Court File and Parties

Court File No.: CV-24-1548 Date: 2025-09-02 Ontario Superior Court of Justice

Between:

Gwen Ruby Orr, in her capacities as attorney for property and personal care of William George Orr Applicant

– and –

William George Orr, Alison Gwen Orr, William Nathan Orr, The Women's Christian Association of London o/a McCormick Care Group, and The Public Guardian and Trustee Respondents

Counsel:

• J. LaPlante, for the Applicant
• I. Wright, for the Respondent, Alison Orr
• J. Morrissey, for the Respondent, The Women's Christian Association of London o/a McCormick Care Group
• Z. Wong, Section 3 counsel for William George Orr

Heard: December 2, 2024

Justice M.A. Cook

Introduction

[1] This application is about when and in what circumstances an attorney for personal care is entitled to restrict family members or other visitors from visiting an incapacitated person in a long-term care home.

[2] The Respondent, William George Orr ("Bill") is an 82 year old man living with advanced Alzheimer's Disease. Bill's capacity to manage personal care was put into dispute in this application.

[3] The Applicant, Gwen Ruby Orr ("Gwen") is Bill's wife of almost 60 years. Gwen is Bill's attorney for property and personal care by instruments signed by Bill on December 15, 2021.

[4] Gwen and Bill have two children. The respondent Alison Gwen Orr ("Alison") is their daughter. The respondent William Nathan Orr ("Nathan") is their son.

[5] In July 2023, Bill moved into a secure ward of McCormick Home, an accredited long-term care home in London, Ontario operated by the respondent, The Women's Christian Association of London o/a McCormick Care Group ("McCormick Home").

[6] Shortly after Bill's admission to McCormick Home, Gwen sought to deny Alison and Nathan access to visit Bill. McCormick Home refused the request, taking the position that Bill had what it described as "deemed capacity" to receive visits from Alison and Nathan.

[7] On May 22, 2024, Bill was examined by his treating geriatrician, Dr. Michael John Borrie, at the request of Gwen's lawyer. Dr. Borrie opined that Bill has advanced dementia and is incapable of following verbal instructions or responding appropriately to any questions put to him.

[8] By her application, Gwen seeks a declaration that Bill is incapable of personal care as defined by s. 45 of the Substitute Decisions Act, 1992, SO 1992, c. C30 (the "SDA") and directions under Bill's power of attorney for personal care. In addition, Gwen seeks:

a. a declaration that Bill's last wish or instruction with respect to Alison and Nathan, given while he was capable, was that he desired to never interact with Alison or Nathan again;

b. an order that Gwen is entitled to grant or deny Alison and Nathan visitation with Bill while Bill is resident in a facility licensed as a long-term care home under the Long-Term Care Homes Act, 2007, SO 2007, c. 8, as amended, or other health care facility;

c. an order directing the respondent, Women's Christian Association of London o/a McCormick Care Group, to enforce whatever restrictions Gwen may place upon the visitation of Bill while he is resident at McCormick Home;

d. an order enjoining and prohibiting Alison and Nathan from being within 100 metres of Bill;

e. leave for the parties to seek further directions; and

f. if opposed, costs of this application.

[9] Alison does not oppose Gwen's request for a finding that Bill is incapable of personal care, but strenuously opposes any directions being made under the power of attorney that could empower Gwen to restrict her ability to visit or have contact with Bill. Alison submits that it is Gwen's wish, not Bill's, to eliminate contact between father and daughter. Alison seeks an order confirming that she be at liberty to visit with her father privately, at specified times, in Gwen's absence.

[10] Nathan did not respond to the application. The Women's Christian Association of London o/a McCormick Care Group takes no position on the application.

[11] On June 14, 2024, Justice Perfetto made an order appointing legal counsel for Bill in accordance with s. 3 of the SDA. Section 3 counsel was unable to obtain instructions from Bill or ascertain his wishes.

[12] For the reasons set out below, I decline to make a finding that Bill is incapable of personal care. Gwen is authorized to make personal care decisions on Bill's behalf because she has reasonable grounds to believe that he is incapable of personal care. She does not need this court to make any finding of incapacity and I decline to make one.

[13] With respect to the balance of relief sought in the application, I find that Bill was capable on August 28, 2023 to decide whether to visit with Nathan and Alison, and that he expressed a clear wish to do so. As a resident of a long-term care home, Bill has the statutory right to receive visitors of his choice without interference. There is no evidence that Bill has suffered any harm as a result of his visits with Nathan and Alison. The risk that he may do so in the future does not warrant restricting access by family on a prophylactic basis. Given Gwen's own personal animus toward Nathan and Alison, I find it appropriate to make directions under Bill's power of attorney providing Alison with prescribed visiting time with Bill so as to limit contact—and the potential for conflict—between Gwen and Alison while in Bill's presence.

Background

[14] Bill and Gwen Orr were married in 1967. They have two children, Nathan and Alison.

[15] Gwen and Bill have three grandchildren. Seraphina is Alison's daughter. Billy is Nathan's son and Lauryn is Nathan's daughter. I will refer to Seraphina, Billy and Lauryn collectively as "the grandchildren".

[16] In the early 1980s, Bill started an industrial supply company called Canlon Limited ("Canlon"). In 2007, Bill started to wind Canlon down in preparation for retirement. However, in 2008, Nathan joined Canlon with the idea of building the business back up and taking it over from Bill. Bill stayed working at Canlon to help Nathan revitalize the business, and Gwen helped out with bookkeeping, banking and website management.

[17] In 2017, Bill's health began to decline. He suffered significant hearing loss and began having problems with his short-term memory. In 2018, Bill was diagnosed with dementia, likely from Alzheimer's disease.

[18] In 2019, Nathan and Bill signed an agreement by which Bill agreed to transfer ownership of Canlon to Nathan over a period of five years via an estate freeze transaction. The agreement between Nathan and Bill does not form part of the court record.

[19] Conflict developed among Bill, Nathan and Gwen about the succession plan for Canlon. According to Gwen, Nathan became aggressive, controlling and demeaning to Bill about the business. Nathan questioned Bill's integrity and judgment. Alison sided with Nathan in the power struggle over Canlon. The family rift deepened.

[20] In November 2019, Bill's health declined sharply. Alison and Gwen disagreed on Bill's care. In an email from Gwen to Alison dated November 16, 2019, Gwen wrote:

I understand your worry about the doctor but things are going to happen and I feel that it is evolving in a way that is not too stressful for Dad. He has needed time to process the fact that he needs help and that his life is changing. Most of all, he wants a happy loving family around him that is the same as always. It's the one thing that needs to be stable for him….

[21] Sadly, Bill would not have a happy loving family around him as his Alzheimer's disease progressed. On February 13, 2021, Nathan had a verbal confrontation with Bill and Gwen about Canlon which culminated in Nathan leaving with Canlon files and passwords taken from Bill and Gwen. In the days that followed, Nathan changed the passwords and effectively shut Bill and Gwen out of the Canlon business.

[22] On February 25, 2021, Nathan and Alison sent a jointly-written letter to Gwen and Bill in which they accused Gwen of being manipulative, passive aggressive and controlling, and accused Bill of recognizing and acknowledging Gwen's behaviour but doing nothing to stop it. Nathan and Alison asked Gwen and Bill to get professional help and address their concerns so that the parties could take steps to rebuild the family.

Bill Changes Estate Plan

[23] On August 3, 2021, Bill and Gwen retained solicitor Glenn Hines to prepare new wills and powers of attorney. Bill instructed Mr. Hines that he wanted to exclude Nathan and Alison from receiving any portion of his estate, and asked Mr. Hines to prepare a will which provided a gift over of the residue of his estate to the grandchildren.

[24] On December 15, 2021, Bill executed the new wills and powers of attorney for property and personal care with Mr. Hines. During the will-signing meeting, Bill told Mr. Hines that "he wanted nothing to do with his children" because of Alison and Nathan's behaviour toward him and Gwen.

[25] On or about February 17, 2022, Alison spoke at length with Bill and Gwen over the telephone. The purpose of the call was to work through some of the family conflict, particularly the conflict between Alison and Gwen. Unfortunately, little progress was made.

[26] Bill's dementia progressed. In May 2022, Bill went missing. Police called Nathan and Alison. Alison drove to Oakville, Burlington and Mississauga checking parking lots for Bill's car. When Bill returned, he did not see or speak to Nathan or Alison. Alison states that Gwen blocked her access to Bill, while Gwen states that Bill did not want to see either of them.

[27] On May 2, 2023, Bill assaulted Gwen by stabbing her and attempting to strangle her. Bill was charged criminally and detained at the Geriatric Mental Health Unit at Victoria Hospital. The criminal charges were withdrawn by the Crown shortly after Bill's geriatrician, Dr. Michael J. Borrie, provided a medical opinion that Bill's assaultive behaviour, particularly the paranoia and stabbing, was secondary to his progressive dementia and not due to an intention to harm.

[28] On May 10, 2023, Alison and Nathan visited Bill at Victoria Hospital. It appears that this visit was the first time that either Alison or Nathan had seen their father in over a year. Alison states in her affidavit that Bill stated to her: "Alison! Nathan! I love you. I'm sorry. Are you ok?" but that she could not understand anything else Bill said.

Bill Moves to McCormick Home

[29] On July 24, 2023, Bill transferred from Victoria Hospital to McCormick Home. Gwen advised staff at McCormick Home that she did not want Alison or Nathan seeing Bill, and asked that entry to McCormick Home be denied to them. McCormick Home denied Gwen's request on the basis that Bill had deemed capacity to receive Alison and Nathan as visitors.

[30] On August 28, 2023, Alison and Nathan visited Bill at McCormick Home. Nursing staff at McCormick noted that Bill recognized his children immediately, was engaged and talkative and smiling throughout the visit.

[31] On September 6, 2023, Alison received a letter from Kerri Gaffney, Director of Resident Care at McCormick Home, setting out a visitation protocol by which Alison was to call ahead before visiting Bill, and Gwen would be notified of all planned visits.

[32] Alison retained legal counsel. After an exchange of correspondence, McCormick Home advised in or about December 2023 that there would be no restrictions placed on Alison's visits with Bill. McCormick took the position that its duty lies in ensuring that Bill has a safe, peaceful and comfortable place to live, and that Bill has proper and adequate care.

The Application

[33] The Applicant issued this application on May 9, 2024. In support of her request for a finding of incapacity, Gwen relies on the evidence of participating expert Dr. Michael John Borrie, Bill's treating geriatrician.

[34] In support of her request for directions under the power of attorney for personal care and declaratory relief, Gwen relies on her own affidavit evidence, the affidavit evidence of her friend, Patricia Rose Hutchison, a statutory declaration made by her lawyer, Glenn Hines and the expert opinion evidence of Dr. Borrie.

[35] Alison filed a responding affidavit and an affidavit from her cousin, Karen Matheson. In her affidavit, Alison states that she is a loving and supportive daughter who wishes to spend time with Bill. Alison denies much of Gwen's narrative of the events leading to this application. Karen Matheson provided evidence detailing her interactions with Bill and Gwen, and of her observation of Bill and Alison together.

[36] Alison and Gwen were cross-examined on their respective affidavits and transcripts were filed. In addition, the parties examined Lisa Maynard, an administrator at McCormick Home and representative of the respondent Women's Christian Association of London o/a McCormick Care Group, as a witness. The transcript of Ms. Maynard's examination and the related exhibits, including Bill's medical chart at McCormick Home, were filed.

Issues

[37] The issues to be decided in this application are as follows:

a. Should the court make a declaration that Bill is incapable of personal care, pursuant to s. 45 of the SDA;

b. What directions and declarations, if any, should the Court make under Bill's power of attorney document dated December 15, 2021?

Issue 1: Should the Court Make a Declaration that Bill is Incapable of Personal Care?

[38] Gwen seeks a declaration that Bill is incapable of personal care in accordance with s. 45(1) of the SDA.

[39] In the leading case of Ontario (Attorney General) v. Restoule, 2024 SCC 27, the Supreme Court of Canada, at para. 279, reviewed the nature of declaratory relief, noting that declaratory relief is discretionary and appropriate only in a limited number of circumstances:

A declaration is "a judicial statement confirming or denying a legal right of the applicant. Unlike most rulings, the declaratory judgment merely declares and goes no further in providing relief to the applicant than stating his rights" (L. Sarna, The Law of Declaratory Judgments (4th ed. 2016), at p. 1). Declaratory relief is discretionary. A court may award a declaration where "(a) the court has jurisdiction to hear the issue, (b) the dispute is real and not theoretical, (c) the party raising the issue has a genuine interest in its resolution, and (d) the responding party has an interest in opposing the declaration being sought" (S.A. v. Metro Vancouver Housing Corp., 2019 SCC 4, [2019] 1 S.C.R. 99, at para. 60; Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165, at para. 81; see also Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, [2016] 1 S.C.R. 99, at para. 11, and Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, at para. 46). A declaration should not be issued if it is not "capable of having any practical effect in resolving the issues in the case" (Solosky v. The Queen, [1980] 1 S.C.R. 821, at p. 833).

[40] I decline to exercise my discretion to award declaratory relief in this case because Gwen has failed to prove Bill's incapacity in accordance with the provisions of the SDA, and, in any event, a declaration of Bill's incapacity is not capable of having any practical effect in resolving the issues in this case.

[41] My analysis starts with the presumption that Bill is presumed by law to have capacity for personal care: SDA, s. 2(2).

[42] Gwen's application for a declaration of incapacity under the SDA is an attack on Bill's autonomy. A finding of incapacity, which is a judgment in rem, will result in an abrogation of Bill's right to sovereignty over his person: Abrams v. Abrams, 247 OAC 380 (Ont. Div. Ct.), at para. 56. Unless there is cogent evidence to displace the statutory presumption of capacity, Gwen's request for a declaration of incapacity must be dismissed.

[43] As a factual matter, the applicant bears the burden of proving, on a balance of probabilities, that Bill is incapable of personal care. Section 45 of the SDA provides:

A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[44] The SDA makes provision for capacity assessments in order to determine capacity or incapacity, as the case may be. Assessments are to be completed by a designated capacity assessor in accordance with the SDA, O. Reg 460/05: Capacity Assessment and the prescribed Guidelines for Conducting Assessments of Capacity.

[45] Any person can request a capacity assessment of another provided that certain criteria relating to the circumstances of the subject person are met: SDA, s. 16. Before being assessed, a person alleged to be incapable has the right to be advised by a capacity assessor of the purpose of the assessment, the significance and effect of a finding of incapacity or capacity and the person's right to refuse to be assessed. Moreover, any capacity assessment must be conducted in accordance with the regulations and Guidelines for Conducting Assessments of Capacity.

[46] No designated capacity assessor has assessed Bill as being incapable of personal care. Instead, Gwen has filed expert medical opinion evidence from Bill's treating geriatrician, Dr. Borrie. The court also received Bill's chart from McCormick Home.

[47] Based on his qualifications and expertise, I accept Dr. Borrie as an expert geriatrician qualified to provide the court expert opinion evidence in the areas of geriatric medicine and dementia. However, there is no evidence that Dr. Borrie is qualified to do assessments of capacity for the purposes of the SDA: O. Reg 460/05, s. 2(1).

[48] Dr. Borrie conducted a geriatric medical examination of Bill on May 22, 2024 and prepared a report dated June 11, 2024 (the "Borrie Report"). The Borrie Report sets out Bill's patient history starting from when Bill first became a patient of Dr. Borrie in 2019, and summarizes the findings made during Dr. Borrie's most recent medical examination of Bill.

[49] Dr. Borrie opines that Bill suffers from advanced dementia related to Alzheimer's disease, and that his cognitive abilities are so diminished that they are no longer measurable on the mini-mental state examination. Dr. Borrie opines that Bill is incapable of following verbal instructions or responding appropriately to any questions put to him.

[50] Dr. Borrie's opinion is consistent with the information contained in the McCormick Home chart for Bill. Bill undergoes a comprehensive quarterly assessment at McCormick Home, and a copy of the assessment report is placed in his chart. Bill was assessed on April 30, 2024 by Miranda Pepper, RPN and the resulting quarterly assessment report dated May 7, 2024 reported Bill as:

a. Severely impaired cognitive skills for daily decision-making;

b. Experiencing short and long-term memory problems;

c. Unable to recall the current season, location of his own room, staff names or faces or that he is in a facility;

d. Rarely or never able to make himself understood;

e. Sometimes able to understand others;

f. Having indicators of depression and anxiety such as using repetitive questions, repetitive verbalizations and demonstrations of persistent anger;

g. Being physically abusive to others and resistant to care;

h. Requiring extensive assistance in all activities of daily living; and

i. Having difficulties with swallowing.

[51] The medical and other evidence is that Bill is completely dependent on others for all activities of daily living and can be aggressive and resistant to grooming and other self-care activities. Bill can no longer walk or use his arms functionally. He is in a wheelchair for transportation and a lift is used to get him into his bed.

[52] There is one aspect of Dr. Borrie's opinion evidence that I do not accept. Dr. Borrie opines that Bill is no longer able to communicate. I agree that Bill is no longer able to effectively communicate verbally, however, there is evidence in Bill's chart that Bill communicates non-verbally through behaviours. Bill is not catatonic nor in a vegetative state. The McCormick House medical chart indicates Bill's caregivers sometimes address Bill's aggressive and combative behaviour by simply waiting for Gwen to arrive because her presence is calming to him. Bill is more likely to accept care services when Gwen is present. The McCormick House medical chart also indicates that Bill appears to enjoy music and that he recognizes Gwen and potentially others. Bill's behaviours are a form of communication.

[53] The medical evidence is consistent with the information received from Section 3 counsel that counsel was unable to obtain instructions from Bill or ascertain his wishes in relation to this application.

[54] Having carefully reviewed the evidence of Dr. Borrie and the McCormick House medical chart, I find that there are reasonable grounds to believe that Bill is incapable of personal care. However, as noted above, capacity is not an all-or-nothing question. In cases involving progressive dementia, capacity for specific activities will invariably be lost, but each person's illness progresses at different rates and with different symptoms. There is no fixed timetable upon which capacity will be reduced or lost.

[55] The progression of Bill's own dementia illustrates this point. Bill was diagnosed with dementia in 2018. A mere diagnosis of dementia, without more, does not determine the question of capacity: Johnson v. Johnson, 2022 ONCA 682, 81 E.T.R. (4th) 7 at para. 13. On December 15, 2021, Bill was formally assessed by capacity assessor Dr. Paul Ferner as having testamentary capacity.

[56] Since December 15, 2021, Bill's dementia has progressed to the point of being admitted to a secure ward in a long-term care home, but no assessment of Bill's capacity for personal care has ever been completed in accordance with the SDA.

[57] No party to this application has requested an assessment of Bill's capacity for personal care under s. 79(1) of the SDA, and I decline to order one on my own initiative.

[58] A declaration of incapacity will not resolve anything in dispute. This is not a guardianship application requiring a finding of incapacity: SDA, s. 58(1). Gwen is already empowered by the terms of Bill's power of attorney to make a decision on behalf of Bill if she has reasonable grounds to believe that Bill is incapable of making the decision. None of the respondents, including Bill, challenge Gwen's legal authority to act. No declaration of incapacity is needed.

[59] As no formal finding of incapacity is needed, and a finding has profound implications to Bill's individual rights and autonomy, I decline to exercise my discretion to grant declaratory relief. Gwen's request for a finding of incapacity is dismissed.

Issue 2: Should this Court provide directions to Bill's attorney?

[60] The validity of Bill's power of attorney dated December 15, 2021 is not in dispute. As noted above, Gwen has broad powers and duties to make personal care decisions on Bill's behalf, subject to any restrictions, conditions or instructions set out in the power of attorney document itself, and to Gwen's statutory duties under the SDA.

Statutory Duties of Attorney for Personal Care

[61] The SDA imposes on every attorney important duties aimed at fostering an incapacitated person's independence and autonomy while protecting their best interests. In particular, subsections ss. 66(1), ss. 66(6)–66(9) of the SDA impose on every attorney for personal care the statutory duty:

a. To act diligently and in good faith;

b. To explain to the incapable person what the attorney's powers and duties are to the extent that such communication is possible;

c. To foster the incapacitated person's independence, as much as possible;

d. To choose the least restrictive and intrusive course of action that is available and appropriate in every circumstance;

e. To encourage the incapacitated person to participate, to the best of his or her abilities, in personal care decisions about them;

f. To foster regular personal contact between the incapacitated person and supportive family members and friends; and

g. To consult from time to time with supportive family and friends and those who provide personal care to him.

[62] Section 66(3) of the SDA requires a guardian to make decisions in accordance with wishes or instructions of the incapable person, as expressed while the person was still capable. Section 66(3) provides:

66(3) The guardian shall make decisions on the incapable person's behalf to which the Health Care Consent Act, 1996 does not apply in accordance with the following principles:

1. If the guardian knows of a wish or instruction applicable to the circumstances that the incapable person expressed while capable, the guardian shall make the decision in accordance with the wish or instruction.

2. The guardian shall use reasonable diligence in ascertaining whether there are such wishes or instructions.

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

4. If the guardian 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 guardian shall make the decision in the incapable person's best interests.

[63] Section 66(3) applies with necessary modifications to an attorney who acts under a power of attorney for personal care. Unlike a guardian, an attorney for personal care derives her authority from an express grant of authority by a capable person. The grantor has the opportunity to limit their attorney's powers or provide instructions to them in the executed power of attorney instrument.

Did Bill Express a Wish or Instruction while Capable?

[64] Gwen submits that s. 66(3) of the SDA requires her to act in accordance with Bill's stated wish to never see Nathan and Alison again. She relies on the case of Souter et al. v. Poitras, 2023 ONSC 6983, at para. 32, to support her submission that she has a duty to uphold the wishes Bill expressed while capable. In the alternative, Gwen submits that Bill's best interests are not served by visits from Alison and Nathan.

[65] Alison agrees that s. 66(3) of the SDA governs Gwen's decision-making, but submits that Bill was capable of deciding whether to see her and Nathan on August 28, 2023 and that Bill's last expressed wish was to see his children. Alison submits that Gwen is obliged to respect Bill's later wish to visit her: s. 66(3)(3).

[66] For the reasons that follow, I find that Bill was capable of deciding to visit Nathan and Alison on August 28, 2023 and he expressed a wish to visit them on that occasion. Given that Bill expressed a wish to visit Alison and Nathan while still capable, I find that Gwen is required to make decisions in accordance with Bill's wish to see his children.

No Wish or Instruction to Restrict or Prevent Access

[67] Bill's power of attorney document contains no written direction or instruction to Gwen that she restrict or prevent Nathan and Alison from having contact with Bill. Bill's power of attorney document was prepared by a lawyer at a time that Bill's relationship with Alison and Nathan was estranged, and Bill had made statements to the effect that he intended to cut ties with his children. Despite this, Bill did not instruct his lawyer to include any direction or instruction to his attorney for personal care to limit or prohibit visits or contact from the children.

[68] In the absence of any written directions or instruction, Gwen relies on the following evidence to prove that Bill expressed a wish that, in the event of his incapacity, neither Alison nor Nathan have visitation or contact with him:

a. Gwen's evidence about what Bill told her;

b. the affidavit evidence of Patricia Rose Hutchison;

c. the statutory declaration of Bill's solicitor, Eric Glenn Hines; and

d. the capacity assessment report of Dr. Paul Ferner dated December 21, 2021.

[69] I will start with Dr. Ferner's assessment report dated December 21, 2021. Bill retained Dr. Ferner to complete an assessment of Bill's testamentary capacity when Bill and Gwen revised their estate plan. In his report, Dr. Ferner details his interview with Bill on December 15, 2021. According to Dr. Ferner, Bill told him on that day that:

a. Bill wanted to leave his estate to his grandchildren as he no longer had a relationship with his children;

b. Nathan and Alison were not going to get anything and that "they do not deserve anything from us anymore; the three grandchildren should get the money;";

c. Bill wanted to exclude his children from the new wills because of "trouble with the business" and because he and Gwen had not seen the children or grandchildren for a long time; and

d. Bill did not intend on telling Alison or Nathan about the changes to the will and he was concerned that they might try to influence him into changing his will back and did not want that.

[70] Dr. Ferner did not say anywhere in his report that Bill expressed a wish to never see his children again and is of little assistance to the Court.

[71] That brings me to Gwen's evidence. I place very little weight on Gwen's evidence about what Bill said he wanted while he was competent because she is not a reliable witness. Having considered all of the evidence, I find that Gwen believes, quite earnestly, that Bill's wishes are indistinguishable from her own. Given her own estrangement from and anger toward the children, I find that Gwen's evidence must be approached with the utmost caution. This is not intended as a criticism of Gwen. Gwen is an attentive spouse to Bill. However, Gwen's evidence of Bill's wishes and instructions is coloured by her own experience and relationship with her children, and it is neither independent nor reliable.

[72] There is evidence, which I do accept, that Bill was angry at his children in 2019–2021. Bill made statements to several people to the effect that he did not want to ever see them again. In particular:

a. Patricia Rose Hutchison states in her affidavit that she became aware that the relationship among Bill, Gwen, Alison and Nathan "was souring" in February 2021. During a visit on September 22, 2021, Bill told Ms. Hutchison that he and Gwen had changed their estate plan, and that he said to her, "I don't want to ever see my kids again"; and

b. Bill and Gwen's solicitor, Eric Glenn Hines, states in his statutory declaration that he met with Bill on December 15, 2021 to sign his new will and powers of attorney for property and personal care. During the meeting Bill "made it clear" to Mr. Hines that he wanted nothing to do with his children given his behaviour toward him and Gwen.

[73] Despite these statements, however, I find that Bill remained open to communication with the children and hoped for reconciliation.

[74] Bill, Gwen, and Alison had a lengthy telephone conversation in February 2022, months later, in hopes of understanding the problems and moving toward reconciliation. Prior to the onset of his dementia, Bill enjoyed a close and loving relationship with his children and had never expressed a desire to cut off contact with either of them. I accept Karen Matheson's evidence that Bill and Alison hugged one another and told one another that they loved each other at a family reunion on August 23, 2021. There is no evidence that Bill repeated his desire never to see the children again after the telephone call and follow-up email with Alison in February of 2022.

[75] Despite the conflict between Bill and the children, the evidence does not satisfy me, on a balance of probabilities, that Bill ever expressed a wish or gave his attorney an instruction while capable that, in the event of his incapacity, that his children, or either of them, be restricted or prevented from visiting him.

Bill Consented to Visiting With the Children in August 2023

[76] In any event, I find that Bill had capacity at late as August 28, 2023 to decide to visit Nathan and Alison, and that he chose to do so.

[77] In her affidavit, Alison states that she had several visits with Bill after his arrest and hospitalization in May 2023. According to Alison, she and Nathan visited Bill on May 10, 2023 at the Geriatric Mental Health Unit at Victoria Hospital. When she and Nathan walked into Bill's room, Bill said "Alison! Nathan! I love you. I'm sorry. Are you okay?" Gwen disputes this evidence, and there is no corroboration of Alison's account.

[78] Alison and Nathan visited Bill again on August 28, 2023 at McCormick Home. According to Alison, Bill saw her and Nathan before they saw Bill. Bill was in the lounge with other residents, and he stood up with his walker when he saw them come in. A nurse helped Bill with his hearing aids.

[79] As was the case with Gwen's evidence, I approach Alison's evidence with significant caution in light of the significant conflict between her and Gwen and her apparent anger toward her mother. However, essential aspects of Alison's evidence about her visit with Bill on August 28, 2023 were corroborated by the McCormick Home staff.

[80] Staff observed Alison and Nathan's visit with Bill after being apprised of Gwen's concerns and her objection to their presence. I accept the evidence that Bill appeared to recognize his children immediately and was engaged, talkative and smiling throughout his visit with Nathan and Alison.

[81] Gwen disputes the observation by McCormick Home staff that Bill recognized Nathan and Alison on August 28, 2023. However, this is where the statutory presumption of capacity becomes very important. Bill is presumed to have capacity to give or refuse consent to Nathan and Alison visiting him: SDA, s. 2(2).

[82] Gwen has not filed any cogent evidence to rebut the presumption that, on August 28, 2023, Bill had the capacity to decide whether to visit with Nathan and Alison. Gwen relies on Dr. Borrie's opinion, based on an examination of Bill completed on May 22, 2024, that Bill is "clearly not able to express opinions about who he sees or doesn't see".

[83] As noted earlier, the Borrie Report is not a capacity assessment completed under the SDA. In any event, an examination conducted on May 22, 2024 sheds little light on Bill's capacity nine months earlier, on August 28, 2023, to decide whether to accept Alison and Nathan as visitors.

[84] The case of Bentley v. Maplewood Seniors Care Society, 2014 BCSC 165 is instructive in this regard. Margaret Anne Bentley had, while capable, made two statements to the effect that she did not wish to be kept alive if she could not recognize her family. Ms. Bentley's family sought a declaration that Ms. Bentley's stated wishes ought to be followed and she should not be given nourishment or liquids. Ms. Bentley suffered from severe dementia, was non-verbal and dependent on others for all activities of daily living. The application judge held that, despite her advanced dementia, Ms. Bentley had the capacity necessary to decide whether to eat or drink food and fluids offered to her. Justice Greyell held, at para. 59–60, that the moving family members had failed to rebut the statutory presumption of capacity to decide whether to accept or refuse to eat and drink:

[59] Based on the evidence before me, I am of the view that the petitioners have not met their onus of rebutting the legislative presumption that Mrs. Bentley is capable of making the decision to accept or refuse to eat and drink. The preponderance of the evidence demonstrates that she has the capacity to make this decision. In coming to this finding, I have carefully considered and weighed the medical evidence as well as the descriptions of Mrs. Bentley's behaviour. I prefer the evidence of Dr. O'Connor, who has expertise in incapacity assessments, to that of Dr. Edelson, who is a general physician. I find it significant that Mrs. Bentley indicates preferences for certain flavours and eats different amounts at different times. The petitioner has not established that Mrs. Bentley's behaviour is a mere reflex and not communication through behaviour, which is the only means through which Mrs. Bentley can communicate.

[85] Like the applicants in Bentley, Gwen bears the onus of rebutting the presumption of capacity on a balance of probabilities. Gwen has not presented any cogent evidence to rebut the presumption that Bill had the capacity to decide to visit Alison and Nathan on August 28, 2023.

[86] By choosing to visit Alison and Nathan on August 28, 2023, Bill expressed a wish to have contact and visits with his children. His wish should be respected in the absence of evidence of a decision by Bill while capable not to see his children, or evidence that the visits are not consistent with Bill's best interests.

Are Visits in Bill's Best Interests?

[87] Gwen submits that it is contrary to Bill's best interests for him to be visited by either Nathan or Alison. Gwen relies on the Borrie Report, in which Dr. Borrie opines that:

a. Bill is "clearly not able to express opinions as to who he sees or doesn't see;";

b. People with severe dementia can still have an awareness of people linked to past negative events, and that Dr. Borrie would "anticipate this would have a negative effect on [Bill] if he was able to make the link between [Alison and Nathan] and the past trauma associated with them"; and

c. It is "quite possible" that the negative events from 2019 contributed to Bill's cognitive decline.

[88] Dr. Borrie's statements are speculative. I do not accept Dr. Borrie's opinion as proof that visits from Nathan and Alison are contrary to Bill's best interests. I accept that it is possible that Bill could suffer distress if he made connections between a visitor and a past traumatic event. As one possibility, it could be distressing to Bill if he recalled the conflict with Alison or Nathan during a visit with either of them. As another possibility, it could be distressing to Bill if, while visiting Gwen, he recalled strangling and stabbing her. However, the possibility of Bill making these connections does not, in my view, create a risk of harm that outweighs the harm of restricting Bill's autonomy and statutory right to receive visits at his home.

[89] The risk of harm of the visits must be considered in context. Bill is a resident in a long-term care home that has statutory obligations to ensure Bill is safe and free from emotional harm. The Fixing Long-Term Care Act, 2021, S.O. 2021, c. 39, Sched. 1 ("FLCTA") regulates all long-term care homes in Ontario including McCormick Home. It sets out regulations for long-term care home staffing and care, and codifies a Resident's Bill of Rights.

[90] Section 3 of the FLCTA sets out the Resident's Bill of Rights, which requires every licensee of a long-term care home to ensure that the rights of all of its residents are respected and promoted, including:

Right to be treated with respect

1. Every resident has the right to be treated with courtesy and respect and in a way that fully recognizes the resident's inherent dignity, worth and individuality, regardless of their age, or disability.

2. Every resident has the right to have their lifestyle and choices respected.

3. Every resident has the right to have their participation in decision-making respected.

Right to an Optimal Quality of Life

6. Every resident has the right to communicate in confidence, receive visitors of their choice and consult in private with any person without interference.

Right to Quality Care and Self-Determination

20. Every resident has a right to ongoing and safe support from their caregivers to support their physical, mental, social and emotional wellbeing and their quality of life and to assistance in contacting a caregiver or other person to support their needs.

21. Every resident has the right to receive care and assistance towards independence based on a restorative care philosophy to maximize independence to the greatest extent possible.

22. Every resident has the right not to be restrained, except in the limited circumstances provided for under this Act and subject to the requirements provided for under this Act.

[91] Every visit to Bill, whether by Gwen, Alison, Nathan or another, is made in the context Bill living in a long-term care home that owes him the duty to ensure his mental, social and emotional well-being. After Gwen expressed concern about Alison and Nathan's visits, McCormick Home took steps to monitor the visits and ensure they were consistent with Bill's wishes and his rights as a resident. No staff has identified any distress or harm to Bill occasioned by visits from Alison or Nathan. In the absence of any evidence of harm or distress, Bill's presumptive right to receive visits from the children should continue.

Should the Court Issue Directions Under Bill's Power of Attorney

[92] In her application, Gwen seeks directions under Bill's power of attorney in relation to visits by Alison and Nathan.

[93] Directions are intended to guide decision-making, not create a situation where the court is micro-managing the day-to-day decisions of the attorney. The Court should not make a decision in place of the attorney except in extraordinary circumstances: Sly v. Curran, at para. 14.

[94] Alison seeks directions protecting her ability to visit Bill and preventing Gwen from interfering with those visits. Alison asks that the Court make a visitation schedule. Alison did not bring her own application for directions, however, s. 68(4) of the SDA authorizes the court to give such directions at it considers to be for the benefit of the incapacitated person and consistent with the SDA.

[95] I am satisfied that the circumstances of this case warrant the Court giving directions about access. Gwen is a loving and attentive spouse and caregiver to Bill, and there is no reason to doubt that, generally speaking, she is exercising her power of attorney to make decisions for Bill in his best interest. However, the level of conflict and animosity between Gwen and her children has created an untenable situation. Her own experience with Alison and Nathan has, in my view, impaired Gwen's ability to make personal care decisions for Bill in his best interests without reference to her own.

[96] Gwen appears unwilling or unable to acknowledge that Alison has visited Bill regularly for over a year, without incident. Before his dementia, Bill had a loving relationship with Alison. There is no evidence that Bill has suffered any harm from the visits. To the contrary, Bill has been observed to enjoy Alison's visits or, at worst, has been calm and quiet.

[97] I accept Alison's evidence that she is a loving and supportive daughter to Bill who just wants to spend time with her father. The ongoing conflict between Alison and Gwen has prevented her from supporting Bill in his illness as she had hoped.

[98] Accordingly, in accordance with s. 68(4) of the SDA, I make the following directions under William George Orr's power of attorney dated December 15, 2021:

a. Subject to the policies, rules and procedures of McCormick Home, Alison Gwen Orr shall be at liberty to visit William George Orr, either alone or together with family and friends, every Wednesday from 9:00 a.m. to 11:00 a.m. and, commencing Saturday, September 6, 2025, every other Saturday from 9:00 a.m. to 11:00 a.m., ("Alison's Visiting Hours");

b. Gwen Ruby Orr shall permit Alison Gwen Orr to visit Bill privately, and she shall not interfere with or supervise Bill's visits with Alison, whether directly or through an agent, during Alison's Visiting Hours;

c. Gwen Ruby Orr, Alison Gwen Orr and The Women's Christian Association of London o/a McCormick Care Group are at liberty to seek further directions on the issue of access and visitation, if necessary.

Costs

[99] The parties are strongly encouraged to resolve the issue of costs among themselves in light of Alison's success on the contested portion of the application. If they are unable to resolve costs, the parties shall each serve and file their respective Bill of Costs, any relevant offers to settle, and written costs submissions by September 29, 2025. Costs submissions shall be provided in Word format and shall be limited to twelve pages (double-spaced, 12-point font).

Justice M.A. Cook

Released: September 2, 2025