April 19, 2016

An elderly woman suffers from dementia. Her two children are both her attorneys for property and personal care. Both have diametrically opposed plans for where she would live. In Walter Burnat v Mary Bosworth et al, 2016 ONSC 2607 (S.C.J.) the court had to decide whether the mother – Olga – would continue to live in her house or be moved to a retirement home.

Olga’s son Walter had moved for a variety of relief, including being appointed as Olga’s guardian. However, the immediate issue was to decide where Olga would live.

Olga was diagnosed with moderate to severe dementia, including hallucinations, and was assessed to be incapable. It was clear that she could not live on her own. Her son Walter wished for Olga to move to Brookside Retirement Living Residence (in Richmond Hill), the closest suitable retirement residence. Her daughter Mary wanted Olga to remain in Oshawa. Olga had lived there her entire life and would be surrounded with her familiar home, community and church. Mary would arrange for a friend of Olga to move into her house, along with, inter alia, visits from a personal support worker and herself (Mary also lived in Oshawa).

The two children did not trust each other. Walter believed that Mary had not followed through with providing 24 hour care. Mary denied that she had inappropriately left Olga alone.

Justice Charney approvingly cited Justice Himel for the proposition that an applications for directions in these matters was for “guidance and direction … not to have the court make the decision for the substitute except for certain exceptional situations.” His Honour held that this was one of those exceptional circumstances: the two attorneys could not agree on where Olga would reside.

The best outcome, Justice Charney held, would be for Olga to move to a retirement residence in Oshawa. However, there was no evidence before his Honour about when that would occur. His Honour held he would be more inclined to agree with Mary’s proposal as a short-term solution if he had evidence that a spot would open up in Oshawa in the next few months. However, Justice Charney had concerns with Mary’s proposal as there was no affidavit evidence from the friend who would be taking care of Olga. His Honour had no way of assessing the friend’s experience or reliability. Nor did he know if she would be able to deal appropriately with Olga if Olga has a hallucinatory episode.

Ultimately, while acknowledging that the court was not in an ideal situation to make the decision, Justice Charney ordered that Olga live at Brookside until a suitable Oshawa-area retirement residence became available.

Disputes over an elderly parent’s living situation can be quite acrimonious. Ultimately, the court’s decision will be based on the evidence put before it. Parties should ensure that there is a complete evidentiary record before the court to justify the relief sought.