Sugrim v. Sugrim

2016 BCSC 1644 Sugrim v. Sugrim

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Sugrim v. Sugrim, 2016 BCSC 1644 Date: 20160906 Docket: E122338 Registry: Vancouver Between: Mohanie Sugrim Claimant And Meharam Persaud Sugrim also known as Meharam Sugrim Respondent Before: The Honourable Madam Justice Young Reasons for Judgment Counsel for the Claimant: M.E. Guy Counsel for the Public Guardian and Trustee of British Columbia: K.H. Yee Place and Date of Hearing: Vancouver, B.C. July 20, 2016 Place and Date of Judgment: Vancouver, B.C. September 6, 2016

INTRODUCTION [1] The claimant applies by notice of application on notice to the committee of the respondent and to the Public Guardian and Trustee of British Columbia ("PGTBC") for an order dismissing the declaration pursuant to s. 57 of the Family Relations Act, R.S.B.C. 1996, c. 128 [FRA] made in this family law proceeding. Both the claimant and the respondent were represented at the time the s. 57 declaration application was made, which was by way of desk order.

BACKGROUND FACTS [2] On July 9, 2012, the claimant filed a notice of family claim. On August 17, 2012, the respondent filed a response and counterclaim. [3] On November 23, 2012, the parties applied by desk order for a declaration pursuant to s. 57 of the FRA that there was no prospect of reconciliation between the parties. The parties consented to the declaration being made and both counsel signed the order on behalf of their clients. [4] On searching the court documents electronically filed, I see that an affidavit sworn by the claimant was filed on November 16, 2012, which may have provided evidence in support of the s. 57 declaration. [5] The following summer, the respondent contracted malarial encephalitis which caused a devastating injury to his brain leaving him incapacitated. He is minimally responsive, cannot communicate, and requires full-time care for the remainder of his life. He is not expected to recover. [6] The claimant and her family pursued a medical malpractice claim on behalf of the respondent for the treatment he received in a Florida hospital and the respondent received settlement funds of approximately $1.8 million USD (the "Settlement Funds") in October 2015. The parties' daughter, Malini Lakshmi Sharma, has been appointed as committee for the respondent. The PGTBC has placed restrictions on the use of the Settlement Funds. [7] The claimant wishes to

have the s. 57 declaration set aside or preferably have the family law proceeding dismissed. She cannot do so without the respondent's consent and he is incapacitated. [8] Since the respondent has become incapacitated, the claimant has been servicing both parties' debts and has been assisting with the respondent's care. The respondent resides in a care facility and receives 24-hour a day nursing care. The PGTBC is monitoring the management of the respondent's estate. [9] The PGTBC opposes this application on the basis that there is no legal basis upon which the s. 57 declaration can be rescinded. The respondent is unable to communicate and unable to respond. He is clearly unable to form any intention to reconcile with the applicant, which is a precondition to rescission/dismissal of the s. 57 declaration. The respondent's last capable wish on the subject was for a divorce from the claimant.

ADDITIONAL FACTS IN SUPPORT OF THE APPLICATION [10] The respondent's last will was made on May 24, 1991. It appointed the claimant as executrix and trustee. The will directed that the residue of the estate be divided in equal parts as follows: (i) to pay three parts to the claimant if she survives him for 30 days; (ii) to pay one part to his mother if she survived him for 30 days; and (ii) to set aside one part for the parties' oldest daughter, Surinda, one part for the parties' second daughter, Malini, and one part for the parties' son, Stephen. [11] The respondent's mother did not survive him for 30 days. [12] The claimant's reasons for applying for a rescission of the s. 57 declaration are twofold. Firstly, she no longer wishes to divorce the respondent and, secondly, she finds it cumbersome to have the PGTBC overseeing the financial affairs of the respondent. [13] As the respondent's separated spouse, the claimant has no authority to oversee his care. If this s. 57 declaration is not set aside, the claimant will apply to replace her daughter as the respondent's committee. [14] The claimant deposes that she is continuing to take care of the respondent, in addition to the 24-hour nursing care he received from the facility where he resides. She visits the respondent in the morning before going to work. She shaves and cleanses his face, and gives him a full body check for sores

or skin breakouts. If she notices any, she reports them to the nurses. [15] The claimant says all three adult children are in agreement that she should be managing the financial affairs for the respondent without involvement of the PGTBC. The parties' children have sworn affidavits indicating that they understand this application and that they consent to it. They are aware that an order setting aside the s. 57 declaration would reduce the value of the respondent's estate by the net value of the jointly owned real estate. [16] The claimant says that she and Malini have paid for the respondent's credit card debts in an approximate amount of $30,000 as well as some of his hospital expenses. [17] The claimant says the legal complexity of the situation is causing extreme hardship on her entire family. She is servicing debt, yet, remains very limited in the choices she can make regarding accounts and property. Each move she makes has to be reported, audited, and would require her to seek legal advice, which is depleting resources the family could otherwise channeled toward the respondent's care and coping with this tragedy. She says: especially seeing that we all want the same thing for his future and ours it is best this situation be handled among ourselves as a family without the involvement of a third party. [18] In a response to the application under the Patient Property Act,

R.S.B.C. 1996, c. 349 ["PPA"], the PGTBC discloses that it has approved two applications to access restricted capital for extraordinary expenses for the respondent and a third application to pay the respondent's share of debt secured by joint assets was delayed pending the resolution of this application. [19] The PGTBC says the committee of the respondent is free to incur extraordinary expenses for unrestricted funds for the patient. The committee would need to describe them in her accounting and so long as the expenses are reasonable, they will be approved. Approval of the PGTBC would be required in writing for any extraordinary expenses incurred from the restricted funds. [20] In addition to the Settlement Funds which is being restricted by the PGTBC, the parties jointly own three properties which have a gross value of approximately $1.8 million and are responsible for a mortgage registered against the title of the West 15th Avenue property. They also have a line of credit against the Frames Landing property. The total debt registered against the properties is about $845,000.

LEGAL BASIS [21] Counsel for the applicant and the respondent referred to no legal authorities at the hearing of the application and so I directed that written submissions be prepared with the authorities. I have now reviewed those submissions which I will briefly address below. [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. In Harrison, 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. "Young J."