Appeal Decisions (2017 ONCA 0516) part 2

The Appeal Decision can be found here, and a summary of the decision found here.

The June Decision which this section references can be found here

The issue of whether the June 25, 2015 decision was to have Caroline, who was appointed guardian of personal care, be a manager of care or the 24/7 caregiver is central to whether the Motion to Vary, and the subsequent Variation hearings, were Valid. Paragraph 46 of the decision seems clear “She is to be the manager of

Paragraph 46 of the decision seems clear “She is to be the manager of care not the primary care attendant”. The panel took the position that you have to look at that paragraph in light of the whole decision but then ignore paragraph 47 where the application Judge outlines that the $500 award was chosen based on submissions.

There were two submissions for $500/ month – Andrew and Michaels at paragraph 25 for caregiver services, and Section 3 at paragraph 27. where Caroline is to be the manager of care not the caregiver.

When that is included the distinction between being the manager and the caregiver seen in paragraph 45 and 46 seems clear – the submissions the application Judge was relying on was Section 3’s – that Caroline be a manager of professional caregivers. This is supported by Mrs. Childs wish, reported to the court by Section 3 in the factum of Eileen Childs, that wished she be care for by professionals.

The panel suggests that the Judge was misled by Caroline as it was alleged that she stated she would provide care whether she was compensated or not. That position is difficult to reconcile with paragraph 15 of the June decision where compensation for past and future care is to be adjudicated, at 18 where compensation for care is outlined to have been a long-standing issue, at 20, 21 and 22 where the specific amounts requested are outlined. These amounts are consistent with the management plan filed to support in home care. It is interesting to note in that plan Caroline was not intending to charge for guardianship but was intending to charge for care – if she provided it.

There is no evidentiary basis for this statement as there is no transcript for this hearing. The support cited by the panel is the Judges the statement that Caroline said she would provide care at no cost. One has to look at the reliability of his observations in light paragraph 18 where in two consecutive sentences he states that Andrew has never agreed to compensate for care and that his lawyer proposed compensating Caroline $150/day for in home care. I would suggest that the question was about charging for guardianship, not care, and that the Judge failed to make the distinction between two opposing positions – as he did regarding Andrew compensating for care.

Much is made whether the words “live at Sand Lake” reference care or simply being an on-site to provide to provide consistency of management. If the court intends that living with an incapable person automatically requires providing 24/7 care the implications for family members living with an incapable person are profound as would be the pressure such a decision would put on the provinces already strained long term care facilities. It is more reasonable to assume that the statement means simply that – living with her mother. It is all the more reasonable when one considers that the Section 3 initially reported that Mrs. Childs did not want her children living with her but changed this wish on May 19, 2015 to be that she would be happy to have Caroline live with her.

The June 10, 2015 factum of Eileen Childs written by Section 3 contains an Order sought with the following terms:

“b) The appointment of Caroline Childs as guardian of care with the provisions to allow Caroline Childs to live with her mother at Sand Lake rent-free and with her food provided without cost (ie room and board)

  1. c) A further amount of $500 per month to be paid to Caroline Childs as guardian of care to be reflective of her managerial role in overseeing professional caregiving, and not an amount that equals the actual professional caregiving itself”

The factum supports the $500/month by citing Kiomall vs Kiomall where a family member was compensated for managing the hiring of caregivers for an incapable person. This is consistent with settlement letters which stated that “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. Mrs. Childs needs constant attention.”

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