Technically not incapable – but no need to seek instruction

At [5] of the June Decision (2015 ONSC 4036) Justice Tranmer rules “There is no issue as to whether Mrs. Childs suffers from an incapacity as to her property and personal care. The materials establish this to be, unfortunately, the case”.

In August when discussing whether a person he ruled was incapable should have a litigation guardian he states

“I am of the view that the order not having been issued and entered, there has been no declaration, no finding, technically speaking of incapacity so Section 3 counsel is still in.”

The technical issue of whether Mrs. Childs rights would be violated as she is incapable and cannot instruct counsel is not considered. Neither is the technical issue that she cannot be deemed capable to instruct when there the courts have issued a judgement that she is incapable and cannot instruct.

And the PGT, or course, supports this by stating

“We’re saying a litigation guardian is not required here … no declaration of incapacity has made.”

Not that is matters as Section 3 never met with or spoke with her client – so never sought instruction.  In fact the motion was launched with Section 3 writing

“I am uncertain whether Mrs. Childs herself, if I had presented this new information to her, would prefer to be in a higher quality retirement home sooner rather than waiting to have her assets be depleted before she would need to be in a public nursing home in a location that may not be near Sand Lake for her to visit. As you can see from the entirety of the Mrs. Childs’ wishes filed with the court, she understood that there would be a day when she may need to leave Sand Lake and she expressed very clear preferences about where she would like to live in the event of having to leave Sand Lake.”

This is interesting as on June 10, 2015 Section 3 had filed the wishes of the person which were “wishes to live in her own home at Sand Lake only as long as it is safe for her to remain there”. The above statement does not address safety at all – and with $1.4M and $114K in annual income she was also not at any risk of being forced to move into a home.

Section 3 could have asked the person – instead she launched motion that netted her $100K in additional billings. The Ontario Appeal Court called that excellent advocacy.

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This entry was posted in Judges, Law Reform, Legal issues, Public Guardian, Section 3. Bookmark the permalink.

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