June Decision (2015 ONSC 4036) Analysis

There are a number of palpable errors and errors in law in the June decision. As well as evidence of bias.

In terms of palpable errors at paragraph 18 he says in two consecutive sentences that Andrew did not agree to compensate and that his lawyer proposed compensation for caregiving, which is the same as Andrew proposing compensation. This is an important error because at paragraph 32 he identifies that only two brothers agreeing to compensate influenced his decision. He reiterates again at 37 that only two brothers agreed to compensate and at paragraph 42 again notes it deciding a proper amount for past care giving.

The judge says at several places (paragraphs 17, 32, 34) Caroline would provide care without compensation. This is inconsistent with paragraph 15 where the issue being adjudicated is compensation and paragraph 18 where there indication that compensation had been an issue for some time, and paragraphs 20, 21 and 22 where claims for specific amounts are made. It is also inconsistent It is also inconsistent with the management and guardianship plans that Caroline filed where she did not expect compensation for being guardian but did expect it for the service of caregiving.  This error too seems to have an influence on the decision as at paragraph 32 he outlines references that when discussing Mrs. Childs future care costs and who has agreed to compensate.

There are also errors in law. At paragraph 31 he runs through the case law for paying compensation for personal care:

  • that the person benefited,
  • the claims be reasonable
  • and the award is proportional to the persons means.

In the case cited the person (a man) was awarded $14.75/hour for 20 hours/month arranging caregivers.

At paragraph 38 – 40 he recognises the significant benefit Mrs. Childs received from Caroline. At paragraph 22 he acknowledges the claimed amount requested is ½ the market rate.  At paragraph 3 he outlines Mrs. Childs assets (1.4M in assets and a house worth 450K). Not mentioned is an annual income of 114,000.  At paragraph 1 he notes her age. The tests for reasonablness seems to be met.

But at Paragraph 33 he states a child should not be paid for care and a paragraph 41 states that despite 2 1/2 years of uncompensated care, there is no unjust enrichment. The recent Granger v Granger decision suggest that this position is untenable.

At paragraph 42 he awards an amount of $833/month for past caregiving. At paragraph 45 draws a distinction between compensation for guardian of personal care and ‘the direct caregiving that has taken place in the past’ .

At paragraph 46 Caroline’s role is as manager of personal care rather than primary care attendant, suggesting she manages but is not the primary care attendant”. He observes “There are sufficient assets available to permit proper home care” and that Caroline will have to manage accessing the proper service and caregivers …”

Paragraph 47 awards the amount of $500/month and free room and board ‘as suggested during submissions’. There were two submissions for the $500. 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 “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 use of the word “future” used several times in Section 3 submissions.

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 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.

The inescapable conclusion that the statement “sufficient assets” refers to the fees required for professional care givers, as $500/month for being manager is about 5% of Mrs Childs annual income and 0.4% of her cash assets.  This is 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 one does not access oneself. It is also consistent with the case law cited as $500.

It is also consistent with the case law cited as $500/month at that rate amounts to  33 hours per month. This is more that the 20 hours/month awarded in the case cited to manage hiring caregivers, but that case was a 2009 case and Caroline is likely fo incur some non-primary caregiving.

Paragraph 48 says “Finalizing this issue of compensation for care” but who is to provide it is still no identified. If Caroline was to get approx $14.75/hour to manage hiring caregivers that is consistent with case law, the benifit Mrs. Childs recieved and Mrs. Childs means. If, on the otherhand, she was to get $0.68/hour as a 24/7 caregiver – well that seem punative, unreasonable and an indication of bias.

I would suggest that shows a bias, and an expectation about women’s place and duties.  At paragraph 34 a statement Caroline’s lawyer said was about compensation for guardianship and Justice Tranmer took to be

At paragraph 34 a statement Caroline’s lawyer said was about compensation for guardianship and Justice Tranmer took to be care giving because “It is the way it should be”. It is further emphasised by his statement at paragraph 39 where he implies that  Caroline is entitled to just thanks, when in the previous and subsequent paragraphs [38, 40] he describes the benifit Mrs. Childs recieved as priceless.

And to finalize both errors in law and bias, at paragraph 36 he says that there is no evidence of sacrafice, when living away from you own home and husband to provide care for your mother is the definition of sacrafice. An to suggest, as he does, that it is Carolines responsibility to provide professional caregivers when she needs a vacation  or a break is unreasonable.

 

This seems to be resolved by

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