2007 BCSC 1949 Vranic (Re)

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	*Vranic (Re)*,
	2007 BCSC 1949

Date: 20070328
Docket: S065479
Registry: Vancouver

In the Supreme Court of British Columbia in the Matter of the Patient's Property Act,
R.S.B.C. 1996, C. 349 and Josip Vranic

Before: The Honourable Madam Justice Ballance

Oral Reasons for Judgment

In Chambers
March 28, 2007

Counsel for Petitioners	A. Mortimore
Counsel for Respondents	K. Garcha
Place of Hearing:	Vancouver, B.C.

[1] THE COURT: The disharmony which has consumed these parties during the last three years or so in relation to the care of their father, Josip Vranic, has fueled an embittered battle over his committeeship. Mr. Vranic's three adult children have divided themselves into two factions: Bernice Ivanic on the one hand, and Nina MacKay and John Vranic on the other. Each side seeks appointment as committee of their father's person.

[2] Mr. Vranic was born in Croatia in 1936. His first language is Croatian. His wife, Anna, passed away in 1997 and he never remarried. He is a retired loom mechanic/engineer.

[3] In October 2003, Mr. Vranic suffered a stroke and was hospitalized until early 2004. During the time he was in the hospital recovering from his stroke, his daughter, Nina, visited him every day, walking with him through the halls once he regained his ability to do so. She often took him to her home for dinner and helped him shower, dress, change his clothes and the like.

[4] Mr. Vranic eldest daughter, Bernice, also visited her father daily while he was in hospital. While Mr. Vranic was still in hospital, a geriatric psychiatrist assessed his mental competency. The interview was conducted in Polish spoken by a nurse. That psychiatrist's opinion was that Mr. Vranic was not financially competent and specifically was not competent to give a power of attorney. Bernice was critical of the adequacy of this assessment largely on the footing that her father's native language is Croatian and not Polish. It is clear, however, from Mr. Vranic's responses to the questions asked of him in that interview as recorded on the interview sheet that he understood what was being asked of him.

[5] Members of the medical staff also met with the Vranic children to discuss Mr. Vranic's future care needs. The staff advised that his mental condition would not improve and that he should be moved to a long-term care facility. Bernice did not agree with this recommendation and later advised her sister that she would look after their father and "make him better."

[6] Following his discharge from hospital, Mr. Vranic was admitted to the Lakeshore Care Centre, a care facility in Coquitlam, BC. Initially he shared a room with others, which was not an ideal arrangement. Eventually Nina and Bernice each separately requested their father be placed in a private room, and that occurred fairly quickly. According to Nina, that change put her father more at ease and in her view, he then settled in well to his new surroundings. Nina deposed that she brought some of his personal belongs such as photos and music to his room, which overlooked a garden.

[7] According to Bernice, she visited her father daily at the Lakeshore facility, and each time she saw him, he asked her to take him home. Bernice says that when she went for her usual visit on January 17, he had already packed his bags before she arrived and had asked an orderly to get him boxes and a cart to carry his things out from his room. Nina's evidence is that her father did not seem distressed at Lakeshore and did not indicate that he wished to leave.

[8] Bernice deposes that she followed her father's wishes and moved him into her home in Coquitlam that day. She did not consult with or even advise her siblings beforehand. The next day, Nina provided Bernice with a written list of her concerns about their father’s care, which she says Bernice has never fully addressed. It would seem that the move of Mr. Vranic into Bernice’s home marked the beginning of the end of any kind of civil relationship among Bernice and her two siblings.

[9] Mr. Vranic has continued now to live in Bernice's home for better than three years. When he moved into her home, his main asset was his house on East 45th Avenue in Vancouver. In addition to his home, Mr. Vranic had a registered and investment portfolio with CIBC Investor Services, which at August 31, 2006, had an approximate value of just under $107,000. He receives income from old age security and Canada pension plan, which total about $1,300 net a month.

[10] Mr. Vranic suffers from diabetes, high blood pressure and high cholesterol. He also has glaucoma in his left eye. Initially, Bernice arranged for a private care worker to be in her home Monday to Friday from 9:00 a.m. until 3:00 p.m. to tend to her father because she was working during the day. That schedule was eventually curtailed to 9:00 a.m. until 1:00 p.m. Bernice deposed that the care duties include making Mr. Vranic's breakfast, monitoring his blood pressure and blood sugar levels, helping him with his shower, taking him swimming or walking and doing exercises. A care worker also attends Bernice's home for four hours a day on the weekends to prepare Mr. Vranic's meals and help him take a shower, as Bernice also works on weekends.

[11] As a diabetic, Mr. Vranic needs a great deal of attention paid to his diet. As well after moving into Bernice's home, he developed rashes and infections which started on his feet and moved up to his leg and groin area. A cream medication needs to be applied to the affected areas three times each day. Bernice purchased a special mattress for her father to improve the circulation in his legs. His care requires the use of a large number of fresh towels each day and new bedding on a regular basis and the replacement of his pillows every three months or so to keep them free from fungus or mould. Mr. Vranic also has a bladder problem which causes him to soil the dining room chairs and couches.

[12] There is a dispute in the evidence about how often and for how long Mr. Vranic is left at the home on his own. I find he is alone for some part of most afternoons and for longer periods on the weekends. On occasion, he has been found wandering around the backyard by himself. On at least one occasion, Mr. Vranic left the house unsupervised and Bernice and her son Mario were unable to locate him. Eventually he was found at a local convenience store. Bernice says he was just out buying a lottery ticket.

[13] There is no evidence that Mr. Vranic has been injured or that he has compromised his personal safety, except possibly for the convenience store incident, during the times he is left on his own. Nina and John made much of the fact that their father had been left unsupervised while bathing which resulted in a fall. I am satisfied that was a one-time occurrence and that Bernice took prompt action to outfit the bathtub with appropriate handrails to prevent another mishap.

[14] Bernice has three adult children: Tony, Mario and Anita. When Mr. Vranic began living in her home, all three of the children resided there. The son, Mario, has sworn an affidavit in this proceeding in which he has made a number of disparaging comments about the chaotic environment in Bernice's household which I will address later in my reasons.

[15] At Bernice's home, her father has his own bedroom and the use of the entire house. Bernice says he likes to watch the television in his room, to sit in a swing on the patio and enjoys the backyard. According to Bernice, her father enjoys participating in water aerobics, relaxing in the hot tub, going to the mall or out for coffee, going on neighbourhood walks and stopping at the ice cream truck when he can.

[16] She deposes that physical exercise is important for the maintenance of his appropriate blood sugar levels. Although Bernice deposed that her father enjoys swimming and participating in water aerobics, on cross-examination she admitted that he had not gone to the pool for more than two years. Therefore, her evidence on that point was misleading when she gave it. She agreed that he was not in any type of organized program but did go for a walk each day. Bernice has deposed also that her father enjoys playing cards, listening to music, singing and dancing to Croatian music and attending picnics, which are a large part of his life. I find that Bernice exaggerated somewhat the level and the diversity of her father's daily physical activities in her evidence.

[17] Bernice says her father is comfortable in her home and receives appropriate care. She is concerned that he would not receive the same level of one-on-one attention in a care home and says she is concerned also about the prospect of a language barrier should he be placed in a care home. It is acknowledged, however, that none of the caregivers hired by Bernice to care for her father in her home speak Croatian. As well, he worked in Canada for decades as a loom mechanic/engineer, which no doubt demanded a basic proficiency in English. He watches television, which I infer is not broadcast in Croatian, for a good part of each day. I do not accept Bernice's professed worry about a possible language barrier as being valid.

[18] During the time that Mr. Vranic has resided with Bernice, numerous disagreements have arisen among the parties largely revolving around concerns expressed by Nina and John that they are not being afforded full access to see their father or information relating to his health and his finances. I find that arguments between the siblings would sometimes take place in Mr. Vranic's presence where Bernice made statements to the effect that Nina and John wanted to sell his home for his money and "put him away in a home."

[19] In Mr. Vranic's presence, Bernice has also talked about the “neglect” that Nina and John have shown to him. There is no question that Bernice has told her father that Nina and John want to become his committee in order to place him in a care home. She has deposed as much in her affidavit and admitted it on cross-examination, purporting to justify it on the basis she was just explaining "the truth" to him.

[20] According to Bernice, in January 2004 her siblings arrived at her home unannounced while she was at work and told the caregiver that they were taking their father to a doctor's appointment. She deposed that the caregiver telephoned her at work and told her that the siblings had attempted to remove Mr. Vranic by force and then "coerced" him to leave. This prompted Bernice to telephone a lawyer who, in turn, contacted the RCMP.

[21] The caregiver involved did not swear an affidavit in this matter. Instead she wrote a letter approximately two and a half years after the incident based on her recollection of it in terms unflattering to Nina and John. That letter was annexed as an exhibit to one of Bernice's affidavits. Given the hearsay nature of the evidence and the fact that no explanation was provided as to why this caregiver did not swear her own separate affidavit, I give her evidence no weight.

[22] Nina's evidence is that the medical appointment had been pre-arranged. She explained that the RCMP attended at the doctor's office and questioned her, her brother and her father and eventually the RCMP concluded that their involvement was not warranted.

[23] In January 2004, Bernice retained a lawyer on her father's behalf to prepare a power of attorney in her favour. The lawyer came to the hospital on January 8 and met with Mr. Vranic. He was uncertain about whether Mr. Vranic possessed the competency to give a power of attorney and so he did not prepare one.

[24] On February 8, 2004, just before Nina and John were scheduled to visit their father, Bernice called to advise that he was not feeling well and that they could not see him. Standing alone this conduct is innocent enough. However, as will be seen, I find that it is part of a larger pattern of similar conduct on Bernice's part aimed at sabotaging the relationship between her siblings and their father and maintaining control over him.

[25] In February 2004, Nina made an appointment for her father to attend an ophthalmologist to check for eye disease due to his diabetes. Bernice did not confirm whether he attended that appointment and if so, what the results were. As well, Mr. Vranic was scheduled for a psychological assessment of which Bernice was also advised. She cancelled the appointment and Mr. Vranic was not assessed at that time.

[26] Later, on June 17, 2004, Mr. Vranic did execute a power of attorney appointing Bernice as his attorney. She deposes that he was mentally competent at that time and was able to provide the appropriate instructions to his solicitor to grant the power of attorney. The two other children are highly doubtful that their father had the requisite capacity to give a valid power of attorney. While they have not commenced a separate action challenging its validity and the conduct Bernice has taken purporting to act on it, they have sought an accounting by Bernice in this proceeding in her capacity as attorney and I granted that. I will return to the accounting matter later.

[27] John deposes that on more than one occasion, he asked Bernice for a time when he could visit his father and at times, she would say that he did not want to see either Nina or John. John deposes that this is not in keeping with the close relationship that he has enjoyed with his father and also not in keeping with the way in which their father generally acts when he is visiting him and Nina. John fears that if his father has, indeed, made such comments, they do not reflect his genuinely held beliefs but are more a product of Bernice poisoning his mind. According to Nina and John, there have been many instances where they informed Bernice that they wished to see their father and even made arrangements to visit him, and those arrangements were hindered or cancelled all together by Bernice.

[28] It is convenient here to note that there was no credible evidence suggesting any kind of an estrangement between Mr. Vranic and John or Nina before Mr. Vranic moved in with Bernice. In fact, in his last Will, Mr. Vranic appoints John as his executor and trustee and prefers him as a beneficiary, leaving him 50 percent of his estate, with the remaining 50 percent to be divided evenly between the daughters.

[29] In or about August 2005, Nina asked Bernice's ex-husband to intervene and talk to Bernice about allowing she and John visits with their father. That approach appeared to do some good because shortly afterward, Bernice agreed to a visit with him on August 28, 2005. That visit occurred and further visits ensued over the following year. However, the visits were not always permitted by Bernice. Occasionally she would not return telephone calls or would provide an excuse as to why they could not visit their father when requested. I accept that the visits were not as often as Nina and John would have liked.

[30] Nina and John depose that as a result of all of the arguing about access to their father, much of which took place in front of him, and their perception that Bernice actively frustrated many of their attempts to see him, they felt it best, at least in the short term, not to pursue visits with their father. I accept that this was a difficult decision for them because they are close to their father. I also find that they hoped in time that their fractured relationship with Bernice would mend and she would facilitate access to their father. After making this difficult decision, Nina continued to telephone her father to be sure to maintain some level of contact with him. She deposes that when she did so, she could hear Bernice pick up the extension line and listen to the conversation. This was not denied by Bernice.

[31] Upon learning in March 2006 that Bernice had her father's power of attorney, Nina and John repeatedly requested information from their sister about her handling of their father's finances. The parties met on one occasion at Bernice's home to discuss the matter, but the conversation broke down and they started to argue. Bernice advised her siblings that she had the power of attorney and did not need their permission to do anything.

[32] Nina arranged with Bernice for their father to be assessed by a medical doctor in May 2006 at 9:00 a.m. According to Nina, Bernice refused to permit him to leave on time and another argument ensued which was upsetting to their father. John and Nina stepped outside the house on this occasion and spoke with one of Bernice's children. While they were there, Bernice came out and told them to leave or else she would call the police. She came out again and said that the community home care nurse had just called her and told her to let her father attend the appointment.

[33] On June 16, 2006, Nina made arrangements to collect her father two days later on June 18 for a family dinner at her home. The collection time was 3 o'clock. At quarter to 3:00, she called Bernice's home to say that she was en route but there was no answer. They were not home and no visit occurred that day.

[34] Bernice denies that she has prevented or restricted her siblings from visiting her father and says that they are welcome to visit him or take him on outings provided they give her reasonable notice. Bernice says that Nina has never taken the time to ask for father what he wants and says that he has many times told Nina and John that he does not want to be in a care home.

[35] The evidence, including a letter written by the family doctor, Dr. Eddy, satisfies me that Mr. Vranic's basic medical and physical needs have been met while living with Bernice. He is not being neglected in that regard. Indeed, ensuring that his physical and medical requirements are being met is the main focus of the daily caregiver's job, and the current caregiver has sworn an affidavit to that effect. But part of the inquiry must ask whether the meeting of one's basic physical and medical needs is sufficient? What of this gentleman's emotional, family and socialization desires and needs? Are they being adequately met or enhanced, or even acknowledged as legitimate considerations by Bernice?

[36] Dr. Peter O'Connor, a geriatric specialist, assessed Mr. Vranic in the geriatric centre on June 16, 2006. He communicated with Mr. Vranic through the assistance of a Croatian interpreter. Dr. O'Connor found very quickly there were significant problems with Mr. Vranic's speech and understanding and speech production. According to Dr. O'Connor, Mr. Vranic was unable to provide any real details in terms of his current situation and general medical condition.

[37] From Mr. Vranic's perspective, he was completely well and he did not see himself having any diseases. He denied having diabetes or elevated cholesterol or a previous stroke or hypertension. With some prompting, Mr. Vranic was eventually able to indicate that he lived with his daughter Bernice and in time, he was able to say that he had three children and he was able to name them. Mr. Vranic was unable to reply to any of the questions posed by Dr. O'Connor in the area of financial capacity.

[38] In Dr. O'Connor's view, in response to questions regarding his personal care and needs, Mr. Vranic virtually had no insight into his situation. He was unable to describe what he did, how he spent each day, even with some prompting in terms of the events that his family had already advised the doctor that he did during the day. He was not able to give details regarding his life without specific and direct prompting. His scoring on formal testing was in the severe range, but because of some difficulties with the degree of sensory dysphasia and probably also mild motor dysphasia, Dr. O'Connor believed that certain test scores might be an under-representation of Mr. Vranic's abilities. Even so, in Dr. O'Connor's view, Mr. Vranic's dementia was in the moderate range. In his opinion, Mr. Vranic was unable to make any wishes consistently known in the area of financial care or more complex personal decision making.

[39] Dr. John Sloan also swore an affidavit concerning Mr. Vranic's mental capacity. He is a founding past president of the BC Association of Geriatric Care Physicians and has been appointed as an assessor by the office of the Public Guardian and Trustee for British Columbia for the evaluation of incapability under the Adult Guardianship Act. Dr. Sloan has been in active practice as a physician since 1978, and he has carried out consulting and geriatric care in particular for sixteen years.

[40] He assessed Mr. Vranic at Bernice's home on October 12, 2006, accompanied by a Croatian language translator from an independent agency. Dr. Sloan found Mr. Vranic pleasant, co-operative and attentive. He found that Mr. Vranic was unable to express even very basic ideas about finances and showed no understanding of financial concepts, even though Mr. Vranic himself stated that his capability in this area was intact. In response to Dr. Sloan's questions, Mr. Vranic stated that he thought he could live by himself, that he did not need help every day, he could do his own banking without help and he could make meals on his own.

[41] In response to whether he needed any help with meal preparation, he stated, "somebody helps by accident." Mr. Vranic also answered that his health was good and that he had never had any trouble with his health and that he had never had a stroke. He answered that he had had diabetes before, and in response to whether he had diabetes now, he said “no”. Dr. Sloan asked Mr. Vranic if he felt that care in Bernice's home was adequate, and he answered, “yes, good”. Dr. Sloan asked whether he would live anywhere else, and Mr. Vranic responded, "there is nothing else."

[42] Dr. Sloan's diagnosis of Mr. Vranic's mental state was that there was moderate to severe impairment. He noted that Mr. Vranic's short term memory tested as absent, that he is unable to identify objects consistently and appears completely disoriented as to time and place.

[43] In Dr. Sloan's opinion, Mr. Vranic's mental function deficiency was probably due to dementia likely caused by his stroke. He deposes:

Based on my assessment and diagnosis of Mr. Vranic, I believe that he is incapable of managing his finances and managing himself. He requires daily assistance or direct detailed supervision with nearly all activities of daily living. He would be unable to accomplish even the very simplest financial transactions with coins and would be completely unable to keep track of investments or to comprehend buying and selling on any level. Mr. Vranic gives a virtually random response to questions about his own capability, independence and health. Faced with questions about those matters, he would be unable to express any meaningful response, to process any information or to make choices involving considerations beyond simple binary ones. I believe he could express simple binary preferences. Based on my assessment and diagnosis, the likelihood of significant improvement or recovery from this condition is effectively zero.

[44] In May 2006, Nina and John discovered that over their stated objections, Bernice, in her capacity as her father's attorney, had forged ahead and listed Mr. Vranic's home for sale. Nina and John retained counsel who wrote to Bernice's counsel to advise they believed there was an issue concerning the validity of the power of attorney based on Mr. Vranic's impaired mental competence and demanded that the house not be sold until the validity issue had been resolved.

[45] Counsel for Nina and John also followed up on an earlier request that Bernice provide an accounting of her handling of Mr. Vranic's income, assets and expenses. Bernice's counsel indicated that Bernice was co-operating and was preparing an accounting. However, before the accounting was provided, Nina and John learned that an offer to purchase the house had been made and had been accepted by Bernice.

[46] At that time, Bernice had still not furnished an accounting. In the minds of Nina and John, Bernice's continued failure to provide an accounting combined with her controversial and, in their view, clandestine, sale of their father's property heightened concerns over whether she was administering her father's assets properly and how she intended to deal with the proceeds of sale. They brought an application to enjoin the sale.

[47] Days before the hearing of that application, Bernice offered what she said was an accounting of her treatment of her father’s finances. Nina and John assert that the accounting is incomplete. Their counsel identified enough deficiencies and matters requiring clarification or explanation that upon a cursory review of it, I came to share their view. I allowed the sale to proceed on August 31 and directed that the net sale proceeds, over half a million dollars, be held in trust by a law firm pending the outcome of the estate committeeship.

[48] I should add that in 2001 or thereabouts, Mr. Vranic had taken out a line of credit secured against title to his home and had loaned the money to his son, John. John repaid the debt within a reasonable time after the sale completed.

[49] On October 20, 2006, I ordered that Bernice provide a full and detailed accounting of her administration of Mr. Vranic's financial affairs, including copies of all supporting documents on or before a deadline of November 3. I further ordered that her accounting was to address all issues which were raised by opposing counsel on or before October 25. Counsel for Nina and John did raise questions concerning the accounting. For example, they noted that Bernice stated that she was charging her father $750 per month for rent and spending about $900 per month on his groceries. They sought clarification. They also inquired about the many gifts noted in the accounts, including a $2,000 seven-piece bedroom set, a purchase from a furniture store, a gift of a barbecue, a gift of a new washer and dryer. The inquiries which were being made do not strike me as unreasonable or inappropriate.

[50] On November 1, 2006, Bernice's counsel requested a 30-day extension of the November 3rd deadline for the accounting. Counsel for Nina and John agreed to a short extension of three days and advised Bernice's counsel that if Bernice wanted a further extension, she would have to seek a court order. She did not do so at that time.

[51] On November 23, 2006, I declared Mr. Vranic incapable of managing himself or his affairs. I appointed Solus Trust Company to act as committee of his estate. Both sides had sought appointment as committee of the estate. In time, Solus Trust had been suggested by Nina and John and when pressed at the hearing, Bernice agreed. In my view, it was most sensible to appoint a neutral third party to administer Mr. Vranic's finances and in that capacity, review Bernice's accounting and determine what, if any, steps might have to be taken in that regard.

[52] Despite my order pronounced October 20, Bernice had still not provided her expanded accounting by the time the November 23 hearing. I once again ordered she deliver a full and proper accounting extending the deadline this time to December 11. At the November 23 hearing, I also made an order for specific visitations between Mr. Vranic and Nina and John to occur every Sunday until further court order, which included December 24 and December 30.

[53] I also gave permission for counsel for Nina and John to cross-examine Bernice on her affidavits, and counsel for Bernice to cross-examine Mario and John on their respective affidavits. The cross-examinations were scheduled to proceed on December 14th, 2006.

[54] John deposed that pursuant to my order of November 23, 2006, he and Nina went to Bernice's to collect their father for a visit at Nina house on Sunday, November 26. When they arrived, Mr. Vranic was in bed and did not want to leave. John deposes that he went into his father's room to talk to him. Mr. Vranic was lying down in his bed with a blanket pulled to his chin. He was very emotional and he began to cry and shake. John felt as though something was very wrong and sat down and held his father's hand. According to John, his father held his hand very tightly and barely said a word. John deposed that he comforted his father and kept saying how he and Nina loved and missed him and asked him a couple of times whether he would like to come with them, but he said no.

[55] According to John, because of his father's fragile emotional condition, he did not press the matter further. He and Nina decided that in the circumstances, they should not try and visit him again the following Sunday, December 3, but to give it an additional week. They also thought it would be easier if Mr. Vranic met them somewhere other than Bernice's home. Nina therefore attempted to arrange for Bernice and Mr. Vranic to meet she and John at the Lougheed Mall on the next specific visitation day of December 10.

[56] On December 9, Nina and her sister Bernice exchanged messages in relation to the court ordered meeting for the next day.

[57] Nina on Saturday, December 9: We want to see dad Sunday. Meet us at Lougheed Mall at 3:00.

Later in the day, Nina sent a message:

Do we get to see dad?

[58] Bernice responds that day:

I got ur message and I have no problem with you seeing him but I talked to him and he doesn't want to go. Sorry.

[59] Nina responds:

If you have no problem, could you pls ask him why he won't see us.

[60] Bernice:

Teta maca and I just asked him again if he wanted to go and why he doesn't want to go. And he says he know what going on and that he doesn't like what you're doing.

[61] Nina:

What does he think we're doing?

[62] Bernice:

He says he knows you're trying to put him back in a home.

[63] Nina:

Tell him we just want to see him.

[64] Bernice:

He has gone to bed I can ask him again tomorrow.

[65] On Sunday, December 10, Nina asks Bernice:

Did you talk to dad yet?

[66] Bernice:

Yes and he still does not want to go.

[67] The court ordered visit for December 10 did not come about.

[68] On December 14, while Bernice was present in court, I made another order for specific visitation which directed Bernice to bring her father to Nina's house every Sunday at 3:30 p.m. except for three specific Sundays, being January 7, 14 and 21. Bernice did not comply on January 28.

[69] She also failed to complete her accounting by the December 11 deadline. During the December 14 hearing, I once again ordered her to provide a full and detailed accounting with backup documentation and opening and closing balances no later than December 29. That further accounting with some of the backup documents was received by counsel for Nina and John January 2, 2007.

[70] Bernice's latest accounting indicates a total of just over $121,000 in expenses. However, an earlier version of her accounting provided in August shows that she expended the sum of just over $141,000. No explanation for this difference has been provided. As mentioned, it will be the task of Solus Trust as committee of the estate to address the adequacy of Bernice's accounting.

[71] As the litigation intensified, the affidavit material became increasingly nasty and personal. As mentioned earlier, one of Bernice's sons, Mario, deposed to the negative environment of his mother's home. He stated that there were often fights and arguments among his mother, himself and the other children. He says that frequently when he and his sister would argue, their grandfather, Mr. Vranic, would tell them to be quiet and his sister would blast him with profanity and yell at him. According to Mario, his sister often asked Bernice why she did not just throw Mr. Vranic into an old folk's home.

[72] In her third affidavit, Bernice responded to Mario's affidavit and made serious smears against the character of her siblings ostensibly on the grounds that certain past conduct disqualified them from acting as committee. She alleged that most of John's income was derived from selling drugs and that he had been charged with assault and fraud in the past.

[73] In response, John denied being a drug dealer and denied ever being charged with fraud. He deposed that when he was sixteen years old, he was involved in a fight which resulted in his spending one week in a youth centre and that his parents were both aware of this and they visited him there. He deposed he has never been charged with any offence.

[74] In the same affidavit, Bernice deposed that her sister Nina was unfit to act as committee because Bernice had seen her smoke marijuana. In response, Nina deposed that when she was a teenager, Bernice provided her with some marijuana and the two of them smoked it together. She also recounted another incident after her mother's funeral more than nine years ago when she, Bernice and John all smoked one marijuana cigarette. My point in raising this is to illustrate how seriously derailed the parties became in terms of focusing their evidence on the real issues at play. I am taking none of Bernice’s character smears into account.

[75] The cross-examinations proceeded on December 14. The cross-examination of Mario raised some concern in my mind that he had sworn his affidavit in retaliation for his mother having previously thrown him out of the house, and I have considered that in assessing the weight to be given his evidence. Even so and despite the fact that Mario was unable to recount specific details of all the infighting he says has been going on in the household among Bernice and her children, I am satisfied that what reliably emerges from his evidence is that the home environment was frequently a combative one with incidents of physical violence among the children, including an incident involving Mario himself where he assaulted his sister causing her to get fifteen stitches in her arm. Mario was told to move out as a result of that incident, and he did so in May 2006. He has not seen his grandfather since then.

[76] There was an incident also where the eldest son, Tony, who no longer resides in the family home either, had some sort of disagreement with his girlfriend. Bernice was not at home, but he understands that the police attended because a neighbour had called them. Charges of some kind were laid presumably against Tony, but they were ultimately dropped.

[77] It would appear to be commonplace to use profanity and aggressive language in Mr. Vranic's presence and sometimes directed at him in Bernice's home. Bernice herself admitted on cross-examination to the arguing occurring in the house and admitted to certain acts of violence among her children. She admitted that there are periodic arguments among the children, maybe twice a month, consisting of shouting, swearing and throwing objects.

[78] She recounted, for example, on one occasion Mario broke down his sister's door. On another, Tony kicked in her door. She says that these incidents do not upset her father and that he just tells the children to stop because he "understands how children are." I should point out that these children are adults.

[79] Bernice's daughter Anita is a college student. She swore an affidavit in response to Mario's affidavit denying there was yelling, screaming or fighting between she, her mom and Tony on a daily basis and denying that she speaks to her grandfather in an abusive or offensive manner. It is difficult to reconcile all of the contradictions in the affidavits concerning the atmosphere of Bernice's house. However, I have chosen to treat most cautiously Bernice's evidence on this topic as well as on other controversial subjects. I was able to observe her on cross-examination, and I found she was not a straightforward witness, and that tainted her credibility overall. In that Anita aligns herself with her mother, I have discounted her evidence too.

[80] It is evident that Bernice does not consider the dynamics of her household to be particularly disturbing or out of the ordinary ─ but, of course, they are. It is difficult to see how such an environment could be nurturing and beneficial to Mr. Vranic.

[81] Bernice's opposition to her siblings being appointed committee of their father's person has, at its root, her professed concern that they would remove their father from her home and plunk him into a long-term care facility.

[82] While it is true that neither Nina nor John have offered to take their father into their own homes, I find that they genuinely have their father's interests at heart and that in pursuance of that, they would be prepared, if appointed as co-committees, to give considerable deference to the opinion of a geriatric social worker as to how to best meet their father's social and emotional needs and assessment of where he should live, including leaving open the prospect that it might be best for him to remain at Bernice's, at least for now.

[83] Indeed, they proposed that course of action to Bernice during the court hearing in August. At that time, John and Nina put forward the name of a particular geriatric social worker at Diamond Geriatrics and at the same time invited Bernice to suggest another to carry out such an assessment. Bernice appeared to agree and an appointment was arranged. Prior to the appointment, Bernice's counsel advised that Mr. Vranic would not be attending. The input of a geriatric social worker was again put forward by Nina and John at a subsequent hearing. At the December 14 hearing, I urged Bernice to co-operate in that approach, and she appeared to indicate she was going to do so. In January, her counsel advised she would not agree to any such assessment.

[84] Another proposal made by Nina and John and rejected by Bernice was that the CEO of Solus Trust act as the sole committee of their father's person. This proposal was made in consultation with that CEO who had agreed to act and was made in an effort by John and Nina to bring this dispute to a close. I indicated that I would be reluctant to appoint a stranger as committee of Mr. Vranic's person.

[85] Nina and John also proposed that if they were appointed co-committees, that the court direct they retain a geriatric social worker to conduct an assessment of Mr. Vranic's needs and provide a report setting out his recommendations, including recommendations on where he should live. They suggested that they would provide a copy of that report to Bernice and that if any of the parties wanted to show why recommendations ought not be followed, they would have leave of the court to bring an application. What strikes me as noteworthy is in making these proposals, Nina and John were plainly not acting in their own self-interests and were attempting to balance the competing interests of the parties against the need to resolve the litigation in which they perceive to be their father's best interests. There is an absence in Bernice's conduct of comparable features of selflessness and reasonableness.

[86] Bernice deposes that in or around March 2006, she offered to John and Nina that the three of them take care of their father on a rotating basis of four months each, but that her siblings had rejected it. The putting forth of such a proposal by Bernice is denied by John and Nina, and I accept their evidence on the point. It is completely at odds with the uncompromising position taken by Bernice throughout these proceedings. Through her counsel, she has insisted that there was no middle ground.

[87] I find Bernice has refused and actively frustrated her siblings' reasonable attempts to maintain healthy contact with their elderly father. She has hindered, impeded and prevented visits. She has failed to return calls from her siblings in relation to visitation. She has not been home at the appointed visit times. She has failed to make efforts to arrange alternate dates for visits. She has attended with Mr. Vranic during at least one of the visits which caused disharmony, and she has failed, and this is most unimpressive, to comply with straightforward court orders concerning specific visits between her father and two of his children.

[88] Similarly, Bernice has frustrated her siblings' participation in their father's physical care in which they clearly have demonstrated a desire to participate. It is my view that Bernice has manipulated the fact that her father resides in her home as a tool to control whether and when John and Nina are permitted to see him. She says she is just carrying out her father's wishes, but I find that the medical evidence indicates that in all likelihood, he lacks the capacity to truly formulate those wishes, and to the extent he expresses them, I find that by consistently painting her siblings in a negative light as wanting to throw him in an old folk's home, Bernice has contributed to her father feeling a sense of unease around John and Nina. Either way, I find that the convenient excuse which Bernice offers to justify her father not seeing John and Nina is not valid.

[89] I am deeply troubled as well by Bernice's repeated characterizations to her father that her siblings just want to put him in a home. It is an unfairly simplistic characterization of John and Nina's true intentions with respect to their father. I infer that by doing this Bernice has created an apprehension and maybe even an anxiety in her father about the motivation of his two other children in wanting to see him. In this way, she has considered it acceptable to create and sustain fear in her elderly, ill father as a means of controlling the situation in a manner which she perceives to be in her favour.

[90] Also revealing is Bernice's refusal to allow her father to be seen by a geriatric social worker to assess whether Mr. Vranic's social and emotional needs are being met in her home. There was no rational explanation given for her refusal. Such an assessment may well have eased her siblings' concerns a long way back about their father's care. Even if the social worker were to conclude that Mr. Vranic's needs are being met in Bernice's home, he or she may have been able to make suggestions for other activities or steps which could be undertaken to enhance Mr. Vranic's life. I would expect the social worker would know of resources in the community which would have been available to Mr. Vranic, of which the parties might not be aware. From Mr. Vranic's standpoint, there was no down side to this proposal. It could only potentially benefit him and yet Bernice has steadfastly refused. I think two inferences can be reasonably drawn from Bernice's guarded conduct in this regard. Either she is concerned that Mr. Vranic's needs are not being met and this deficiency will be exposed by the social worker, or she is refusing to co-operate simply on account of some kind of need to maintain control over her siblings. I do not know her motivation but, either way, her actions are not in his best interests.

[91] The test for selecting an appropriate committee is determined on the court's assessment of who will serve the patient's best interests: Public Trustee v. Thomas James Pollen, [1996] B.C.J. No. 2394; Re Watson, [2006] B.C.J. No. 709, 2006 B.C.S.C. 503; Re Leeming (1984), 14 D.L.R. (4^th) 315 (B.C.S.C.); Re Rempel, [2001] B.C.J. No. 1036, 2001 B.C.S.C. 735. Under the current legislative scheme, a declaration of incapacity and the appointment of a committee has the effect of being a blunt order which results in a far-reaching fundamental loss of an adult's liberties. The “best interests” test is a familiar one in law and, in particular, in the judicial determination of issues which affect children.

[92] For sound reasons, that standard quite properly reflects the protective approach of the court in dealing with matters which affect children. Although the test by the same name applies in considering the appointment of a committee for a mentally incapacitated adult, its application requires a more nuanced approach which acknowledges and takes into consideration issues concerning the adult's autonomy, his personal dignity, his idiosyncrasies and the way he has chosen to live his life while capacitated. It also takes into account most assuredly any wishes he has validly expressed while mentally competent or lucid about who he would like to act as his committee or otherwise make decisions on his behalf.

[93] These factors should also inform the manner in which a committee performs his or her duties. Additional important factors the court is to consider are, the proposed committee's previous involvement with the patient or his family, the proposed committee's knowledge and understanding of the patient's situation and needs, the proposed committee's level of experience or capability in performing the duties of committee, any kind of plan or scheme of the proposal committee for the management of the patient and any potential conflict of interest between the proposal committee and the patient. Re West (1978), 2 N.B.R. (2d) 686 S.C.A.D. ; Re Taylor (1982), 13 E.T.R. 168 (B.C.S.C.); Re Watts, [2002] B.C.S.C. 1331 (Master); Finlay v. Finaly (1997), 16 E.T.R. (2d) 216 (B.C.S.C.).

[94] There has been a tendency in this case to merge the issue of where Mr. Vranic ought to live at this particular stage of his life and illness, with the issue of who should be appointed his committee of person. While there is an obvious overlap of the considerations pertinent to both, they are distinct matters. It may be that living at Bernice's home best suits Mr. Vranic at this time, but it does not follow that Bernice is therefore the best person to be appointed as committee of his person.

[95] The determination of where an incapacitated adult should live is merely one of the many decisions to be carefully made from time to time by the committee of a person. As circumstances change and the adult's impairment progresses and perhaps necessitates different levels of care, the appropriate place of residence may well change and the committee of person is duty bound to address the matter in the best interests of the adult.

[96] Bernice has acted on her father's behalf under a power of attorney for two and a half years. She has been neglectful in her accounting of handling his finances, which are extremely straightforward assets, and has repeatedly failed to comply with court directions concerning the minimum contents of her accounts and with court ordered deadlines for the delivery of them. Her preliminary accounting indicated that as attorney, she may have taken for herself personal financial benefits from the assets. For example, it was eventually clarified by Bernice that she did not actually charge her father $750 per month in rent as she stated in one of the versions of her accounts. Rather she had withdrawn thousands of dollars from his funds in a lump sum to facilitate the purchase of a personal vehicle and then decided to spread it out over several months and characterize it as a rent expense. Even though she had not been charging her father rent, Bernice referred to the fact that she was charging him rent with no further clarification in one of her affidavits. I wish to be clear that there is insufficient evidence before me to make any kind of determination of wrongdoing by Bernice as attorney, and such a finding is beyond the scope of this application. However, there were a number of expenditures by Bernice which raise concerns and call for an explanation. John and Nina’s concerns in relation to such expenditures have been compounded by Bernice’s inability or refusal to provide a full and complete accounting despite being repeatedly ordered to do so.

[97] I am doubtful that if appointed committee of her father's person, Bernice would be able to discharge her committeeship powers at large or as contemplated by s. 18 of the Patients' Property Act. It is my concern that if appointed, Bernice would not exercise her duties and powers in a selfless matter demanded of a fiduciary and would not strive to serve her father's best interests emotionally or socially, especially with regard to his other two children. I expect she would continue to block a professional assessment by a geriatric social worker as well. In my view, it is in Mr. Vranic's best interests that John and Nina be appointed co-committees of his person and I make that order.

[98] In keeping with their proposal, I direct that Nina and John arrange for a geriatric social worker to conduct an assessment of Mr. Vranic's emotional and social needs and to prepare a report setting out those recommendations in that regard, including recommendations, if he has any, on the place where Mr. Vranic should reside. All reasonable costs, if there are any in relation to obtaining such an assessment, are to be paid out of Mr. Vranic's estate. Nina and John are further directed to provide a copy of the report of the social worker to Bernice promptly upon receiving it.

[99] I am not prepared to go so far as to make a show cause order of the kind proposed by Nina and John. As co-committees of their father's person, they are obligated to discharge their fiduciary duties. If Bernice wishes to challenge whether they are carrying out such duties properly and in the best interests of their father, she is free to involve the Office of the Public Guardian and Trustee or bring an appropriate court application. Should any such application be brought within the next twelve months, I am seized of it.

[100] Likewise, if Bernice refuses to reasonably co-operate in the carrying out of the assessment and will not permit access to her home, Nina and John are at liberty to bring a motion before me. Having said that, although I cannot predict, it is not my expectation that Nina and John are going to uproot their father prior to such an assessment being conducted. That would be of concern to me.

[101] I will close with comments about costs. Nina and John seek to have their costs paid on a solicitor and own client basis either out of their father's estate or by Bernice personally. In my view, this is an appropriate case on the authority of Royal Trust v. Clarke for Nina and John to be paid their reasonable costs and expenses of and incidental to the petition out of Mr. Vranic's estate. I intend that the costs are to capture all hearings.

[102] It seems to me that in the early hearings, Bernice was engaged in this litigation largely to protect the interests of her father. But her dilatory accounting and conduct in violation of court orders needlessly prolonged the length of a number of these hearings. Her personal agenda loomed large in the hearings on November 23, December 14 and February 14 in particular. Therefore, I order that Bernice is entitled to her costs and expenses of and incidental to the hearings in August and October out of Mr. Vranic’s estate, and that she may have 50% of such costs in respect of the November 23 hearing and nothing further.

“The Honourable Madam Justice Ballance”

June 24, 2008 – Revised Judgment

Corrigendum to the Oral Reasons for Judgment issued advising that the phrase “chosen to life his live” appearing on the fifth line of paragraph 92 should read “chosen to live his life”.

Additionally, the last three lines of the final sentence in paragraph 93 should read “duties of committee, any kind of plan or scheme of the proposed committee for the management of the patient and any potential conflict of interest between the proposed committee and the patient.”