Questions of National Interest

  1. Canada’s aging population, the rise in dementia and the large intergenerational transfer of wealth creates conditions for disputes that pit self-interest against the persons capable and current wishes for their life. The person is not likely a participant in the hearings as their capacity is an issue. If, as in Ontario, counsel is appointed and the person is deemed capable to instruct, the reality of capacity determines the actual ability to instruct counsel in cogent ways that conform to the persons capable intentions. In the absence of counsel informing the court the person cannot instruct, positions are taken as instructions from the person, and protected from examination by lawyer client privilege. This risks courts authorizing instructions given by incapable persons, if counsel fails to recognize or report actual incapacity.

 

  1. In this case Section 3 continued to take positions before the court long after she stopped informing her client of issues in the proceedings and seeking instruction. The Judge ignored the reality of incapacity, which he had ruled was the case in 2015 ONCS 4036, yet since an order had not been formally entered, allowed Section 3 to continue to represent the person. Mrs. Childs was denied the protection and fundamental justice of a litigation guardian, while suffering the fundamental injustice of having positions advanced in court, as if they were hers, by counsel that did not consult her.

 

  1. This undermines the course of justice as parties and pits the duties of guardians to follow current capable wishes against lawyer acting without instruction. That 2015 ONSC 6616 reflects Mrs. Childs wishes at all is entirely due to C. and I who continued to argue for her rights and wishes at great cost and time. In assigning costs the trial Judge did not recognize this effort in fact denigrated it while praising Section 3 who acted without instruction. He assigned significant costs against us. The Appeal court upheld his decisions also praising Section 3’s advocacy for her client. The implication is that regardless of ones’ knowledge of a person’s capable wishes, ability to instruct, or fiduciary duty it is not in one’s personal interest to try protect another’s rights and wishes if the courts are involved.
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An (apparent) Total Disregard of Rights

In 2015 ONSC 4036   Justice Tranmer ruled Mrs. Childs was incapable for property and personal care.

In August, on the technicality no order was entered, he allowed Section 3 to represent Mrs. Childs. That technicality did not alter Mrs. Childs incapablality – nor did it change the fact she could not instruct counsel.

Section 3 took the position – that after a finding of incapacity, even without an entered order, consulting or seeking instructions from Mrs. Childs makes a mockery of Section 3. She did not recuse herself – and claimed lawyer client privilege throughout – which is to protect the clients instruction.

Mrs. Childs was denied the protection and fundamental justice of a litigation guardian, while suffering the fundamental injustice of having positions advanced in court, as if they were hers, by counsel that did not consult her.

Section 3 positions often differed from Mrs. Childs recorded instruction and were against her current wishes. All persons in the proceedings at jeopardy as they had to choose between advancing positions they consistent Mrs. Childs instructions and current wishes, or concede to Section 3. Through the original hearing and the appeal, I chose the former – resulting in unreasonable costs consequences.  Throughout Mrs. Childs wishes and desires have been given scant attention or recognition – by the Section 3, the PGT, the courts, the other parties even though the SDA requires it.

On April 24, 2015, Mrs. Childs was legally capable, a Judge approved an order, on consent of the parties and Section 3, but without Mrs. Childs direct approval, that Mrs. Childs be returned to her home at Sand Lake under C.’s oversight, and that her Power of Attorney for Property be suspended and replaced by Section 3 instructing BMO – who was seeking permeant property guardianship. Section 3 had inserted the change to the Power of Attorney after alleging $700K had gone missing, when neither she or BMO had legal access to the accounts and all money was accounted for.

We consented as Mrs. Childs had pleaded with us to return to Sand Lake. Mrs. Childs was not directly served the April motion. We contended the property provisions of the order were overreach. At the time Section 3 did not defend this as being on instruction providing as reasons parties agreed, BMO’s interest etc. On May 14, 2015 Section 3 states at that Mrs. Childs prefers a bank to manage her affairs due to “her memory problems”. Her PoA had appointed children to manage her funds in such circumstances.

Section 3 consults with and seeks instruction from Mrs. Childs for the last time on May 19, 2015. The only change to Mrs. Childs instructions are listed in the factum of Eileen Childs filed June 10 “At the May 19 meeting Mrs. Childs … indicate[ed] she is pleased to have C. live with her at Sand Lake”.

The report for a capacity assessment carried out May 13, 2015, was released on May 25, 2015. Mrs. Childs was found to be incapable of for both property and personal care.

A comparison of Mrs. Childs wishes as reported to the capacity assessor and instructions to Section 3 is instructive:

  • Section 3 states “Mrs Childs wishes to live in her own home at Sand lake only as long as it is safe for her to remain there. The capacity assessor says Mrs. Childs says “I want to stay here as long as I can, until I die. Have someone write it down.” The capacity assessor also notes Mrs. Childs has no concept of safety.
  • Section 3 states “When it is no longer safe for her to remain in her home she wishes to be in a living environment with people her age and where there are activities. She recognizes this may be soon given her memory problems.” The capacity assessor says “I then asked if she had a choice, if she were bedridden, should she should go into a nursing home or would she accept help at 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.” I commented that she might have more company and more things to do if she lived with others in a nursing home and she said, “I wouldn’t go there…..”
  • Section 3 states “Because of her memory problems she knows she cannot look after her money. She prefers a bank to manage her assets and pay her bills.” The capacity assessor says “I told her she was a wealthy woman. She responded “I don’t know. I don’t think much about it. Further “she informed me C. kept tabs on what was spent” and “It was ‘absolutely OK’ with her if C. did all the money handling. And then of protecting her assets “No the kids are good; they wouldn’t do it”.

On September 12, 2012, when capable, Eileen had made arrangements for banking by invoked her Power of Attorney for Property by writing all financial institutions asking them to honour the PoA stating “To meet my goals of staying in my home as long as possible the time has come to instruct you to honour this Power of Attorney and take their instructions as my own.”

Section 3 did not consult her client despite the assessor’s report on current wishes.

Section 3’s cost docket show she wrote the property management plan for BMO. The SDA requires the property guardian to inform [27(4), 32(2)], consult [32(5)], and involve [32(3)] the person. It requires the applicant confirm Mrs. Childs was informed of the plan’s contents and of her right to oppose the guardianship [70(1ci&ii)]. All are attributed to Section 3, who began the plan the day after her last consultation. Mrs. Childs could not have been informed. Section 3 also wrote and swore BMO’s affidavits. S. 3 spent more time working for BMO than seeking her clients’ instructions. S. 3 billed her client for work done for BMO.

The docket also shows time billed on May 26 & June 3 to review case law on compensation for caregiving. Childs instructions of May 14 state a wish the dispute end but she didn’t know what she could do. Section 3 did not consult with her client regarding case law. She later says “I didn’t talk to Mrs. Childs about it [compensation], I didn’t talk to her about whether she could afford living in Sand Lake and – and didn’t talk to her about Caroline needing money. I talked to her about Caroline’s request for money but not that Caroline couldn’t do the job without money.”

Throughout June the issue of compensation would be discussed. Section 3 offered between $500 – $800 for guardianship – apparently without instruction. She never addressed caregiving costs – as she did not in the management plan.

The hearing occurred June 18, 2015.  Section 3 reported were to live at home and have professional care givers and requested that C. be the manager of care not the primary caregiver, and be compensated for that role. Again this position was was made without consulting her client.  Given that male managers are paid approx. $15/hr to arrange care there is the appearance that there is a gender bias at work when

On June 25 Judge Tranmer rule that c. was to be a manager not a cregive – though we would later learn he intenced C. to be the care giver. Given that male managers are paid approx. $15/hr to arrange care there is the appearance that there is a gender bias at work when Mrs. Childs has $1.4M in cash assets, at $450K clear house and annual income or $114K and Justice Tranmer awards $00.65/hr for 24/7 care which was less than the amount awarded for past care.

On June 30, 2015 a letter was sent outlining that Caroline intended to comply with the decision, would be arranging professional care and then would seek work.

On July 6, 2015 prior to filing the Motion to Vary Section 3 wrote “I am uncertain whether Mrs. Childs herself, if I had presented this new information to her, would prefer …” a good retirement home now or a poor one later.

Two days later she files the motion, sending a copy directly to the Judge’s chambers, and requests a swift hearing as retirement home placements are available. Her instructions to live at Sand Lake as long as it is safe are not considered. Mrs. Childs is not consulted Section 3 says a she “understood that there would be a day when she may need to leave Sand Lake”.

About July 29, 2015 M. submits another personal care guardianship plan – to place Mrs. Childs in a good retirement home. Section 3 supports that plan without consultation.

There is a settlement conference about Aug 25, 2015. There is a proposal that C. be the caregiver and be paid $50,000/year but have to pay all her respite and Mrs. Childs caregivers out of that amount. Section 3 supports that, also without consulting Mrs. Childs

As the hearing proceeded the fact that Mrs. Childs coins and stamp collections which were at A.’s while Mrs. Childs was there, were not returned as belongings as required of M. under the April Order.

Section 3 took the position that “to the extent this personal property is not needed or missed by Mrs. Childs, the location is [an] .. issue” Section 3 did not consult with Mrs. Childs to see if see missed or needed her belongings.

The property guardian brought a motion that property in the possession of children could be kept by them till Mrs. Childs death. They did not consult with Mrs. Childs. Section 3 supported that motion. She again did not consult with Mrs. Childs.

In Feb 2016 Section 3 wanted to be released. She brought a cross motion, but did not reveal to the court that the April order was still in effect, and she was court ordered to instruct BMO. BMO also at the hearing did not bring this to the courts attention. From Feb 25, 2016 to June 25, 2016 BMO had control of Mrs. Childs funds with no order appointing them and without the oversight of the April 24, 2015 order. The passing of Accounts which Justice MacLeod ruled was a collateral attack on the appeal was to get to how the transfer was in Mrs. Childs best interests’ and what BMO did when operating without an order.

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Instructions vs Wishes

A comparison of Mrs. Childs instructions to Section 3 reported May 14, 2015 and her wishes and observations reported by the capacity assessor on May 25, 2014 is instructive:

Section 3 states “Mrs Childs wishes to live in her own home at Sand lake only as long as it is safe for her to remain there.

The capacity assessor says Mrs. Childs says “I want to stay here as long as I can, until I die. Have someone write it down. The capacity assessor also notes Mrs. Childs has no concept of safety.

Section 3 states “When it is no longer safe for her to remain in her home she wishes to be in a living environment with people her age and where there are activities. She recognizes this may be soon given her memory problems.”

The capacity assessor says “I then asked if she had a choice, if she were bedridden, should she should go into a nursing home or would she accept help at 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.” I commented that she might have more company and more things to do if she lived with others in a nursing home and she said, “I wouldn’t go there…..”

Similar wishes were expressed to the CCAC and contained in a geriatric report carried out by a geriatric physician. Both were provided to the court.

Section 3 states “Because of her memory problems she knows she cannot look after her money. She prefers a bank to manage her assets and pay her bills.”

The capacity assessor says “I told her she was a wealthy woman. She responded “I don’t know. I don’t think much about it. Further “she informed me Caroline kept tabs on what was spent” and “It was ‘absolutely OK’ with her if Caroline did all the money handling. And then of protecting her assets “No the kids are good; they wouldn’t do it”.

On September 12, 2012, when capable, Eileen had made arrangements for banking by invoked her Power of Attorney for Property by writing all financial institutions asking them to honour the PoA stating

“To meet my goals of staying in my home as long as possible the time has come to instruct you to honour this Power of Attorney and take their instructions as my own.”

On receiving the capacity assessor’s report – Section 3 did not visit or consult her client.

If you were counsel wouldn’t you as the report seems to indicate Mrs. Childs wishes and therefore instructions may have changed? I know I would.

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Section 7 Charter Abuse?

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?

And

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.

Posted in Elder Abuse, Judges, Law Reform, Legal issues, Section 3 | Leave a comment

Caring for someone with dementia

They live in the moment. They enjoy people, food life.

They are like you and me, but without memory they lack the access to experience which is so important for judgement.

For some good advice on providing care check-out this page

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Conflict of Interest? – part 1

The relationship between Section 3 and BMO has the appearance of a conflict of interest.

Section 3 introduced BMO as part of an order to remove my mother from questionable care. At the time Mrs. Childs was telling, PSW’s and likely everyone

“thank god a human. I hate those people” (Jan 14, 2015) .

“Client stated she wanted to get away from here, she hated them … she wants to get out of here. (PSW report March 20, 2015).”

Appointing a bank as property manager is not mentioned by Mrs. Childs as a condition she requires before she is removed – yet Section 3 will not remove a clause to that effect she inserted into the removal order.

At no time does Section 3 suggest this is Mrs. Childs instruction. Section 3 explains her rational for changing Mrs. Childs competent property management plans was due to

“BMO’s (1) willingness to become involved on an urgent basis, (2) its terms for involvement, (3) its review of the assets that it could (and could not) locate on a cursory review of Mrs. Childs’ information, and (4) my understanding that all parties were welcoming their involvement – were all communicated to me – and by me to counsel – well after Miriam’s first draft order circulated …  Caroline’s email below is an example of the very serious need for a neutral asset manager in this case.

The email referred to stated:

“I also need to know if you want me to provide my receipts for groceries etc daily or weekly for my reimbursement.”

And note Section 3 states “its review of the assets that it could (and could not) locate on a cursory review of Mrs. Childs’ information”.  Section 3 had alleged that $700K had gone missing from Mrs. Childs accounts apparently because the BMO branch had no access to the accounts in another BMO division.

OH! And later we would learn that Section 3 and the BMO manager had a relationship at another bank. The nature of that relationship was never revealed.

Is it a stretch to wonder whether, in return for bringing a large account which bank employees seem to require to keep their positions that the manager of the Private Wealth division of that branch might recommend the Section 3 lawyer to clients wanting to update Wills, plan Estates or Trusts etc.

I am not suggesting this did happen – but it is possible and there is no protection in the system to guard against this type of benefit influencing parties that are fiduciaries.

Conflict of Interest pt 2 coming soon.

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Financial abuse #1

Incapable persons can easily lose control of their property. Here a the first example where the courts can be complicit in what could be considered financial abuse; allowing orders not followed, or enforced, to be modified by subsequent orders, even when the court is informed the first order was not complied with.

Mrs. C, and some of her belongings, were removed from her home in April 2014. Sometime later M. reported:

The coins were brought to his (A.’s) place because it seemed very clear that quite a few have gone missing …  He is planning to take them to Wayne for more feedback but has not done so yet.  According to our lawyer he is acting properly to safeguard and verify Mom’s property.  M. Nov 7, 2014

The coins (and an extensive stamp collection not mentioned in the email but removed at the same time) were Mrs. Childs belongings. They were at A.’s on April 25, 2015 when M. was court ordered to:

“This Court Orders that [M.] shall deliver [Mrs. C] from [A.’s] home to Sand Lake at 3:00pm Saturday April 25, 2015 together with her belongings and all medication”

M. did not return the coins and stamps – though they are certainly Mrs. C’s belongings – and were at A.’s.

When this became an issue Section 3 (state appointed counsel) said

“Real property could be removed if Mrs. Childs’ doesn’t need it or miss it.” Section 3 did not consult with Mrs. C to find out if she didn’t need it or miss it.

There were then some 19 meeting and calls between Section 3, counsel for the property guardian and counsel for M. What was discussed is not know – but about October 21, 2015 the property guardian brought a motion that included the provision:

“This Court further Orders that any personal property currently in the possession of other family members shall herby be preserved and retained by them pending [Mrs. C’s] death”

Neither Section 3 or the counsel for the property guardian informed the Judge that the property in possession of others was the coins and stamps not returned under the April order.

On Nov. 13, responding to that motion, C. informed the court that M. had not complied with the April Order and that the Mrs. C’s property was still in possession of A.

Counsel for the property guardian subsequently stated:

“I can advise that I’ve spoken with A. today, who has told me that he is going to bring to BMO a stamp collection and coins.  So I think that deals with the concerns about the belongings versus personal items.”

The Judge did not change the Order and approved and entered it.

The property guardian then took possession of them but did not return them to Mrs. Childs.

Where Mrs. C’s property is now I have no idea.

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