Court file number: FDF-574-2022 ANDREA F. MCDOUGALL , Applicant - v. –, 2023 NBKB 158

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF FREDERICTON IN THE MATTER OF G. ROSS SMITH OF FREDERICTON, IN THE COUNTY OF YORK AND PROVINCE OF NEW BRUNSWICK IN THE MATTER OF BARBARA SMITH OF FREDERICTON, IN THE COUNTY OF YORK AND PROVINCE OF NEW BRUNSWICK AND IN THE MATTER OF

SECTION 5 OF THE INFIRM PERSONS ACT ,

CHAPTER I-8 , REVISED STATUTES OF NEW BRUNSWICK, 1973 Citation : 2023 NBKB 158 BETWEEN: Court file number: FDF-574-2022 ANDREA F. MCDOUGALL , Applicant - and – G. ROSS SMITH, BARBARA SMITH and GORDON SMITH Respondents AND GORDON SMITH Applicant - and – ANDREA F. MCDOUGALL , G. ROSS SMITH and BARBARA SMITH Respondents DECISION BEFORE: Madam Justice Sylvie I. Michaud AT: Fredericton, New Brunswick DATE OF HEARING: July 13 and 14, 2023 DATE OF DECISION: September 15, 2023 APPEARANCES: Hugh J. Cameron, K.C. and Mark Heighton, solicitors for the Applicant Andrea F. McDougall D.

Andrew Rouse, K.C., solicitor for the Respondents G. Ross Smith and Barbara Smith Erika R. Hachey, solicitor for Gordon Smith MICHAUD, J :

I. OVERVIEW [ 1 ] In this matter, the Court needs to appoint a Committee of the Person for the Respondents G. Ross Smith (“Father”) and Barbara Smith (“Mother”) (collectively “Parents”), 83 and 84 years of age respectively, if the Court determines they are persons mentally incompetent persons under the Infirm Persons Act RSNB1973, c. I-8 (“ Act ”). [ 2 ] They are the Parents of two adult children, namely Andrea MacDougall (“Daughter”) and Gordon R.

Smith (“Son”). [ 3 ] There were competing Applications regarding who the Court should appoint as the Committee of the Person in the event the Parents were found to be mentally incompetent. [ 4 ] Prior to trial, the parties agreed to the appointment of BMO Trust Company as the Committee of the Estate, on a final basis. [ 5 ] Based on the evidence presented to this Court, I am satisfied that the Parents are mentally incompetent persons as defined under the Act , and that the most appropriate course of action is to appoint Valerie Delong as the Committee of the Person of the Parents. II.

GENERAL FACTS, BACKGROUND AND PROCEDURAL HISTORY [ 6 ] In 1995, the Parents signed a Power of Attorney to manage their property and financial affairs, that named both children as joint donees. (Record pages 47-52; 54-59) [ 7 ] By consent of all parties, BMO Trust Company has since been recently appointed as the Committee of the Estate for the Parents, as per the Consent Order dated July 13, 2023. [ 8 ] As there was no Power of Attorney for personal care, the court needs to decide whether the Parents are mentally incompetent and if so, who should be appointed as the Committee of the Person for both of them. [ 9 ] The Parents resided on Woodstock Road, in Fredericton, New Brunswick until they were hospitalized in the Dr.

Everett Chalmer’s Hospital in Fredericton (‘Hospital”) on November 10, 2022 and eventually moved in a senior’s home in January of 2023. [ 10 ] The Son was a resident of Kelowna B.C. at the time of his Parents’ hospitalization, while the Daughter resided in P.E.I. [ 11 ] The Parents had been hospitalized at the suggestion of the Protection Social Worker, Ellen Underhill, after she had attended the Parents’ home. [ 12 ] During a meeting held at the Hospital on November 19, 2022 (during which the Son participated by telephone), the Son enquired several times about moving the Parents to either Nova Scotia or British Columbia, but was told by the professionals that such move was not advisable. (Record page 41, para 32). [ 13 ] The emergency room physician, Dr.

Jeffery Ginn, gave an opinion in writing, namely in letters dated November 21, 2022, that both Parents lacked capacity for decision-making for both personal care and financial matters. This was expected to be irreversible in nature. (Record, pages 74 and 76; 129-130) [ 14 ] On November 22, 2022, the Son arrived in Fredericton from B.C. (Record page 1059, para 111). On such date, a meeting was held with Mrs. Underhill (protection social worker), Julie Doucette (social worker), Dr. Ginn, the discharge planner, the Son and the Daughter (who attended by phone).

According to the Daughter, it was decided that the Daughter would be the primary contact person and that she would make the final decisions with respect to the Parents; the Son denies he understood what her “role” would entail. (Record page 41 para 34; page 1060 para 123) [ 15 ] After that meeting, the Son informed the Daughter of his intention to take the Parents out of the Hospital. On November 23, 2022, he even sent a text message to the Daughter stating: “Would you let mom and dad go home with me now. Then I can get a nurse. Asap and we can arrange for assisted living.

Dad said he would give you $25000”, “They are desperate”; “They are dying”; “Andrea. Let dad know what you want they need to go home. It’s all on your decision they are allowed to be discharged with your consent” (Record page 82). [ 16 ] On November 24, 2022, Dr.

Ginn called the Daughter and informed her that she was making the right decision about the Parents remaining in the Hospital until they were eating regularly and taking their medication. (Record page 42, par 38) [ 17 ] On November 28, 2022, the Mother tested positive for Covid-19. (Record page 42 par 40) [ 18 ] On December 2, 2022, the forms were returned to the Hospital, which identified the Daughter as the substitute decision maker for the Parents (Record pages 78, 80). [ 19 ] On December 4, 2022, a nurse telephoned the Daughter to inform her that the Father had influenza. (Record page 42 para 44) [ 20 ] Between December 4 and 13, 2022, the Son a posted multiple times on social media platforms about his Parents’ hospitalization,

by tweeting videos/pictures of his Parents and comments such as “disgusting, abusive and unhealthy”, “not even sick”, “held/trapped against their will”, “giving them drugs and tests with no consent”, “not allowed to shower or leave the room” while tagging amongst others @StpSenior Abuse, @poitrasCBC; @ElderAbuseHelp; @CBCNews; @CTVAtlantic; @CityFredPolice; @globeand mail; @susanholt; @JustinTrudeau; @PierrePoilievre. (Record page 43, par 45; pages 151-161) [ 21 ] The Son alleges that between December 12-17, 2023, the Parents “begged” to leave the Hospital (Record page 1062 para 155). [ 22 ] On December 16, 2022, a Notice of Application under the Act was filed by the Daughter, which was allegedly served on the Son later that same day, in which she sought:

a) a declaration that her Parents were either mentally incompetent, or suffering mental or physical infirmity so as to be incapable of managing some or all of their affairs or providing for their management, or are incapable of providing for some or all aspects of their personal care;

b) dispensing of service of the Application onto the Parents, as well as production and examination of the Parents;

c) the appointment of Gaila Friars as the Committee of the person for the Parents;

d) the appointment of a trust company as the Committee of the estate for the Parents;

e) an injunction retraining anyone from removing the Parents from the Hospital until an assessment can be completed by a qualified medical assessor, or from the jurisdiction of New Brunswick. [ 23 ] Rule 71.03(2) of the New Brunswick Rules of Court provides that t he court may dispense with service of a Notice of Application on the alleged infirm person under paragraph (1) if the evidence of at least 2 medical practitioners establishes that (

a) such service would be dangerous to or would aggravate the condition of that person, or (

b) that person lacks the mental capacity to understand the nature of the proceeding and to determine whether or not to consult counsel. [ 24 ]

Section 7 of the Act provides that the alleged mentally incompetent person shall be produced, and shall be examined at such time and in such manner and place as the presiding judge may direct, unless the court by order or the judge presiding at the trial dispenses with his production or examination . [ 25 ] After their recovery from their subsequent health issues, the Son alleges that the Parents left the Hospital on their own accord, and had no medical reason to remain in the Hospital.

He simply “followed their wishes and left the Hospital with them” (Son’s Brief, para 55; Record pages 1062-1063 para 160-162) [ 26 ] The Daughter got a call from the Hospital on December 18, 2022 at around 8:45 p.m. informing her that the Son had taken the Parents out of the Hospital.

The Mother’s purse and a jacket were left behind. (Record page 120) [ 27 ] On December 19, 2022, the Daughter sought and received an ex parte order restraining anyone from removing or relocating the Parents from New Brunswick, and prohibiting access to the Parents’ bank accounts. [ 28 ] On December 21, 2022, the court ordered, amongst other things (as outlined in the Order dated December 22, 2022):

a) Dispensing of service of the Application onto the Parents, as well as production and examination of the Parents;

b) The appointment of retired social worker, Gaila Friars, as the interim Committee of the Person;

c) A trust company to be appointed as the Committee of the Estate of the Parents;

d) An injunction restraining and enjoining

i) anyone, including the Son, from further removing, relocating or moving the Parents from this Court’s jurisdiction in New Brunswick (except to return them to New Brunswick no later than December 28, 2022); ii) the Son and Daughter from accessing, disposing of, encumbering, transferring or removing from New Brunswick, or elsewhere, assets within New Brunswick, or elsewhere, including but not limited to: (1) any bank account, RRSP or investment account belonging to the Parents, including but not limited to accounts at Bank of Montreal (BMO), TD Bank (TD Waterhouse) and Royal Bank of Canada; (2) any real and personal property of the Parents;

e) That counsel in this matter are to consult each other and if feasible agree on an appropriate New Brunswick lawyer to be appointed to represent the interests of the Parents; failing agreement between counsel, directions are to be sought from the Court.

[ 29 ] On December 22, 2022, the Daughter was informed that Windsor Court Retirement Residence Inc. (“Windsor Court”) had two adjoining suites available for the Parents (Record page 303) [ 30 ] On December 23, 2023, the Daughter was informed that the attending physician, Dr. Ginn, at the Hospital had completed the medical forms that Windsor Court required.

Also, the functional and cognitive assessments that were begun in Hospital would be carried out in Windsor Court as soon as it could be arranged. (Record pages 302-303) [ 31 ] On December 26, 2022, the Daughter received notice from the Tantallon RCMP Detachment that the Father was found outside at 6:00 a.m. wandering the streets in shorts and without shoes. It was -2 or -3 degrees centigrade.

The Father was transported by ambulance to the QEII Emergency Department in Halifax (Record pages 300, 305, 311, 609, 613) [ 32 ] On December 31, 2022, the Daughter was informed by a Royal Bank of Canada (“RBC”) employee that the Son and his counsel at the time, David Dunsmuir, had called in an attempt to release the Parents’ funds, because Windsor Court allegedly said they had to pay $10,000 or the Parents would be kicked out on Monday.

This took place only 9 days after being ordered not to access any bank account, RRSP or investment account belonging to the Parents, specifically those bank accounts at the RBC. (Record page 614, para 2-3) [ 33 ] Since January of 2023, the Parents have lived in an apartment at the assisted living facility of Windsor Court in Fredericton. [ 34 ] During a case conference held on January 3, 2023, the court appointed Andrew Rouse, K.C. to be the solicitor for the Parents through their Interim Committee of the Person.

a) The order appointing Mr. Rouse as legal counsel for the Committee of the Persons, dated January 5, 2023, specifically refers to paragraph 10 of the December 22, 2022 order;

b) Paragraph 10 of the December 22, 2022 order referred to an appropriate lawyer to be appointed to represent the interests of the Parents. [ 35 ] In February of 2023, the Son filed his own Application and Motion (which was later amended), for an Order declaring that the Parents are not mentally incompetent persons as defined in the Act , and in the alternative, for an order appointing Michael Mersereau (the Parents’ neighbour) as the Committee of the Person, or in the further alternative, appointing himself. [ 36 ] One of the main grounds the Son had raised was that non-relatives who provide health care services or support services for compensation are not eligible to be appointed under

Section 9 (that deals with Decision-Making Assistants ) and

Section 23 (that deals with Decision-Making Supporters ) of the pending Supported Decision-Making and Representation Act , SNB 2022 c. 60 (“ SDMRA ”) that would repeal the existing Infirm Persons Act . SDMRA is not yet in force (with no known proclamation date), but regardless, the Son’s position does not take into consideration the other provisions of SDMRA dealing with “ Representatives ”, particularly sections 36, 38(4), 40(1) and 65(1), which deal with circumstances akin to persons previously appointed as a “committee of the person” under the Infirm Persons Act . [ 37 ] On March 17, 2023, Dr.

Patrick Feltmate reassessed both Parents’ capacity. After conducting an interview, and having the Parents’ Mini-Mental Status Exam and a Montreal Cognitive Assessment, he opined that the Parents lacked the capacity to make decisions about personal care and financial matters and that they were mentally incompetent persons as defined under the Act . (Record Tabs 41 and 44) Re Mother (Record pages 1258-1263; 1370-1378)

a) He spoke with Jill, a nurse working at Windsor Court familiar with their care, and reported that the Mother was consistently confused and disoriented. She became anxious when they brought her medications, checked her blood pressure and during and after visits by her son;

b) She often appeared unkempt and rarely changed her clothing, indicating that she would benefit from assistance with dressing and bathing, though she refused this;

c) On the day of the assessment, she demonstrated no insight into her cognitive impairment. She said they could function independently with no need for assistance, because they have neighbours nearby; but, when asked what those neighbours would do for her, she stated there was no need of any kind of assistance. She had no recollection of being in the hospital (nor the events between her hospitalization and moving into Windsor Court);

d) Although she stated her husband’s memory was bad, she also suggested Dr. Feltmate should obtain details (that she could not remember) from her husband and assured him her husband was perfectly capable of managing all of their finances without any help;

e) The mini mental status exam was indicative of moderate to severe impairment. She was profoundly disoriented, amnestic and inattentive. She had difficulty drawing a clock, showed problems with sequencing, organization, planning and abstract thought;

f) There was paratonia [ a form of hypertonia with an involuntary variable resistance/rigidity during passive movemen t] present typical of advanced cognitive impairment;

g) Impression/plan : She suffered from progressive deterioration in cognitive function impacting on basic and instrumental activities of daily living not better explained by a medical, pharmacological, substance-related or psychiatric cause. She had a neurodegenerative dementia, specifically Alzheimer’s disease. She was in the middle to late stage of this illness, which was permanent

and irreversible. She had significant and obvious cognitive and functional deficits resulting from her dementia, but demonstrated no insight into any of these, nor did she appreciate the obvious and substantial risks associated with her plan to return home and live independently with her husband. Because of her lack of insight, impaired memory, disorientation and executive dysfunction, she lacked the capacity to make decisions about personal care and financial matters. Dr.

Feltmate opined that she was a mentally incompetent individual as defined under the Act and required a substitute decision maker to make decisions on her behalf. Based on his experience as a Geriatrician and the examinations he performed with the Mother, it was his objective medical opinion that the Mother was not able to appreciate the reasonably foreseeable consequences of the decisions she made, or to understand information that was relevant to those decisions. (Record, page 1371, para 7) Re Father (Record pages 1284-1289; 1379-1384)

a) Dr. Feltmate conducted an interview and completed a Montreal Cognitive Assessment of the Father.

b) During the interview, the Father denied any significant trouble with his cognitive function and demonstrated no insight into his wife’s significant dementia. a. He estimated incorrectly that he had been living in a “senior’s place” (he could not remember the name) for 8-9 years; b. The nurse working at Windsor Court, familiar with his care, reported that he was usually disoriented to where he was and why he was there; at times, he did not remember his daughter’s name; c. He was unable to demonstrate any ability to come up with a basic plan to organize his finances (if he had access); d.

The Father could not remember who took him out on outings from Windsor Court (thought it was staff, when in fact, it was his son);

c) He demonstrated poor memory, attention, language, abstract thought and orientation;

d) Impression/plan : The Father suffered from progressive cognitive deterioration clearly impacting on his ability to function independently, not better explained by a medical, pharmacological, substance-related or psychiatric cause. His cognitive impairment was the result of a neurodegenerative dementia, most likely Alzheimer’s disease; As a result of his dementia, he had significant impairment in multiple cognitive domains. In particular, he demonstrated profound impairment in memory, reasoning and judgment. He demonstrated no insight into his deficits, nor his wife’s.

He clearly lacked the capacity to make decisions about personal care and finances. Dr. Feltmate opined that the Father was a mentally incompetent individual as defined under the Act and required a substitute decision maker to make decisions on his behalf;

e) Based on his experience as a Geriatrician and the examinations he performed with the Father, it was his objective medical opinion that the Father was unable to appreciate the reasonably foreseeable consequences of the decisions he made, or to understand information that was relevant to those decisions. Because of his lack of insight, impaired memory, reasoning and judgment, he lacked the capacity to make decisions about personal care and financial matters. Dr.

Feltmate opined that the Father was a mentally incompetent individual as defined under the Act . (Record page 1371, para 11) This medical evidence was received and shared with the Parties at the end of May 2023. [ 38 ] On June 16, 2023, as Mrs. Friars was no longer able to act due to personal reasons, the court ordered Valerie Delong in substitution for Mrs. Friars, as the interim Committee of the Person of the Parents. The court also directed that BMO Trust Company would act as the Committee of the Estate.

a) In the circumstances, the Court found it was essential that the person appointed as the interim committee of the person be completely independent and have an understanding of the real challenges experienced by the Parents given their cognitive and physical decline, as well as the emotional consequences of what they are going through;

b) The Court was not convinced that Mr. Mersereau has the necessary skill set given the particular challenges of this case;

c) The Court recognized the very contentious situation, and the fact that the Son’s definite points of view were not always in the Parents’ best interests; the Committee needed to be able to fully make those decisions without any influence, and the Court questioned Mr. Mersereau’s ability to do so at that juncture. The Court felt that that trial judge could ultimately hear his understanding of the Parents’ situation, and how he was going to deal with doctors and the children;

d) She had professional skills and was an independent replacement (“removed from everybody”);

e) Although the Son raised the fact that Mr. Merserau was willing to act as the Committee for no fees (which the court found to be a noble gesture), compared to Mrs. Delong’s appointment that would generate fees, the Court was not convinced that Mrs. Delong’s fees should be a determinative factor, considering what truly matters are their best interests.

[ 39 ] None of the above court orders were appealed, so there is no need to address them. [ 40 ] On July 7, 2023, Mr. Merserau filed his own Application and Notice of Motion seeking appointment on an interim and final basis as the Parents’ Committee of the Person. The court did not adjourn the scheduled final hearing to hear these new matters, for various reasons, including:

a) Their late filing at the eve of trial;

b) The same legal issues were already before the court for some time (with Mr. Mersereau’s indirect involvement), with the same affidavit evidence with the exception of one additional one; and Mr. Mersereau’s July 7, 2023 affidavit was admitted by consent into these proceedings;

i) Duplicate litigation and multiplicity of proceedings are to be avoided; ii) It is the inherent power of the court to prevent the misuse of its procedure in a way that would be unfair to a party or would bring the administration of justice into disrepute; iii) Having considered the principles of proportionality enunciate at Rule 1.02.1 of the Rules of Court; and Rule 1.03 which stipulates that the Rules shall be liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits;

c) One of the relief sought by Mr. Mersereau was an evaluation by Dr. Leo Cruz, or in the alternative Dr. Patrick Feltmate; Dr. Feltmate’s records established he had conducted an evaluation, thus removing the need to request such relief;

d) Dr. Feltmate’s records were produced via email at the end of May 2023 (Tab 42, page 1335) and via affidavits on June 14, 2023 and July 10, 2023 (Record Tabs 41 and 44); the parties were allowed to speak with the doctors since the April 21, 2023 Order (Record page 1414, Tab 52)

e) There is no apparent requirement (in legislation or Rules of court) for the proposed Committee candidate to file its own Application or be added as a party in order to be considered as a suitable candidate by the Court;

f) Furthermore, Mr. Merserau’s position would be akin to the one advanced by the Son, as Mr. Merserau was represented by the Son’s former counsel (which would disallow Mr. Merserau’s counsel to advance a claim contrary to his former client’s position without placing him in a position of conflict of interest);

g) All parties agreed that Mr. Merserau was a potential candidate to be considered by the Court, therefore there was no need to add these proceedings or adjourn the final hearing to consider his candidacy (whether on his own, or jointly with the Son). [ 41 ] No motion was presented to have the medical deponents give viva voce evidence before the court so that they can be questioned on their opinions. III. ISSUES [ 42 ] Are the Parents mentally incompetent pursuant to s. 5 or in the alternative s. 39 of the Infirm Persons Act ? [ 43 ] Who should be appointed as the Committee of the Person for both Parents? IV. LAW AND ANALYSIS Mentally incompetent persons [ 44 ]

Section 1 of the Act defines “mentally incompetent person” and “mental incompetency” as follows: “ mentally incompetent person ” means a person (incapable mental) (

a) in whom there is such a condition of arrested or incomplete development of mind, whether arising from inherent causes or induced by disease or injury, or (

b) who is suffering from such a disorder of the mind that he requires care, supervision and control for his protection or welfare or for the protection of others or for the protection of his property; “ mental incompetency ” means the condition of mind or physical incapacity of a mentally incompetent person. (incapacité mentale) [ 45 ] Pursuant to s. 5 of the Act , the court may by order declare a person a mentally incompetent person, if the court is satisfied that the evidence submitted establishes beyond a reasonable doubt that he or she is a mentally incompetent person.

The application may be made, for example, by a relative, by a friend or any other person who is concerned for the well-being of the alleged mentally incompetent person. [ 46 ] Rule 71.02 of the New Brunswick Rules of Court provides that a Notice of Application under

section 5 or 39 of the Infirm Persons Act shall be supported by the affidavits of one or more medical practitioners and of one or more persons acquainted with the alleged infirm person and able to swear to facts that will assist the court in forming its opinion as to the condition of the alleged

infirm person. An affidavit may express the opinion of the deponent but shall also set out the facts upon which the opinion is based. [ 47 ] The affidavit of the Daughter revealed the following:

a) On June 9, 2022, Mr. Mersereau, a neighbour of the Parents who checked on them regularly, informed her that her Father’s health was declining, and that her Mother often appeared confused. Her Father had been behaving aggressively towards the receptionists at the medical offices that her Father visited for appointments. (Record page 38, para 8)

b) On June 28, 2022, the New Brunswick Extramural nurse informed her that her Father was physically declining and suffering from several medical conditions including swollen legs and a swollen stomach. (Record page 38 para 9-10)

c) Between September 12, 2022 and September 15, 2022, the Daughter visited her Parents and they appeared to have declined further. The house appeared extremely unkept and they were still extremely thin. (Record page 39, para 13)

d) On October 27, 2022, the Daughter was informed by Dr. Keith Murdock that her Father was not taking his medication (Record page 39, para 14)

e) On November 3, 2022, her Father shared information with her involving Mr. Mersereau, that was not corroborated by Mr. Mersereau when she later spoke with him (Record page 39 para 15-16) [ 48 ] The evidence of the Son revealed that he knew and was aware that his Parents were suffering from “cognitive decline”, and that it was “very difficult for him to come to terms with this”; it was “very heartbreaking”. (Record Tap 39; page 1178 para 9-11) [ 49 ] The evidence of Dr. Jeffery Ginn is summarized as follows:

a) Letters dated November 21, 2022: He was the attending physician for the Parents admitted to Hospital for ongoing medical reasons at the Hospital. He opined that the Parents lacked capacity for decision-making for both personal care and financial matters. This was expected to be irreversible in nature . (Record pages 74 and 76; 129-130)

b) Affidavit sworn to on December 20, 2022:

i) He has been their attending physician since November 11, 2022. ii) On December 18, 2022, the Parents were removed from the Hospital against his medical advice. He did not believe they necessarily required hospitalization, so long as they were adequately cared for in another setting . However, serious concerns for their health, safety and well-being were raised at the time of their admission to the Hospital by Adult Protection Services , including that they had been found wandering, displayed a lack of self-care, and were malnourished .

They both received geriatric and cognitive assessments while in Hospital, and both demonstrated cognitive impairments in keeping with a diagnosis of dementia . iii) At the time of being removed from Hospital against medical advice, both Parents were undergoing functional assessments with physiotherapy and occupational therapy to better define their needs and the level of care required . This process had not been fully completed.

That said, their other medical issues were sufficiently stabilized such that further admission in an acute Hospital facility is not required if an appropriate environment meeting their functional, safety and supervision needs can be provided . iv) In his opinion, due to the cognitive impairment, the Parents cannot live independently and require 24 hour per day, seven day per week supervision for their safety .

v) Service of the Application should be dispensed with because both lack the mental capacity to understand the nature of the proceeding and to determine whether or not to consult counsel. It would also aggravate their condition . (Emphasis added.) (Record pages 126-130) [ 50 ] The affidavit of Dr. Achla Pond, sworn to December 19, 2022, revealed the following:

a) He was the Father’s family physician, and agreed to accept the Mother as a patient upon her discharge from the Hospital;

b) He reviewed the Father’s chart, met with the Parents on August 3, 2022 and again on October 4, 2022 and they both appeared to be confused, increasingly thin and dishevelled.

c) He opined that the Parents both lacked capacity for decision-making for both personal care and financial matters, and this was expected to be irreversible in nature.

d) Apart from his clinical observations, he witnessed them on several occasions walking around in what appeared to him to be confused fashion.

e) In his opinion,

i) they were no longer able to live independently and require that somebody be appointed to manage their care, and ii) the service of the Application should be dispensed with because both lack the mental capacity to understand the nature of the proceeding and to determine whether or not to consult counsel. It would also aggravate their condition. (Record pages 123-125) [ 51 ] The affidavit of Mrs. Delong reveals the following:

a) The Parents did not remember her from one visit to another;

b) The Parents showed signs of confusion and significant memory impairments

i) Mother: regarding their furniture, general questions which she could not answer, and referring to a peeled orange while takingout a very browned banana instead; ii) Father: saying he worked at Windsor Court; not remembering twice, within minutes apart, that he had already eaten breakfast;general questions which he could not answer. [52] The affidavit of Dr. Feltmate and supporting records confirm his medical opinion:

i) The Mother suffers from progressive deterioration in cognitive function impacting on basic and instrumental activities ofdaily living not better explained by a medical, pharmacological, substance-related or psychiatric cause. She has a neurodegenerativedementia, specifically Alzheimer’s disease.

She is in the middle to late stage of this illness, which is permanent and irreversible.She has significant and obvious cognitive and functional deficits resulting from her dementia, but demonstrated no insight into any ofthese, nor does she appreciate the obvious and substantial risks associated with her plan to return home and live independently with herhusband. Because of her lack of insight, impaired memory, disorientation and executive dysfunction, she lacks the capacity tomake decisions about personal care and financial matters.

He opined she was a mentally incompetent individual as defined under theAct and required a substitute decision maker to make decisions on her behalf.

Based on his experience as a Geriatrician and theexaminations he performed with the Mother, it was his objective medical opinion that the Mother is not able to appreciate thereasonably foreseeable consequences of the decisions she makes, or to understand information that is relevant to those decisions. ii) The Father suffers from progressive cognitive deterioration clearly impacting on his ability to function independently, notbetter explained by a medical, pharmacological, substance-related or psychiatric cause.

His cognitive impairment is the result of aneurodegenerative dementia, most likely Alzheimer’s disease. As a result of his dementia, he has significant impairment inmultiple cognitive domains. In particular, he demonstrates profound impairment in memory, reasoning and judgment. Hedemonstrates no insight into his deficits, nor his wife’s. He clearly lacks the capacity to make decisions about personal care andfinances. He opined he was a mentally incompetent individual as defined under the Act and required a substitute decision maker to makedecisions on his behalf.

Based on his experience as a Geriatrician and the examinations he performed with the Father, it was hisobjective medical opinion that the Father is not able to appreciate the reasonably foreseeable consequences of the decisions hemakes, or to understand information that is relevant to those decisions. Because of his lack of insight, impaired memory,reasoning and judgment, he lacks the capacity to make decisions about personal care and financial matters. He opined he was amentally incompetent individual as defined under the Act. (Emphasis added.) [53] Based on the medical deponents’ evidence, particularly Dr.

Ginn and Dr. Feltmate, corroborated by the evidence of Mrs. Delong,I was satisfied that dispensing with the production and examination of the Parents should be granted, in accordance with s. 7 of the Act.The medical deponents (Dr. Ginn and Dr. Feltmate) set out the facts upon which they arrived at their opinion, and their opinion is basedon sufficient grounds. [54] Given the Parents have already been recently assessed medically, there was no need to have the Parents attend and submit tofurther medical examination.

It is not as if the Parents had refused to undergo a voluntary examination/assessment, and that ordering anexamination was thereby required. There was no need to order further examination contemplated by s. 8 of the Act. [55] Based on the medical deponents’ evidence, particularly Dr. Feltmate and Dr. Ginn’s evidence, corroborated by the evidence ofthe Daughter and Mrs. Delong, I am satisfied that the evidence submitted establishes beyond a reasonable doubt that the Parents arementally incompetent persons pursuant to s. 5 of the Act.

Given such finding, there is no need to address the alternative remedy soughtunder s. 39 of the Act.

Appointment of the Committee of the Person [56] The Act sets out the jurisdiction of the Court with respect to “mentally incompetent persons”: 3(1) Subject to the provisions of the Mental Health Act, the court shall have full jurisdiction and authority over and in relation to thepersons and estates of mentally incompetent persons, including the care and the commitment of the custody of mentally incompetentpersons and of their persons and estates. 3(2)The court may make orders for the custody of mentally incompetent persons and the management of their estates, and every suchorder shall take effect as to the custody of the person immediately, and as to the custody of the estate upon the completion of thecommittee’s security. [57] In Saulnier v.

Cook and Norman, 2016 NBCA 40 , the New Brunswick Court of Appeal enunciated the following on

the selection criteria for a Committee of the person and/or estate when there are competing requests by multiple persons: [17] The Infirm Persons Act does not set out the objectives or factors to be considered when assessing the suitability of a person (orpersons) to be appointed committee or for determining which person (or group of persons) should be appointed when there arecompeting requests by multiple suitable persons. [18] Above all else, the appointment of a committee must be made with a view to furthering the best interests of the incompetentperson.

This is so regardless of whether the appointment relates to a committee of the person and estate or a committee of either theperson or the estate. The objectives and the factors to be taken into account and the relative importance of each may vary greatlydepending on the circumstances, including the condition and needs of the incompetent person and the choices available to thecourt. Ryan J.A., speaking for this Court in connection with the appointment of a committee in Doiron v. Kerr Estate (1998), (NB CA), 195 N.B.R. (2d) 323, [1998] N.B.J.

No. 3 (C.A.) (QL), stated: Under the Infirm Persons Act, R.S.N.B. 1973, c. I-8, various specific duties of committees are set forth.

Section 2 of the Act incorporatesa duty in relation to the prudent person as found in the Trustees Act, R.S.N.B. 1973, c. T-15. The general duties of a committee can befound in Robertson, Gerald B., Mental Disability and the Law in Canada, (2nd Ed.) (Scarborough: Carswell, 1994). Montgomery J.accepted the author’s credentials in Forbes Committee v. Molyneaux (1990), (NB KB), 111 N.B.R. (2d) 427 […](C.A.). (…) With respect to the duties of a Committee of the person, Professor Robertson listed the following: 1. There is an overriding duty to act in the best interests of the ward (p. 171). 2.

Guardians are responsible for the ward's care and maintenance (p. 172). 3. Personal guardians must exercise reasonable care in discharging their responsibilities (pp. 173-74). [Paras. 26-28] [19] In his reasons, Ryan J.A. made reference to Prof. Gerald B. Robertson’s text Mental Disability and the Law in Canada, 2nd ed.(Scarborough: Carswell, 1994). Of particular interest to this case are the comments of Prof. Robertson when he speaks specificallyto the situation where family members make competing claims to be a committee (of the person).

He stated: In practice, the court is more often confronted with the converse problem, namely, having to choose between a number of “suitable”guardians. Family disputes can often give rise to competing applications for the appointment of a guardian. In this situation, the courtmust decide which of the proposed guardians is best able to ensure that the individual will receive the required care andprotection. Preference is normally given to family members, because this is usually in the ward’s best interests. However, muchdepends on the nature and strength of their relationship.

For example, in Re Leeming, the court appointed a friend rather than acousin, on the ground that the former had a much closer personal relationship with Ms. Leeming and had looked after her for manyyears. Similarly, the court in Re Pineo appointed Mr. Pineo’s daughters in preference to his former wife, because their ties with him weremuch stronger and hence they were better able to provide the love and support which he needed. These cases show that the applicant who has the closest personal relationship with the ward is likely to be the most suitable guardian.This is true for a number of reasons.

That person will likely be strongly motivated to act in the best interests of the ward, and will likelybe in the best position to judge what these interests are. The appointment of a close friend or relative is also less likely to cause the wardundue distress, particularly if that friend or relative has already assumed the role of caregiver. The repeated use of the word “likely” inthe preceding sentences is intentional. There may be circumstances in which it is clear that the applicant with the closest personalrelationship would not be the most suitable choice.

Each case ultimately depends on the court’s assessment of what would furtherthe best interests of the ward. [p. 136] [Emphasis added.] [58] In the circumstances of this case, I am of the view that the children are not the most suitable choices. Given the friction existingbetween the Son and Daughter, it would result in difficulty, if not inability, to make decisions if they were appointed jointly. [59] The appointment of either the Son or Daughter would exacerbate the conflict and acrimony within the family, and that would notbe in the best interests of the Parents.

I considered the effect on the Parents of such conflict amongst the Son and Daughter. It is indeed ashame that they are so estranged, but that is the reality. [60] Although the Son and Mr. Mersereau take the position that the Parents were “closer” to the Son, there was some evidencesuggesting the Parents still respected their Daughter, including:

a) their 1995 Power of Attorney naming both children as joint donees;

b) the Parents’ alleged Will splitting everything “50-50” (Record page 1108 para 11);

c) The Parents offering her a generous gift of approximately $100,000-$120,000 when her husband retired (Record page 1054para 39-41)

[ 61 ] According to the Daughter, the Son’s “combative nature made it impossible to make joint decisions” with respect to the Parents’ care.

The Daughter promoted having someone independent/objective and skilled, and she was not presenting herself as the preferred choice as the Committee for the Person (she only expressed her willingness to be appointed if the court determined that a family member should be appointed). (Record page 1162, para 7-8; page 1164 para 22-24) [ 62 ] The Son certainly made efforts to care for the Parents, in coordinating the move into Windsor Court, retrieving clothes and personal care items for them, bringing them for daily walks, ensuring continued visits with the neighbours, etc.; however, although the Son presented himself as a suitable choice as the Committee for the Person, the Daughter opposed this choice by raising numerous concerns, some of which I share as well, including the following:

a) The fact he removed the Parents from the Hospital ;

i) Although the Son justified himself by arguing there were no “medical reasons” for the continuation of the hospitalization,

(1) Dr.

Ginn gave sworn evidence that their removal from the Hospital was “against medical advice”; (2) the Son did not offer any reason to justify his failure to notify the Hospital staff or attending medical professionals before leaving the Hospital with the Parents; (3) he did not make enquiries with the attending physicians or other health professionals to determine and ensure the Parents were “adequately cared for in another setting”, placed in an “appropriate environment meeting their needs” and received “24 hours per day supervision” upon removing them from the Hospital; (4) he did not offer a reasonable explanation why they chose to leave at 8:45 at night, in the dark (which suggested the Son was being secretive/furtive in removing them from the Hospital, as opposed to assuming this decision on the premise that they were “entitled” to leave). ii) While he suggested his Parents requested to leave the Hospital, he did not address the fact that there were medical opinions questioning their mental competence to make such decisions (given the medical professionals required someone to make health care decisions on their behalf while hospitalized, and the fact his Parents had very little insight into both their limitations as well as their needs);

(1) The fact remains that Dr. Ginn gave a written opinion (letters dated November 21, 2022) stating that both Parents lacked capacity for decision-making for both personal care and financial matters. This was expected to be irreversible in nature; accordingly, the Son could not rely on the Parents’ alleged directives on the issue of leaving the Hospital;

(2) The Son was aware of the meeting held on November 22, 2022, and the fact that the Daughter would be the primary contact person for decisions dealing with the Parents; this is further corroborated by his text message on November 23, 2022, in which he states, “It’s all on your decision they are allowed to be discharged with your consent ”; iii) The fact that the Father wandered outside inappropriately dressed (in shorts and no shoes in wintertime) and without supervision raises further concerns (both confirming the Father’s precarious mental capacity, and the Son’s failure to recognize the seriousness of his Parents’ conditions and their required care);

(1) The Son attempted to justify this by stating telling the Interim Committee of the Person that the Father “wanted to see the boat in the garage and got confused” (Record page 610)

(2) In his sworn evidence, the Son said the Father woke up in the early morning needing to go use the washroom, became disoriented and went outside instead (as he had to go to the bathroom so badly at this point, he opted to pee in the woods”); on his way back, he couldn’t see, chose the “wrong direction and headed away from the house” (Record pages 1063-1064, para 173);

(3) Regardless which version is accurate, the court feels this incident demonstrated beyond “simple” confusion, and established “serious” confusion which the Son was unable or refused to recognize. iv) This kind of emotional, impulsive behaviour by the Son does not demonstrate someone who is calm, reasoned, cool-headed and capable of focusing on his Parents’ best interests;

b) The Son filmed his Parents, posted the messages/videos/pictures on social media, and tweeted his messages to a host of journalists and public figures.

i) There was no evidence to suggest his Parents’ needs (of 24-hour care and supervision) were not being met while in the Hospital and while awaiting alternate care facility; ii) There was no evidence supporting the statement that the Parents were being treated without dignity, or to justify the use of words such as “disgusting, abusive and unhealthy”, “held/trapped against their will”, “giving them drugs and tests with no consent”, iii) Again, this kind of emotional, impulsive behaviour by the Son does not demonstrate someone who is calm, reasoned, cool- headed and capable of focusing on his Parents’ best interests;

c) The affidavit of Ken Savage refers to “bills or accounts” of the Son, for checking on the house 30 minutes a day (totalling $1,290), walking his Parents for $200 per hour (totalling $12,800). (Record page 1227, Exhibit

D) i) The Son gave contradicting justifications for these charges;

(1) Stating it was at the request of his Parents ( whose mental capacity was already challenged ); then

(2) Suggesting it was simply to establish the amount of time spent by him to care for his Parents ( if that was the case, why not simply keep track of his time and services, rather than submit a hefty bill ).

d) The difficult relationship between the Son and the Hospital/nursing home staff

i) The Son’s conduct at the Hospital was concerning (reports of intimidation and calling a nurse “stupid”); (Record page 42, para 42 and 44) ii) Although the relationship appears to have somewhat improved recently, the overall evidence concerning the Son’s interactions with the nursing home staff is still concerning; iii) The Son appears to have great difficulty fully accepting the interim court orders (in appointing Mrs.

Friars), or any position taken by others that do not reflect his personal wishes or views; he challenged their authority and attempted to justify what he felt was better; he was disruptive and disrespectful to the staff at Windsor Court, but also towards the Parents themselves (Record pages 1073- 1075, para 17-19, 21-24, pages 1084-1086, pages 1136-1137, para 16, 18-20; page 1163 para 20; page 1164 para 25, page 1165) iv) On July 4, 2023, the Son talked about topics in front of his Parents that upset them;

v) The overall history still demonstrates a lack of insight by the Son or his inability to take the high road in view of fostering his Parents’ best interests;

e) In her report attached to her affidavit, Mrs. Delong noted that a staff member saw the Son drop off his Parents off at the Brookside Mall and drive away on June 19, 2023. When such staff member went inside, she saw the couple just walking around.

i) Although it is possible that the Son had simply gone to park his vehicle, it is still concerning that the Parents were left unattended for a period of time sufficiently long for the staff member to observe them walking aimlessly;

f) The Son’s failure to volunteer having used his father’s Visa card on December 3 and 4, 2022 in Moncton, while the Parents were hospitalized, as depicted in the last Visa statement attached to Mr. Savage’s affidavit – and despite these specific charges being raised in open court during the June 16, hearing;

i) The Applicant needed to secure and produce affidavit evidence from the relevant hotel to establish the Son’s usage of the card; (Record Tab 45, pages 1385-1388) ii) Although the amount charged on the Visa card is not significant, the Son’s failure to come clean on these charges undermines his credibility.

g) On December 31, 2022, the Daughter was informed by a RBC employee that the Son and his counsel at the time had called in an attempt to release the Parents’ funds;

i) There was no persuasive evidence or argument presented by the Son (1) to confirm Windsor Court’s alleged demand of $10,000 (failing which the Parents would need to leave); (2) to justify this attempt to access the Parents’ funds; ii) This attempted access to the Parents’ funds took place only 9 days after being ordered by the court not to access any bank account, RRSP or investment account belonging to the Parents, specifically those bank accounts at the RBC. (Record page 614, para 2- 3) [ 63 ] All things considered, I am not convinced that the Son is a suitable choice for the Committee of the Person.

His overall behaviour is incompatible with the overriding duty to act in the best interests of the Persons. [ 64 ] In regard to Mr. Mersereau, who was presented as someone with a close personal relationship, the evidence as a whole has not convinced me that he is the most suitable choice either, given I am not convinced:

a) that Mr. Mersereau has the necessary skill set given the particular challenges of this case (namely elderly individuals suffering from mental incompetency),

b) that he fully understands the extent/severity of the Parents’ conditions, limitations and needs (Record, page 1110 para 23: he persists to believe the Parents are “able to appreciate the reasonably foreseeable consequences of the decisions they make and understand the information that is relevant to those decisions”); and

c) that he can fully make decisions without any influence of the Son. [ 65 ] In light of the medical evidence, the court is not convinced that the Parents have the required capacity to express their views, wishes or preferences in a meaningful manner. Regardless, I must be ultimately guided by what I consider to be the Parents’ best interests.

In the circumstances, I concur that it is essential that the person appointed as the interim committee of the person be completely independent and have an understanding of the real challenges experienced by the Parents given their cognitive and physical decline, as well as the emotional consequences of what they are going through. [ 66 ] Furthermore, the Court had appointed Mr. Rouse to represent the interests of the Parents, and Mr. Rouse supported the

appointment of Mrs. Delong. Noteworthy is that the order appointing Mr. Rouse as legal counsel for the Committee of the Persons, specifically refers to paragraph 10 of the December 22, 2022 order and the latter paragraph referred to an appropriate lawyer to be appointed to represent the interests of the Parents . There is no need to appoint Mrs. Kitty Maurey as counsel for the Parents, when the Court already appointed Mr. Rouse to that effect, and there is no compelling evidence or persuasive argument to add another counsel or substitute Mr. Rouse in this role. [ 67 ] I am satisfied that Mrs.

Delong has the professional skills required to see to the best interests of the Parents, and that she is truly independent and disinterested. She is well qualified and best suited to advocate for the Parents’ needs. She is an experienced, objective social worker, who had been found with the assistance of Mrs. Friars, who was also truly independent, which adds further credibility for Mrs. Delong’s appointment. Finally, she appears to have a much better rapport with the Son (compared to Mrs.

Friars), which reassures me that she is capable of communicating/consulting with the children to play a supportive role, and to maintain their relationship and involvement with their Parents – if it remains in the Parents’ best interests. Other considerations include:

a) There is no known legal requirement to have Mrs. Delong added as a party in order for the court to consider her appointment;

b) She confirmed her willingness to accept such appointment on final, permanent basis, in her affidavit sworn to on July 12, 2023 which was marked as Exhibit 1 at the hearing, on the same terms and conditions as she is currently acting, which include payment for her services;

c) I am not convinced Mrs. Delong’s fees are beyond what the Parents can afford, or that they should be a determinative factor considering the estimated value of their estate. What truly matters are their best interests, and they can afford paying the remuneration of a Committee, as authorized by the court. [ 68 ] Accordingly, I order that Mrs. Delong be appointed as the Committee of the Person for both Parents, on a final basis. COSTS [ 69 ]

Section 37 of the Act governs the issue of costs: 37 The court may order the costs , charges and expenses of and incidental to orders, issues, directions, conveyances, transfers, and any proceeding of whatever nature under this Act to be paid by any party to the application , issue or proceeding, or out of the estate of the mentally incompetent person or alleged mentally incompetent person, or partly in one way and partly in another . (Emphasis added.) [ 70 ] The Daughter being the successful applicant, and having brought the application in good faith, shall be reimbursed her costs in doing so.

Considering the medical evidence, the supplementary supporting documentation, the Son’s position and his conduct throughout, I find that the Application and appointment of the Committee was in the best interests of the Parents and that special costs shall be awarded from the Parents’ estate. I order that her solicitor and client costs, plus allowable disbursements, shall be paid out of the estate of the Parents. [ 71 ] The Son has attempted to justify his position and conduct throughout.

At best, I find his efforts to be desperate and misplaced attempts to be involved in the Parents’ care; however, I am not prepared to grant punitive special costs to sanction his conduct as deserving of rebuke by the court. One of the reasons I hesitate to do so, is the fact that the more comprehensive medical documentation was only adduced in late May/June of 2023, reasonably close to the commencement of the trial.

Before receiving this more complete medical documentation, it was not entirely unreasonable to question the finding of the Parents’ mental incompetence. [ 72 ] Despite the Son’s conduct, which was not always in the Parents’ best interests, and which negated his suitability as the Committee, I am not satisfied that punitive costs are warranted, to the extent of him needing to pay the successful applicant/Daughter’s legal fees. [ 73 ] The Son shall bear his own costs. DISPOSITION [ 74 ] It is therefore the Order of this Court that:

a) The Respondents, G. Ross Smith and Barbara Smith, are declared mentally incompetent pursuant to s. 5 of the Infirm Persons Act ;

b) the production and examination of these Respondents are dispensed with, in accordance with s. 7 of the Act ;

c) these Respondents shall not attend and submit to further medical examination, as contemplated by s. 8 of the Act ;

d) Valery Delong is appointed as the Committee of the Person for both of these Respondents, on a final basis, and authorization is granted for her to receive remuneration for her services rendered;

e) Andrea McDougall’s costs on a solicitor-client basis shall be paid out of these Respondents’ estate, including allowable disbursements in accordance with the Rules of Court;

f) Gordon Ross Smith shall bear his own costs. DATED at Moncton, New Brunswick this ______ day of September 2023 _________________________________ Sylvie I. Michaud Judge of the Court of King’s Bench of New Brunswick – Family Division