Vancouver Coastal Health v. Samuda, 2019 BCPC 102

Citation: Vancouver Coastal Health v. Samuda 2019 BCPC 102 Date: 20190313 File No: 9873 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF L.S.K. AND IN THE MATTER OF THE ADULT GUARDIANSHIP ACT BETWEEN: VANCOUVER COASTAL HEALTH AUTHORITY APPLICANT AND: MICHELLE SAMUDA AND SJOURKE KATHY SAMUDA RESPONDENTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. SMITH Counsel for Vancouver Coastal Health Authority : D.M. DeBaie Appearing on Her Own Behalf: S.K. Samuda Appearing as Agent for M. Samuda: S.K. Samuda Place of Hearing: North Vancouver, B.C.

Dates of Hearing: August 28, September 12, December 6, 2018 and January 31, 2019 Date of Judgment: March 13, 2019 A Corrigendum was released by the Court on May 30, 2019. The corrections have been made to the text and the Corrigendum is appended to this document. INTRODUCTION [ 1 ] On August 20, 2018 the Vancouver Coastal Health Authority (“Coastal Health”) filed an Application to Obtain a Permanent Restraining Order against Sjoukje Kathy Samuda (“Ms. Samuda”) and her daughter Michelle Samuda in relation to L.S.K. [ 2 ] The application is made pursuant to section 56(3)(

c) of the Adult Guardianship Act . [ 3 ] Coastal Health is a “designated agency” within the meaning of the Act , as is required in order to bring this application. Mr. K., born on [redacted for publication] and currently [redacted for publication] years old, is at the centre of this proceeding, but is not a party to it. [ 4 ] Accompanying the application, as required by section 54(3) of the Act is a Support and Assistance Plan (“the Plan”), prepared by geriatric social worker Farimah Shemirani; the Plan was prepared by Ms. Shemirani after an investigation following community concerns voiced in relation to Mr. K.

The Plan identifies the restraining orders sought herein as the appropriate “service or assistance” for Mr. K., within the meaning of the Act . The Plan states that he is “strongly in support of a restraining order”; it also states that he is vulnerable to undue influence and manipulation, due to cognitive issues. A statement of the adult’s wishes, if known, is required as part of the information before the Court on a hearing such as this, pursuant to section 54(3)(

a) of the Act . [ 5 ] The Respondent, Ms. Samuda, has known Mr. K. for many years. At times, she has described herself as his common-law spouse. The Respondent, Michelle Samuda, is Ms. Samuda’s adult daughter. They both spent time at Mr. K.’s North Vancouver home and Kathy Samuda, at least, stored many of her belongings there. [ 6 ] Ms. Samuda has appeared throughout, self-represented.

She has acted as agent for her daughter, Michelle Samuda; Michelle Samuda has not appeared before the court in person. [ 7 ] Coastal Health sought and obtained a number of interim restraining orders against the Respondents, beginning in early June, 2018, such that they have been precluded from contacting Mr. K. for the past nine months, continuously. [ 8 ] The hearing with regard to this application commenced on August 28, 2018 and continued on September 12, December 6, 2018 and January 31, 2019. [ 9 ] At the hearing, the Applicant tendered the following evidence: (i.) Affidavits of the following affiants: a.

Farimah Shemirani, sworn August 15, 2018; b. Cst. Ng, sworn May 31, 2018; c. Jennifer Sereda, legal assistant, attaching: i. Two affidavits of E.K. filed in BCSC action #S184479, and ii. An affidavit of L.S.K., filed in the said BCSC action, sworn March 23, 2018. (ii.) Witnesses: a. Registered Psychiatric Nurse Hau; b. E.K. [ 10 ] Ms. Samuda testified on behalf of the Respondents and tendered a number of exhibits. THE PARTIES’ POSITIONS [ 11 ] Coastal Health says that the orders are necessary, given the Respondents’ treatment of Mr.

K. in the past and given his current state of health. [ 12 ] The Respondents oppose the application: Ms. Samuda says that the restraining orders are not appropriate; she says that they will besmirch her good name and that of her daughter; that they have done nothing but be friends to and supportive of Mr. K. and that she, in fact, was in a common-law relationship with him and ought not to be prevented from spending time with him. She says that it is Mr. K.’s family that risks causing harm to him.

THE ISSUES & STATUTORY FRAMEWORK [ 13 ] The main issue in this case is whether a restraining order ought to be granted as against either or both of the Respondents, pursuant to section 56(3)(c), which provides: S.56(3) If the court is satisfied about the matters set out in subsection (1), the court may (

c) order a person the court finds has abused the adult (

i) to stop residing at and stay away from the premises where the adult lives, unless the person is the owner or lessee of the premises, (ii) not to visit, communicate with, harass or interfere with the adult, (iii) not to have any contact or association with the adult or the adult's financial affairs, or (iv) to comply with any other restriction of relations with the adult. [ 14 ] With regard to the appropriate evidentiary standard, section 55(2) provides that in order to succeed on this application, Coastal Health must prove, on the balance of probabilities that Mr.

K. needs and would benefit from the restraining orders sought. [ 15 ] In deciding whether to grant the relief sought pursuant to section 56(3)(c), subsection 56(1) requires that I consider whether Mr. K. is: S.56(1) (

a) abused or neglected; (

b) unable to seek the relief himself, and (

c) needs and would benefit from the restraining orders. [ 16 ] Subsection 56(2) requires that I consider the Plan, including a statement of Mr. K.’s wishes, if known. [ 17 ] A “consideration” of these factors (in section 56(1)(a) - (

c) and 56(2)) is not the same as an evidentiary burden of proof with regard to their existence. [ 18 ] That said, subsection 56(3) provides that if I am “satisfied about the matters” set out in subsections 56(1)(a) – (c), I may order a person whom I find has abused Mr. K. to stay away from him and not communicate with him. [ 19 ] The application must be considered in alignment with the principles of the Act, which are set out in

section 2: S.2 This Act is to be administered and interpreted in accordance with the following principles: (

a) all adults are entitled to live in the manner they wish and to accept or refuse support, assistance or protection as long as they do not harm others and they are capable of making decisions about those matters; (

b) all adults should receive the most effective, but the least restrictive and intrusive, form of support, assistance or protection when they are unable to care for themselves or their financial affairs; (c) [unrelated]. [ 20 ] Finally, the Act contains a presumption that an adult such as Mr. K. is capable of making his own decisions, until proved otherwise (see:

section 3). [ 21 ] Given the statutory framework, the following questions arise on this application: 1. Can Mr. K.’s wishes be discerned, and if they can, what are his wishes? (See: s. 2 and s. 56(2)) 2. What are the results of a consideration of the factors set out in subsection 56(1)(a) - (c)? 3. Does the evidence prove, on a balance of probabilities that Mr. K. needs and would benefit from the restraining orders? 4.

Should I exercise my discretion and grant the orders pursuant to section 56(3)(c)? [ 22 ] In answering these questions, I have considered all of the evidence led on this application, viva voce and documentary, even if I do not refer to all of it specifically. ISSUE NO. 1: CAN MR. K.’S WISHES BE DETERMINED AND, IF SO, WHAT ARE THEY? [ 23 ] Coastal Health has led evidence that Mr. K.’s wishes are consistent with the application and are reflected in (

a) the Plan, authored by social worker Shemirani; (

b) the clinical notes, written while Mr. K. was at Lions Gate Hospital in the Spring of 2018 and, finally, (

c) an affidavit sworn by Mr. K. on August 23, 2018. I will discuss all three sources of information, but note that Mr. K.’s affidavit is sworn, direct evidence highly relevant to this issue, if reliable; reliability issues arise as a result of medical evidence relating to Mr. K.’s cognitive functioning and, as well, as a result of Ms. Samuda’s sworn testimony that his affidavit is inaccurate and false in parts. (a.) The Plan

[ 24 ] The Plan filed in support of this Application, authored by the geriatric social worker, states that Mr. K. “strongly supports” the issuance of a restraining order against the Respondents. When and exactly what he said in this regard is not set out. As mentioned above, I am mandated by the Act to “consider” this information. (b.) Clinical Notes [ 25 ] The hospital discharge

summary contains the following entry: Clinically, Mr. K. began to show more improvements by the end of May [2018]… He stated that he did not wish to have “anything to do with her now” and promised that he would not contact her in any way. (c.) K. Affidavit [ 26 ] On August 23, 2018, Mr. K. swore an affidavit before a barrister and solicitor, to be filed in support of his defence in a BC Supreme Court action commenced against him (and others) by Ms. Samuda. The affidavit contains direct evidence of Mr.

K.’s wishes, consistent with Coastal Health’s application. [ 27 ] I have considered the medical evidence filed in this matter [as it relates to the affidavit]: that evidence includes notes from Lions Gate Hospital (“LGH”) which show that when Mr. K. was interacting with the Respondents (up until the end of March, 2018), he was suffering from delusional paranoia which encompassed suspicions with regard to his daughter (E.K.), his neighbours (the Leonards), and, ultimately, a medical resident at LGH. He was admitted to hospital on March 29, 2018 and remained there until June 6, 2018.

With a cessation of contact with the Respondents, the assessing doctors concluded that Mr. K.’s paranoia subsided. That said, there is evidence that he suffers from cognitive impairment. [ 28 ] In early June, 2018 it was determined that Mr. K. was not capable of looking after his financial and legal affairs and a Certificate of Incapability was issued on June 6, 2018; the Public Guardian and Trustee became his committee in regards to his property.

These events, however, are not determinative of his ability to recall events and express his authentic views about them in the affidavit sworn two months later. [ 29 ] A consideration of statements made by Mr. K., in other settings to other people, as well as of documents and events external to the affidavit, is relevant to an assessment of the reliability of the K. affidavit. In assessing the reliability of the affidavit, I have regard to the following topics addressed in it: (

i) Mr. K.’s wishes – para. 19; (ii) loans to the Samuda family – para. 7; (iii) real property – para’s 9 & 10; (iv) relationships – para. 12. (

i) Mr. K.’s wishes – paragraph 19 of the K. affidavit [ 30 ] At paragraph 19 of the affidavit, Mr. K. deposes: Para.19 : I do not consent to Ms. Samuda occupying my Property. I want her to remove her possessions from my Property and to not contact me or come to my Property again. [ 31 ] This is a clear statement by Mr. K. that his wishes are consistent with the nature of the relief sought herein. [ 32 ] Turning to independent documentation, I have regard to the LGH discharge

summary, referred to above, in which Mr. K. is quoted as wishing to have nothing to do with Ms. Samuda. [ 33 ] As noted above, doctors observed that Mr. K.’s delusional paranoia subsided with his having no contact with the Respondents. By August 23, 2018, interim restraining orders had been in place for almost three months vis-a-vis the Respondents and Mr. K. such that they had not had opportunity to interact with him or influence him. I have considered the evidence of E.K. carefully, as well as Ms.

Samuda’s allegations that E.K. has tried to influence her father, and find no credible or reliable evidence to conclude that E.K. was attempting to influence her dad. As a result, it is likely that Mr. K.’s statement in hospital at the end of May, 2018, referred to above, reflects Mr. K.’s views, uninfluenced by anyone. Conclusion re: paragraph 19 of the K. affidavit [ 34 ] The statement in paragraph 19 of the K. affidavit, sworn on August 23 rd , is consistent with Mr.

K.’s statements made in hospital (when he was viewed by medical professionals as mentally improving, in late April and early May 2018), and is consistent with what the social worker has recorded as his expressed wishes, in the Plan. [ 35 ] Such consistency militates toward a finding that the averment is reliable. (ii) Loans – paragraph 7 of the K. affidavit [ 36 ] At paragraph 7 of his affidavit, Mr. K. deposes the following: Para. 7 : Ms. Samuda and her children have borrowed money from me.

None of the money that they have borrowed has ever been paid back to me. [ 37 ] In her affidavit of May 31, 2018, social worker Shemirani deposes to a conversation between her and Mr. K. about loans to the Samuda family three months before the affidavit was sworn: Para. 39 : On May 22, 2018 I met with Mr. K. and explained that his discharge has been delayed because of his home situation and Kathy’s access to his house. He shared that he has been “used by Kathy and her family” as he has been “lending” them lots of money and they never gave him back his money.

[ 38 ] In the LGH Discharge Notes the following entry is written: Clinically, Mr. K. began to show more improvement where he began to show some insight by late April and early May. He began to question Kathy and her intent. He admitted one time that he came to the realization that she was perhaps taking advantage of him financially. He admitted that he used to give her money to help her “dead beat son.” Mr. K. stated that he is now regretting this. [ 39 ] Psychiatric nurse Hau testified that she conducted an assessment of Mr. K. on December 4, 2018 and prepared a report, which she produced.

She testified that while speaking with him, he told her, without prompting, that Ms. Samuda and her son had borrowed money from him and that she had taken items of value to him, including items he had got in Burma. [ 40 ] The fact that Mr. K.’s money is the subject of interest to Ms. Samuda and her family is further corroborated by the following: (i.) Ms. Samuda told the social worker on March 25, 2018 that she had taken Mr. K. to the bank to change his pin; (ii.) Video surveillance at the bank shows a woman (fitting Ms. Samuda’s description) withdrawing $600.00 from Mr.

K.’s account on March 27, 2018; (iii.) Social Worker Shemirani’s case notes from March 25, 2018 record the following (partial) conversation with Michelle Samuda: Michelle stated that the Client has quite a bit of money and he recently started to get $1,200 from Veteran Affairs to hire someone to clean his house. “He may come across as someone who lives in a poor condition, but he is loaded.” [ 41 ] In a conversation with the social worker, Mr. K. advised that he does, in fact, receive $1,200 per month from Veteran Affairs. From this, I conclude that Michelle Samuda has inappropriately detailed knowledge of Mr.

K.’s financial affairs. Conclusion re: paragraph 7 of the K. affidavit [ 42 ] The reliable evidence and information discussed above, external to the affidavit, either corroborates or is consistent with Mr. K.’s sworn statement in his affidavit about the unpaid loans to Ms. Samuda and militates toward a finding that this portion of his August affidavit is reliable. (iii) Real Property – paragraphs 9 & 10 of the K. affidavit [ 43 ] At paragraphs 9 and 10 of the affidavit, Mr. K. deposes: Para. 9 : I have been shown a Residential Tenancy Agreement that Ms.

Samuda claims that I signed, a copy of which is attached hereto and marked Exhibit “B.” I did not sign this agreement. The handwriting is not mine. The signature on the last page is not my signature. Para. 10 : I have never had a Tenancy Agreement with Ms. Samuda. I do not give her permission to occupy my house. I want her to remove all of her possessions from my house. [ 44 ] Exhibit B to Mr. K.’s affidavit is a copy of a Residential Tenancy Agreement , purportedly between him and Ms. Samuda with regard to his home and giving Ms. Samuda the right of occupation for two years beginning on March 1, 2018.

It is dated March 1, 2018 and both of their signatures appear on the last page. [ 45 ] In her May 31, 2018 affidavit, social worker Shemirani deposes the following: Para. 35 : On May 9, 2018, I met with Mr. K. and advised him of his home situation, namely, the Residential Tenancy Agreement he signed with Kathy which allows her full access to his home. Mr. K. was not aware that Kathy Samuda has been staying at his place. He denied that he had ever signed any lease agreement with her or that he has received rent from her. [ 46 ] Obviously, this conversation took place over three months before Mr.

K. swore the affidavit which contains similar information. [ 47 ] I note that on March 25, 2018 the following

summary of a telephone conversation was recorded by social worker Shemirani: Later on that date, Writer called Client’s home. Kathy answered the call. She stated that she was with the Client whole day; she took him to bank to change his PIN, sign Tenancy Agreement, to give her all sort of legal access and then get the locks changed in his house. Kathy expressed concerns that the Client’s daughter has come back to Client’s life to “steal stuff from him, access his money and place him in a care facility.” Kathy has been trying to “protect” the Client.

Kathy stated that she could not remove her belonging from the Client’s house as he was sick and now that she had legal access to his place, she does not think there is a need to remove them. [ 48 ] Ms. Samuda’s statement that Mr. K. signed the Tenancy Agreement in relation to his home on March 25, 2018 does not reconcile with the date of March 1, 2018 on the document.

The inconsistency raises questions of the reliability of other information in the agreement. [ 49 ] The agreement provides for no damage deposit, no pet deposit and the amount of rent payable under the agreement is blacked out; utilities are included. All apparent benefit ensures to Ms. Samuda, with none going to Mr. K.; the benefits going to Ms. Samuda include her securing an avenue to disregard his requests that she remove her belongings from his home. [ 50 ] I find as a fact that before March 25 th , Ms. Samuda had received a letter written by Mr. K.’s lawyer, Mr.

Foster, demanding that she remove her belongings from his home and, as well, return a number of items of Mr. K.’s. The letter contains the following: You have provided to me a letter signed by Mr. K. purportedly authorizing you to leave your property at his residence until March 21 st , 2018. I am not accepting that this letter of permission is accurate, given that you wrote the letter yourself and had him sign it. Mr. K.

however is prepared to allow you to leave your property there until that date. [ 51 ] Mr. K.’s averment that the Tenancy Agreement is a false document arises in a case where there are other documents which purport to be his creation but which, I find as a fact, were not. [ 52 ] I have regard to Mr. Foster’s evaluation of the letter provided to him by Ms. Samuda. [ 53 ] On March 27, 2018, when Ms. Shemirani attended Mr. K.’s home for a scheduled check, she found two notes pinned to the front door. Both are handwritten, dated March 26, 2018, apparently signed by “Mr.

L.S.K.”, in other handwriting. [ 54 ] The first is addressed to “Salima/Serena?” and has a subject line: “RE: Items belonging to Kathy Samuda”. It sets out that, as the homeowner, Mr. K. can store items for anyone he wishes; that it is his right to decide a date for their removal and that he is considering taking over ownership of many of the items. [ 55 ] The second note is also addressed to “Serena/Salima? Social worker;” it includes the following: “Sorry I could not make the appointment for 1:30 you arranged. You phoned last evening and gave me no notice nor reason for attending.

I am fine and don’t require help. Thank you. L.S.K.” [ 56 ] Ms. Shemirani avers that Mr. K. was not home when she attended on March 27 th for the visit. [ 57 ] One obvious result of Mr. K.’s being out for the social worker’s visit (and I find that he was taken out of his home by Ms. Samuda), was that the social worker could not discuss the content of the first note with him. Given the RCMP’s description of the state of the house as akin to hoarding, I am satisfied that the sole beneficiary of the first note is Ms. Samuda, who, on all of the evidence, clearly wanted to keep her belongings at Mr.

K.’s home. [ 58 ] Ms. Samuda testified that she wrote the notes and then Mr. K. signed them. She testified that she often did this, acting like, in her words, “a legal secretary.” [ 59 ] With all of this in mind, I have no doubt at all that Ms. Samuda prepared the Tenancy Agreement in order to permit her occupancy of Mr. K.’s home and to purport to have authority to keep her items there. [ 60 ] There is evidence dating back to October, 2017 evidencing Mr. K.’s wish that Ms. Samuda would remove her items from his home (see: E.K.’s affidavit, sworn August 23, 2018).

The purported Tenancy Agreement is inconsistent with this wish, which has now been expressed by Mr. K. for over a year. Conclusion re: paragraphs 9 & 10 of K. affidavit [ 61 ] Having regard to all of the evidence on the point, I am satisfied that it is more likely than not that Ms. Samuda created the agreement and signed it on Mr. K.’s behalf. In the result, I am satisfied that Mr. K.’s statement about the Tenancy Agreement in his affidavit is accurate. [ 62 ] I have considered Ms. Samuda’s testimony that these paragraphs amount to perjury on Mr.

K.’s part; however, having regard to all of the evidence mentioned above, I simply do not believe her testimony and it does not affect my assessment that this part of the K. affidavit is reliable: she routinely writes notes on Mr. K.’s behalf, to serve her interests, and I have no doubt that the Tenancy Agreement is simply one example of that practice. (iv.) Relationships – paragraphs 12 & 18 of the K. affidavit [ 63 ] At paragraph 12 of his affidavit, Mr. K. deposes: Para.12 : I have been shown a letter that Ms.

Samuda claims that I signed on March 23, 2018, a copy of which is attached hereto and marked as Exhibit “C.” I did not write this letter or sign it. The signature is not mine. This letter is a total fabrication and is utter rubbish. [ 64 ] I will discuss this letter in some detail, as I consider it to be an example of Ms. Samuda’s abuse of Mr. K. [ 65 ] The letter is one and a third pages in length, single spaced, typed. It ends with the following: (typed) “Signed: S.K.”. An apparent signature “L S K.” is then written.

It is dated March 23, 2018 and entitled “Re: Misconceptions and False Allegations.” It is addressed to “To Whom it May Concern whether RCMP, Social Workers, Doctors or others.” The return address and name is Mr. K.’s. The letter has four headings: No. 1 Re: E.K.; No. 2 Re: Kathy Samuda; No. 3 Re: Restraining orders against E.K. and Chris and Jill Leonard; No. 4 – Re: Tenancy Agreement. [ 66 ] The portion relating to E.K. can be fairly described as an unrestrained attack on her character. It alleges that she is out for Mr. K.’s money and that her affection for him is a charade. [ 67 ] The portion relating to Ms.

Samuda describes the relationship between her and Mr. K. as having a “level of trust that is extraordinarily heart warming and wonderful and reassuring for someone of my age.” It continues, stating that E.K. views Ms. Samuda as a threat and then deteriorates into a further attack on E.K.’s character, including: …Kathy recognizes how E.K. is out there night and day manipulating the system to make her a rich woman off of my assets since my home is worth $1.3 million at least. So now my greedy daughter has gone and stated that Kathy and members of her family have robbed me but that is simply NOT TRUE.

All times that I thought were missing over the years are accounted for and I am missing nothing… [ 68 ] It concludes with professed love for the Samuda family; an intention that Ms. Samuda be his power of attorney and refers to Ms. K. as a “gold digger.”

[ 69 ] I pause to note that it has been Ms. Samuda, not E.K., attending at Mr. K.’s bank and withdrawing money. It has been Ms. Samuda who has sought to be made Mr. K.’s power of attorney while E.K. has declined to pursue that role, even when encouraged by third parties. [ 70 ] As well, during the hearing, after discussion about items belonging to Mr. K. being missing and believed to be held by Ms. Samuda, Ms. Samuda attended court one day and produced items of Mr. K.’s and turned them over to counsel. This event belies the accuracy of the statement quoted above - purportedly written by Mr.

K. - that none of his belongings had been taken and withheld by Ms. Samuda. [ 71 ] The third part of the letter sets out that Mr. K. purportedly wants restraining orders against E.K. and his neighbours C. and J. Leonard. This

part concludes with the following: If police cannot do it I will consider helping Kathy take court action to stop this madness and causing so much harm and the threat of false charges laid by police. [ 72 ] As noted above, Mr. K.’s concerns about E.K. and the Leonards were found to be the result of delusional paranoia which dissipated with his stopping to interact with the Respondents; that is to say, this portion of the letter is not consistent with his actual views, when healthy. [ 73 ] In addition, Ms.

Samuda has commenced a court action against all three people mentioned in this part of the letter (as well as the addressees), along with Mr. K. I am satisfied that the grievances set out in this part of the letter are those of Ms. Samuda’s, not Mr. K.’s. [ 74 ] The fourth part of the letter reads as follows: I have tenancy agreement with Kathy Samuda and she has resided at my home for the past 20 years.

My daughter E.K. has stolen some of her and her family’s items and there are other belongings of Kathy’s that are downstairs in my home and not in my way and I’m fine with her leaving them there for now. [ 75 ] I have explained, above, that I conclude that the Tenancy Agreement is false and the reasons therefore. This reference to it in the letter is, no doubt, an attempt on Ms. Samuda’s part to advance her right to occupy Mr. K.’s home as an authentic right. This passage serves her interests and hers alone. [ 76 ] As noted above, Mr. K. swears that he did not author the letter and did not sign it.

In considering this averment, I have regard to the affidavit of Cst. Ng, who interacted with Mr. K. and Ms. Samuda on March 24, 2018. [ 77 ] On that date, Cst. Ng was dispatched to the North Van Library to meet with them. Ms. Samuda stated that E.K. was at Mr. K.’s home, stealing their belongings; she told the officer a number of false and disparaging things about Ms. K.; she stated that Ms. K. was not welcome and should be removed. In her affidavit, Cst. Ng avers that Mr. K. said he wanted E.K. removed, but that during their interaction, he looked at Ms. Samuda throughout and not at the officer. Cst.

Ng’s affidavit includes the following: The officer attended Mr. K.’s residence and found E.K. there, waiting for Telus to arrive to fix her dad’s phone line. When asked to leave, she did so with emotion; she mentioned that Mr. K. was on antibiotics for bronchitis and had had only one pill that day. [ 78 ] In her affidavit, Cst. Ng describes Ms. Samuda as over-bearing. The following is a further extract from the affidavit: …when asked if E.K. was welcome back at the residence at a later date, S. expressed that, E.K. was welcome there with prior consent as he was tired of people showing up unannounced.

Kathy spoke over S. and said “no, he does not” very aggressively. This caused S. to slump in his chair (as they were in Kathy’s car). When I reminded S. about his antibiotics for his bronchitis, S. smiled and said “E.K. is so sweet.” Kathy promptly shut S. down by exclaiming “it’s probably poison”. It is unclear whether S. took his pill. [ 79 ] The officer described the interaction as “very concerning” and, as a result, she contacted the North Shore Older Adult Mental Health Team. [ 80 ] Cst. Ng deposed that she saw Mr. K. in the community later that day and spoke with him briefly.

She deposes that at that time: …[he] expressed that he was sad that he made E.K. go away and he feared that E.K. will be mad at him and not visit him anymore. S. stated, he knows E.K. is trying to help him, but he just doesn’t know. When asked why he requested police to remove her to begin with, S. shrugged and told me he was heading to get coffee and left. [ 81 ] Mr. K.’s statements to Cst. Ng, in the absence of Ms. Samuda’s presence and influence, is consistent with his stated views set out in the affidavit. [ 82 ] Mr.

K.’s daughters, his niece and his neighbours all described these persecutory beliefs about his daughter E.K. as being quite out of character for him. His daughter M. was particularly surprised by his suspiciousness towards E.K. as she stated that even when E.K. and her father had not been in contact for many years, Mr. K. had always expressed only positive feelings toward E.K. [ 83 ] E.K. testified about a protracted period of time when she and Mr. K. did not spend time together.

She testified that, as a result of being advised that he had fallen, she phoned him to see if it would be okay for her to see him; she testified that he said yes. She testified about a slow progression of their reconnection growing; she testified to the effect that she had no expectations of the relationship, but that they wanted to see each other and just “hang out.” [ 84 ] I found Ms. K. to be a careful and cautious witness. Some of her testimony is corroborated by documentation and other portions are consistent with other evidence, including medical evidence and the evidence of the social worker.

I accept her evidence.

Conclusion re: paragraph 12 of the K. affidavit [ 85 ] The character assassination of E.K. in the letter - disavowed by Mr. K. in his affidavit - is in contrast to his averment of his wanting to be with her (see: paragraph 18 of the affidavit); is inconsistent with the K. family members’ views; is inconsistent with Mr. K.’s statements to Cst. Ng when Ms. Samuda was not present. [ 86 ] I have no doubt on all of the evidence that the letter attached to Mr. K.’s affidavit reflects Ms. Samuda’s distorted views about E.K., not Mr.

K.’s views. [ 87 ] As noted above, the addressees of the letter are the defendants in Ms. Samuda’s BC Supreme Court action. The reference to a tenancy agreement has been discussed above but is, obviously, in her interests to the detriment of Mr. K.’s quiet occupation of his home. [ 88 ] I am satisfied, given all of the above, that Mr. K.’s averment that he did not author the letter or sign it is reliable. I also agree with his characterization of the letter as utter rubbish.

That characterization indicates that he had his wits about him as at August 23, 2018. [ 89 ] All of the foregoing supports the conclusion that paragraph 12 in the K. affidavit is reliable, as well as is the statement in paragraph 18 of that affidavit with regard to his desire to spend time with his daughter, E.K., going forward. (v.) Conclusion re: the reliability of the K. affidavit [ 90 ] The circumstances of its creation militates towards an acceptance of its reliability: it is a sworn document prepared in the context of litigation in the superior court of this province.

I have reviewed external, reliable evidence and am satisfied that the affidavit’s contents are reliable. CONCLUSION RE: ISSUE NO. 1 [ 91 ] Mr. K. is said to wish no contact with Ms. Samuda in the Plan, in hospital notes and in his August 2018 affidavit. [ 92 ] As noted above, the affidavit, which I find reliable, is particularly persuasive in this regard: it contains direct evidence of his wishes, which I find to be consistent with the relief sought herein. ISSUE NO. 2: WHAT ARE THE RESULTS OF A CONSIDERATION OF SUBSECTIONS 56(1)(a) – (c)? (

a) A consideration of subsection 56(1)(a): Is Mr. K. abused or neglected? [ 93 ] “Abuse” is defined in the Act, as follows:

Section 1 : "abuse" means the deliberate mistreatment of an adult that causes the adult (

a) physical, mental or emotional harm, or (

b) damage or loss in respect of the adult's financial affairs, (

c) and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors; I note that the list in (

c) is not exhaustive. [ 94 ] “Financial matters” (referred to in the definition of “abuse”), is also defined: "financial affair” includes an adult's business and property, and the conduct of the adult's legal affairs. [ 95 ] I am satisfied that the K. affidavit establishes that Ms. Samuda has abused Mr. K. within the meaning of the Act . I have regard, particularly, to: i. the unpaid loans from Mr. K. to Ms. Samuda and her family, described therein; ii. Ms. Samuda’s attempting to occupy Mr. K.’s home under false pretences, including a fabricated Tenancy Agreement, see: above; iii. Ms.

Samuda’s taking money from Mr. K.’s bank account, see: above; iv. emotional abuse, with regard to E.K. [ 96 ] With regard to emotional abuse, it is my view that the letter which I find as a fact was authored by Ms. Samuda, said by her to be authored by Mr. K., is abusive: it is an unrestrained mean and inaccurate description of his daughter and the fact that it would cause him emotional distress would only be lost on the most callous or ill person: That Ms. Samuda could engage in such a process, as writing such a letter and then claim that it was authored by Mr.

K. is a single act which goes far in meeting the requirements for the relief sought; it is emotionally abusive. [ 97 ] In addition to the affidavit, evidence led establishes that both Ms. Samuda and Michelle Samuda declined to provide information of Mr. K.’s whereabouts at times, to the RCMP and to the social workers, such that he was denied access to visitors. As

noted above, Ms. Samuda took Mr. K. away from his home so that he missed a scheduled meeting with the social worker on March 27, 2018. Such actions amount to abuse of Mr. K. within the meaning of the Act, in my view; they were contrary to his best interests and inconsistent with his well-being. [ 98 ] As well, Ms. Samuda admitted that she took Mr. K. to his bank to change his pin. This is an invasion of his privacy. [ 99 ] I have regard to the video evidence depicting a middle-aged woman (whom I am satisfied is more likely than not to be Ms. Samuda), withdrawing six hundred dollars ($600.00) from Mr.

K.’s bank account on March 27, 2018. Given her control of his banking activities and all the evidence of her helping herself to his assets, including money and real property, I am satisfied that it is more likely than not that it was she who took money in suspicious transactions throughout March, 2018. These are examples of financial abuse. [ 100 ] With regard to Michelle Samuda, the evidence establishes that on March 27, 2018, she told the social worker that she and Ms. Samuda would not allow her to be in contact with Mr. K. and that the social worker had no legal authority to enforce a visit with Mr.

K. [ 101 ] At paragraph 22 of her May 31, 2018 affidavit, Ms. Shemirani deposes: While at Mr. K.’s residence on March 27, 2018, I telephoned Kathy Samuda. Kathy’s daughter Michelle answered the phone. Michelle was angry and was yelling into the phone. She advised me that Mr. K. did not want to see me and does not want me involved in his life. She advised that Kathy is Mr. K.’s caregiver and is trying to protect him from his daughter, E.K. She advised that she and Kathy would not allow me to be in contact with Mr. K. She would not disclose Mr.

K.’s location. [ 102 ] In addition, with regard to Michelle Samuda, I note the following: (

i) On March 28, 2018, when Cst. Pope attended at Mr. K.’s residence for a wellness check and found him not home, he called Ms. Samuda’s number and spoke with Michelle Samuda; she did not disclose where Mr. K. was. (ii) In late March, 2018 she contacted the RCMP with regard to Mr. K. and some form of a missing person report; she declined to give the police information about his whereabouts but readily gave them contact information for his lawyer. The RCMP contacted the lawyer (not Mr. K.’s usual lawyer) who stated that he had never met Mr. K. and all communications had been with Ms. Samuda. (iii) After Mr.

K.’s admission to LGH in late March, 2018, hospital staff reported to the social worker that Michelle Samuda kept calling the hospital unit where Mr. K. was staying, asking when he would be ready for discharge. This was on or about April 2, 2018. (iv) As noted above, Michelle Samuda had knowledge of the exact amount of veteran pension that Mr. K. has said that he received. As well, he described her as a “kleptomaniac” and said that she has taken his belongings. [ 103 ] At a minimum, I am satisfied that it is more likely than not Michelle Samuda has abused Mr.

K. by impeding his contact with the social worker in March, 2018. I also have real concerns about her helping herself to Mr.

K.’s property, including her unwanted use of his home, money and belongings. [ 104 ] Turning to a consideration of “neglect,” it is also defined in the Act : "neglect" means any failure to provide necessary care, assistance, guidance or attention to an adult that causes, or is reasonably likely to cause within a short period of time, the adult serious physical, mental or emotional harm or substantial damage or loss in respect of the adult's financial affairs, and includes self neglect. [ 105 ] Ms. Samuda testified that she had cooked and cleaned for him for many years.

While this may be the case in the past, recently, that does not appear to be so. [ 106 ] E.K. testified that she was contacted by her cousin who had visited Mr. K.’s home and reported concern about its filth and smell and the clutter of Ms. Samuda’s belongings. She testified that she attended his home and found that his stove had been ripped out; that the wood in the kitchen was foul and not sanitary and that the smell of a pet shop permeated the place. [ 107 ] In an affidavit sworn on August 23, 2018 and filed in the BCSC action commenced by Ms.

Samuda, E.K. describes the state of her father’s home in September, 2017: His house was full of an extremely large volume of possessions which he said belonged to Ms. Samuda and which blocked his access to all of the downstairs and made navigation difficult in part of the upstairs. My dad expressed a wish to have Kathy remove all of these items so that he could “fix up the downstairs” and have someone live in the house for companionship and support.

He asked me and my cousin A. for help in achieving this. [ 108 ] At page 15 of Progress notes dated March 28, 2018, it is stated: “Client living in deplorable conditions.” RCMP notes describe the house as akin to hoarding. On April 4, 2018 a social worker reported clutter all over Mr. K.’s home and the presence of rotting food. [ 109 ] There is no doubt that many of the items in Mr. K.’s home belong to Ms.

Samuda and that he wanted her to remove them; her failure to do so and the clutter that they have caused such that the word “hoarding” is used to describe his home amounts to “neglect”, in my respectful view. [ 110 ] I am satisfied that the house was filthy; according to E.K., Ms. Samuda had kept two birds at the house; as noted above, the stove had been ripped out; the place was unsanitary. All of these details wreak of neglect. [ 111 ] Clearly, the Samuda’s were heavily involved in Mr. K.’s daily living until late March, 2018.

I am satisfied that the evidence establishes a failure on their part to care for him as required; the standard is not high. I am satisfied that the chaos and filth described in the evidence is not consistent with healthy mental health and amounts to neglect within the meaning of the Act .

(

b) A consideration of subsection 56(1)(b): Is Mr. K. unable to seek support and assistance because of an illness, disease, injury or other condition that affects his or her ability to make decisions about the abuse or neglect? [ 112 ] The evidence establishes that on November 2, 2018, Mr. K. was admitted to a long-term care facility due to a deterioration in his physical condition. He has now been diagnosed with heart failure and chronic obstructive pulmonary disorder.

It is not expected that he will return to his home. [ 113 ] I have regard to the evidence of the registered psychiatric nurse Hau, who testified in December 2018 with regard to her view that Mr. K.’s attendance at court would cause him anxiety and confusion. [ 114 ] I have no doubt that he is not able to seek such an order on his own, due to his current mental and physical state. (

c) A consideration of subsection 56(1)(c): Does Mr. K. need and would he benefit from the permanent restraining orders sought? [ 115 ] I have no doubt that Mr. K. needs and would benefit from the permanent orders sought here. [ 116 ] I had the opportunity to watch Ms. Samuda in the witness stand. Her willingness to detail intimate events of Mr.

K.’s life, which, if true, would be obvious to cause pain to any family member present, while E.K. remained in the court room, was striking: her lack of insight with regard to the pain that words can cause was stark. [ 117 ] She recounted details that were never any of her business and used them to justify attempting to have Mr.

K. change his will. [ 118 ] She has taken money from him; enabled her adult daughter to occupy his residence with many children from time to time, adverse to his interests; she has ignored his repeated pleas to remove her items; she has taken him to lawyers in an effort to have her appointed his power of attorney; she has retained a lawyer on his behalf whom he had never met; she has secured access to his banking details, which the evidence reveals she has used.

She maligns his children, expressing false and disturbing claims against them which he requires protection from in these later and vulnerable times of his life. She is suing him. ISSUE NO. 3: DOES THE EVIDENCE PROVE, ON A BALANCE OF PROBABILITIES, THAT MR. K. NEEDS AND WOULD BENEFIT FROM THE RESTRAINING ORDERS? [ 119 ] In all of the circumstances, I have no doubt that without such an order, both Ms. Samuda and Michelle Samuda will continue to try to have contact with Mr.

K., to his detriment: the evidence reveals, as noted above, Michelle’s repeatedly contacting the hospital last Spring, trying to get details of his discharge. Ms. Samuda repeatedly disregarded his requests to remove their belongings; they treated his home as if it was theirs. This mind-set is consistent with a need for a court order to protect him from them. [ 120 ] The medical evidence shows that he improved when he had no contact with either of the Respondents. I have detailed the instances of abuse which I have found, above. There is no doubt that he would benefit from such an order prohibiting their contact.

ISSUE NO. 4: SHOULD I EXERCISE MY DISCRETION AND GRANT THE ORDERS SOUGHT PURSUSANT TO SUBSECTION 56(3)(c)? [ 121 ] With regard to the final consideration - whether I am satisfied about the matters set out in subsection 56(1), and whether I should exercise my discretion and grant the orders sought - while section 55(2) only refers to the standard of proof required in relation to the factors set out in subsection 56(1)(c), I am satisfied that the civil standard has been met here with regard to the factors set out in subsections 56(1)(

a) and (b), as well as subsection (c): I am satisfied that both Respondents have engaged in abuse of Mr. K.; I have found established, as well, that Ms. Samuda has neglected him. I have found, again, based on evidence to the civil standard, that Mr. K. is not able to seek the relief sought herein because of illness associated with his advanced age. Finally, I have concluded that the Applicant has proved, on the balance of probabilities, that Mr. K. needs and would benefit from the orders. [ 122 ] Given the foregoing, it is clearly appropriate to exercise my discretion and grant the order sought with regard to Ms.

Samuda. [ 123 ] With regard to Michelle Samuda, her behaviour has been less odious, but she is clearly close to her mother and I am satisfied would likely adversely impact Mr. K. by being a probable conduit of Ms. Samuda’s abusive messaging. [ 124 ] As well, Michelle Samuda has engaged in behaviour preventing Mr. K. from accessing visitors, which I find constitutes abuse under the Act . [ 125 ] While I am mindful of the significance of any court order restricting an adult’s liberty to associate with another adult, Michelle Samuda’s past behaviour in relation to Mr.

K., her knowledge of intimate financial details, her use of his home, her restricting visitors and her close relationship to Ms. Samuda, when considered on balance, satisfy me that such an order is appropriate in relation to her as well. [ 126 ] The application sought herein is granted pursuant to section 56(3)(c): Kathy Samuda and Michelle Samuda are permanently prohibited from: i. Residing at or attending at Mr. K.’s residence; ii. Visiting him, communicating with him, harassing or interfering with him; iii.

Communicating with him, directly or indirectly, or associating with him or having anything whatsoever to do with his financial

affairs; and iv. Referring to him, or to any member of his family, or any close associate to him known by them, by name or description on the internet or in any form of social media or electronic communication whatsoever. _____________________________ The Honourable Judge L. Smith Provincial Court of British Columbia CORRIGENDUM - Released May 30, 2019 In the Reasons for Judgment dated March 13, 2019, the following changes have been made: [1] Paragraph 91 should read: Mr. Knight is said to wish no contact with Ms. Samuda in the Plan, in hospital notes and in his August 2018 affidavit. _____________________________ The Honourable Judge L. Smith Provincial Court of British Columbia