Appeal Decision (2107 ONCA 0516) Analysis

The Commission of Ontario – after extensive study regarding the courts application of law and rights where competence is at issue, recommend a special court be set up with expertise competence and a detailed understanding of the relevant laws.

The Ontario Appeal Courts deeply flawed decision in Childs v Childs shows why that’s necessary.

They did not resolve the discrepancy between Section 3 not seeking instruction from Mrs. Childs after a capacity assessor found incapacity, and the Judge allowing Section 3 to continue to represent Mrs Childs because a formal Order had not been entered.

They ruled that the June 25 decision intended Caroline to be the 24/7 caregiver (for $0.68/hour despite Mrs. Childs $1.4M in assets and $114K annual income) based on a incomplete reading of that decision. They did not consider that if this was intended it was not consistent with caselaw filed at the time, or for the appeal.

They did not consider paragraph 47 of the original June 2015 Decision which outlines amount of compensation (for an intended service), was based on submissions. Or that one of those submissions [at 27] was Section 3 proposing C. be the manager of care but not the caregiver. Nor did they consider that Section 3’s factum stated Mrs. Childs wished professionals to care for her. If those paragraphs are considered the only reasonable conclusion is Caroline was NOT to be the caregiver and the June 30 letter in necessary and appropriate. The question then becomes why did Section 3 bring a Motion to Vary what she had proposed; that Mrs. Childs be cared for by professionals and Caroline be a manager not a caregiver.

They said that BMO’s appointment was a matter of consent as there was no duress. At the time Mrs. Childs was

  • removed from her home,
  • being isolated from friends, some of her attorneys,
  • being routinely left in excrement, was not being fed breakfast to control vomiting,
  • was telling virtually everyone she contacted that her caregivers “aren’t human”
  • was telling everyone she wanted out and to go home.

Section 3  would not agree to extract Mrs. Childs from that situation unless BMO was appointed. If that is not duress I don’t know what is.

The decision praised Section 3 who’s relationship with BMO appears to be a conflict of interest.

  • Section 3 wrote BMO’s guardianship plan and swore its filing affidavit but charging Mrs, Childs
  • The amount charged for work done for BMO was more that for meeting for instruction.
  • Section 3 negotiated BMO’s fees at full tariff PLUS a charge of approximately $15,000.00/year for the investment advice. (recommending a money market fund).

It was alleged that Section 3 got no benefit form this. Under the Act it is the property guardian (BMO) that approves Section 3’s fees, or asks a court to review them.

Section 3’s cost docket show billings for researching collections (when the SDA guarantees payment of uncontested fees), show different hours billed for the same services across different dockets, show changes in the items invoiced for specific days across dockets, and shows billings for research and services that were not used. They also show Section 3 consulted a lawyer about being counsel for BMO the day after the June decision, when no future litigation was pending.

Section 3 was also praised though she did not get isntructions for the Motion to Vary, proposed actions counter to Mrs. Childs wishes (placement in a home when Mrs. Childs wished to live at home) and proposed that Mrs. Childs no heroic measures clause be changed to do not resuscitate, and this be registered with first responders.  She supported Mrs. Childs property, not returned as Ordered by the court, could be kept by the party that had them until Mrs. Childs died.

BMO’s counsel’s docket show numerous private interactions between themselves and Section 3. Whether those meetings had any role in BMO bringing a motion that Mrs. Childs property court ordered to be returned by the M.C., but not – could be kept by them until Mrs. Childs death. M.C was the litigation guardian Section 3 proposed. The litigation guardian approves BMO’s passing of accounts (a review and challenge/approval of, all payments BMO makes). Just days ahead of the judge hearing our submissions on whether BMO should be appointed, Section 3 transferred $300,000 of Mrs. Childs assets to BMO – allowing them to bill up to $18,000 at to the fee structure Section 3 had ‘approved”.   Later there appears to be a second transfer of $400,000 (alluded to in Section 3’s docket) but BMO refused to file reports it’s plans said it would do quarterly. The panel describes all of this as appropriate.

They also ignored the fact that the Public Guardian’s instructions for the hearing were that our management plan was acceptable to the PGT as is.  BMO had to file an ammended plan. They did not comment on the fact that the Public Guardian had again supported BMO, without any condition, just 24 hours before revealing these instructions for the hearing. It seems odd that a government agency can take positions before they know what their position is officially.

The Court of appeal gave no credence to an apprehension bias. The Judges statement such as paragraph 46 was misleading have no weight. No weight is also given to the statement “has this beating taken place since June 18 .. Ok what possible relevance’s is it” – when the alleged beating was of Mrs. Childs the person at the center of the hearings. And June 18 is significant as he intended to exclude facts before then from consideration, whether they were adjudicated or not – sheltering the isolation and deplorable care for consideration.

The panel categorically denies an alleged meeting between the Judge and Section 3 occurred when the transcripts show a similar occurrence. On October 21 the Judge began the hearings stating:

“I was walking through the hall this morning …  the two lawyers were out in the hall … did they relay that information to you?”

One of the lawyers was Section 3, and like the incident the panel flatly denies – opposing counsel was to pass the Judges instructions to us. Whether counsel had a role in arriving at those instructions I do not know – but a discussion leading to opposing counsel being tasked to pass the Judges instruction to us did occur. And they ignore that in filing th Motion to Vary Section 3 sent the motion directly to the Judges chambers.

To be completed soon.

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This entry was posted in BMO, Decisions, Legal issues, Public Guardian, Section 3. Bookmark the permalink.

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