Section 7 of the Canadian Charter of Rights enshrines every competent person full rights to autonomy and self-determination.
Ontario’s Substitute Decision Act chips away at that, allowing appointment of counsel for a person whose capacity is at issue before the courts. The person does not choose counsel, nor can they fire them, and if they have the means they must pay fees for all services – whether they are consulted and approve the service or not.
Judges can make that worse by not ensuring that Section 3’s actions are tied to the persons instruction. In 2015 ONSC 4036 Justice Tranmer ruled Mrs. Childs was incapable, yet in August he allowed Section 3 to represent a client he had ruled was not capable to give instructions. Reason? No Order had been entered. That technicality allowed Section 3 to take the position she didn’t have to consult or seek instructions – and she didn’t.
I asked Judge Tranmer:
Either she is my Mom’s lawyer and is supposed to do something for her, or is she not?
If she’s a lawyer she should be consulting with her client. If Section 3 doesn’t believe Mrs. Childs is competent she should inform the court. Either way the Act says if Mrs. Childs is competent, her instructions are competent wishes and shall be followed if not, they are current wishes and the court and guardians should consider them.
But no one knows what Mrs. Childs is, or what her wishes are, because Tranmer’r two ruling put Mrs. Childs in legal limbo – technically capable but ruled incapable and Section 3 took that to mean she had a new role not defined in legislation that of an advocate – reporting best interests. The Appeal Court in 2017 ONCA 516 noting that Section 3 last spoke with her client on May 17, 2015 – but failed to focus on the fact that after this there were 7 months of billings, 6 days of hearings, settlement conferences, mediation etc – non of which Section 3 consulted Mrs. Childs about.
When you look at the Rules of Professional Conduct, there are options for arbitration, parties should enter it, and if my Mom has a position, even if she says she is desirous or not desirous of it. That is what there is from Section 3, is dead silence in terms of instructions.
In August, the PGT said section 3 was necessary, so the incapable person would have a voice in the hearings. In a dispute between attorneys’ section 3 can be the only mechanism for the Court to know the incapable person’s position.
Under the Rules of Professional Conduct, the lawyer is bound to advocate according to the client’s instructions.
A lawyer representing a client who is party to a dispute that other parties must confidentially and diligently develop and argue the position of the client.
Contrary to this, on October 22nd, Section 3 reported that her duty was to report best interests, as Mrs. Childs is no longer capable. This is not section 3’s duty. Even if it could be done, it cannot be done without an understanding of the person’s capable and current wishes according to 66.4 of the Act, and that basically says, In deciding a person’s best interest, the guardian shall take into a consideration, the values and the beliefs, the person held incapable, and the person’s current wishes, if they can be ascertained.
The Act could have applied this to section 3, either in section 3 of the Act, or in section 66.4. It didn’t.
Section 3 is not to present best interest, but to present the client’s instructions, capable wishes, and current wishes, so the Court and guardian can determine what is in the best interest.
Instead, we don’t have Mom’s wishes because Section 3 has not:
- reviewed the guardianship of personal care plan with Mom
- not reviewed the two property management plans with Mom
both of which the Act says should be done. If she prefers on, and is capable that should be followed and if there are current issues, should be considered. Neither occurs. AND without seeking additional instructions, Section 3 proceeds with litigation against two of those plans.
On October 22nd, this was illustrated when Section 3 suggested that the Court should consider replacing the no heroic measures provisions of Mom’s POA for personal care include a Do Not Resuscitate provision. Section 3 has not talked to my Mother about that, so I don’t know why that would be put forward. Is that section 3 acting on her personal beliefs?
On October 22nd, Section 3 suggested that only capable wishes matter. The Act says current wishes matter if they can be ascertained. This is where I would like to talk about [capacity assessor’s] report because she is a professional social worker, in capacity assessment and saw Mom on May 13th What is interesting is throughout the report, Mom’s voice comes through of Mom. [They] is observed.
She is oriented, orientated towards place and explains correctly that her husband had built the home. She said, “I want to stay here as long as I can, until I die. Have someone write that down.”
Asked more specifically,
If you could no longer walk or were bed ridden? Would you have to be cared for in a nursing home? I would have to accept help, wouldn’t I? I am going to stay here as long as I can, until I pack it in. She was equally clear about what she did not want. I asked if she knew anyone named Michael, and she replied, one of the family. He doesn’t stay around very long. How is he related to me?
there’s a couple, and I’m thinking of children, want to put me in a nursing home. They want money, money.
How much weight you give to these statements depends on exactly on when competence is deemed lost. So while Justice Tranmer ruled in August Mrs. Childs was ‘technically capable’ none of this made the court as Section 3 said Mrs. Childs is not capable to instruct and didn’t consult.
I think the combined actions of Judge Tranmer and Section 3 cost Mrs. Childs her charter right.