I have previously blogged about Vanier v Vanier, a decision of the Ontario Court of Appeal relating to a dispute amongst attorneys, in which the Court of Appeal agreed with a statement by the motion judge that the attorneys had “lost sight of the fact that it is [the incapable’s] best interests that must be served here, not their own pride, suspicions, authority or desires”. Unfortunately, it is often the case that in disputes amongst family members over the management of an incapable family member’s care or property, the incapable’s interests may be overshadowed by the fight amongst the other members of the family.
The recent Ontario Superior Court of Justice decision in Lockhart v Lockhart, 2020 ONSC 4667, appears to be another similar situation.
The applicant, Barbara, and the respondent, Robert, are children of Mrs. Lockhart. Mrs. Lockhart was 89 years old at the time of the decision. A number of years before, she had contracted bacterial meningitis and had suffered some long-lasting effects that impacted her cognition. Mrs. Lockhart’s husband predeceased her on October 2, 2018. Prior to his death, he had made personal care and treatment decisions for Mrs. Lockhart when she was not able to do so herself. After Mrs. Lockhart’s husband’s death, Barbara was unable to locate a power of attorney for personal care for Mrs. Lockhart; accordingly, Barbara and Robert proceeded to make personal care decisions on Mrs. Lockhart’s behalf, jointly.
However, in December 2018, Robert arranged to have Mrs. Lockhart sign a power of attorney for personal care and a power of attorney for property naming him as her sole attorney (the “2018 POAs”). Barbara was not aware of the 2018 POAs, and was not involved in their preparation or execution. Barbara did not even become aware of the 2018 POAs until April 2020 when Robert revealed them to her in the midst of a dispute between Barbara and Robert relating to Mrs. Lockhart’s care. Barbara subsequently challenged the validity of the 2018 POAs on the basis that, among other things, Mrs. Lockhart was not capable of granting them.
The court found that the 2018 POAs were of no force and effect, and were void ab initio. The court was also asked to determine which of Barbara and Robert would be authorized to make decisions on Mrs. Lockhart’s behalf under the Health Care Consent Act, 1996 (the “HCCA”). Each of Barbara and Robert took the position that they should have sole decision-making authority.
Notably, the court stated specifically that “[t]his dispute has less to do with Mrs. Lockhart’s interests and more to do with a power struggle between two siblings.” Given this outcome, and the facts leading to the litigation, I found the solution arrived at by the court interesting. The court determined that both Barbara and Robert are authorized to make personal care, health care, and treatment decisions under the HCCA, on behalf of Mrs. Lockhart, jointly. It appears that the court was satisfied that both of Barbara and Robert would exercise that authority in Mrs. Lockhart’s best interests, notwithstanding the dispute between them that lead to litigation. Other than the major disagreement between Barbara and Robert that lead to the litigation, the court found that “it appears that they have, in the main, come to decisions that have been in Mrs. Lockhart’s best interest and have kept her safe.” This historic ability to make joint decisions seems to have been sufficient for the court to decide that Barbara and Robert should continue doing so going forward.
Thanks for reading,
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Sibling rivalry coupled with the loss of a parent and an actual or perceived impropriety of one sibling in handling his or her estate can turn even the closest siblings into sparring adversaries.
While such emotionally charged disputes often become heated, most siblings are able to maintain civility in their dealings.
What happens when one sibling takes it too far? Can the courts step in to reel that sibling in?
According to a recent ruling of the Nova Scotia Supreme Court, Nova Scotia (Public Safety) v. Lee, 2015 NSSC 71, they may have expanded powers to prevent or restrict behavior that amounts to Cyberbullying.
The facts of this case involve a particularly heated dispute which arose between a brother (“Mr. Lee”) and sister (“Ms. Murray”) in relation to their late mother’s estate. Prior to her death, their mother had been diagnosed with brain cancer. Ms. Murray and her family moved in with their mother and cared for her throughout her illness. Several months prior to her death, their mother attended upon a solicitor and executed a new will which left her entire estate to Ms. Murray upon her death. Upon learning that their mother had left everything to his sister, Mr. Lee began what the court referred to as a “progression of online abuse” against Ms. Murray by way of text messages, email and public Facebook posts.
The aggressive text messages began when Ms. Murray refused to vacate the mother’s home, and included messages such as:
“[y]ou are dead to me get your lying manipulative abusive [a—] out of that [f—g] house or I will send the RCMP.”
Mr. Lee also sent emails threatening to inform her employer of her alleged misdeeds with respect to their mother’s estate and began posting a series of public messages to his Facebook wall including:
“Does anybody out there in Facebook land think it is ok for the caregiver of a 67 year old lady dying of brain tumours & loaded up with narcotics, take that 67 year old lady into the lawyers office days (literally days) before the lady dies of those same brain tumours and have the lady sign everything she owns (and some stuff she didn’t own) over to the caregiver???? Because that is exactly what my sister did And [sic], any of you cowards in my family that read this and then go “tsk tsk” behind my back and leave my Mother dead and undefended should be as ashamed of yourselves as Veronica should be.”
Ms. Murry filed a complaint with CyberSCAN who asked Mr. Lee to remove the offensive comments and formally apologize to Ms. Murray. Mr. Lee responded with the following Facebook post:
“I said my sister was a lying, manipulative fraudulent thief….. The Cyberscan people said I really should apologize, so here goes, and it is heartfelt and sincere. I am truly deeply and sincerely sorry that my sister is a lying, manipulative, fraudulent thief.”
In response, the Nova Scotian Director of Public Safety applied for a Cyberbullying Prevention Order against Mr. Lee pursuant to s. 26D(1) of the Safer Communities and Neighbourhoods Act, S.N.S. 2006, c. 6.
Upon hearing the case, the Court granted the Cyber Prevention Order and ordered that Mr. Lee delete all the online comments made to or about his sister and that he refrain from such conduct going forward.
Canadian laws are evolving to protect against all forms of Cyberbullying. In 2013, Nova Scotia introduced the Cyber-Safety Act, S.N.S. 2013, c.2, which defines Cyberbullying broadly and provides wide ranging powers to the Director of Public Safety under the Safer Communities and Neighbourhoods Act, S.N.S. 2006, c. 6 to provide recourse for behavior such as Mr. Lee’s.
While, Nova Scotia is the first province to enact such sweeping legislation, the other provinces are starting to take note of the important role such legislation can play. As such, while no equivalent law currently exists in Ontario, it could soon land on Ontario’s legislative agenda.
A useful Fact Sheet outlining the Cyberbullying legislation that currently exists across Canada can be found here.
Thank you for reading,
One day, when I was about 7 years old, my brother offered me a quarter, the caveat being that I would have to earn the quarter by running around the perimeter of the house, outside, in my bare feet. This would not have been so much of a barrier had it not been the middle of winter, and had the snow not reached the height of my kneecaps. Alas, my head spun with the possibilities… Dubble Bubble? Popeye cigarettes? Dip-N-Stix? Desperate times called for desperate measures, and with little hesitation, off came the shoes, off came the socks, and I burst out the front door and started the most hellacious sprint of my short life. I can’t adequately describe the searing pain that shot up both legs the moment my feet hit that snow. I tripped on the root of the overgrown euonymus bush on the side of the house and tumbled face-first into the snow, so now I was thoroughly frozen, but I got to my feet and kept my eye on the ball, or quarter, in this case, and continued around the house to complete my feat. My heart was pounding (early hypothermia?) but I was just so pleased with my accomplishment, and even more excited that I was well on my way to financial freedom. I heaved on the front door handle with the last smidgen of energy in my body, thinking only of the quarter that awaited inside.
The front door was locked.
As I stood on the front porch, eyes wide with terror, I could hear my brother laughing hysterically on the other side.
Flash forward to last week, when this CNN (online) headline caught my eye: “Siblings Still Pushing Your Buttons?”. The article’s author, Jane Isay, has written two books: "Mom Still Likes You Best: The Unfinished Business Between Siblings," and "Walking on Eggshells: Navigating the Delicate Relationship between Adult Children and Parents". [Frankly, I’m surprised I wasn’t contacted for either of these, but that’s an aside…]. Ms. Isay suggests that we reframe our historical experiences with our siblings in an attempt to achieve a new perspective, and even reconciliation.
As I scanned through the comments below the CNN article, I admit to being deeply comforted by the camaraderie of picked-on siblings out there. To the guy whose sister used to trick him into playing “Houdini” and would then tie him to the kitchen chair and leave him like that for a couple of hours while she went out to play, I raise my glass and say a hearty thank you for sharing your angst. Perhaps we can get a group rate on therapy….
Jennifer Hartman, Guest Blogger