



COURT OF APPEAL FOR ONTARIO

CITATION: Roelandt v. Roelandt, 2016 ONCA 858

DATE: 20161115

DOCKET: C61455

Weiler, Rouleau and Roberts JJ.A.

BETWEEN

Kenneth Roelandt

Appellant (Applicant)

and

Yvonne Roelandt, Martina Roelandt, Nelly Burwell
    and the
Public Guardian and Trustee

Respondents (Respondents)

Ian McLean, for the appellant

James McIlhargey, for the respondent, Yvonne Roelandt

Mary E. Cull, for the respondent, Martina Roelandt

Philip Cornish, for the respondent, Nelly Burwell

Heard: November 7, 2016

On appeal from the order of Justice I.F. Leach of the Superior Court
    of Justice, dated November 16, 2015, with reasons reported at 2015 ONSC 6874.

ENDORSEMENT

[1]

‎The appellant appeals the application judges order, appointing
    Yvonne Roelandt (Yvonne) and Nelly Burwell (Nelly) as the guardians of property
    and personal care for Martina Roelandt (Martina).  Martina, Nelly and the
    appellant are Yvonnes three children.

[2]

There is no dispute that Martina is incapable of managing her property
    and personal care. Martina is now 57 years old. She needs help with nutrition, dressing
    and bathing, and requires 24-hour supervision. She is unable to make decisions
    on her own. Her medical history is complicated and she takes medication for a
    number of conditions, including epilepsy, which she is unable to administer on
    her own.

[3]

With the exception of one year, from December 2013 to December 2014,
    when she resided in North Bay with the appellant and his wife, Julie, Martina
    has lived with her mother who is 86 or 87 years of age. In December 2013,
    Martina and her mother lived in Goderich when her mother became ill and was
    hospitalized. Her mother arranged for Martina to stay with neighbours whom
    Martina knew well. Upon learning of Yvonnes illness, the appellant and his
    wife took Martina to live with them in North Bay. When Yvonne left hospital,
    the appellant refused to return Martina to her care on the basis that it was
    better for Martina to live with him and his wife in North Bay.

[4]

The appellant subsequently commenced an application on February 18, 2014
    to be appointed Martinas guardian of her property and personal care, which
    Yvonne opposed. Yvonne brought a counter-application to be appointed together
    with Nelly as Martinas guardian.

[5]

In the course of the proceedings, Martina returned home for a visit with
    her mother in December 2014. At the end of the visit, Yvonne refused to return
    Martina to North Bay although she had agreed to do so as a precondition to the
    visit. In light of complaints made by Martina to Yvonne and Nelly about her
    care in North Bay and about her wanting to come home to her mothers care, Yvonne
    felt, that as her mother and the person with whom Martina had always lived, it
    was in Martinas best interests to stay with her. Martina has resided with her
    mother since that time.

[6]

The appellant does not allege that the application judge misstated the
    relevant principles of law and acknowledges that the overarching consideration
    is Martinas best interests. The appellant essentially takes issue with the
    application judges findings of fact. In his submission, those findings were
    unreasonable, unfairly disregarded the appellants evidence, and did not
    consider Martinas best interests. In the appellants view, it was apparent
    that he had presented the best management plan. The appellant submits that the
    application judges criticisms levelled against him and his wife were unfounded
    and biased.

[7]

We do not accept the appellants submissions. On the evidence, the
    application judges findings were available to him, including his finding that the
    actions taken by the appellant and his wife were financially motivated.

[8]

The application judge carefully and thoroughly considered and weighed
    the parties differing accounts of relevant events, including the history of
    family relations and interactions, and Martinas treatment while in her
    mothers care, compared with her stay with the appellant and his wife. Where
    the various accounts were at variance, he preferred the evidence proffered by
    Yvonne, Nelly and the objective witnesses who were not family members, and, as
    far as he could ascertain, Martinas own expressed desire to remain with her
    mother. The unvarnished language he used in making his findings does not meet
    the test for apprehension of bias or bias.

[9]

The appellant submits that the application judge erred in failing to
    give more weight to the appellants management plan. We disagree. The
    application judge scrutinized the parties respective management plans. In
    particular, he noted the discrepancies between the appellants proposed care
    for Martina and the reality of the care that she received in North Bay. Those
    discrepancies included the lack of contact permitted between Martina and her
    mother while she was with the appellant in North Bay and the fact Yvonne was required
    to forward monies for Martinas care during that time. He also considered the appellants
    proposed deficit spending for Martinas care. Again, those findings were open
    to the application judge.

[10]

In sum, having reviewed the relevant legal principles, the application
    judge applied them to the evidence before him and concluded that it was in
    Martinas best interests to have Yvonne and Nelly appointed as her guardians of
    property and personal care. We see no basis to interfere with the application
    judges decision.

Disposition

[11]

For these reasons, the appeal is dismissed.

[12]

Costs to the respondents as follows:

i.

Nelly Roelandt:  $1,250.00;

ii.

Yvonne Roelandt:  $750.00;

iii.

Martina Roelandt:  $1,865.18.

K. Weiler J.A.

Paul Rouleau
    J.A.

L.B. Roberts
    J.A.


