IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Fraser v. Fraser,

 

2008 BCSC 1733

Date: 20081218
Docket: S106266
Registry: New Westminster

Between:

Gordon Fraser

Petitioner

And

Andrew Fraser, Colin Reid Fraser,
Wilma Tunold, Andrew James Fraser,
Michael Roberge, Janette Roberge

Respondents


Before: The Honourable Madam Justice Bruce

Reasons for Judgment

Counsel for the Petitioner

J. Iida

Counsel for Andrew Fraser, Colin Fraser, & Andrew James Fraser

D. Goodwin

Date and Place of Trial/Hearing:

December 12, 2008

 

New Westminster, B.C.

INTRODUCTION

[1]                The petitioner, Gordon Fraser, applies for a declaration under s. 3 of the Patients Property Act, RSBC 1996, c. 349 that Andrew Fraser Sr. is incapable of managing his person and his affairs. Further, Gordon Fraser seeks to be appointed the committee of the estate and person of Andrew Fraser Sr.

[2]                While the respondents do not oppose a declaration that Andrew Fraser Sr. is incapable of managing his affairs and his person, they dispute the petitioner’s application to become the committee for Andrew Fraser Sr.  The respondents, Andrew James Fraser and Colin Reid Fraser, have also petitioned to be appointed joint committees for Andrew Fraser Sr.’s person and estate.

[3]                At the outset of the hearing Gordon Fraser advised the court that he would consent to an order that the Public Guardian and Trustee be appointed the committee of Andrew Fraser Sr.’s estate which would limit his authority to committee of his person. The respondents also oppose this application.

[4]                The Public Guardian and Trustee was notified of these proceedings and does not oppose the declaration sought by the petitioner and the respondents. The Public Guardian and Trustee is willing to act as the committee for the estate but not the person of Andrew Fraser Sr. If an order is made appointing either the petitioner or the respondents as the committee, the Public Guardian and Trustee submits that it should include a restriction on the committee’s ability to dispose of and encumber the real property belonging to the patient.

[5]                There are four medical opinions before the court that attest to the inability of Andrew Fraser Sr. to manage both himself and his affairs due to untreatable vascular dementia. These include the affidavit of Dr. Caroline Petrossian dated February 27, 2007, the affidavit of Dr. Baldev S. Sanghera dated March 5, 2007, the affidavit of Dr. Michael O’Connor dated February 28, 2007, and the affidavit of Dr. Ian Cameron dated September 9, 2008. Based upon these medical opinions I find that Andrew Fraser Sr. is a patient within the meaning of s. 3 of the Patients Property Act and is incapable of managing his person and his affairs.

[6]                The issue in dispute is the appropriate committee for the estate and person of Andrew Fraser Sr.

BACKGROUND

[7]                Andrew Fraser Sr. is the biological father of five children: Andrew, Colin, Wilma, Gordon and Marion. He is also the adopted father of Marion’s two children, Michael and Janette Roberge. Marion passed away two years prior to this application and Andrew Fraser Sr.’s wife Isabella died in June 2001.

[8]                The proper care of Andrew Fraser Sr., as well as the management of his property, is at the heart of this acrimonious dispute among the members of the Fraser family. For several years both Isabella and Andrew Fraser Sr. required the assistance of family members in regard to personal care and financial management due to their precarious health situations. Over the years the family members have argued about decisions made and actions taken by one or more siblings as not being in the best interests of their parents.  

[9]                From the time of Isabella’s death in 2001 until in or about January 2007, Gordon Fraser and his wife Ann took responsibility for their father’s care. Gordon Fraser was given power of attorney over his father’s assets and bank accounts and both he and Ann moved into a house owned by Andrew Fraser Sr. and located on 7th Avenue in New Westminster. When Gordon and Ann moved out of the house in May 2006, they had two close friends move into their suite to look after Andrew Fraser Sr.  Pam and Dan Nerbus remained the primary caregivers until January 2007 when Janette Roberge took over this responsibility. In November 2007 Andrew Fraser Sr. moved into a long term care facility and he continues to reside there at the present time. The expectation is that Andrew Fraser Sr. will reside in the long term care facility permanently.

[10]            Accusations of undue influence, want of proper care, theft, fraud, and other acts of dishonesty have been levelled against Gordon Fraser and in turn he has made accusations of false statements and improprieties by his siblings. Many affidavits have been filed in support of these applications and it is apparent that all of the material facts are in dispute.

[11]            The allegations of impropriety against Gordon Fraser and his wife are primarily related to the exercise of pressure and undue influence over his father resulting in the transfer of a property located on Hamilton Street in New Westminster, the alienation of Andrew Fraser Sr. from other family members, misappropriation of monies and other personal property owned by Andrew Fraser Sr., the appropriation of financial advantages over the estate of his father by use of the power of attorney, the failure to pay rent for the use of the 7th Avenue residence, and carrying out unauthorised and defective renovations to the 7th Avenue property causing a diminution in its value.  All of these allegations are disputed by Gordon Fraser and his wife Ann.

[12]            The allegations against the respondents include a failure to participate in the care of Andrew Fraser Sr. due to lack of interest, attempts to use undue influence to obtain money from Andrew Fraser Sr., a lack of proper care over the person of Andrew Fraser Sr. since January 2007, misappropriation of monies from the estate, and making false accusations against Gordon and Ann to alienate him from Andrew Fraser Sr. and thereby gain a financial benefit from the estate. The respondents deny these allegations.

[13]            In October 2006 Andrew Fraser Sr. retained Donald McLellan, a senior lawyer in New Westminster, for advice in respect of his will. Andrew Fraser Sr. also expressed to Mr. McLellan a concern that Gordon Fraser was pressuring him to move out of the house on 7th Avenue and into a care facility contrary to his wishes. While Andrew Fraser Jr. brought Mr. Fraser Sr. to the office, he did not participate in the meetings with Mr. McLellan.

[14]            Mr. McLellan deposes that Andrew Fraser Sr. had concerns that his will did not distribute his estate to all of his children. The will drafted by Gordon’s wife Ann left out bequests to Michael and Janette Roberge. He was also concerned about his property on Hamilton Street and was unaware that Andrew Fraser now owned a 100% interest in that property. Lastly, Andrew Fraser was concerned that his pension monies were being deposited into an account that he held jointly with Gordon Fraser.

[15]            Addressing all of these matters. Mr. McLellan drafted a new will for Andrew Fraser Sr. that removed Gordon Fraser and his wife Ann as executors, had Andrew Fraser Sr. revoke Gordon Fraser’s power of attorney as of January 2007, and arranged for the pension monies to be deposited into a bank account in Andrew Fraser Sr.’s name alone. Lastly, Mr. McLellan attended to the signing of a nomination of committee under s. 9 of the Patients Property Act. In this document, dated January 3, 2007, Andrew Fraser Sr. nominated Andrew James Fraser and Colin Reid Fraser as joint committees of his person and estate. In regard to Andrew Fraser Sr.’s capacity to understand the s. 9 nomination, Mr. McLellan makes the following comments at paras. 26 and 27 of his affidavit dated August 1, 2008:

26.       At all times when I have dealt with Mr. Andrew Fraser Senior, he has recognized who I am, acknowledged that I represented him, and only him, that he has been oriented as to time and place, has had all legal documents prepared by me, read to him, and he has been requested to confirm that those are his instructions that he has done; and

27.       … the Section 9 Nomination under the Patients Property Act prepared in accordance with Mr. Andrew Fraser Senior’s instructions, and explained to him. He confirmed that he understood that he was designating Andrew James Fraser and Colin Reid Fraser to be appointed in the event that he needed someone appointed to care for him.

[16]            At Mr. McLellan’s request, Dr. Cameron, who has been Andrew Fraser Sr.’s attending physician since November 2007, examined him to determine if he was capable of understanding the s. 9 nomination. While Dr. Cameron concluded Andrew Fraser Sr. was not capable of managing his person or his affairs, he believed his patient had sufficient understanding of who he was appointing to manage his affairs and what that meant. In short, the doctor found Andrew Fraser Sr. had the capacity to designate someone to carry out these duties.

[17]            Apart from Gordon Fraser, no one in the immediate family opposes Andrew and Colin’s application to become joint committees over the estate and person of Andrew Fraser Sr. In contrast, no one in the immediate family supports Gordon Fraser’s application to become his father’s committee.

DISCUSSION

[18]            Section 9 of the Patients Property Act establishes the prerequisites for a valid nomination by the patient as follows: (a) the nomination was signed at a time when the person was of full age and of sound and disposing mind; and (b) the nomination was executed in accordance with the Wills Act.

[19]            In this case the nomination is in writing and is signed by Andrew Fraser Sr. in the presence of two witnesses. Thus it meets the requirements under the Wills Act. Although it is apparent the nomination was signed at a time when Andrew Fraser Sr. was not capable of managing his affairs or his person, I am satisfied, based upon Dr. Cameron’s opinion, that he was, at the relevant time, capable of understanding the nomination and selecting whom he wished to manage his estate and person.

[20]            There is a qualitative difference between managing one’s business affairs and attending to one’s daily care needs and choosing who among family members one wishes to have in charge of those matters. Similar to testamentary capacity, I find the patient’s awareness and understanding does not have to be at a very high level to designate a family member to be in charge of their affairs. The patient need only know what his wishes are in that regard. See, McLean v. Gonzalez-Calvo, 2007 BCSC 646 at paras. 53-55.

[21]            Once the prerequisites to a valid s. 9 nomination are satisfied, the court must appoint the nominee as the committee “unless there is good and sufficient reason for refusing the appointment.” In this case, there is no doubt that the acrimonious relationship between Gordon Fraser and his siblings will not abate with the appointment of his brothers as joint committees. From the material before me there is obviously a complete lack of trust among the family members. It is also apparent that Andrew and Colin Fraser are contemplating litigation against Gordon in respect of the Hamilton Street property transfer and the renovations carried out at the 7th Avenue residence. As committees they may choose to commence an action against Gordon in the name of their father or his estate. On the other hand, if Gordon Fraser were appointed committee he would have no incentive to commence an action against himself on behalf of his father. He would also have no incentive to engage in a retrospective accounting to uncover any financial improprieties with respect to the handling of his father’s assets pursuant to the power of attorney.

[22]            It is not in anyone’s interest to fuel the flames of disagreement among these family members. It is clearly not in the best interests of Andrew Fraser Sr. to allow his estate to fund expensive litigation that may prove to be frivolous. On the other hand, Gordon Fraser may be in a conflict of interest position as committee of his father’s estate. I assume the existence of this conflict of interest underlies his consent to have the Public Guardian and Trustee act as committee of the estate. However, the public management of an estate is a costly choice particularly when the value of the estate is modest. In this case the only asset of substantial value in the estate is the patient’s home on 7th Avenue in New Westminster.

[23]            On balance, I am satisfied that Andrew Fraser Sr.’s nomination of Andrew James and Colin Reid Fraser as joint committees of his estate and his person should be confirmed. There are potential risks to the estate; however, they may be overcome by specific limitations on the authority of the committees.

[24]            If I am wrong in concluding that the s. 9 nomination is valid, I would in any event reject Gordon Fraser’s application to become committee for his father’s person and estate in favour of his brothers’ application. The entire family opposes Gordon’s application. In addition, there are unresolved financial issues that place Gordon Fraser in a conflict of interest position with regard to the estate. On the other hand, apart from Gordon, all of the family members support the respondents’ application. 

[25]            Accordingly, I confirm the appointment of Andrew James Fraser and Colin Reid Fraser as joint committees over the estate and person of Andrew Fraser Sr. subject to the following conditions:

1.         The committees shall not commence any legal proceedings in the name of Andrew Fraser Sr. or his estate without the written consent of the Public Guardian and Trustee and the said committees shall be bound by the conditions imposed by the Public Guardian and Trustee in respect of any proposed legal proceedings;

2.         The committees shall not sell, transfer or otherwise dispose of or encumber any real property in which Andrew Fraser Sr. has an interest, regardless of the nature of the interest, without first obtaining the written consent of the Public Guardian and Trustee and, further, the said committees shall be bound by any conditions imposed by the Public Guardian and Trustee in respect of any proposed sale, transfer or other disposition or encumbrance of the real property of Andrew Fraser Sr.

3.         In addition to the requirements imposed by the provisions of the Patients Property Act, the committees shall make quarterly reports to Gordon Fraser, Wilma Tunold, Michael Roberge and Janette Roberge in respect of all actions taken and expenditures made in their capacity as committees of the estate of Andrew Fraser Sr.

[26]            The respondents, Andrew Fraser Jr. and Colin Fraser, are entitled reimbursement for the costs related to their application and these are to be paid out of the estate as special costs. The estate would be required to bring on this application in any event and thus should be responsible for the costs. The respondents’ application was made longer and more complicated, however, by the petitioner’s claim and his opposition to the respondents’ application. Thus, following the ratio of Re: Loewe Estate 2008 BCSC 1663, the respondents are entitled to the costs of defending the petitioner’s application which are payable by the petitioner at scale B.

“Bruce J.”