June 12, 2023, Mr. Bascus returned to Seasons, and Ms. Lewicki arranged for physiotherapy through the Local Health Integration Network (LHIN). Mr. Bascus began to rely on the PSW for dressing and showering. Ms. Lewicki’s evidence is that she continued to advocate on Mr. Bascus’s behalf to ensure his health care needs were met.
15On June 22, 2023, Mr. Bascus signed a document entitled “Revocation of a Person Acting as a Power of Attorney”, in which he appears to have revoked the appointment of Ms. Robin as his attorney for property and for personal care. On the same day, Mr. Bascus executed the 2023 Power of Attorney, in which he appointed Ms. Lewicki as his attorney for property, and Grant Lewicki as his alternative attorney for property.
16On June 23, 2023, Mr. Bascus underwent a capacity assessment. Coco Johnson (“Ms. Johnson”), a designated capacity assessor, concluded in her report that Mr. Bascus had the capacity to revoke his existing power of attorney for property and to prepare a new one. She concluded that, at that time, Mr. Bascus had “the ability to comprehend, remember and rationally manipulate information needed to make a sound decision with respect to his choice of attorney.”
17On July 26, 2023, Mr. Bascus’s other child, D., accused Mr. Bascus of sexual assault against them when they was eight years of age. According to Ms. Lewicki’s evidence, the police investigation and criminal charges that followed overwhelmed Mr. Bascus and preoccupied his thoughts. Ms. Lewicki also attested that over the next few months, Mr. Bascus’s cognitive health deteriorated rapidly.
18A record from Milton District Hospital, dictated by Dr. Surenther Tharmalingam, and dated November 1, 2023, included a statement that Mr. Bascus was being assessed for cognitive impairment with psychoses and delusions, mobility decline with falls, and functional decline – all resulting in caregiver stress. Under the heading “Geriatric Medicine”, the record reflected “major neurocognitive disorder/dementia due to mixed etiology (vascular, Alzheimers), associated with functional impairment (FAST stage a/b at time of assessment by geriatric psychiatry, Dr. Howarth, in June 2023) with behavioral symptoms requiring pharmacotherapy”. Under the heading “Cognitive History”, the report reflected that in February 2023, Mr. Bascus was started on quetiapine for escalating paranoid ideation, specifically regarding financial abuse. By April 2023, Mr. Bascus’s dosage of quetiapine had been increased to 75 mg., and was later reduced after he sustained a fall. Under the heading “Cognition”, the record showed that the “patient has FAST stage 6b major neurocognitive disorder of mixed etiology, including contributions from vascular (severe small vessel ischemic change with lacunar infarcts on imaging), Alzheimer’s (reduced bilateral temporal lobe perfusion on SPECT) and EtoOH-related pathologic processes.” The record also included this statement: “[p]atient is quite obviously impaired, and clarity about authenticity of POA documentation is not a medical issue. It is a social issue that requires social work consultation, which I have ordered.”
19An addendum to a “Geriatrics Outpt Consult”, dictated by Dr. Tharmalingam, following a further consult with Ms. Lewicki stated: “[i]f the patient was deemed incapable for property in June 2023, I am not sure why his financial institution believes that he is capable now, since he has confirmed dementia – established by multiple providers, including Dr. Howarth and myself.”
20It is apparent from that addendum that Dr. Tharmalingam did not have a copy of the June 2023 capacity assessment prepared by Ms. Johnson.
21On November 23, 2023, Dr. Tharmalingam wrote a letter addressed to whom it may concern stating:
[Lionel Bascus] was assessed in our outpatient geriatric clinic on November 1, 2023 and his neurocognitive diagnosis was clarified to be FAST stage 6b major neurocognitive disorder (dementia) of mixed etiology, including contributions from vascular (severe small vessel ischemic change with lacunar infarcts on neuroimaging), Alzheimer’s (reduced bilateral temporal lobe perfusion on SPECT) and EtoOH-related pathologic processes. He has been requiring support for all IADLs [Instrumental Activities of Daily Living] for some time, due to cognitive decline, including financial management.
22The evidentiary record before the court does not include expert evidence on Mr. Bascus’s capacity based on the medical reports or on the FAST stage 6b finding. Ms. Lewicki relies on a chart entitled “Functional Assessment Staging Test”, attached as an exhibit to her affidavit, which shows Stage 6b to be “Moderately Severe Dementia”, and ascribes to a Stage 6b patient a mental age in years of 4 and a Mini Mental State Examination (MMSE) score of 8 out of 30. Ms. Lewicki does not claim any expertise in capacity assessment.
23On January 9, 2024, Mr. Bascus executed the 2024 Powers of Attorney, naming Ms. Bascus as his attorney for property and for personal care. On the same day, he signed documents to transfer the Condominium to Ms. Bascus for no consideration.
24Ms. Bascus’s evidence is that after Mr. Bascus signed the 2023 Power of Attorney, Ms. Lewicki went to France for several months, leaving no one to make property and personal care decisions on Mr. Bascus’s behalf. Ms. Bascus also attested that Ms. Lewicki was not making good decisions on Mr. Bascus’s behalf because she refused to give him the keys for the Condominium. Ms Bascus speculated that Ms. Lewicki was planning to stage and sell the Condominium, which Ms. Bascus states was contrary to Mr. Bascus’s wish to continue to use the Condominium for himself.
25Ms. Bascus also deposed that, in November 2023, Mr. Bascus told her that he had made a mistake in appointing Ms. Lewicki as his sole attorney for property and personal care, and that he wanted to remove her as attorney and prevent her from accessing the Condominium. This evidence is hearsay and uncorroborated.
26Ms. Bascus further deposed that Mr. Bascus returned to the Condominium in December 2023, and gained access to it with the assistance of the maintenance manager. Ms. Bascus’s evidence is that Mr. Bascus discovered that personal items and money were missing, and he confided in her that he thought that Ms. Lewicki had taken the money. This evidence is also hearsay and uncorroborated. Ms. Bascus further deposed that after returning to visit the Condominium in December 2023, Mr. Bascus, himself, arranged for the locks of the Condominium to be changed.
27Ms. Bascus also deposed that Mr. Bascus told her that he wanted to get a new lawyer so he could prepare new powers of attorney, and that he wanted to appoint her as his attorney for property and personal care.
28Ms. Bascus admits that she drove Mr. Bascus to meet with a new lawyer, Richard Furlong, to have the 2024 Powers of Attorney prepared. Ms. Bascus admits that she sat in on the meeting between Mr. Furlong and Mr. Bascus, but Mr. Furlong told her that he only wanted to get instructions from Mr. Bascus, his client.
29Ms. Lewicki’s evidence is that Ms. Bascus unduly influenced Mr. Bascus to make the 2024 Powers of Attorney and to transfer the Condominium to her, and that it was Ms. Bascus who had the locks to the Condominium changed. The parcel register for the Condominium shows that the Condominium was transferred from Mr. Bascus to Ms. Bascus on January 9, 2024. The transfer document shows that no consideration was paid by Ms. Bascus.
30Ms. Lewicki’s evidence is that Ms. Bascus is 84 years of age and that Mr. Bascus and Ms. Bascus were estranged for 37 years until Ms. Bascus began visiting him in around February 2022. Ms. Lewicki relies on the sworn testimony of Ms. Bascus’s son, Graham Bascus (“Graham”), as support for her theory that Ms. Bascus is not medically fit to care for Mr. Bascus.
31In his affidavit sworn April 25, 2024, Graham stated that he lived with Ms. Bascus until January 15, 2023, when he moved out owing to his mother’s mental health issues. Graham deposed that Ms. Bascus suffers from paranoid delusions, for which she has been hospitalized. He also deposed that Ms. Bascus was refusing to acknowledge her mental health issues, in respect of which she was refusing treatment. Graham further deposed that, with police assistance, Ms. Bascus was involuntarily admitted to hospital on November 26, 2021 and on May 26, 2022, and that she has been voluntarily admitted twice since 2023.
32Ms. Lewicki is concerned that the supports and advocacy that she provided for Mr. Bascus, as attorney for personal care, will not be continued by Ms. Bascus, as attorney for personal care.
33Ms. Bascus’s evidence is that she was not estranged from Mr. Bascus, but she admits that she did not spend much time with him when Gwendolyn was alive because Gwendolyn did not have a good relationship with Mr. Bascus’s extended family. Ms. Bascus disputes that her age has any impact on her ability to manage Mr. Bascus’s property and personal care.
34Ms. Bascus challenges the affidavit evidence provided by Graham regarding her mental health. She submits that he is a troubled individual who suffers from anxiety. Ms. Bascus denies that her admissions to the hospital on the dates cited in his evidence were for the reasons given by Graham. There is no documentary evidence or corroboration to support either’s position on Ms. Bascus’s mental health, and there has been no cross-examination of Graham or Ms. Bascus.
35Ms. Lewicki arranged for Ms. Johnson to conduct further capacity assessments on January 26, 2024. As a result of those assessments, Ms. Johnson concluded that Mr. Bascus did not have capacity to manage his finances; he did not have capacity to make a will; he did not have capacity to change his power of attorney for property; and he did not have capacity to change his power of attorney for personal care.
36On January 31, 2024, Ms. Lewicki registered a caution on title to the Condominium. Based on increased utility charges, Ms. Lewicki believes that Ms. Bascus has moved into the Condominium. Ms. Bascus denies having done so.
37Ms. Bascus is critical of Ms. Johnson’s January 2024 capacity assessments and contends that Mr. Bascus had capacity to gift the Condominium to her and to execute the 2024 Powers of Attorney.
38Ms. Lewicki’s evidence is that when Mr. Bascus’s health and paranoid ideation worsened, and he was refusing to permit her to be involved in managing his finances, he contacted his bank to block her access to his accounts. Once Ms. Lewicki, with the assistance of her counsel, provided the bank with copies of Mr. Lewicki’s capacity assessments, her access was restored, only to be blocked again once Ms. Bascus became involved.
39Around February 21, 2024, Seasons informed Ms. Lewicki that they would no longer take instructions from her or communicate with her regarding Ms. Bascus’s health because Ms. Bascus was then acting as Mr. Bascus’s attorney for property and personal care.
40Ms. Lewicki’s counsel then provided Seasons with copies of the capacity assessments and described certain circumstances involving Ms. Bascus, including the transfer of the Condominium. Seasons did not respond to this correspondence.
41The CIBC, where Mr. Bascus banks, confirmed in an email dated February 15, 2024, that it understood that there were legal proceedings regarding the validity of any power of attorney made by Mr. Bascus, and that it would await the outcome of those proceedings before accepting the authority of any attorney to act for Mr. Bascus. The CIBC also confirmed that bills could be paid for Mr. Bascus by making arrangements at the CIBC banking centre and providing invoices. In addition, it confirmed that pre-authorized debits could be set up for convenience.
42On April 28, 2024, Mr. Bascus was admitted to hospital with increased paranoia and confusion. Ms. Lewicki’s evidence is that she was advised by Mr. Bascus’s nurse and the discharge coordinator that Seasons was refusing to take Mr. Bascus back because of his advanced dementia and their inability to manage his care. The medical team, which had been caring for Mr. Bascus at Milton General Hospital, recommended that Mr. Bascus’s name be added to the waitlist for admission to a long-term care facility.
43Ms. Lewicki’s evidence is that Ms. Bascus was not responsive to Mr. Bascus’s medical team regarding Mr. Bascus’s discharge from hospital. As such, Ms. Lewicki came from Ottawa, where she lives, to Toronto from April 29, 2024 to May 9, 2024 to address issues regarding Mr. Bascus’s ongoing care and the place to which he would be discharged for care.
44On May 9, 2024, Seasons agreed to take Mr. Bascus back into a program of increased support, which allows an application to be made for long-term care should the patient want urgent care placement or to be put on the list for long-term care. In the meantime, additional supports, including PSW support, were arranged for Mr. Bascus’s ongoing care at Seasons.
45Ms. Lewicki’s evidence is that Ms. Bascus has refused to agree to place Mr. Bascus into long-term care, and that Ms. Bascus has said that she plans to take Mr. Bascus to the Condominium, where she will look after him. Ms. Lewicki submits that such an arrangement would be untenable, against medical recommendations, and would put Mr. Bascus at high risk.
46Ms. Bascus’s evidence is that since her appointment, she has cared for Mr. Bascus and made decisions based on what is best for his care. In her affidavit, sworn May 15, 2024, just days before this hearing, Ms. Bascus stated that she has “started the application process to have [Mr. Bascus] on the waitlist for a long-term care unit, should he require one in the future”, and that she was relying on Carolina Riquelme, a PSW who oversaw Mr. Bascus during his recent hospital stay. Ms. Bascus stated that the delay in taking such action was because she had not received an update from Ms. Riquelme regarding the status of Ms. Bascus’s application. On May 13, 2024, Ms. Riquelme confirmed that the process to add Mr. Bascus to the waitlist was already underway and that a representative from Home and Community Care Support Services would be contacting Ms. Bascus regarding next steps. Ms. Bascus’s evidence is that she will arrange for such representative to meet with Mr. Bascus to assess whether he qualifies for a long-term care unit. Ms. Bascus’s evidence is that “Ms. Riquelme has also signaled to me that me caring for [Mr. Bascus] at [the Condominium] was an appropriate plan.”
47Ms. Bascus submits that she acknowledges that Seasons has indicated that Mr. Bascus’s stay at Seasons is temporary pending his placement in a long-term care facility; however, she states that the wait time could be long, and in the meantime, she would be prepared to care for Mr. Bascus in the Condominium until a unit is ready at which time she “will assess whether Lionel’s then-current mental and physical state requires the assistance of a long term care unit.”
48Ms. Bascus also deposed that she had arranged for a geriatric assessment to take place on June 21, 2024 at a geriatric assessment clinic, and that she intends “to comply with the proposals prepared by the clinic” and to “consider any interim suggestions that they may have.”
Positions of the Parties
Ms. Lewicki
49Ms. Lewicki submits that Ms. Bascus, as an attorney for property and personal care, has failed to act in accordance with the principles of the Substitute Decisions Act, 1992, S.O. 1992, c.30 (the “SDA”), and to act in Mr. Bascus’s best interests.
50Ms. Lewicki submits that given the suspicious circumstances regarding the preparation of the 2024 Powers of Attorney and the transfer of the Condominium to Ms. Bascus, it is imperative that steps be taken to ensure Mr. Bascus’s wellbeing until the application is determined.
51Ms. Lewicki contends that allowing Ms. Bascus to look after Mr. Bascus at the Condominium would be dangerous to Mr. Bascus; it would not improve his life or prevent its deterioration. Ms. Lewicki fears that Mr. Bascus could sustain injury if Ms. Bascus were permitted to pursue her plan to return him to the Condominium because Ms. Bascus, at 84 years of age, could not possibly provide the round-the-clock care in a stable and safe environment that Mr. Bascus’s health care providers have determined he needs, and which care cannot even be provided at Seasons, where he currently resides awaiting placement into long-term care.
52Specifically, Ms. Lewicki seeks an order directing Ms. Bascus to follow the recommendations of Mr. Bascus’s health care providers, including arranging his placement into long-term care and providing additional support as needed; an order directing Ms. Bascus to consult with Ms. Lewicki (through her counsel) with respect to Ms. Bascus’s care and that decisions regarding the management of Mr. Bascus’s care be made jointly by Ms. Bascus and Ms. Lewicki; and an order that Mr. Bascus’s medical and health care providers be authorized to communicate with Ms. Lewicki regarding Mr. Bascus’s health, medical and personal care until the application is disposed of.
Ms. Bascus
53Ms. Bascus submits that the relief sought by Ms. Lewicki is unnecessary. Ms. Bascus submits that before Ms. Lewicki served her motion material, Ms. Bascus had already begun the steps to add Mr. Bascus to the waiting list for a long-term care unit, and she had arranged for a geriatric assessment to be conducted for Mr. Bascus so that a health care plan could be prepared. She submits that she is receptive to advice from Mr. Bascus’s health care providers and will consider recommendations resulting from assessments.
54Ms. Bascus states that she is competent and fully committed to caring for Mr. Bascus and to provide his daughters with updates regarding his physical and mental health.
55Ms. Bascus submits that Ms. Lewicki is making a brazen attempt to usurp Ms. Bascus’s authority as Mr. Bascus’s attorney for personal care before the validity of the 2024 Powers of Attorney has been determined. Ms. Bascus disagrees that Ms. Lewicki should have any authority to instruct Mr. Bascus’s health care providers or that decisions regarding his care should be made jointly by Ms. Lewicki and Mr. Bascus.
56Ms. Bascus posits that Ms. Lewicki must have caused Mr. Bascus’s bank accounts to become frozen when she commenced her application. In the result, Ms. Bascus has had to pay, personally, for Mr. Bascus’s expenses and her own legal fees in responding to the application. Accordingly, Ms. Bascus seeks an order that Ms. Lewicki cooperate to allow Mr. Bascus’s bank accounts to be unfrozen so that Ms. Bascus can pay for Mr. Bascus’s care and for responding to the litigation in this matter.
Issues
57The issues on this motion are as follows:
- Do the facts of this case present exceptional circumstances in which the court should make an order for directions pursuant to s. 68 of the SDA for the benefit of Mr. Bascus?
- Should the production of medical records, financial records, and solicitors’ files, as sought by Ms. Lewicki, be granted in this case?
An order for directions pursuant to the SDA
Law
58Subsection 68(4) of the SDA provides that the court may by order give such directions as it considers to be for the benefit of the incapable person and consistent with the SDA.
59Subsection 66(1) of the SDA provides that the powers and duties of a guardian 1 shall be exercised and performed diligently and in good faith.
60Subsection 66(3) of the SDA sets out the principles that an attorney for personal care should consider when making decisions. These include ascertaining the incapable person’s wishes or instructions expressed while capable, if possible, and making decisions in accordance with such wishes or instructions.
61Subsection 66(4) of the SDA lists the factors to be taken into consideration by an attorney in deciding what the incapable person’s best interests are for the purposes of the attorney’s decision making.
62For example, s. 66(4)(c) of the SDA states that an attorney should consider the following:
- Whether the attorney’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 person’s life is likely to deteriorate.
- Whether the benefit the person is expected to obtain from the decision outweighs the risk of harm to the person from an alternative decision.
63Subsection 66(7) of the SDA states that the attorney shall consult with supportive family members and friends of the incapable person who are in regular contact with the incapable person.
Analysis
64Ms. Bascus relies on Sly v. Curran, in support of her position that the court should not interfere with her decision-making power as an attorney for property and personal care in this case. In Sly, at para. 14, Himel J. stated as follows:
… the SDA was designed to allow someone to designate a person of his or her choice to act on personal care decisions in the event of incapacity or to allow the court to appoint a guardian who has presented the necessary evidence to demonstrate that the person is incapable and has proposed a management plan establishing to the court’s satisfaction that the guardian will protect the person’s interests in an appropriate manner. The attorney or guardian is then delegated a range of decision-making powers and is legally authorized to act so long as the actions are in the best interests of the incapable person. The court is not to micromanage the day to day decisions of the substitute decision-maker. An application for directions is designed to provide an avenue for guidance and direction by the court in how to approach decision-making, not to have the court make the decision for the substitute except for certain exceptional situations.
65Ms. Bascus submits that the case at bar is not one of those exceptional situations.
66Ms. Lewicki submits that the Sly case is distinguishable from the case at bar. First, Ms. Lewicki submits that the circumstances surrounding Ms. Bascus’s appointment as an attorney are suspicious. Approximately two and a half weeks after appointing Ms. Bascus as his attorney for property and personal care, Mr. Bascus was found to lack capacity to manage his finances; to make a will; to change his power of attorney for property; and to change his power of attorney for personal care. Prior to the appointment of Ms. Bascus, Mr. Bascus’s medical records refer to Mr. Bascus’s cognitive decline. Second, Ms. Lewicki does not dispute that it would not be appropriate for the court to micromanage an attorney’s day-to-day decisions when the attorney is acting in accordance with the principles that govern an attorney’s conduct. However, when the attorney is not following the governing principles, such as making decisions that will improve the incapable person’s life, or where the attorney is not preventing a reduction in the incapable person’s quality of life, or reducing or slowing the rate of reduction in the quality of the incapable person’s life, then different rules should apply, and the court must intervene and provide direction. As an example, Ms. Lewicki asserts that a decision by Ms. Bascus to attempt to care for Mr. Bascus at the Condominium would be contrary to the advice of Mr. Bascus’s health care providers and would put him at risk.
67I am satisfied, on a balance of probabilities, that Ms. Bascus is not acting in accordance with the statutory principles governing decision making on behalf of Mr. Bascus. When it was necessary for Ms. Bascus to make decisions relating to Mr. Bascus’s discharge from the hospital to a place where he would have the supports he needed, Ms. Bascus could not be reached. Instead, the hospital relied on Ms. Lewicki to make the arrangements. Ms. Lewicki took steps to ensure that Mr. Bascus would have additional supports when he returned to Seasons so that he would be safe there. Apart from ordering a geriatric assessment, after Ms. Lewicki brought this motion, there is no evidence of Ms. Bascus taking any initiative regarding Mr. Bascus’s ongoing care. Ms. Bascus has not committed to agreeing to a transfer of Mr. Bascus to a long-term care facility should a place become available to him. Instead, Ms. Bascus holds onto the hope that she will be able to care for him in the Condominium. Ms. Bascus has not put forward any plan to show how she would manage such care. She simply states that she will follow the recommendations of the geriatric assessment.
68The medical records describe Mr. Bascus’s dementia as “advanced”. The records also evidence a diagnosis of paranoid ideation, which is being treated with an antipsychotic drug. Ms. Bascus has not provided any evidence to show that she has the knowledge and skills to cope with Mr. Bascus’s conditions in a way that will keep him safe and prevent a reduction in the quality of his life if she arranges for his discharge from Seasons to the Condominium. There is no evidence of Ms. Bascus advocating for Mr. Bascus to ensure that he is being supplied with all the supports he needs and that are available to him.
69I agree with Ms. Lewicki’s submission that Mr. Bascus needs professional care and a competent, reliable advocate.
70Based on the evidentiary record, Ms. Lewicki had been involved in Mr. Bascus’s care and ensuring he had the additional supports he needed until Ms. Bascus was named as his attorney for personal care. Ms. Lewicki was also communicating with the staff of Seasons to ensure Mr. Bascus’s needs were being addressed. Since Ms. Bascus was appointed, Seasons stopped communicating with Ms. Lewicki because, based on the 2024 Power of Attorney for Property, she no longer has decision-making authority. However, they did turn to her when Ms. Bascus was unavailable.
71Ms. Lewicki is, understandably, concerned that Ms. Bascus was not available when personal care decisions needed to be made for Mr. Bascus, and Ms. Bascus does not appear to be advocating for Mr. Bascus. Rather than agreeing with the advice of the health care professionals that the family should be considering long-term care for Mr. Bascus, Ms. Bascus is advocating for him to return to the Condominium where she would look after him. However, Ms. Bascus has no plan for his care at the Condominium.
72Ms. Bascus does not deny that she was not available when the hospital was looking to her for assistance to transfer Ms. Bascus from the hospital to Seasons. Ms. Bascus has also been openly resistant to transferring Mr. Bascus to a long-term care facility, and she advocates for his return to the Condominium, under her care, at least until a place becomes available in a long-term care facility. Ms. Bascus’s belief that she could manage Mr. Bascus’s personal care in his best interests at the Condominium has no basis in the evidence. Ms. Bascus seems prepared to rely on an undocumented “signal” from Ms. Riquelme that Ms. Bascus caring for Mr. Bascus at the Condominium would be an “appropriate plan.” Ms. Bascus takes this position despite the fact that the medical records clearly state that Mr. Bascus suffers from advanced dementia, has serious mobility issues, marked by frequent falls, and is incontinent. Notwithstanding, Ms. Bascus confirms her willingness and ability to care for Mr. Bascus.
73Ms. Bascus submits that she “started the application to have Mr. Bascus put on the waitlist for long-term care”. However, based on her evidence, it appears that she is relying on Ms. Riquelme to make the application, and Ms. Riquelme is doing so. Ms. Bascus did not take the initiative to start the application process.
74Ms. Bascus further testified that she would be prepared to care for Mr. Bascus at the Condominium until a place becomes available in a long-term care facility, at which time she will assess “whether [Mr. Bascus’s] then-current mental and physical state requires the assistance of a long term care unit.” This statement is concerning as it does not, in my view, take into account Mr. Bascus’s best interests. Ms. Bascus has not adduced any evidence to suggest that she, alone, without any input from medical experts or Mr. Bascus’s immediate family, is qualified to accurately assess Mr. Bascus’s mental and physical state with a view to determining his ongoing care needs.
75Somewhat inconsistently, later in her affidavit, Ms. Bascus states that she is prepared to comply with the proposals prepared by the geriatric assessment; however, she also states that she is prepared to “consider” any interim suggestions they may have. Again, she makes no mention of consultation with Mr. Bascus’s medical doctors or Mr. Bascus’s immediate family. Such a narrow approach, in my view, is not in Mr. Bascus’s best interests and is contrary to Ms. Bascus’s duties as set out in the SDA.
76Though it is apparent from the record that there is an elevated level of distrust between Ms. Lewicki and Ms. Bascus, it is the best interests of Mr. Bascus that must guide the court. Until the matter of the validity of the 2024 Powers of Attorney has been resolved, I am satisfied that it is in the best interests of Mr. Bascus that Ms. Lewicki remain involved in decisions regarding Mr. Bascus’s personal care, including health care. Ms. Lewicki is Mr. Bascus’s former attorney for personal care, and if the 2024 Powers of Attorney are not valid, Ms. Lewicki would likely be Mr. Bascus’s attorney for personal care again.
77There is no evidence to suggest that Ms. Lewicki’s ongoing involvement in Mr. Bascus’s care would cause Mr. Bascus harm or reduce his quality of life. The evidence bends in the opposite direction. Ms. Lewicki’s past experience in the role and Ms. Lewicki’s experience as a nurse caring for older persons would likely improve Mr. Bascus’s life.
78Since Gwendolyn’s death, it has been Ms. Lewicki who has been highly involved in Mr. Bascus’s health care and in ensuring that he has all the proper and necessary supports in place. Even following Ms. Bascus’s appointment as attorney for personal care, Ms. Lewicki has demonstrated concern about, and remained involved in, Mr. Bascus’s care to the extent she was permitted to.
79Ms. Lewicki attests that she is ready and willing to do what it takes to ensure that her father has the best care. Her past actions and advocacy lend credence to her declaration.
80In her affidavit, Ms. Bascus states that she appreciates that she has a duty to consult with Mr. Bascus’s supportive family members and friends about his personal care. However, Ms. Bascus suggests that such consultation with Ms. Lewicki is not appropriate because of her recent “aggressive behaviour toward Mr. Bascus”. Ms. Bascus adduced no evidence in support of this accusation. She further deposed that Mr. Bascus fears Ms. Lewicki and does not believe that she is supportive of his needs. This is hearsay evidence and not grounded in the facts as set out in the record.
81Ms. Bascus also relies on a test set out in Corbet v. Corbet, 2020 ONSC 4157, 60 E.T.R. (4th) 310, at para. 10, and submits that the court should be reluctant to give directions to her because Ms. Lewicki has not shown that Ms. Bascus has acted in bad faith; that Ms. Bascus acted without regard to the discernable, realistic, and manageable preferences of Mr. Bascus; that Ms. Bascus failed to act in Mr. Bascus’s best interest; or that Ms. Bascus failed to adhere to the statutory requirements.
82In my view, Corbet can be distinguished from the case at bar on the basis that the power of attorney at issue in Corbet was a valid power of attorney, which was not being challenged. Also, in Corbet, the court did not interfere with the decision of the attorney for personal care that the 92-year-old with dementia should not live with relatives, but instead in a long-term care home.
83Here, it is alleged that the power of attorney for personal care granted to Ms. Bascus in 2024 was granted only a couple of weeks before Mr. Bascus was found to be incapable of granting a power of attorney. And the issue is whether Mr. Bascus should live with relatives as opposed to in a long-term care home. Further, I find that Ms. Bascus has not adhered to the statutory requirement that obliges her to consult with supportive family members and friends of the incapable person who are in regular contact with the incapable person. Ms. Bascus takes the position that she should not have to consult with Ms. Lewicki.
84Based on the totality of evidence, it is appropriate that certain orders be put in place regarding Mr. Bascus’s personal care and Ms. Bascus’s statutory duties, as an attorney for personal care. Until the application regarding the validity of the 2024 Powers of Attorney has been resolved, it is in Mr. Bascus’s best interests that both Ms. Bascus and Ms. Lewicki be kept apprised of all matters relating to Mr. Bascus’s care, and that there be consultation between them, through their respective counsel, if necessary, and between them and Mr. Bascus’s medical team and care providers. During this time, Ms. Lewicki shall be entitled to receive all the same information regarding Mr. Bascus’s health and care to which Ms. Bascus is entitled as his attorney for personal care, and Ms. Lewicki shall be entitled to consult directly with Mr. Bascus’s care providers regarding Mr. Bascus’s health and ongoing care.
85In the interim, until Ms. Lewicki’s application has been resolved, if Ms. Lewicki and Ms. Bascus do not agree on a decision regarding Mr. Bascus’s personal care, including his health care, Ms. Bascus may make the decision, provided that each such decision is made in accordance with the governing principles set out in the SDA, including Ms. Bascus’s obligation to consult with Ms. Lewicki.
Other orders, including orders for production
86Prior to the motion, Ms. Bascus consented to a preservation order regarding the Condominium. This obviates the need for an order granting a certificate of pending litigation in respect of the Condominium.
87As noted, Mr. Furlong does not oppose the scope of relief sought by Ms. Lewicki.
88Ms. Bascus does oppose the scope of the order for production. She opposes the scope of production regarding Mr. Bascus’s medical, financial, and legal records.
89Ms. Bascus opposes an order for production of any of Mr. Bascus’s financial records. I agree. Apart from the transfer of the Condominium to Ms. Bascus, there has been no allegation, and there is no evidence, that Ms. Bascus has mismanaged Mr. Bascus’s property. The CIBC froze Mr. Bascus’s bank accounts once they became aware of the dispute regarding Mr. Bascus’s powers of attorney. Ms. Bascus’s evidence is that she is using her own funds to cover Mr. Bascus’s expenses.
90Ms. Bascus also opposes the production of Mr. Bascus’s solicitor’s records as far as they relate to his estate planning. Again, I agree. Mr. Bascus is alive and the application relates to the management of his property and personal care while he is alive. Evidence relating to his estate planning is not relevant to the matters at issue in the application. Regarding other production of solicitors’ records, I agree that Mr. Furlong’s records pertaining to Mr. Bascus’s powers of attorney, transfers of property, and real estate transactions should be produced for the period January 1, 2022 to the date of this endorsement. The solicitors’ records should be limited to Mr. Furlong’s records and those records of any solicitor referred to in Mr. Furlong’s file, who advised Mr. Bascus regarding one or more of powers of attorney, real estate, or transfers of property during the said period.
91Regarding Mr. Bascus’s medical records, Ms. Lewicki seeks those for the period from January 1, 2022 to the date of the request. Ms. Bascus agrees to production for a narrow period from January 1, 2023 to the date the request. Based on the evidence, Mr. Bascus’s health declined more rapidly following Gwendolyn’s death in December 2021. Production of his medical records dating back to January 1, 2022 is appropriate in this case.
92Based on the foregoing, the waiver of solicitor-client privilege and confidentiality is limited to the solicitors referred to above and their records to be produced.
93The reasonable costs of the production of documents should be paid from Mr. Bascus’s property, subject to any reallocation of such expense at the discretion of the application judge.
94Ms. Bascus seeks an order unfreezing Mr. Bascus’s bank accounts so that she may have access to them to pay expenses on Mr. Bascus’s behalf and to pay her legal fees associated with her representation of him. Ms. Bascus did not bring a motion or cross-motion seeking this relief. Accordingly, I decline to grant it.
95That said, based on the record, the CIBC has stated that arrangements may be made through the CIBC banking centre to pay Mr. Bascus’s bills from his account, provided proper invoices are presented. Also, CIBC confirmed that pre-authorized debits can be arranged for Mr. Bascus’s convenience. Such arrangements should be made so that Ms. Bascus does not have to fund Mr. Bascus’s expenses personally.
Disposition
96Attached to this endorsement is Ms. Lewicki’s draft order, as edited by me, to reflect my decisions as set out in this endorsement. The parties may prepare the Order in a final form to be approved by each as to form and content. It may then be sent to my assistant, Loraie Lewis, via email for my consideration.
Costs
97In my view, success on this motion has been divided. Ms. Lewicki was successful in meeting her onus to show that the court should make an order under the SDA for directions in this case. However, she was not successful in obtaining an order permitting her to participate in a final decision respecting Mr. Bascus’s personal care pending the resolution of the application. Success was also divided on the issues of production.
98Both parties submit that they are acting in the best interests of Mr. Bascus. Accordingly, this is an appropriate case in which costs should be payable in the cause, out of Mr. Bascus’s property. I have reviewed the costs outlines filed by Ms. Lewicki and by Ms. Bascus. The amounts sought by the parties are similar. I fix the costs of the motion at $10,000, inclusive of HST and disbursements. These costs shall be payable to the successful party in the cause out of Mr. Bascus’s property.
B. Dietrich J.
Date: July 16, 2024