The appointment of BMO as guardian does not meet the spirit of SDA 32(3) which requires:
(3) A guardian shall encourage the incapable person to participate, to the best of his or her abilities, in the guardian’s decisions about the property.
The appointment of BMO creates a guardian of property that has no contact with Mrs. Childs, and has shown no interest in contacting her in over a year and a half.
That said BMO has also shown very little interest in providing a plan UNTIL after they are appointed – at which time it would require a court hearing to remove them. They have suggested this is because they do not have sufficient information to complete a plan. Under the April 24 Order paragraph 4; Section 3 was given the authority to
“compel the production of financial records relating to Eileen Childs from any third party institution including but not limited to HSBC. SunLife, Nesbitt Burns, Canada Revenue Agency, and any utility or service provider for Eileen Childs home”
BMO could get any information it wanted from any party.
BMO has shown no interest in working with the guardian for care, despite that being necessary for Mom’s care, and anticipated by the Act (32.1&2) They have:
a. Come to the court for direction on matters that they should be able to resolve themselves or through conversation with the parties.
b. Characterized potential future renovations as immediate maintenance; while not addressing the immediate maintenance needs of the house.
c. Answered every question about how fees are applied or by quoting the fees document from which the questions arose.
They brought forward a motion that would allow Mrs. Childs property, ordered returned but kept by others, to remain with that party. Their motion and the not complied with Order are mutually exclusive.
The non-complied with Order required the Michael to “deliver Eileen Childs from Andrew Childs home to Sand Lake … together with her belongings … ” . Andrew kept in his possession some of Mrs. Childs property. The motion BMO proposed stated that “personal property currently in the possession of other family members shall be preserved and retained” freed Michael from repercussions from not complying with April Order. Coincidentally Micheal is the party designated to approve BMO’s passing of Accounts.
The SDA 32(1) identifies the property guardian as a fiduciary with an obligation to exercise their duties with diligence, honesty, integrity “for the incapable person’s benefit”. There was a duty on both the interim manager and BMO to disclose the conflict between the Orders to you to ensure Mom’s best interest was protected. That did not happen.
The plan BMO filed with the court states they will “Retain valuables as long as Mrs. Childs can use/enjoy them.”
Neither BMO or Section 3 asked Mom if she gets enjoyment from the property that was not returned (SDA 32(1)), or whether its value is important to the incapable persons care as defined by the guardian of care (SDA 32.1.2).
Mrs. Childs has a Property Guardian who does not consult her and allows others to keep her property.