Today’s blog was written by Chris Cook, student-at-law at de VRIES LITIGATION LLP
As any estate litigator will tell you, guardianship disputes can be emotional, stressful, and costly. More often than not, the parties involved are related to each other. Though each party wishes to do what is in the best interests of their incapable loved one, they struggle to reach an agreement about how to manage the incapable loved one’s personal care or property. Naturally, these conflicts often make their way to the courts for judicial adjudication. But should they? This question was addressed in Tanti v Tanti, 2022 ONSC 4419 (CanLII) (“Tanti v Tanti”).
Tanti v Tanti concerned the guardianship of 92-year old Paul. Sharon (Paul’s wife) was in a dispute with Raymond (Paul’s son) concerning, among other things, the management of Paul’s personal care and property. Paul had executed multiple powers of attorney—some in favour of Sharon, others in favour of Raymond—but it was unclear which, if any, were valid.
On September 12, 2019, an Order was made by Justice Harris declaring Paul incapable of managing both his personal care and his property, and appointing Raymond as Paul’s sole guardian of property and sole guardian of the person (the “Guardianship Order”). Though Sharon and her counsel, Ms. Nwawe, were present at the courthouse on the day of the hearing, they left before the case was called. Counsel for Raymond informed Justice Harris that he and Ms. Nwawe had agreed to return the matter to court at a later date, so long as an interim order was made concerning Paul’s guardianship.
Because Sharon and her counsel were absent for the hearing, the Guardianship Order was made solely on the basis of Raymond’s materials and submissions. Raymond alleged that Sharon had effectively stolen $600,000 from Paul and had absconded to Trinidad for two weeks without arranging for Paul’s dialysis or care. On the basis of these uncontested allegations, Justice Harris granted the order in favour of Raymond.
Nearly three years later, Sharon and Raymond attended a hearing before Justice Conlan. The singular issue to be decided was whether to set aside the Guardianship Order. (Sharon also challenged the earlier finding that Paul was incapable, but this was a non-issue because the evidence that Paul lacked capacity was overwhelming.) Justice Conlan had no reservations about setting aside the Guardianship Order, and did so for two reasons. The first reason was premised on notions of procedural fairness. The second reason was grounded on the discovery of new facts.
As pointed out by Justice Conlan, the Guardianship Order was intended by all parties to be an interim order only; it was never intended to remain in place for nearly three years. Sharon had always intended to oppose Raymond’s request for guardianship. Because there was never a proper guardianship motion during those three years, Sharon never had the opportunity to have a say on whether Raymond should be permitted to manage Paul’s person and/or his property.
Sharon’s non-participation was contrary to one of the foundational aspects of procedural fairness: audi alteram partem (“let the other side be heard as well”). Put another way, Sharon had been deprived of her right to be heard. In Justice Conlan’s words, “there is no appearance of justice in having something as important as elder care decided on a quasi-permanent basis (three years running) and with only one side participating in the hearing.”
Discovery of New Facts
There was another reason for setting aside the Guardianship Order. Pursuant to Rule 59.06(2)(a) of the Rules of Civil Procedure, the Court may set aside an order on the basis of “facts arising or discovered after it was made.” During Raymond’s cross-examination at the hearing before Justice Conlan, it came to light that Raymond’s earlier allegations were less than accurate. Sharon had not stolen $600,000 from Paul, and had not abandoned Paul while she spent two weeks in Trinidad. These allegations were the “very underpinnings” of the Guardianship Order. As such, had it been known that these allegations were untrue during the September 12, 2019 hearing, Justice Harris would never have made the Guardianship Order in the first place.
Setting Aside the Guardianship Order
Though Justice Conlan decided to set aside the Guardianship Order, His Honour stayed the decision for 90 days because it was unclear who would (or should) take on the responsibility of managing Paul’s person and property. Justice Conlan urged Sharon and Raymond to arrive at a consent order, one that either disposed of the entire matter on a final basis or which set out next steps in the case. While it was open to the parties to return to court for a guardianship hearing or a hearing to determine the validity of the competing powers of attorney, Justice Conlan was quite adamant that this “should be avoided.”
The Subtle Message in Tanti v Tanti
It was clear from overall tenor of Justice Conlan’s reasons that His Honour felt that the matter should never have come before the Court. In particular, His Honour remarked that “the parties have wasted a great deal of time and money to get to this stage; the Order should have been set aside on consent.” Moreover, by urging the parties to reach an agreement between themselves concerning the management of Paul’s personal care and property, His Honour expressed a clear preference that the Court be spared from having to further intervene in the matter. What is unclear is whether this preference was based on a desire to conserve scarce judicial resources or the court’s view that guardianship disputes should come to court only as a last resort. Either way, the message is the same: try to avoid bringing your guardianship dispute before the court unless it is absolutely necessary.