Tanti v. Tanti[1], 2022 ONSC 4419 https://canlii.ca/t/jr3cw
Recently, the latest in a series of decisions regarding the capacity of Paul Tanti (“Paul”) was released. In previous proceedings, the insular issue to be decided was Paul’s capacity to marry his companion, the respondent. You can read about these decisions in our previous blog entries: Yet Another May-December Marriage & First Comes Love, Then Comes Marriage: Capacity to Marry, Separate and Divorce.[2]
Background
The recent decision of the Honourable Mr. Justice Conlan concerns the September 12, 2019, Order (the “Guardianship Order”) of Mr. Justice Harris and whether it should be set aside. At the heart of that Order was a finding that Paul is incapable of managing his personal care, and, incapable of managing his property. As a result, Paul’s son, the applicant, was appointed sole guardian of property for Paul and sole guardian of the person of Paul.
On September 12, the applicant’s counsel made strong allegations; that $600,000 he formerly had control over as an attorney, under a Power of Attorney “was no longer available to him,” and that the respondent left for Trinidad for “two weeks without having made arrangements for Paul’s dialysis or his care.”
Positions of the Parties
Counsel for the respondent, Ms. Nwawe argued that the Order should be set aside because:
- It was improperly before Justice Harris as an unconfirmed matter, and
- It was based on false, misleading, and incomplete information.[3]
Mr. Gilmour, counsel for the applicant, argued that if the Order was set aside, it would create a vacuum because “there has been no judicial determination of the validity of the alleged power(s) of attorney document purported to be granted by Paul to Sharon.”[4] He also argued that in such an event, an untenable situation would be created: “there would be two powers of attorney in existence, appointing two different persons as attorneys, both of which are disputed in terms of their validity by the other side.” This brings into question the validity of a 2019 Continuing Power of Attorney for Property, appointing the respondent and the impugned Power of Attorney for Personal Care granted by Paul, appointing the applicant on November 14, 2017 (subsequently revoking the October 2017 power of attorney for personal care granted by Paul to Sharon).[5]
Ms. Jones, counsel at the Office of the Public Guardian and Trustee (“OPGT”) confirmed that section 22 of the Substitute Decisions Act “makes clear that there is a general preference for resort to a valid power of attorney over that of the more restrictive guardianship order.”[6]
Because of Paul’s capacity issues, Ms. Kinch was appointed his section 3 counsel pursuant to Section 3 of the Substitute Decisions Act. And while the OPGT took no position on whether the Order should be set aside. Ms. Kinch argued that the Court should be concerned with the lack of planning outlined by Sharon to deal with Paul’s continuing need for constant care and supervision.[7] The Court concurred with the submissions and conclusions[8] of Ms. Kinch whose dedication to Paul was not overlooked by the Court.[9]
Analysis
Justice Conlan did not mince words when describing how “the parties have wasted a great deal of time and money to get to this stage; and, the Order should have been set aside on consent.” Conlan J. opined that the Order was never intended to be in place for nearly three years and that within those years, a proper guardianship hearing never took place. In fact, Conlan J. took issue with the fact that the respondent has never had at an opportunity to be heard.
In the September 12 hearing before Harris J., Conlan J. held that his honour had no opportunity to read the file before the matter was heard. In the absence of the respondent and her counsel, the applicant advised the court that a Notice of Appearance had been delivered to Sharon but that her and her counsel left the courthouse before the case was called, leading to the matter being dealt with ex parte. Conlan J. held “that is not in the interests of justice, nor, is it in the best interests of Paul, who deserved to have both of his loved ones, Raymond and Sharon, heard before an order was made that we now know would be in place for three years.”[10]
Justice Conlan held that it didn’t matter why or when Sharon and counsel left the Brampton courthouse on September 12, 2019. The court found little to no reason to believe Sharon’s intentions were to abandon opposition to Raymond’s request.[11] On a procedural fairness basis alone, Conlan J. held that the Guardianship Order must be set aside.
The decision of Conlan J. also highlighted crucial admissions that came out during Raymond’s cross-examination. Raymond admitted that he now knows that the allegations made against Sharon, which were the underpinning of the Guardianship Order, were not true.
In light of these revelations, Conlan J. ruled the Court had resort to only one Rule, 59.06(2)(a) of the Rules of Civil Procedure to set aside the Guardianship Order on the basis of “facts arising or discovered after it was made.”[12]
Rule 59.06(2)(a) provides:
A party who seeks to, (a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made; … may make a motion in the proceeding for the relief claimed.
For a thorough analysis of this rule, you can read our previous article found here.
The Court cited the decision of Justice Doherty of the Court of Appeal of Ontario in Mujagic v. Kamps, 2015 ONCA 360 (CanLII) where the language of that rule was interpreted to include that “[f]acts come from evidence, including new testimony and exhibits.”[13]
Temporary Stay of the Decision
While the Court had no problem setting aside the order, Conlan J. did struggle with the fact that there was no plan in place for Paul. The respondent advanced no guardianship request and no evidentiary foundation existed to determine the validity of the competing powers of attorney. For these reasons, the court temporarily stayed the decision to set aside the Order for 90 calendar days.
What’s next for the parties?
They were given 20 days to file written submissions on costs with 10 days for the other side to respond. Ms. Kinch was ordered to stay on as section 3 counsel for Paul.
The applicant was given 30 calendar days to deliver to the respondent, Ms. Kinch, and the OPGT, and file with the court, an updated or amended management plan.
In holding that the Court orders on a final basis, that Paul is incapable of managing both his person and property, Conlan J. concluded that “[a]bsent a consent order that finally disposes of the entire matter, either the parties have a further hearing to determine the validity of the competing powers of attorney, or the parties have a fresh hearing to determine guardianship on a final basis. Not both.”[14]
Conclusion
The decision which held that Paul has the requisite capacity to marry was ultimately upheld on appeal at the Ontario Court of Appeal. On April 7, 2022, the Supreme Court of Canada dismissed the application for leave to appeal with costs to the respondent.
The question of planning for Paul’s care needs remain, to be addressed. The issue of Paul’s capacity to marry was an expensive exercise for all parties. With that in mind, one hopes that, for the sake of an older adult experiencing significant health issues, this legal saga will come to a conclusion shortly.
—
[1] 2022 ONSC 4419 [Tanti 2022].
[2] See https://welpartners.com/blog/2021/01/yet-another-may-december-marriage/; and https://welpartners.com/blog/2022/04/first-comes-love-then-comes-marriage-capacity-to-marry-separate-and-divorce/
[3] Tanti 2022, supra note 1 at para. 14.
[4] Ibid, at para. 15.
[5] Ibid, at para. 25.
[6] Ibid, at para. 26.
[7] Ibid, at para. 16.
[8] Ms. Kinch argued that evidence of Paul’s incapacity was overwhelming and that there were no details regarding Sharon’s plan on where her and Paul will live and the suitability of the Dalegrove residence to Paul’s medical needs or how Sharon will attend to medical services such as Paul’s dialysis. What’s more, she argued that the competing power of attorney documents contained very different end-of-life provisions and highlighted the fact that both the applicant and respondent cannot cooperate with each other and as such, one cannot control Paul’s personal care while the other controls his property.
[9] Ms. Kinch was observed crying at times during her closing address to the Court.
[10] Ibid, at para. 38.
[11] Conlan J. went further in finding that “Sharon and her lawyer never would have left the Brampton courthouse that day if they thought that the matter would be dealt with and an order made.”
[12] Ibid, at para. 46.
[13] Mujagic, at paras. 9 and 10.
[14] Tanti 2022, supra note 1 at para. 58.
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Written by: WEL Partners
Posted on: August 26, 2022
Categories: Commentary, WEL Newsletter
Tanti v. Tanti[1], 2022 ONSC 4419 https://canlii.ca/t/jr3cw
Recently, the latest in a series of decisions regarding the capacity of Paul Tanti (“Paul”) was released. In previous proceedings, the insular issue to be decided was Paul’s capacity to marry his companion, the respondent. You can read about these decisions in our previous blog entries: Yet Another May-December Marriage & First Comes Love, Then Comes Marriage: Capacity to Marry, Separate and Divorce.[2]
Background
The recent decision of the Honourable Mr. Justice Conlan concerns the September 12, 2019, Order (the “Guardianship Order”) of Mr. Justice Harris and whether it should be set aside. At the heart of that Order was a finding that Paul is incapable of managing his personal care, and, incapable of managing his property. As a result, Paul’s son, the applicant, was appointed sole guardian of property for Paul and sole guardian of the person of Paul.
On September 12, the applicant’s counsel made strong allegations; that $600,000 he formerly had control over as an attorney, under a Power of Attorney “was no longer available to him,” and that the respondent left for Trinidad for “two weeks without having made arrangements for Paul’s dialysis or his care.”
Positions of the Parties
Counsel for the respondent, Ms. Nwawe argued that the Order should be set aside because:
Mr. Gilmour, counsel for the applicant, argued that if the Order was set aside, it would create a vacuum because “there has been no judicial determination of the validity of the alleged power(s) of attorney document purported to be granted by Paul to Sharon.”[4] He also argued that in such an event, an untenable situation would be created: “there would be two powers of attorney in existence, appointing two different persons as attorneys, both of which are disputed in terms of their validity by the other side.” This brings into question the validity of a 2019 Continuing Power of Attorney for Property, appointing the respondent and the impugned Power of Attorney for Personal Care granted by Paul, appointing the applicant on November 14, 2017 (subsequently revoking the October 2017 power of attorney for personal care granted by Paul to Sharon).[5]
Ms. Jones, counsel at the Office of the Public Guardian and Trustee (“OPGT”) confirmed that section 22 of the Substitute Decisions Act “makes clear that there is a general preference for resort to a valid power of attorney over that of the more restrictive guardianship order.”[6]
Because of Paul’s capacity issues, Ms. Kinch was appointed his section 3 counsel pursuant to Section 3 of the Substitute Decisions Act. And while the OPGT took no position on whether the Order should be set aside. Ms. Kinch argued that the Court should be concerned with the lack of planning outlined by Sharon to deal with Paul’s continuing need for constant care and supervision.[7] The Court concurred with the submissions and conclusions[8] of Ms. Kinch whose dedication to Paul was not overlooked by the Court.[9]
Analysis
Justice Conlan did not mince words when describing how “the parties have wasted a great deal of time and money to get to this stage; and, the Order should have been set aside on consent.” Conlan J. opined that the Order was never intended to be in place for nearly three years and that within those years, a proper guardianship hearing never took place. In fact, Conlan J. took issue with the fact that the respondent has never had at an opportunity to be heard.
In the September 12 hearing before Harris J., Conlan J. held that his honour had no opportunity to read the file before the matter was heard. In the absence of the respondent and her counsel, the applicant advised the court that a Notice of Appearance had been delivered to Sharon but that her and her counsel left the courthouse before the case was called, leading to the matter being dealt with ex parte. Conlan J. held “that is not in the interests of justice, nor, is it in the best interests of Paul, who deserved to have both of his loved ones, Raymond and Sharon, heard before an order was made that we now know would be in place for three years.”[10]
Justice Conlan held that it didn’t matter why or when Sharon and counsel left the Brampton courthouse on September 12, 2019. The court found little to no reason to believe Sharon’s intentions were to abandon opposition to Raymond’s request.[11] On a procedural fairness basis alone, Conlan J. held that the Guardianship Order must be set aside.
The decision of Conlan J. also highlighted crucial admissions that came out during Raymond’s cross-examination. Raymond admitted that he now knows that the allegations made against Sharon, which were the underpinning of the Guardianship Order, were not true.
In light of these revelations, Conlan J. ruled the Court had resort to only one Rule, 59.06(2)(a) of the Rules of Civil Procedure to set aside the Guardianship Order on the basis of “facts arising or discovered after it was made.”[12]
Rule 59.06(2)(a) provides:
A party who seeks to, (a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made; … may make a motion in the proceeding for the relief claimed.
For a thorough analysis of this rule, you can read our previous article found here.
The Court cited the decision of Justice Doherty of the Court of Appeal of Ontario in Mujagic v. Kamps, 2015 ONCA 360 (CanLII) where the language of that rule was interpreted to include that “[f]acts come from evidence, including new testimony and exhibits.”[13]
Temporary Stay of the Decision
While the Court had no problem setting aside the order, Conlan J. did struggle with the fact that there was no plan in place for Paul. The respondent advanced no guardianship request and no evidentiary foundation existed to determine the validity of the competing powers of attorney. For these reasons, the court temporarily stayed the decision to set aside the Order for 90 calendar days.
What’s next for the parties?
They were given 20 days to file written submissions on costs with 10 days for the other side to respond. Ms. Kinch was ordered to stay on as section 3 counsel for Paul.
The applicant was given 30 calendar days to deliver to the respondent, Ms. Kinch, and the OPGT, and file with the court, an updated or amended management plan.
In holding that the Court orders on a final basis, that Paul is incapable of managing both his person and property, Conlan J. concluded that “[a]bsent a consent order that finally disposes of the entire matter, either the parties have a further hearing to determine the validity of the competing powers of attorney, or the parties have a fresh hearing to determine guardianship on a final basis. Not both.”[14]
Conclusion
The decision which held that Paul has the requisite capacity to marry was ultimately upheld on appeal at the Ontario Court of Appeal. On April 7, 2022, the Supreme Court of Canada dismissed the application for leave to appeal with costs to the respondent.
The question of planning for Paul’s care needs remain, to be addressed. The issue of Paul’s capacity to marry was an expensive exercise for all parties. With that in mind, one hopes that, for the sake of an older adult experiencing significant health issues, this legal saga will come to a conclusion shortly.
—
[1] 2022 ONSC 4419 [Tanti 2022].
[2] See https://welpartners.com/blog/2021/01/yet-another-may-december-marriage/; and https://welpartners.com/blog/2022/04/first-comes-love-then-comes-marriage-capacity-to-marry-separate-and-divorce/
[3] Tanti 2022, supra note 1 at para. 14.
[4] Ibid, at para. 15.
[5] Ibid, at para. 25.
[6] Ibid, at para. 26.
[7] Ibid, at para. 16.
[8] Ms. Kinch argued that evidence of Paul’s incapacity was overwhelming and that there were no details regarding Sharon’s plan on where her and Paul will live and the suitability of the Dalegrove residence to Paul’s medical needs or how Sharon will attend to medical services such as Paul’s dialysis. What’s more, she argued that the competing power of attorney documents contained very different end-of-life provisions and highlighted the fact that both the applicant and respondent cannot cooperate with each other and as such, one cannot control Paul’s personal care while the other controls his property.
[9] Ms. Kinch was observed crying at times during her closing address to the Court.
[10] Ibid, at para. 38.
[11] Conlan J. went further in finding that “Sharon and her lawyer never would have left the Brampton courthouse that day if they thought that the matter would be dealt with and an order made.”
[12] Ibid, at para. 46.
[13] Mujagic, at paras. 9 and 10.
[14] Tanti 2022, supra note 1 at para. 58.
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