December Decision (2015 ONSC 6616)

In his December Decision the Judge stated:

I reject the suggestion by Caroline and Peter that they misunderstood my order or their actions since that order were solely intended to comply with that order.

He refers repeatedly to paragraph 46 of the June decision – but never once quotes it. It says:

[46] Going forward as guardian of her mother’s personal care, Caroline’s role is as the manager of personal care rather than the primary personal care attendant. There are sufficient assets available to permit proper homecare to be provided for Eileen Childs in her home. Caroline will have to manage assessing the proper services and caregivers and she should do so to provide fully for the best interests of her mother”

That is not the only paragraph that suggest Caroline is to be a manager not a caregiver. Paragraph 27 suggests where the Judge got this idea “She [S. 3] submits that Caroline is to be the manager of the future care, not the caregiver, in her capacity as a guardian of personal care.  At paragraph 42, $25,000 or $833/month is awarded for  “her personal car services for the past 2 1/2 years and for the past two months”. At paragraph 45 he states “with respect to the compensation for Caroline as guardian of personal care … that is a distinct issue from the direct caregiving that has taken place in the past“. While at 47 he says “fair, proper and reasonable compensation from this time forward is as suggested during submissions … namely the sum of $500/month.” Two submissions were made regarding the $500/month – that of Section 3 at paragraph 27 to be for, and that of Andrew and Michael at paragraph 25.

If in awarding $500/month to Caroline as guardian of care, Justice Tranmer meant her to be a manager, and possibly non-primary caregiver, as [46] suggests, the amount allows for approx. 33hrs/month at the Kiomall rate. If, however he meant her to be the 24/7 care-giver as Andrew and Michael proposed and he insisted was his intention August and after he ignored the evidentiary basis provided to the court, and outlined as relevant in Re Brown, ignored the principal that the amount awarded should be sufficient to attract others outlined in Sandhu (Litigation Guardian of) Wellington Place Apartments, ignored the amount paid and its reasonableness for the service and in relationship to the persons’ total assets outlined in Kiomall.

Further reading paragraph 46 note it is a single role, manager and it is identified as distinct from the other necessary role “primary care attendant”. The paragraph goes on  that “sufficient assets” refers to the fees required for professional care givers – as the decision set Caroline’s fees at $500/month as guardian and live-in manager. That the care is to be provided by professionals is further emphasized by the statement: “Caroline will have to manage accessing the proper services and caregivers” Access implies that those care givers come from somewhere else and need specific arrangements to use them.

The Judge does not agree. First he states

“So, maybe that is unfortunate wording or misleading wording,”
And later
“But she can manage herself, she has got to manage herself. That is part of managing the Mom’s care, I think”

On June 30 we wrote all counsel stating we are working to implement the terms of the decision; specifically our understanding the court defined Caroine’s as “a personal care guardian” and not the primary caregiver.”

On July 7 we wrote you as Section 3 intended to seek your support for a motion for reconsideration; whether we consented or not. Our letter quoted the specific paragraphs from the decision, provided a copy of the June 30 letter and provided specifics on our understanding of primary caregiving being more that ½ the time – or 85 hours per week.

If you had concerns about the clarity of the paragraphs sited you said nothing. You allowed the motion to proceed.

The role of the manager is set in opposition to primary personal care. That is the crux of our June 30 letter and our letter to you on July 7.

In our letter to you, before you had decided to hear the motion, we drew your attention to the fact that this accelerated Car-O-Line’s guardianship plan, by introducing third party caregivers faster that she would otherwise – but it does not change it. Nevertheless at the August 21 hearing you state:
“she would manage her mom’s care needs through her own services and through outside professional help as required, as she indicated she would do in her guardianship plan” Transcript 73(20).
As if Car-O-Line proposing to provide 1 hour less than ½ the weeks care is not the best she can do while NOT being the primary care attendant.
How could we know that we were not to read the decision literally? That is the only new information.

We are today facing a motion to remove Caroline as guardian, and huge costs risks, because we suggested we intended to act on words that you say are unfortunate or misleading and we paid attention to phrases that you don’t consider as part of that paragraph.

To add to this is on September 17, knowing that in a month you would reconsider your decision, you felt confident the you were not going to favor us by assigning us costs for a decision that might change.

On August 21 you say “there could well be a miscarriage of justice played upon Eileen Childs” 71(5) if the current circumstances are not reconsidered. Rather than clarify the words used in your decision so they can be clearly followed – you suggest that the Caroline’s entire guardianship be reconsidering. That seem extreme given the years of care she has already provided, and the acknowledged benefit Mrs. Childs has received.

To be clear, though professional care has increased slightly, Caroline is still the primary caregiver. It is through that care that Mrs. Childs has improved. The appeal was to reinstate Caroline as Both guardian and primary caregiver – but to do this at a living wage, and with reasonable respite, so that it could continue as long as it was in Mrs. Childs interests and benefit.

And to issue costs on September 17, you would have reviewed the settlement letters. Included Section 3’s June 17 letter stating:
“We are trying to impress upon her the importance of her not being the actual caregiver but that she pay for professionals to look after Mrs. Childs daily”
That statement is entirely consistent with the information contained in the Factum of Eileen Childs and presented to you on on June 18 by Section 3 counsel.

It leads logically to paragraph 46 of your decision that Caroline be a
“manager of personal care rather than the primary personal care attendant.”
And it is consistent with the stipend of $500/month to manage caregivers but not be the primary care attendant.

At the June 18 hearing our counsel raises concerns about Section 3’s fees. On August 21 ahead of reviewing material for your costs decision you suggest there will be no review of those fees. A decision was made on the reasonableness of Section 3 fees ahead of a costs review.

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