June Decision (2015 ONSC 4036) by Paragraph

Below is a summary of each paragraph of the June Decision as well as some commentary on the paragraph, where appropriate.

Paragraph 5 indicates that Mrs. Childs is incapable for both property and personal care.

Paragraph 6 says Mrs. Childs wishes are set out in the factum of Eileen Childs paragraph 2.  Though not summarized in the decision the key wishes are:

  • She wishes to live at home only as long as it is safe
  • She would like professionals to care for her
  • She does not wish to live with her children. Changing this to stating she’d be pleased to have Caroline live with her.
  • She does not believe her children should be paid to visit or live with her.

Paragraph 7 says that “There is no real issue” Caroline should be appointed guardian of personal care. He notes “there is no evidence to suggest that Mrs. Childs is unsafe in her present environment (living in her home with her daughter, Caroline) because she receives 24-hour care and supervision”. He could have ordered Caroline to be the caregiver or to identify how care giving would occur. He did not.

Paragraph 8 appoints BMO as guardian of property but notes that thought consent is alleged we proposed we be guardians of property according to our plan (which did not need to be amended because it was approved by the PGT).

Paragraph 10 covers the appointment of Michael as Litigation Guardian.

Paragraph 11 order Caroline circulate to her siblings, copies of medical notes and allows any child to communicate directly with third parties providing medical or health care.  This seems unnecessary and outside the Personal Health Information Protection Act.

Paragraph 15 is said to be the issues being adjudicated starting with ‘whether Caroline is entitled to compensation for the care she provided” in the past and going forward – and the quantum of such compensation.”

Paragraph 16 discusses Caroline’s in-home care and the benefit that Eileen gets from it. He says “during Caroline’s care” Mrs. Childs wellness improved and that this is in Mrs. Childs best interests. He does not Order Caroline to be the care-giver.

Paragraph 17 he states that “she would have provided and will provide into the future such care without compensation”.  What was asked was would she charge for guardianship – and she would not – but she wanted to be compensated for caregiving as outline at 18, 20, 21 and 22.

Paragraphs 18 outlines that compensation was an issue from the beginning. That from October 2012 Peter and Michael were discussing compensation. The Judge states Andrew did not agree to compensate and then in the next sentence that his lawyer proposed $150/day.

Paragraph 19 states that no compensation was agreed to. That is incorrect as the quantum was agreed to by April 12, 2013.

Paragraph 20 outlines the claim for compensation for past caregiving.

Paragraph 21 outlines that this rate should apply to the period of April 25, 2014 to June 25, 2014.

Paragraph 22 outlines that going forward she should be compensated at $53,60 which “she submits this is one-half of the market average for a third party to provide such care” and

Paragraph 25 outlines that Andrew and Michael’s “are agreeable to paying her a stipend of $500 per month plus room and board while Caroline lives with and cares for her mother”

Paragraph 27 – Section 3 submits that Caroline is to be the manager of future care, not the caregiver, in her capacity as guardian of personal care.   She should be compensated for that role. and that for that role $500 is appropriate.  Paragraphs 25 and 27 are important as compensation is related to duties.

Paragraph 28 and 29 summarize the PGT’s submissions which is that compensation for personal care is generally modest.  We will see at paragraph 42, when ordering $25,000 for past care giving, the amount is a modest $833.33/month.

Paragraphs 30 outlines that the courts have jurisdiction to set compensation provided (1) the was a proven service (2) it was necessary or desired and (3) that the amount be reasonable.

Paragraph 31 outlines that the “amount awarded must not only be reasonable in relation to the services preformed, it must be proportional to the means of the incapable person” and then notes Kiomall v Kiomall where an award of $3,575/year for 20 hours of work a month for “arranging for paid services”.  Mrs. Childs had cash assets of $1,400,000. A free and clear home worth $450,000 and an annual income of $114, 000 ($65,000 from indexed pensions and $60,000 from various RIFFs and investments) In that light a request for $50,000/year to provide 24/7 in-home care seems reasonable given it is less than ½ the commercial rate and Mrs. Childs wishes to live at home.

Paragraph 32 he again erroneously states that Caroline says she would provide care for no compensation. He notes Mrs. Childs significant assets and may have increased costs in the future. He says that and the erroneous statement that only Peter and Michael agreed to compensate was important factors in his decision.  I suggest paragraphs 20, 21 and 22 outline Caroline expected compensation for caregiving. Paragraph 18 records that Andrew had his lawyer propose $150/day as compensation for caregiving, suggesting that he too agreed to compensate.

Paragraph 33 states that a child should not be paid to care for an ailing Mother. I suggest that this suggests bias.

Paragraph 34 he repeats that Caroline stated she would provide care without compensation. I again suggest his own findings suggest this was not the case.

Paragraph 35 he states the crux of the dispute was the claim for past and future compensation for caregiving – the issue he outlines he was to adjudicate on at 15.

Paragraph 36 he introduces factors to be considered in compensation such as sacrifice or loss by Caroline. It is interesting that these are not mentioned at paragraph 31. Also interesting is that the Court of appeal has found in Granger V Granger that this does not apply.

Paragraph 37 again erroneously state that only two of the boys agreed to compensate.

Paragraph 38 he describes “the care provided by Caroline to this point” as priceless and that Mrs. Childs has benefited immeasurably.

Paragraph 39 says that Caroline is entitled to thanks.

Paragraph 40 outlines that though the care is of immeasurable value without a demonstration of loss, or need (ie to so caroline can pay for professional caregivers) there is no basis to for compensation.

Paragraph 41 he dismisses unjust enrichment.

Paragraph 42 – He orders $25,000 for “personal care services for the 2 1/2 years between 2011 and 2103 and for the past two months” Notes again that only 2 of the brothers agreed to compensate (This is a rate of $833/month)

Paragraph 43 says that the dispute should end.

Paragraph 44 says Caroline should not have brought the litigation.

Paragraph 45 draws a distinction between compensation for guardian of personal care and ‘the direct caregiving that has taken place in the past’

Paragraph 46 states that “going forward as guardian of her mothers personal care, Caroline’s role is as manager of personal care rather than primary care attendant.” He observes “There are sufficient assets available to permit proper home care” and that Caroline will have manage accessing the proper service and caregivers …” Note that the role of is identified manager as distinct and different from the other necessary role “primary care attendant”. The inescapable conclusion that the statement “sufficient assets” refers to the fees required for professional care givers which is further emphasized by the statement “manage accessing the proper services and caregivers” as access implies that those care givers come from somewhere else than from within Caroline herself, as the word access implies separate from oneself.

Paragraph 47 awards the amount of $500/month and free room and board and references ‘as suggested during submissions’. There were two submissions for the $500 amount. Section 3 at paragraph 27 in relation to the role of “manager of future care not the caregiver.”  and at paragraph 25 where Andrew and Michael suggest that amount “while Caroline lives with and cares for her mother”. Paragraph 47 does not suggest which of these he relied on but 47 does talk about “compensation from this time forward” which seems to reference the phrasing in Paragraph 46 which begins “going forward” and echos the submissions of Section 3 re Carolines role being a care manager not the submissions of Andrew and Michael where she was the caregiver.

Paragraph 47 does not identify which of these submissions was the logical base for the amount but 47 does talk about “compensation from this time forward” which seems to reference the phrasing in Paragraph 46 which begins “going forward” and echo’s the submissions of Section 3 that “with respect to future compensation” Caroline is to be the “manager of care not the caregiver”, as Andrew and Michael had submitted. This position is enhanced when one realizes that going forward [46] the $500/month amount as manager is only 60% of the $833.00/month awarded at [42] for previous “personal care services” and that this amount is modest.

Paragraph 48 says “Finalizing this issue of compensation for care” but who is to provide it is still no identified.

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