It’s natural to look at estate planning as a way to prepare for the future, provide for loved ones, and reduce the likelihood of litigation after a death. In the event of illness or other types of incapacity, people can allow others to make decisions for their health and finances on their behalf. This is known as a power of attorney. Of course, there are always going to be situations where the involved parties may not all agree on the most suitable person to be appointed that responsibility. A recent decision from the Ontario Superior Court of Justice highlights one such instance and offers a warning to others about pursuing a dispute such as this too aggressively.

Guardianship decisions appealed

The issue arose when a woman who was 92 years old and suffering from Alzheimers had her personal care guardianship handed to her children, her daughter “CC” and her son “MC”. MM was also appointed as her litigation guardian. However BMO Trust Company was appointed her guardian for property. These appointments were made by the courts under the Substitute Decisions Act, 1992.

Following the appointments CC and another of her siblings, “PC” appealed the order. PC eventually sought leave from the Court of Appeal all the way to the Supreme Court of Canada. His leave to appeal was dismissed as of May 2018. In the meantime, BMO could not pass the accounts as they were directed to. When they attempted to, PM once again filed a Notice of Objection and sought to have the guardianship of property responsibility transferred to himself and CM. PM raised “allegations of collusion, conspiracy and an alleged secret agreement between the litigation guardian and BMO Trust Company as guardian of property.  He has filed no affidavit evidence in support of these extremely serious allegations.  His brief affidavit simply identifies and attaches a number of documents filed in prior proceedings.”

The litigation guardian has enough

You may remember that MM was appointed as his mother’s litigation guardian. He submitted that his brother was a vexatious litigant and was “engaged in a bad faith attempt to re-litigate matters finally determined by the Court of Appeal.”

The court agreed with MM’s assessment of his brother as a vexatious litigant. They quoted the Court of Appeal, which described PM’s appeals as follows,

In our view, there is no merit to these appeals. They are the culmination of unnecessarily protracted litigation that has depleted (the mother’s) estate, wreaked havoc on the emotional and financial health of all concerned, wrongfully maligned Section 3 Counsel, and wrongfully impugned the applications judge.  It is past time for the litigation over (the mother) to end.

The court exercised its discretion to refuse PC’s leave to participate in the matter, stating

“I would acknowledge that in many cases it will be in the interests of the incapable person that one or more of her children be accorded standing in a passing of accounts.  I can see no such interest when the child and future beneficiary of the incapable person wishes to put forward vexatious arguments that can only cause family strife, further delay and expense and which will dissipate (the mother’s)’ assets, which she may well need for her health care and well-being over the balance of her life.”

At NULaw in Toronto, our empathetic and experienced lawyers provide effective legal guidance with power of attorney disputes, including compensation disputes and removal disputes. If you are concerned about a friend, family member, or loved one contact us online or at 416-481-5604 to book a consultation today.

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