In Ontario, the Substitute Decisions Act (“SDA”)[1], does not regulate or prescribe compensation for an attorney for personal care or guardian of the person, though case law demonstrates that the court can make such awards when sought.

The Law

In the case of Re Brown (“Brown”),[2] the court elucidated the key principles and considerations when determining compensation for an attorney for personal care or guardian of the person. Brown concerned a trust company which was appointed as the guardian of the property and of the person. In the course of passing its accounts, an objection was raised by the Public Guardian and Trustee to a claim for personal care services compensation.[3]

The court noted that there is no statutory prohibition against compensation in the SDA and the fact that the legislature has not passed a statute, or regulation providing for the payment of compensation to a guardian of the person, or fixed in the manner in which it is to be calculated, does not prevent the court from awarding it and fixing it.[4]

Compensation for personal care services rendered by an attorney or guardian must be determined differently from those awarded to an attorney for property. In the latter case, traditionally, the courts have awarded compensation based upon a percentage of the value of the property administered. The court noted that this method does not lend itself to fixing fair compensation for personal care services rendered by an attorney or guardian.[5]

The services must have been either necessary or desirable and there must be some evidentiary foundation to support a claim for compensation. The reasonableness of the claim for compensation will be a matter to be determined by the court in each case, bearing in mind the non-exhaustive list of factors such as:

• the need for the services,
• the nature of the services provided;
• the qualifications of the person providing the services,
• the value of such services; and
• the period over which the services were furnished.[6]

Brown has since been followed in several decisions regarding compensation for personal care services.

In Daniel Estate (Re),[7] the court cited Brown noting that “a court can fix and award such compensation when presented with an adequate record”.[8] In so doing the court is guided by the “overarching principles of reasonableness and proportionality”.[9] The applicants in Daniel Estate (Re) were attorneys for property and personal care for their elderly neighbours. What started as simple neighbourly tasks led to the applicants becoming full-time care attendants for several years.

In support of their application for compensation, the applicants retained a Certified Canadian Life Care Planner to estimate the cost of these services which was estimated and sought in the amount of $135,462.15. The court accepted the compensation sought by the applicants as reasonable and appropriate given the “detailed and meticulous” accounting provided including dockets of time spent and the types and frequency of services provided.[10]

In Osmulski Estate v. Osmulski,[11] the court denied awarding extra compensation for personal care services, finding that the guardian of the person breached their fiduciary duties. The applicant on a passing of accounts was guardian of the property for his incapable mother.[12] The order appointing the applicant as guardian of property for his mother did not specify compensation. Despite this, the applicant pre-took money from his mother’s account, on an “ad hoc” basis, with the theory that it was “owed to him” given the assistance with her property and personal care.[13]

The court found this behavior was contrary to section 40(2) of the SDA, which states that a guardian is to take compensation at a “regular interval: be it monthly, quarterly, or annually”.[14] The court stated that the applicant spent his mother’s money as if it was his own. The court also found that the applicant fell below the lower standard outlined in section 32(7) of the SDA that, specifically to exercise the degree of care, diligence, and skill that a person of ordinary prudence would exercise in the conduct of their own affairs.[15]

The court found the applicant’s evidence as to what he did as a guardian of the person was deficient. His evidence lacked particularity and there was no record of the hours he spent. The court noted that the taking of compensation at random times, in odd amounts should be discouraged. Such reasons included the inability to track such transactions, and the lack of transparency. Therefore, the court denied the applicant’s claim for extra compensation and ordered that he reimburse his mother’s estate for monies taken improperly.[16]

Concluding Comments

While there is no legislation governing compensation for personal care services, courts have the discretion to award it with consideration of the necessity and extent of such services and the reasonableness and proportionality of the amount claimed.

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[1] Substitute Decisions Act, S.O. 1992, c. 30 (“SDA”).

[2] Re Brown, 1999 CarswellOnt 4628; [1999] O.J. No. 5851; 31 E.T.R. (2d) 164.

[3] Ibid. at para 1.

[4] Ibid. at para 4(b).

[5] Ibid. at para 4(f).

[6] Ibid. at para 4(h).

[7] Daniel Estate (Re), 2019 ONSC 2790.

[8] Ibid. at para 26.

[9] Ibid.

[10] Ibid. at paras 27-29.

[11] Osmulski Estate v. Osmulski, 2014 ONSC 6370 (CanLII) (“Osmulski”).

[12] Ibid. at paras 1 – 3.

[13] Ibid. at para 37.

[14] SDA at section 40(2).

[15] SDA at section 32(7).

[16] Osmulski. at para 78.