Kira Domratchev associate at Gowling WLG (Canada) LLP

Just because you reside outside of the province, does not mean that you are unfit to act as guardian of an incapable person, particularly with the benefits of modern technology.

In a fairly recent decision in Kierans (Re), 2023 BCSC 1841, the British Columbia Supreme Court, considered two competing petitions seeking committeeship (the equivalent term in Ontario is “guardianship”) of Bernard Kierans (“Bernard”), a 65-year-old disabled man living with Down syndrome.

One of the petitions was brought by Bernard’s sister, Kathleen Walker (“Kathleen”) and another petition was brought by another one of Bernard’s sisters, Margaret Mary Kierans (“Margaret”).

Kathleen sought committeeship of Bernard’s person and supported the appointment of the Public Guardian and Trustee of British Columbia (the “PGT”) to manage Bernard’s estate (i.e. Bernard’s property, using an Ontario-equivalent term). Margaret, on the other hand, sought to be appointed committee of Bernard’s person and estate.

While Kathleen and Margaret appeared to agree that Bernard was incapable, they disagreed on the extent of his disability. They each also opposed the other’s appointment:

• Kathleen asserted that she was best suited for the role based on her long standing and close relationship with Bernard and, significantly, given that she was a resident of Greater Vancouver. Kathleen emphasized that Margaret resided outside of the province (in North Bay, Ontario) and is significantly older than her and Bernard as reasons that Margaret’s petition should be denied.
• Margaret, on the other hand, argued that she was best suited for the role as Kathleen being appointed as Bernard’s committee would be detrimental to his well-being, including potentially risking his eviction from the home he has resided in for the past 30 years.

Despite Margaret residing in a different province from Bernard, the Court concluded that she was best suited to be appointed as the committee both for the purposes of Bernard’s person and estate. Some of the factors that the Court made noted in support of the decision in favour of Margaret are as follows:

• Despite residing outside of the province, Margaret, who is also Bernard’s godmother, has weekly Skype calls and community prayer sessions with him and other members of his home via Zoom.
• Margaret had visited Bernard on approximately five occasions over the preceding two years.
• Despite Kathleen’s position that she and Bernard had a close and affectionate relationship, the Court found that after their father died, Kathleen severed the relationship with all of her siblings, including Bernard such that her whereabouts were unknown from approximately 2015 to the spring of 2021.
• Shortly after the first COVID-19 vaccine became available, Bernard’s home sought the appointment of a representative for Bernard to facilitate medical decisions. Bernard chose Margaret, which was at a time that Kathleen was absent from Bernard’s life.
• Kathleen had ongoing conflicts with employees at Bernard’s home such that the Executive Director of the home filed an Affidavit detailing that Kathleen’s visits led Bernard to becoming distressed, anxious and unable to settle down to the point that the home threatened to terminate Bernard’s residence unless action was taken in respect of Kathleen’s visits.
• Margaret attempted to mediate with Kathleen to facilitate contact between her and Bernard but Kathleen refused these overtures. Kathleen also refused to engage with Bernard over the phone or videoconference calls in lieu of personal visits.

The Court held that in determining who should be appointed committee, the paramount and overriding consideration is who will serve the incapable person’s best interests, which is in line with the overriding principles of guardianship law in Ontario.

This case is a good reminder of the kinds of facts that would be seen by the Court as determinative in deciding who is best suited person for an appointment as the representative of an incapable person’s interest. Significantly, it is the overall factual matrix that is to be considered such that a single factor will not typically be determinative of the outcome of a particular case.