Section 7 Charter Abuse?

Posted on July 23, 2017 by dignifiedcare

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 one, 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 one 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.  There are diferences in a 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.

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Caring for someone with dementia

Posted on July 19, 2017 by dignifiedcare

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

Posted on July 17, 2017 by dignifiedcare

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

Posted on July 14, 2017 by dignifiedcare

Incapable persons can easily lose control of their property.

Courts can be complicit in what could be considered financial abuse by 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.

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

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Technically not incapable – but no need to seek instruction

Posted on July 13, 2017 by dignifiedcare

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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Is Section 3 of Ontario’s Substitute Decision Act unconstitutional?

Posted on July 13, 2017 by dignifiedcare

In a recent Appeal court decision (2017 ONCA 516) the court lauded Section 3’s “advocacy” for her client. They had been asked to rule on when capacity was technically lost and how that relates to the “deemed ability to instruct” Section 3 counsel. That was not addressed.

Section 3 of the SDA states if a person does not have legal representation when capacity is at issue in a hearing, counsel can be appointed and the person “deemed capable to instruct counsel.”

Persons have a right to represent themselves. The Act removes that option from a person when capacity is at issue.

Once declared incapable the person cannot instruct counsel, or make any other personal choices for themselves and counsel can no longer claim lawyer/client privilege which exists solely to protect that instruction. If required, for a court hearing, a litigation guardian can be appointed.

The difference in counsel types balances the persons Section 2e ‘Bill of Rights’ rights, with their Section 7 Charter rights to self determination.

The loss of rights of necessity requires a defined technical point where that occurs, but that technical point must rests on the relative priority of the underlying fundamental rights. In this case there were 396 days between release of the capacity assessor’s report indicating full incapacity and the entry of an Order declaring incapacity, and 365 days between the Judge issuing a decision that the person was incapable and the tehnical entry of an Order to that effect. The Judge ruled that without an Order the person did no need a litigation guardian – though he knew the person was not competent to instruct counsel. Section 3 remained active throughout but did not once consult her client for instructions, while repeatedly claiming lawyer/client privilege, and repeatedly bringing motions and actions that appear inconsistent with both the SDA and the person’s instructions.

Persons thought to be incapable are vulnerable, especially under Section 3 of the Substitute Decision Act. The person does not choose or hire counsel, nor can they fire them. Both require court order. Further if they have the means the person is obligated to pay Section 3’s bills. In so doing the SDA overrides the person’s Section 7 rights to self determination before incapacity has not been declared.

Further by definition a person’s capacity becomes at issue in a hearing when either their agency over their affairs appears reduced, or the quality and consistency of their decisions appears inconsistent with their wishes and desires. Both impact the ability to give instruction. By conveying to the lawyer, the deemed capacity to instruct the Act protects the lawyer, as they cannot be questioned about the basis of their actions due to lawyer/client privilege – at the very time the person they are representing is unlikely to challenge any actions the lawyer takes while “advocating” for them.

This can be made worse if the person is also denied due process by not being served on actions or being consulted for instruction. Both occurred in this case as once appointed Section 3 was served but Section 3 never reviewed served documents with the person, or sought instructions on how to respond. And because she was not served directly she would never have known want was being ‘advocated’ in her interests.

Section 3 never reviewed any settlement issues with the person. Never reviewed the motions Section 3 launched in her name. Never consulted regarding the positions Section 3 took in court – including positions that directly contradicted the persons earlier instructions.

Is Section 3 of the Substitute Decision Act unconstitutional?

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Submissions on Bill 148, the Fair Workplaces, Better Jobs Act

Posted on July 11, 2017 by dignifiedcare

Is $0.65/hour a reasonable amount to pay anyone for work?

Seems impossible but that is what a Judge in Ontario ordered a daughter be compensated for living away from her home and providing 24/7 caregiving to her rich mother. (2015onsc4036)

The basis for this decision appears to be that Ontario’s Substitute Decision Act does not set a tariff for caregiving as it does for property guardians. The property guardian (a major bank) sought compensation that may amount to $170,000 over 5 years (including up to $15,000/year to advise which money market fund to use).  As caregivers are primarily women, and property guardians mainly men or financial institutions, there is the appearance of systemic inequity in the Substitute Decision Act under Section 15 of the Charter of Rights and Freedoms.

The mother had almost $2M in assets and an annual income of $114K yet the Judge’s apparent belief that “Children should not be paid to care for their parents” underpins the decision. As justification, the Judge states he arrived at this amount based on submissions, such as that from two sons who proposed $500/month for 24/7 caregiving ($0.65/hr), which was adopted.  Whether their motivation was that they would inherit any money not spent on caregiving cannot be known, but the Appeal Court, found it was the Judges’ intent to pay $0.65/hr, and it does not result in unjust enrichment, nor is it evidence of bias on the Judge’s part. (2017 ONCA 516)

The Judge reviewed case law which establishes the amount paid should be reasonable in relation to the persons finances, and that the person benefited from the service. He heard the amount the daughter requested was less than ½ the market rate (and far below Ontario’s current minimum wage), and ruled the mother’s benefit was immeasurable.  Still he did not apply that case law. Those recipients where men. Apparently, case law doesn’t actually apply to daughters.

Until the Substitute Decision Act is fixed, to specifically address compensation for caregiving, families will continue be forced to use the civil courts – and face what appears to be capricious and unjust decisions all because the legislature doesn’t provide guidance in the Substitute Decision Act.

I suggest that this panel specifically address caregiver compensation in the final version of Bill 148, the Fair Workplaces, Better Jobs Act. Specifically, I would recommend that the tariff for caregiving be set at minimum wage, unless the caregiver consents otherwise. This would substantially reduce the burden on the courts as a large number of cases under the SDA relate to caregiving fees.

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Law Firms Analysis of Decisions

Posted on June 28, 2017 by dignifiedcare

Below are law firms that have reviewed the various Decisions (2015 ONSC 4036, 2015 ONCS 6616, & 2017 ONCA 0516) with my comments and thoughts in italics.  If you write a review please contact me so i can add.

Adrian Law – In a LinkedIn post found that Courts consider care for a family member to be a moral obligation and, absent personal sacrifice or loss, will expect adult children to care for their incapacitated parents for minimal compensation.  Unless you’re a man who can get paid $14.75/hr to arrange care. If you’re a daughter expect $0.68/hr for 24/7 caregiving – and don’t expect courts to consider living away from your home and husband to provide that care as sacrifice.

Hagel Lawfirm – found those who take on the responsibility to care for incapable family member or friend, do so out of love and a sense of duty, this responsibility is often stressful and exhausting and can have a negative impact  on the caregivers’ mental and physical wellbeing. It is therefore appropriate and just that their efforts are properly compensated

Hull and Hall – suggest that compensation for care must be within the persons means. Mrs Childs has 1.4M in cash assets, a 450K home and an annual income of $114K. The Judge awarded $0.68/hour for 24/7 care. I’d suggest his position that children should not be paid to care for ailing parents has more to do with that position than the law.

Mills & Mills – found the legal fees incurred by this family for legal fees could have been more constructively utilized within the family. My brothers had removed my mom from her home, isolated her from friends and us, she was being left in excrement regularly, not being fed breakfast to control vomiting. Her wish was to live at home – they brought an application to place her in a CCAC home. What do you do – let that happen or file a cross application.

US Attorney, Kelly Reed Lucas, Esq.  – askes “According to one Canadian judge last year, an adult child should not be paid to care for an ailing parent because the parent was not paid for raising the child. Do you agree or disagree? What if I told you the ailing parent had $1.4 million in the bank and three other adult children who did not provide any care for the parent? Would your answer be different?”

WagnerSidlofsky – suggestthat after weiging the cost of litigation it makes sense to settle compensation for care giving with in the family. Again what do you do if litigation is forced on you because you mother has been removed form her home, is being isolated, left in excrement and not fed to control vomiting?

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Appeal Decision (2107 ONCA 0516) Analysis

Posted on June 27, 2017 by dignifiedcare

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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June Decision (2015 ONSC 4036) Analysis

Posted on June 27, 2017 by dignifiedcare

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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