Entered Court Orders

Entered Court Orders

The Court does not have jurisdiction  to re open entered court orders but may vary the order where has been a change of circumstance.

The court refused to re open or vary an entered court order in Sugrim v Sugrim 2016 BCSC 1644 when after entering a desk order under the Family Relations act under S 57,  (which has the effect of crystalizing matrimonial assets and severing jointly owned titles), the husband became incapacitated and was awarded $1.8 million in damages for the injury.

With the consent of the committee adult child of the patient, the wife’s application to set aside the entered court order was dismissed on the basis that inter alia there was a risk that the wife and her children were acting out of self interest and not in the best interest of the patient.

The Sugren case stated:

 [22]         The PGTBC submits and I agree that the court does not have jurisdiction to reopen and set aside an entered order. The court may, however, entertain a variation of an order on the basis of a change of circumstance.

[23]         I raised a question as to the validity of a consent to a s. 57 declaration. However, having reviewed the circumstances of this case and the authorities, I conclude that the declaration was valid.

[24]         This was not a situation where one party at a judicial case conference requested a s. 57 declaration and the other party opposed it, as was the case in Harrison v. Harrison, 2007 BCCA 120. InHarrison, Finch C.J. found the death of Mr. Harrison was a material new circumstance giving rise to a reconsideration of the previous order to avoid a miscarriage of justice. In that case, the order was not entered, so the court was not functus officio and there was evidence of a possible miscarriage of justice which does not exist in the present case.

[25]         The only issue before me is whether or not a committee has the authority to consent to an application to set aside the s. 57 declaration based on a material change in circumstance.

[26]         The claimant submits that s. 15 of the PPA provides that a committee of the patient has all the rights, privileges and powers with regard to the estate of the patient as the patient would have if of age of majority and of sound and disposing mind. Those rights include the ability to commence defend or otherwise conduct legal proceedings.

[27]         The PGTBC submits that the committee’s power is qualified in that she may only act in the best interests of the respondent.

[28]         In Beadle v. Beadle, 1984 CanLII 806 (BC CA), the PGTBC continued divorce proceedings and set an application for an undefended divorce down for hearing on behalf of an incapacitated claimant, citing Re Swartz, [1947] 2 W.W.R. 979 at 980 (B.C.C.A.) where the court agreed that a committee has the power to bring a divorce action on behalf of the patient and there was nothing in the PPA which limited that power. In Beadle, at para. 8, MacFarlane J.A. held that:

… [the] appointment [of a committee] contemplates … the full management of the affairs of the patient who is incapable of doing so herself. That includes, in my opinion, the management or conduct of any litigation which the patient has undertaken, or which might need to be undertaken in the best interests of the patient. To hold otherwise would put a severe limitation upon the proper management of a patient’s affairs while she is incompetent.

[29]         In Beadle, the court made a distinction between dealing with property matters and dealing with questions of status. In response to this concern, the court said that there are controls in place to ensure that a committee exercises caution in bringing proceedings which involve the status of the patient. Those controls lie in the discretion of the PGTBC under the PPA and under the Supreme Court Civil Rules where the court has the discretion to deny an appointment of a committee as the guardian ad litem of the patient in a proceeding.

[30]         A litigation guardian must declare that he or she does not have any interest in the proceeding that is adverse in interest to the patient (Rule 20-2 of the Supreme Court Civil Rules).

[31]         Protection of the interests of the incompetent party is the primary consideration of the court.

[32]         In a concurring judgment, Lambert J.A. added (at para. 26):

… that where any proceedings are instituted by a committee in which matters of status and morals are involved, there is an obligation on the committee to bring before the court evidence that will satisfy the court that the proceedings are in the best interests of the person who is being represented by the committee.

[33]         In this case, the claimant says there has been a material change in circumstance which should give rise to a variation of the s. 57 declaration because the claimant asserts there is no longer a marital rift that will lead to a final divorce order.

[34]         The claimant asserts that there is a reasonable prospect of reconciliation as one party wishes to reconcile and the other party consents by way of his committee. This submission focuses on the status of the parties and not on what is in the patient’s best interests.  The respondent’s wish prior to his incapacity was to separate from the claimant.  It is unclear to me how the committee could come to the conclusion that he would now want to reconcile. It is open to the committee to satisfy the court that this change in status would be in the respondent’s best interests even though he cannot consent.

[35]         In Anderson v. Anderson Estates, [1990] O.J. No. 1123 (H. Ct. J.), the court considered whether an attorney appointed by power of attorney had the authority to exercise the patient’s right to elect or consent to receive an equalization payment in lieu of entitlement under the deceased spouse’s will. The court concluded that the fact the patient was incapacitated from personally making the election should not diminish her right. The Powers of Attorney Act, R.S.O. 1980, c. 386, s. 5 contemplated an attorney continuing to manage the affairs of the donor after the donor was deemed incompetent.

[36]         In Anderson, at para. 13, the court said:

… the right to elect is a very personal decision that should only be exercised by the surviving spouse and not left to a stranger to the marriage, lest the stranger interfere with the testator’s intentions without knowing whether or not the surviving spouse has made the choice to disregard his or her spouse’s last wishes. …, this concern can somewhat be alleviated by the fact that an attorney under power of attorney will always have a fiduciary duty to act in the best interest of the donor. It may also be possible for the donor to set out in the power of attorney his or her wishes with respect to such an election.

[37]         In the case before me, the claimant also asserts that it is in the respondent’s best interests to “have a home to return to should he ever be able to leave the care of the facility in which he currently resides.”

[38]         This assertion begs the question of whether the respondent is welcome in the home if the claimant is not successful with this application.

DECISION

[39]         The respondent’s incapacity is a material change in circumstance which may give rise to grounds to vary the declaration.

[40]         I agree with the PGTBC’s submission that the entered order cannot be reopened or re-heard and the only way a court can reconsider the order is on a variation application.

[41]         A variation application brought by the committee of the respondent will only be successful if the committee can satisfy the court that it is in the patient’s best interests to vary the order.

[42]         Having considered the reasons for the application, I conclude that while a variation of the s. 57 declaration may well be in the best interests of the claimant and her children, there is no evidence that satisfies me that a variation of the s. 57 declaration is in the best interests of the respondent. There is a risk that the claimant and her children are acting out of self-interest. We will never know what the respondent would want at this time, and his interests must be protected.

[43]         As far as I know, the respondent is being well cared for in a long-term care facility receiving 24-hour a day nursing care. His family visit him on a regular basis, and ensure that the care is adequate. He has sufficient funds in trust to finance his care. The PGTBC monitors the spending of those funds to make sure they are used in only his best interests and not in the interest of anyone else. Upon his death, those funds will be left to the beneficiaries of his estate. There is nothing in the material that leads me to believe the current situation is not in the best interests of the respondent. Accordingly, I dismiss the application.

 

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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