Tag: guardianship application
The Court of Appeal of British Columbia (the “BCCA”) recently dealt with an appeal from an Order of the British Columbia Supreme Court which declined to exercise jurisdiction by staying a petition for guardianship of an incapable person. This Order also included various terms relating to the person’s care and property.
This appeal dealt with the guardianship of Ms. Dingwall, the mother of both the Appellant and the Respondent.
At all material times, Ms. Dingwall and the Appellant lived in Alberta and the Respondent resided in British Columbia. Between 2010 and 2014, Ms. Dingwall resided for various periods in both Alberta and British Columbia. At the time of this appeal, Ms. Dingwall lived in a care home in British Columbia. She suffered from advanced dementia.
The Alberta Proceedings
On February 5, 2015, the Appellant sought an Order from the Alberta Court of Queen’s Bench appointing him as Ms. Dingwall’s guardian and trustee. The Respondent opposed this Order and in September, 2015 filed an Application to move the proceedings to British Columbia. This Application was never heard and the matter continued to be heard in Alberta.
On July 7, 2016, the Court granted the Order sought by the Appellant which appointed him as Ms. Dingwall’s guardian and provided him with the authority to make decisions with respect to Ms. Dingwall’s health care, the carrying on of any legal proceeding not related primarily to Ms. Dingwall’s financial matters and Ms. Dingwall’s personal and real property in Alberta.
The British Columbia Proceedings
A few weeks prior to the Alberta hearing, the Respondent filed a petition with the Supreme Court of British Columbia seeking a declaration that Ms. Dingwall was incapable of managing herself or her affairs due to mental infirmity and an Order appointing her as committee of Ms. Dingwall’s person and Estate. The Appellant opposed the Respondent’s petition by arguing that the Supreme Court of British Columbia lacked jurisdiction.
The Supreme Court of British Columbia asserted jurisdiction because Ms. Dingwall was at the time of the decision, ordinarily resident in British Columbia and because there was a “real and substantial” connection to British Columbia. The Court found that, in this case, both Alberta and British Columbia had jurisdiction.
Despite British Columbia having jurisdiction in this case, the Court found that the Alberta forum was nonetheless more appropriate and cited the following factors in favour of its decision:
- The similarity of the proceedings;
- Alberta having issued a final order; and
- The Respondent having attorned to Alberta’s jurisdiction by opposing the Appellant’s petition.
As a result, the Court stayed the Respondent’s petition but also made several Orders respecting Ms. Dingwall’s care and property. The parties’ costs on a “solicitor client basis” were to be payable by Ms. Dingwall’s Estate.
The Appellant appealed the following Orders made by the Court, other than the stay of the Respondent’s proceedings:
- issuing an Order on the matter after declining to exercise jurisdiction respecting it;
- finding the Court had territorial competence over the matter; and
- awarding solicitor-client costs payable from Ms. Dingwall’s Estate.
The BCCA Decision
The BCCA allowed the appeal and found that the lower Court erred in making Orders concerning the very matter over which it had declined to exercise jurisdiction. The Court noted that a decision to decline jurisdiction over a particular matter renders a judge incapable of deciding issues or making orders as to the substance of that matter.
As a result, the Court set aside the Orders respecting Ms. Dingwall’s care and property. In light of that finding, the Court of Appeal found it unnecessary to deal with the issue of whether British Columbia had territorial competence over this matter, given that the lower Court declined to exercise jurisdiction, in any event.
The Court of Appeal found that the Appellant was entitled to special costs payable by Ms. Dingwall’s Estate and that the Respondent was not entitled to costs.
The full decision can be found here: Pellerin v. Dingwall, 2018 BCCA 110
Thanks for reading.
When considering the commencement of an application for guardianship, either guardianship of property or the person, keep in mind the extensive notice requirements under the Substitute Decisions Act (“the Act”) contain extensive notice requirements.
An application for guardianship of property must be served on:
- the alleged incapable person;
- the person’s attorney for property under a Power of Attorney, if known;
- the person’s guardian of the person, if known;
- the person’s attorney for personal care under a Power of Attorney, if known;
- the person’s guardian of the person, if known;
- the Public Guardian and Trustee;
- the proposed guardian of property.
The above listed people are the parties to the Application.
In addition, application must be served by regular mail on:
- the alleged incapable person’s spouse or partner;
- the alleged incapable person’s children who are at least 18 (16 in the case of an application for guardianship of the person);
- the alleged incapable person’s parents; and
- the alleged incapable person’s brothers and sisters who are at least 18 (16 in the case of an application for guardianship of the person).
Similar service requirements apply to an application to terminate a statutory guardianship of property, a motion to terminate a guardianship of property, an application to appoint a guardian of the person, and a motion to terminate a guardianship of the person.
An exemption to the service requirements on family members is provided if the person’s existence or address cannot be ascertained by the use of reasonable diligence.
In addition to the Notice of Application, the applicant must serve the proposed guardian’s consent, a Management Plan, and a statement signed by the applicant indicating that the alleged incapable person has been informed of the nature of the application and their right to oppose the application, and describing the manner in which the person was informed. If it is not possible to so advise, reasons for not advising must be provided.
Failure to provide proper notice under the Act may lead to an adjournment of the proceeding in order to allow for service, causing further expense and delay.
In J.R.B. v. T.M.T., the court addressed the requirement that family members be served. There, the applicant was applying for guardianship of property for his wife, who was severely injured in a car accident. The applicant did not want to have to reveal his financial circumstances and those of his wife to her family members. The family members agreed that this was not necessary, and consented to a waiver of the service requirements. The Public Guardian and Trustee argued that service on family members was mandatory, and for the benefit of the incapable person, and could not be waived. The court held that the right to service was a right of the family members, and they could therefore agree to waive service.
It is implicit, however, that without such a waiver, service on known family members will be required.
Any person who is required to be served with the application materials is entitled to be added as a party to the application: s. 69(9) of the Act.
Have a great weekend.
Many young families consider estate planning a task that can wait until their children are older, until they have paid off those pesky student loans from university or more importantly until they have acquired assets with significant value. However, an estate planning consideration that often gets overlooked is who will raise your child if you die while they are a minor.
When thinking about who will raise your child if you die before they reach adulthood it is usually the presumption that the other parent will be there to raise the child. So what happens if both parents simultaneously die in an accident? Or what happens if you are the sole living parent or sole custodian of your minor child (i.e. the other parent lost the right to custody by way of court order)?
Section 61 of the Children’s Law Reform Act (“CLRA”) contemplates these situations and provides:
- (1) A person entitled to custody of a child may appoint by will one or more persons to have custody of the child after the death of the appointor.
The testamentary appointment of a minor child is effective only:
- if the parent making the appointment is the only person entitled to custody of the child on the day before the appointment take effect; or
- if both parents die at the same time or in circumstances that render it uncertain which survived the other.
I am certain it goes without saying that the decision of who you will appoint as your child’s custodian is a decision that must be given considerable thought. However, it is especially important in these circumstances because your testamentary appointment expires 90 days after it take effect. Following the expiration of the appointment your chosen custodian must apply to the Court for a more permanent order of custody. Accordingly, regardless of your testamentary appointment your appointed custodian must be able to satisfy the court that a more permanent custody order is in the best interest of the child.
Although the thought of your child being orphaned while they are a minor is inconceivable for many parents, it may nonetheless be something to give some thought.
Thank you for reading!
Listen to Experts in Estate Matters.
This week on Hull on Estates, Craig Vander Zee and Sarah Fitzpatrick discuss expert evidence in estate matters. In this episode they outline circumstances when one should use expert evidence, different types of experts, timing of reports, limitations of experts and the court appointed expert.