Case Comment: Abrams v. Abrams
2010 CarswellOnt 1135, 2010 ONSC 1254
On March 1, 2010, Justice Brown issued a scathing endorsement following a case conference with counsel for the parties in this contested guardianship application. The endorsement received significant media attention, with reports in the Globe and Mail and the Toronto Star that week, highlighting Justice Brown’s concerns with the parties’ conduct and the larger issue of adult children who engage in litigation to deal with disputes relating to their elderly parents.
In his endorsement, Justice Brown used very pointed language to criticize the conduct of the parties, and at the same time to provide guidance to lawyers in this practice area about “how contested guardianship litigation under the Substitute Decisions Act should be conducted”.
The parties to the proceedings are the applicant, Stephen Abrams, and the respondents Judith Abrams, Ida Abrams and Philip Abrams. Ida and Philip Abrams are the parents of Stephen and Judith. Ida is 87 years old and Philip is 92. Ida suffers from dementia.
In January 2008, Stephen brought an application seeking his appointment as guardian of property and personal care for Ida. The application apparently stemmed from a 2005 family dispute about Ida and Philip’s estate planning. The application challenged Ida’s Powers of Attorney for Property and Personal Care that named Philip as her attorney, and Judith as the alternate attorney.
The conference call with Justice Brown was preceded by more than two years of proceedings, some twenty-odd endorsements and two separate appeals.
Justice Brown’s endorsement highlighted a history of the Court attempting to streamline the application. In a December 2008 Order for Directions, Justice Strathy emphasized the need for a tight timetable and a timely hearing and resolution of the dispute. Still more than a year after Justice Strathy’s Order, the application had not even neared trial. The parties had delayed matters by challenging Justice Strathy’s Order. Stephen appealed the Strathy Order to the Court of Appeal, which appeal was denied (with one variation that was unopposed by the respondents).
Stephen sought leave to appeal another endorsement to the Divisional Court. That motion for leave was dismissed in March 2009.
For her part, Judith caused delays by failing to attend examinations for discovery and three separate orders were required to compel her attendance. Stephen’s examinations for discovery were also delayed as were those of Philip.
In November 2009, Justice Brown agreed to act as the case management judge in the proceeding and set out a timetable for pleadings and outstanding examinations. Even those steps failed, however which led this endorsement, and its strict timetable. The endorsement made it clear that a failure to abide by the timetable leading to trial would lead to costs consequences. Notably, Justice Brown did not place responsibility to abide by the timetable on the parties alone: he pointed out that those costs consequences could fall on counsel personally.
The context of the endorsement is the particular facts of the Abrams guardianship application but perhaps more importantly, contested guardianship applications in general. As Justice Brown put it, “the parties have lost sight of the key issue”, that is, the best interests of the incapable person. The media attention surrounding the case also points to a societal interest in how elderly persons’ needs are addressed and the role of the judicial system in meeting those needs. Although the Substitute Decisions Act sets out a mechanism for addressing incapable person’s needs, it is clear that it is imperfect and still allows for matters to be dragged out while family disputes continue.
The message in Abrams is that the onus is on the parties — and their counsel — to ensure that guardianship applications are efficiently managed and targeted to meeting the incapable person’s needs, and do not simply provide an alternate and costly forum for squabbling siblings to do battle.
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Written by: WEL Partners
Posted on: March 7, 2010
Categories: Commentary
2010 CarswellOnt 1135, 2010 ONSC 1254
On March 1, 2010, Justice Brown issued a scathing endorsement following a case conference with counsel for the parties in this contested guardianship application. The endorsement received significant media attention, with reports in the Globe and Mail and the Toronto Star that week, highlighting Justice Brown’s concerns with the parties’ conduct and the larger issue of adult children who engage in litigation to deal with disputes relating to their elderly parents.
In his endorsement, Justice Brown used very pointed language to criticize the conduct of the parties, and at the same time to provide guidance to lawyers in this practice area about “how contested guardianship litigation under the Substitute Decisions Act should be conducted”.
The parties to the proceedings are the applicant, Stephen Abrams, and the respondents Judith Abrams, Ida Abrams and Philip Abrams. Ida and Philip Abrams are the parents of Stephen and Judith. Ida is 87 years old and Philip is 92. Ida suffers from dementia.
In January 2008, Stephen brought an application seeking his appointment as guardian of property and personal care for Ida. The application apparently stemmed from a 2005 family dispute about Ida and Philip’s estate planning. The application challenged Ida’s Powers of Attorney for Property and Personal Care that named Philip as her attorney, and Judith as the alternate attorney.
The conference call with Justice Brown was preceded by more than two years of proceedings, some twenty-odd endorsements and two separate appeals.
Justice Brown’s endorsement highlighted a history of the Court attempting to streamline the application. In a December 2008 Order for Directions, Justice Strathy emphasized the need for a tight timetable and a timely hearing and resolution of the dispute. Still more than a year after Justice Strathy’s Order, the application had not even neared trial. The parties had delayed matters by challenging Justice Strathy’s Order. Stephen appealed the Strathy Order to the Court of Appeal, which appeal was denied (with one variation that was unopposed by the respondents).
Stephen sought leave to appeal another endorsement to the Divisional Court. That motion for leave was dismissed in March 2009.
For her part, Judith caused delays by failing to attend examinations for discovery and three separate orders were required to compel her attendance. Stephen’s examinations for discovery were also delayed as were those of Philip.
In November 2009, Justice Brown agreed to act as the case management judge in the proceeding and set out a timetable for pleadings and outstanding examinations. Even those steps failed, however which led this endorsement, and its strict timetable. The endorsement made it clear that a failure to abide by the timetable leading to trial would lead to costs consequences. Notably, Justice Brown did not place responsibility to abide by the timetable on the parties alone: he pointed out that those costs consequences could fall on counsel personally.
The context of the endorsement is the particular facts of the Abrams guardianship application but perhaps more importantly, contested guardianship applications in general. As Justice Brown put it, “the parties have lost sight of the key issue”, that is, the best interests of the incapable person. The media attention surrounding the case also points to a societal interest in how elderly persons’ needs are addressed and the role of the judicial system in meeting those needs. Although the Substitute Decisions Act sets out a mechanism for addressing incapable person’s needs, it is clear that it is imperfect and still allows for matters to be dragged out while family disputes continue.
The message in Abrams is that the onus is on the parties — and their counsel — to ensure that guardianship applications are efficiently managed and targeted to meeting the incapable person’s needs, and do not simply provide an alternate and costly forum for squabbling siblings to do battle.
This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.
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