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.