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COURT OF APPEAL FOR ONTARIO

CITATION: Childs v. Childs, 2017 ONCA 516

DATE: 20170620

DOCKET: C61581 and C62716

Gillese, Huscroft and Trotter JJ.A.

BETWEEN

Michael Childs and Andrew Childs

Applicants

(Respondents)

and

Peter Childs
,
Caroline
    Childs
and the Public Guardian and Trustee

Respondents (Appellants)

AND BETWEEN

Peter Childs and
Caroline Childs

Applicants

(Appellant)

-and-

Michael Childs, Andrew Childs, Eileen Vera Childs
    and the Ontario Public Guardian and Trustee

Respondents

(Respondents)

Peter Childs and Caroline Childs, in person

Michael Childs and Andrew Childs, in person

Alexandra V. Mayeski, for BMO Trust Company

Debra Stephens and Kaylie Handler, for the intervener
    Wendy Griesdorf

Richard Coutinho, for the Public Guardian and Trustee

Heard: May 4, 2017

On appeal from the decision of Justice Gary W. Tranmer of
    the Superior Court of Justice, dated June 25, 2015, and the judgment dated December
    16, 2015, with reasons reported at 2015 ONSC 4036 and at 2015 ONSC 6616.

By the Court:

[1]

Eileen Vera Childs (Mrs. Childs) is 90 years
    of age and has Alzheimers disease.  These two appeals are the culmination of
    protracted litigation by her four children, who disagree about her care.

BACKGROUND

[2]

Mrs. Childs was born on September 15, 1926.  She
    is currently 90 years of age and has Alzheimers disease.  She has four
    children:  Peter Childs, Caroline Childs, Michael Childs, and Andrew Childs. 
    For ease of reference, we will refer to each of the children by his or her first
    name.

[3]

The four children do not agree on how their mother
    should be cared for.  Generally speaking, Peter and Caroline are on one side of
    the dispute and Michael and Andrew are on the other side.

The Applications

[4]

Two proceedings were commenced in the court
    below (the Applications).

[5]

Michael and Andrew brought an application in
    which they sought, among other things: a declaration of Mrs. Childs
    incapacity; a revocation of existing powers of attorney in favour of all four
    children; and, their appointment as guardians of their mothers personal care
    and property.  The named respondents were Peter, Caroline, and the Public
    Guardian and Trustee (the PGT).

[6]

Peter and Caroline responded with an application
    in which they sought to have Peter appointed as guardian of Mrs. Childs
    property and Caroline as her guardian for personal care.  In addition, they
    sought the appointment of counsel for their mother under s. 3 of the
Substitute
    Decisions Act
, 1992,
S.O.
    1992, c. 30 (the SDA).

[7]

An order was made requiring the PGT to arrange
    for legal representation for Mrs. Childs under s. 3 of the SDA.  Pursuant to
    that order, Ms. Wendy Griesdorf was appointed as s. 3 counsel to represent Mrs.
    Childs (Section 3 Counsel).

[8]

The Applications were heard together on June 18, 2015.  Prior to the
    oral hearing of the Applications, almost all of the issues had been resolved on
    consent.  The only outstanding matter in dispute (aside from costs of the
    litigation) was how much Caroline should be paid for her care of Mrs. Childs. 
    There were two aspects to this matter: should Caroline be compensated for the
    care she had provided to her mother from June 2011 to October 2013 and from
    April 23, 2015 to the date of the hearing; and, how much should Caroline be
    paid on an ongoing basis for providing that care?  At the hearing, Caroline
    sought $133,000 for the care that she had provided from June 2011 to October
    2013 and $170.22 per day for the care that she had provided from April 23, 2015
    to the date of the hearing. She also sought $53,620 in annual compensation for
    caring for her mother going forward.

[9]

The applications judge released his reasons for decision on June 25,
    2015 (the Applications Decision).  In the Applications Decision:

·

Mrs. Childs was
    found incapable in terms of management of personal care and property,

·

Her deemed
    capable wishes were as set out in Section 3 Counsels submissions,

·

Caroline was
    appointed guardian of personal care for Mrs. Childs,

·

BMO Trust Company
    (BMO) was appointed guardian of property for Mrs. Childs and ordered to pass
    accounts every two years,

·

Michael was
    appointed as Mrs. Childs litigation guardian,

·

Caroline was to
    be paid $25,000 for the care that she had provided for her mother between June 2011
    and October 2013 and the two months preceding the hearing of the Applications,
    and

·

Caroline was to
    be paid compensation of $500 per month going forward.

A Motion to Vary Is Brought

[10]

Five
    days after the Applications Decision was released, in a letter dated June 30,
    2015 (the June 2015 Letter), Carolines counsel advised the parties that
    Caroline was in the process of arranging for professional care for Mrs. Childs
    on a full-time basis.  In the June 2015 Letter, Carolines counsel asserted
    that full-time professional care was being arranged in accordance with the
    terms of the Applications Decision, with Caroline as the supervisor of the
    personal care plan, rather than as the primary caregiver.  The June 2015 Letter
    also stated that given the low amount of compensation provided for Caroline in
    the Applications Decision, Caroline would seek outside full-time employment.

[11]

Section
    3 Counsel brought a motion under r. 59.06(2)(a) of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194, seeking an order to set aside or vary
    Carolines appointment as guardian of Mrs. Childs personal care on the ground
    of new facts arising after the Applications Decision, namely, the June 2015
    Letter.  In the motion, she asserted that Carolines proposal in the June 2015
    Letter was inconsistent with the guardianship plan previously filed. In
    particular, Section 3 Counsel noted that Caroline was now maintaining that she would
    no longer provide such basic necessities for her mother as housekeeping,
    laundry, meal preparation or general property maintenance.

[12]

On
    August 21, 2015, the applications judge gave an oral ruling (the Vary Motion
    Ruling) that the contents of the June 2015 Letter fell within r. 59.06(2)(a) as
    demonstrating facts arising or discovered after the Applications Decision was
    released and, consequently, the vary motion could proceed.

Costs of the Applications

[13]

Before
    the return of the vary motion, in reasons dated September 17, 2015, the
    applications judge released his costs decision in respect of the Applications. The
    corresponding order was dated September 18, 2015 (the Costs Order).

[14]

Section
    3 Counsel had sought costs of the Applications of $55,351. Michael and Andrew
    consented to this amount being paid from Mrs. Childs assets. Caroline and
    Peter asserted that the costs were excessive and should be reduced by 75%. 
    They also alleged misconduct by Section 3 Counsel.

[15]

Both
    sets of children also sought their own costs.

[16]

The
    applications judge noted that all of the issues had been resolved before the
    hearing of the Applications with the exception of Carolines compensation for
    her care of Mrs. Childs and that it was Peter and Carolines decision to
    litigate that issue.

[17]

He
    ordered Peter and Caroline to pay Section 3 Counsel $16,770 in costs, with the
    balance of Section 3 Counsels costs to be paid from Mrs. Childs assets.  He
    also ordered them to pay Michael and Andrew costs of $4522.  Michael and Andrew
    were to bear the balance of their costs personally.  Costs of the PGT were to
    be paid from Mrs. Childs estate.  Peter and Caroline were to bear their own
    costs.

The Vary Motion is Heard and Decided

[18]

The
    vary motion was heard over four days in October and November 2015.

[19]

On
    November 13, 2015, the applications judge delivered reasons in which he ruled
    inadmissible certain evidence that Peter and Caroline had adduced on the vary
    motion, including affidavit evidence about the conduct of Section 3 Counsel as
    well as paragraphs from Caroline and Peters affidavits relating to settlement
    discussions.

[20]

He
    released reasons for judgment on the vary motion dated December 16, 2015 (the
    Vary Motion Decision).

[21]

In
    the Vary Motion Decision, the applications judge rejected Caroline and Peters
    assertion that the June 2015 Letter was simply their attempt to implement the
    Applications Decision.  He found that Caroline and Peters actions had caused
    the litigation to escalate. He varied the Applications Decision by ordering that
    Michael and Caroline were to be joint guardians of Mrs. Childs personal care
    in accordance with a guardianship plan filed by Michael. He reluctantly
    increased Carolines compensation going forward to $50,000 per year, after
    Michael agreed to it and Section 3 Counsel acknowledged that it was required,
    given the situation.

[22]

As
    the parties had not yet taken out an order based on the Applications Decision,
    the applications judge also set out terms for assisting in the settlement of an
    order which took into account both the Applications Decision and the Vary
    Motion Decision.  This led to a judgment dated December 16, 2015 (the
    Judgment).

Costs of the Vary Motion

[23]

On
    April 5, 2016, the applications judge delivered a decision on the costs of the
    vary motion (the Vary Motion Costs Order).  He found that the vary motion was
    necessitated by the actions of Caroline and Peter, who leveraged their
    mothers health and best interests to manipulate a more favourable result to
    Caroline than that which he had ordered in the Applications Decision.

[24]

The
    essential aspects of the Vary Motion Costs Order are:

·

the parties
    consented to an award of $1500 costs to the PGT to be paid from Mrs. Childs
    estate,

·

costs were
    awarded to Section 3 Counsel in the amount claimed of $102,641.29 plus $1238.35
    disbursements, such costs to be paid from Mrs. Childs assets,

·

the costs of Section
    3 Counsel of $16,770 provided for in the Costs Order, which were to have been
    paid by Peter and Caroline, were ordered to be paid from Mrs. Childs assets,

·

50% of the total
    costs payable to Section 3 Counsel were to be set off against Peter and
    Carolines inheritances from their mothers estate,

·

costs in the
    amount of $26,459.20 plus HST were ordered in favour of BMO, to be paid from
    Mrs. Childs assets,

·

50% of the total
    costs payable to BMO were to be set off against Peter and Carolines
    inheritances from Mrs. Childs estate,

·

Michael and
    Andrews costs were fixed at $72,614.98,

·

50% of Michael
    and Andrews costs were to be paid from Mrs. Childs assets and set off against
    Caroline and Peters inheritances, and

·

Caroline and
    Peter were ordered to bear their own costs.

Motion to Compel the Passing of
    Accounts

[25]

On
    November 10, 2016, Peter, supported by Caroline, brought a motion to compel a
    passing of accounts by BMO and Section 3 Counsel (the Passing of Accounts
    Motion).

[26]

In
    an endorsement dated November 10, 2016, the motion judge dismissed the Passing
    of Accounts Motion. He noted that BMO was already subject to the Applications
    Decision, which required it to pass accounts every two years.  He also noted
    that the Applications Decision was under appeal and found that the Passing of
    Accounts motion was a collateral attack on it.

[27]

He
    awarded costs of the motion to BMO ($6200), to Section 3 Counsel ($5000), and
    to Michael, as the litigation guardian ($2000). The costs were ordered to be
    paid out of Mrs. Childs estate, to be set off against Peters expected
    inheritance.

Orders of Feldman
    J.A. made on February 25, 2016

[28]

Feldman J.A. heard two motions in these
    proceedings on February 25, 2017.  Two appeals had been brought:  C62716 and
    C61581.  She ordered appeal C62716, which had been brought to the Divisional
    Court, transferred to this court.  She ordered it to be consolidated with
    C61581 and the two appeals heard together.

[29]

She also granted Section 3 Counsels motion in
    which she asked to be relieved of her role in this court.

The Motions on March
    28, 2017

[30]

Prior to the hearing of the appeals, five more motions were brought
    to this court relating to these appeals.  P
eter and Caroline moved for leave to appeal (1) the Costs Order, (2) the Vary
    Motion Ruling, and (3) the Vary Motion Costs Order.  Peter moved for leave to
    appeal (4) the decision rendered in the Passing of Accounts Motion.  Section 3
    Counsel moved for (5) leave to intervene on the appeals.

[31]

The motions were heard by Simmons J.A. on March
    28, 2017.  Her reasons were released on April 4, 2017 (the Simmons Decision).

[32]

In the first motion,
    Peter and Caroline sought to appeal the Costs Order (which decided costs of the
    Applications).
Simmons J
.A. granted leave to appeal the Costs
    Order only on the issue of Peter and Carolines personal liability for such
    costs and not on the quantum of the costs awarded.  Simmons J.A. also deemed
    struck all submissions and evidence in Peter and Carolines appeals
    documentation relating to the quantum of costs awarded to Section 3 Counsel and
    BMO and to any submissions and evidence not made or filed in the court below.

[33]

In the second motion, Peter and Caroline sought
    an extension of time to appeal the Vary Motion Ruling. Simmons J.A. concluded
    that this motion concerned an appeal from a final order and that permitting the
    appeal would not be redundant in relation to the pending appeals before this
    court.  Although there was no clear evidence that Peter and Caroline had formed
    an intention to appeal the Vary Motion Ruling within the appeal period,
    Caroline had raised issues concerning its propriety in her notice of appeal of
    the Judgment, thereby notifying the other parties within the relevant time
    period.  Simmons J.A. therefore granted the second motion.

[34]

In the third motion,
    Caroline sought leave to appeal the Vary Motion Costs Order. Simmons J.A.
    explained that Caroline should have made this request in a supplementary or
    amended notice of appeal in relation to the appeal of the Judgment, but to
    disregard the request for that reason would be overly technical and contrary to
    r. 1.04 of the
Rules of Civil Procedure
. That provision requires courts to construe the
Rules
to secure the just, most expeditious and
    least expensive determination of every civil proceeding on its merits.
    Therefore, Simmons J.A. granted leave but again precluded a challenge to the
    quantum of costs awarded.

[35]

At the oral hearing of the motions
    on March 28, 2017, Peter withdrew his request, in the fourth motion, for an
    order compelling a passing of accounts by BMO.  However, he pursued the motion
    in respect of Section 3 Counsel.

[36]

Simmons J.A. dismissed
    the fourth motion, noting that Peter had not pointed to any authority
    permitting the granting of this relief.

[37]

In the fifth motion,
    Section 3 Counsel requested leave to intervene on the appeals.  After acknowledging
    that granting such leave is rare in private lawsuits, Simmons J.A. nonetheless
    granted leave.  She did so because Peter and Caroline, in advancing their
    appeals, were making serious allegations concerning Section 3 Counsels conduct,
    which impugned Section 3 Counsels reputation and integrity.  Further, Peter
    and Caroline relied on those allegations in support of other aspects of their
    appeals and separation of the various allegations might prove to be impractical. 
    In the circumstances, Simmons J.A. held that Section 3 Counsel was entitled to
    participate in the appeals to protect her reputational interests.

The Review Motion

[38]

Peter and Caroline moved to set aside or vary
    the Simmons Decision so that:

1.

on the
appeals, they could argue the quantum of the costs awarded to Section 3 Counsel
    and BMO;

2.

the panel hearing the
    appeals would have before it the materials that the Simmons  Decision ordered
    excluded; and

3.

Section 3 Counsels status as intervener on the appeal would be revoked
    and she would be declared a party.

[39]

The panel of this Court hearing the appeals
    ordered that the review motion was to be heard in conjunction with the appeals.

The Review Motion
    Decided

[40]

The review motion was argued at the outset of
    the hearing of the appeals.  After hearing argument, the panel advised the
    parties that the review motion was dismissed for reasons to follow.  These are
    the promised reasons.

[41]

A review of a decision by a single judge of this
    court is a review for error, not a hearing
de novo
. The panel found no error in the Simmons Decision.  Accordingly,
    there is no basis on which to interfere with it.

[42]

First, Peter and Caroline argue that, on these
    appeals, they should be allowed to argue the quantum of costs awarded to Section
    3 Counsel and to BMO in the proceedings below. An award of costs is a discretionary
    matter entitled to significant deference by appellate courts.  Such awards
    should be set aside on appeal only if the first instance judge made an error in
    principle or if the costs award is plainly wrong:
Hamilton v. Open
    Window Bakery Ltd.
, 2004 SCC 9, [2004] 1
    S.C.R. 303, at para. 27.  We see no error in principle in the quantum of costs
    awarded nor can we conclude that they are plainly wrong.  Accordingly, there is
    no basis for interfering with the Simmons Decision precluding Peter and
    Caroline from arguing the quantum of costs awarded in favour of Section 3
    Counsel and BMO.

[43]

Second, there is no basis for interfering with
    the Simmons Decision deeming struck certain parts of the materials that Peter
    and Caroline filed on these appeals.  Those materials related to (1) the quantum
    of costs awarded to Section 3 Counsel and BMO, and (2) evidence that had not
    been filed in the court below.

[44]

As we have explained, the Simmons Decision
    refusing leave to appeal the quantum of costs awarded stands.  Consequently, those
    parts of Peter and Carolines documentation relating to the quantum of costs below
    are not relevant to a matter in issue on the appeals.  For that reason alone,
    there is no basis on which to interfere with the Simmons Decision deeming those
    materials struck.

[45]

As for the documentation that refers to submissions
    and evidence not before the court below, the general rule is that such
    materials are inadmissible on appeal.  Simmons J.A. made no error in adhering
    to the general rule.

[46]

Third, there is no basis on which to interfere
    with the Simmons Decision to permit Section 3 Counsel to intervene on the
    appeal.  That decision was the exercise of Simmons J.A.s discretion and is
    entitled to deference on review by this panel.  Furthermore, Section 3
    Counsels case for intervention was compelling, given the allegations that
    Peter and Caroline make against her in these appeals.


THE ISSUES ON THE APPEALS

[47]

After allowing for the fact that some of the
    issues raised in the two appeals are the same and others are overlapping, the
    issues on the appeals can be summarized as follows.

C62716 (transferred from Divisional Court with file number
    15-DC-2138)

[48]

In
    appeal C62716, Peter and Caroline appeal the Applications Decision.  On this
    appeal, their primary challenges are to: BMOs appointment as guardian of Mrs.
    Childs property; Michaels appointment as Mrs. Childs litigation guardian; and,
    the application judges award of compensation to Caroline for past personal
    care services. They also assert that there is a reasonable apprehension of bias
    on the part of the applications judge. Further, they challenge various factual
    findings made by the applications judge.

C61581

[49]

Appeal
    C61581 is Carolines appeal of the Judgment.  In it, Caroline: challenges her
    joint appointment with Michael to serve as guardians for Mrs. Childs personal
    care and asks for her appointment as sole guardian; seeks a declaration or
    order regarding Section 3 Counsels role as stated in paras. 70 and 93 of the
    Judgment; asserts that the applications judge erred in hearing the vary motion;
    and, asserts that the applications judge erred in finding that Section 3
    Counsel had acted commendably throughout.

ANALYSIS

[50]

In our view, there is no merit to these appeals.
    They are the culmination of unnecessarily protracted litigation that has
    depleted Mrs. Childs estate, wreaked havoc on the emotional and financial
    health of all concerned, wrongfully maligned Section 3 Counsel, and wrongfully
    impugned the applications judge.  It is past time for the litigation over Mrs.
    Childs to end.

[51]

Appellate courts do not rehear or retry
    cases without a clear statutory mandate  they review for error:
H.L.
    v. Canada (Attorney General)
, 2005 SCC 25, [2005] 1
    S.C.R. 401, at para. 52.  The nature of the review undertaken by this court
    depends upon the nature of the issue in dispute and the relevant standard of
    review.

[52]

Many of the arguments made on both appeals are
    essentially challenges to the factual findings of the applications judge.  Such
    findings are subject to the palpable and overriding error standard of review.
    A palpable error is one that is obvious, plain to hear or see. An
    overriding error is an error that is sufficiently significant to vitiate the
    challenged finding of fact. Where the challenged finding of fact is based on a
    constellation of findings, the conclusion that one or more of those findings is
    founded on a palpable error does not automatically mean that the error is
    also overriding:
Waxman v. Waxman
(2004),
    186 O.A.C. 201 (C.A.), at paras. 296-297.

[53]

Because the appeals are largely based on
    challenges to factual findings, Peter and Caroline bear a heavy onus.  However,
    four claims that are advanced on the appeals arguably also raise questions of mixed
    fact and law and, therefore, may be subject to a somewhat less deferential
    standard of review.  These issues are: (1) BMOs appointment as guardian of
    Mrs. Childs property; (2) Carolines claim for increased compensation for past
    personal care services that she provided her mother; (3) whether the
    applications judge erred in hearing the vary motion; and, (4) whether there is
    a reasonable apprehension of bias on the part of the applications judge.  We will
    begin by considering these four claims.

(1)

BMOs Appointment as Guardian of Property

[54]

On this ground of appeal, Caroline
    and Peter assert that they did not consent to BMOs appointment as guardian of
    property.

[55]

This ground of appeal cannot succeed. 
    BMO was appointed as the guardian of Mrs. Childs property on consent of all of
    the parties.  At the time they consented, Peter and Caroline were represented
    by counsel.  In effect, on this ground of appeal, Peter and Caroline seek to
    appeal their own consent.

[56]

For this ground of appeal to succeed,
    Peter and Caroline would have to point to a palpable and overriding error in
    the application judges finding that they consented to BMOs appointment and
    their consent was full and informed.  They have pointed to no such error.

[57]

Furthermore, an appeal from a
    consent order requires leave of the court to which the appeal is to be taken:
Courts
    of Justice Act
, R.S.O. 1990, c. C.43, s.
    133(a).  Leave to appeal was not sought from this court, so this panel must
    begin by considering whether leave should be granted.  We have concluded that
    it should not.

[58]

Consent orders have their
    foundation in contract.  There is great judicial resistance to granting leave
    to appeal consent orders.  Leave should not be granted where the issue relates
    to the validity of the consent unless there is evidence before the court on the
    leave application that demonstrates an arguable case that at the time the
    consent was given, the party could not or did not consent.  Such evidence may relate
    to factors that might undermine the enforceability of contracts, such as fraud,
    duress and undue influence:
Ruffudeen-Coutts v. Coutts
, 2012 ONCA 65, 348 D.L.R. (4th) 64, at
    paras. 59-64.

[59]

Caroline and Peters
    central argument on this ground is that Section 3 Counsel coerced them into
    accepting BMO as property guardian by insisting that she would not advocate for
    removal of Mrs. Childs from Andrews residence until Peter and Caroline
    consented to the appointment. Assuming that to be the case, it does not constitute
    evidence of fraud, duress or undue influence such that leave should be granted.


(2)

Carolines Claim for Increased Compensation for
    Past Care Services

[60]

Carolines claim for increased compensation for
    past personal care services appears to be based on unjust enrichment.  This
    claim may arise from the application judges reference to
Peter v.
    Beblow
, [1993] 1 S.C.R. 980, at p. 984, in the
    Applications Decision.  In that decision, the applications judge
did not

accept that Caroline had any arguable claim in unjust enrichment. He merely
    cited
Peter v. Beblow

as authority empowering
    him to make an equitable resolution of this particular dispute.

[61]

The claim in unjust enrichment fails for the
    simple reason that the applications judge found that Caroline had gratuitously provided
    the care in question for her mother and, indeed, was willing to continue to do
    so.  This finding has compelling support in the record, as discussed in more
    detail below.

[62]

At this point, it is sufficient to note that on June
    17, 2015  one day before the hearing of the Applications  Section 3 Counsel wrote
    to counsel for Caroline to determine whether Caroline was reconsidering her
    guardianship plan proposing that she live in [Mrs. Childs house] if the
    compensation is set lower than she expects. In her responding letter, counsel
    for Caroline wrote: In response to your question, there is no connection
    between the level of compensation that Caroline is requesting and the offer to
    live [in Mrs. Childs house].

[63]

The argument that an offer to live in Mrs.
    Childs house did not amount to an offer to provide Mrs. Childs with personal
    care does not satisfy the palpable and overriding error standard.

[64]

Therefore, this ground of appeal fails.

(3)

No Error in the Hearing of the Vary Motion

[65]

This ground of appeal relates to the
    availability of the r. 59.06(2)(a) motion based on the June 2015 Letter.
    Caroline and Peter submit that, in hearing and deciding the vary motion, the
    applications judge exceeded the scope of such motions, essentially rehearing a
    case he had already heard.

[66]

We see no error in the applications judges
    determination that the vary motion fell within the scope of r. 59.06(2)(a).  The
    applications judge determined that the matter fell within the scope of r.
    59.06(2)(a) because Caroline had clearly indicated to all parties, prior to and
    throughout the proceedings, that she would continue to live with and care for
    her mother in her mothers home on a full-time basis, whether or not her claims
    for compensation for such care were granted by the court.  The applications
    judge had relied on those representations in making the Applications Decision. 
    Carolines intentions, as revealed in the June 2015 Letter, stood in direct contrast
    with those representations.  In the June 2015 Letter, Caroline contemplated
    arranging full-time, 24/7 professional caregivers for her mother while she
    sought outside employment.

[67]

A full and fair reading of the Applications
    Decision shows that, when setting the amount of Carolines compensation, the
    applications judge based it on a finding that Caroline would continue to
    provide personal, unpaid care to her mother.  The following excerpts from the
    Applications Decision demonstrate this.

[32]


In considering this issue, important
    factors include that the care and services performed by Caroline did benefit
    her mother and were in her mother's best interests. She did not act with the
    expectation of being compensated nor was she motivated by the compensation
    possibility.  She would have done the same, compensation or not. Eileen
    Childs is lucky to have her daughter to help her remain in her own home because
    otherwise she could not.  Eileen Childs has significant liquid assets.
     However, her in-home care needs will increase and become significant and
    the cost of the proper facility will be significant.  These expenses are
    in her future in all likelihood.  I have also considered that Peter and
    Michael both thought compensation was appropriate.



[38] The care provided by Caroline to this point in time is of
    priceless value to her mother. One really cannot place a dollar figure on it.
    Even if it enhanced Eileen Childs life for one day or one hour, the value is
    beyond measure.



[42] It is fair and reasonable from the perspective of Eileen
    Childs best interests that Caroline be paid the sum of $25,000 in recognition
    of her efforts, which to some extent two of the three brothers have
    acknowledged. This is for her personal care services for the 2½ years between
    2011 and 2013 and for the past two months since the order of Justice McLean.

[43] This is in Eileens best interests to end this dispute
    between her children.

[44]
Caroline should
    not have brought this claim to court to litigate against her family, but she
    should not have had to do so either. The $150,000 incurred by this family for
    legal fees could have been more constructively utilized within the family. The
    litigation also took a toll on all concerned emotionally. We have heard
    submissions that Eileen is upset by this family feud.

[68]

Given the application judges reliance on Carolines representation
    that she would continue to provide her mother with personal care  with or
    without payment  the statement in the June 2015 Letter that Caroline planned
    to pursue full-time employment outside of the home met the requirements of r.
    59.06(2)(a).

[69]

Caroline and Peter focus on paragraph 46 of the
    Applications Decision for an interpretation that would allow Caroline to cease
    providing much personal care for Mrs. Childs.  On their interpretation, the
    Applications Decision made Caroline the guardian of Mrs. Childs personal care
    and ordered that others were to actually provide Mrs. Childs with most of her personal
    care.

[70]

Paragraph 46 must be read in the context of paragraph
    45 (as well as the balance of the reasons).  Therefore, paragraphs 45 and 46
    are set out now.

[45] With respect to the
    compensation for Caroline as guardian of the personal care of Eileen Childs,
    that is a distinct issue from the direct caregiving that has taken place to
    date.

[46] Going forward as guardian of her mothers personal care,
    Carolines role is as the manager of personal care rather than the primary care
    attendant. There are sufficient assets available to permit proper homecare to
    be provided for Eileen Childs in her home. Caroline will have to manage
    accessing the proper services and care givers and she should do so to provide
    fully for the best interests of her mother.

[71]

Caroline
    and Peters interpretation might be plausible if paragraph 46 were read in isolation. 
    However, when the Applications Decision is read as a whole, it is clear that the
    applications judge meant that the compensation that Caroline was to receive going
    forward was for the services she provided as the guardian of her mothers
    personal care, but while Caroline continued to live in her mothers home she
    was to provide personal care for her mother without compensation.

[72]

For
    these reasons, this ground of appeal also fails.

(4)

No Reasonable Apprehension of Judicial
    Bias

[73]

Peter
    and Carolines allegation of judicial bias rests on the applications judge
    having: (1) given an early indication of his view on the vary motion before
    formally deciding that r. 59.06(2)(a) applied; (2) made an evidentiary ruling
    to exclude some allegations by Caroline and Peter against Section 3 Counsel
    from consideration on the vary motion; (3) rejected Peter and Carolines assertion
    that they had not properly consented to BMOs appointment as guardian for
    property; (4) been gratuitously critical of their submissions and overly
    deferential toward Section 3 Counsel; and (5) allegedly met in private with
    Section 3 Counsel.

[74]

There
    is a strong presumption of judicial integrity. A party who alleges a reasonable
    apprehension of judicial bias must provide the court with cogent evidence that
    an informed person, viewing the matter realistically and practically and
    having thought the matter through would conclude that the judges impugned
    conduct would cause a reasonable apprehension of bias:
R. v. R.D.S.
,
    [1997] 3 S.C.R. 484, at paras. 111-117.

[75]

Caroline
    and Peter have not provided such cogent evidence to this court.  In our view,
    their submissions on this ground of appeal, considered alone and in
    combination, do not rise to the requisite level.

[76]

With
    respect to the first allegation, we observe that a judge is entitled to offer a
    tentative view on a matter such as the one in question.  It is clear from his
    Vary Motion Ruling that the applications judge kept an open mind and decided
    jurisdiction based on the relevant legal principles and the evidence before
    him, which included the evidence led on the Applications.

[77]

The
    applications judge was entitled to exclude some of the allegations made by
    Caroline and Peter against Section 3 Counsel from consideration on the vary motion. 
    Therefore, there is nothing in the second allegation.

[78]

We
    have already considered and rejected the submission relating to BMOs
    appointment as Mrs. Childs guardian of property.  As Peter and Caroline
    consented to BMOs appointment, there is nothing in their submission that the
    applications judges refusal to accept their arguments in that regard
    demonstrates a reasonable apprehension of bias.

[79]

The
    fourth allegation does not hold up to scrutiny. Given the about-face between Carolines
    position on the Applications and that expressed in the June 2015 Letter five
    days after the Applications Decisions release, as well as the applications
    judges findings in the various costs decisions, the applications judges
    criticisms of Caroline and Peter appear well-founded.  They do not displace the
    presumption of judicial integrity.

[80]

We
    flatly reject the fifth allegation  that there was a secret meeting between
    the applications judge and Section 3 Counsel  because, while Peter and
    Caroline make the accusation, they have provided no evidentiary support for
    it.

[81]

Therefore,
    this ground of appeal must also fail.

(5)

The Remaining Grounds of Appeal

[82]

As previously explained, the remaining
    grounds of appeal are all based on challenges to the applications judges
    findings of fact.  They can be summarized as follows.  Caroline and Peter: (a) challenge
    Michaels appointment as litigation guardian and his appointment (jointly with
    Caroline) as guardian for personal care; (b) complain about Section 3 Counsels
    conduct and the applications judges deferential attitude towards her; and (c)
    seek to set aside the costs orders insofar as those orders require Peter and
    Caroline to personally pay certain of the costs awards.  Each of these grounds
    of appeal can be dealt with summarily.

a.
    Michaels Appointment as Mrs. Childs Litigation Guardian and Jointly with
    Caroline as Guardian of Mrs. Childs Personal Care

[83]

In respect of Michaels
    appointment as litigation guardian, the applications judge accepted Section 3
    Counsels recommendation when he appointed Michael, rather than Peter, to fill
    this role. Section 3 Counsel, as Mrs. Childs representative, was well-positioned
    to determine which of Mrs. Childs children was best equipped to serve as Mrs.
    Childs litigation guardian.

[84]

Furthermore, in making the
    appointment, the applications judge exercised a discretionary power and, thus,
    the decision warrants deference by this court.  The allegations against Michael
    on which Caroline and Peter rely do not qualify as palpable and overriding
    errors.

[85]

There is no basis on which to
    interfere with the applications judges order appointing Michael as Mrs.
    Childs litigation guardian.

[86]

The applications judge noted at
    para. 82 of the Vary Motion Decision that Caroline had consented to sharing with
    Michael the role of guardian for Mrs. Childs personal care. We explained
    above, when discussing BMOs appointment as guardian of Mrs. Childs property,
    the law governing an attempt to set aside a court order based on consent.  For
    similar reasons, had leave to appeal this consent order been sought, we would
    not have granted it.

[87]

Accordingly, this ground of appeal
    fails.

b.
    Section 3 Counsels Conduct and the Applications Judges Attitude             
    Towards Her

[88]

Peter and Caroline make a number
    of allegations about Section 3 Counsels conduct during this litigation.  These
    allegations can be summarized as follows: (i) Section 3 Counsels communications
    with Mrs. Childs for instructions were insufficient; (ii) Section 3 Counsel was
    partisan, favouring Michael and Andrew over Caroline and Peter; (iii) Section
    3 Counsel misrepresented information to the applications judge; (iv) Section 3
    Counsel neglected to investigate allegations by Caroline that Andrew had abused
    Mrs. Childs while Mrs. Childs was living in Andrews home; (v) Section 3
    Counsel acted with excessive zeal; (vi) there was an allegedly improper
    relationship between Section 3 Counsel and BMO; and (vii) in pursuit of her own
    pecuniary interest, Section 3 Counsel was the driving force behind this
    litigation.

[89]

Section 3 Counsel makes two
    submissions in response.  First, she says that to respond to these allegations she
    would have to divulge privileged discussions which she had with her client,
    Mrs. Child, contrary to her professional obligations.  This she will not do. 
    Second, she notes that, in his evidentiary ruling dated November 13, 2015, the
    applications judge struck those parts of Caroline and Peters affidavits in
    which they impugned Section 3 Counsels conduct. As Section 3 Counsel notes,
    Peter and Caroline never appealed this ruling.  Therefore, they ought not to be
    allowed to raise it here.

[90]

We accept both submissions of Section
    3 Counsel.  Therefore, Caroline and Peters allegations against Section 3
    Counsel are not properly before this court and ought not to be entertained.

[91]

We would go further, however, and
    state that we categorically reject the suggestion that Section 3 Counsel failed
    in her duties in any way.  There is nothing in the record that remotely
    supports these allegations against Section 3 Counsel and we denounce them.

[92]

We also categorically reject the
    suggestion that the applications judge displayed a deferential attitude towards
    Section 3 Counsel.

[93]

On the record, both Section 3
    Counsel and the applications judge discharged their professional obligations
    well and with patience, dignity and integrity.

[94]

In terms of the sufficiency of
    Section 3 Counsels communication with Mrs. Childs, we note that Section 3
    Counsel met with Mrs. Childs three times to discuss the guardianship
    applications and to obtain Mrs. Childs instructions.  On the record, it is
    plain that it was as a result of Section 3 Counsel thereafter negotiating with
    all parties that, with the exception of the amount of Carolines compensation,
    all matters on the Applications went on consent.  In the circumstances of this
    case, that is nothing short of extraordinary.  It is also consistent with Mrs.
    Childs instructions that she wanted the litigation to end.

[95]

In response to the allegation that
    Section 3 Counsel had a bias in favour of Andrew and Michael, the evidence that
    Peter and Caroline seek to rely on is largely inadmissible.  In any event, it shows
    only that Section 3 Counsel acted as a zealous advocate for her client, Mrs.
    Childs.  It does not show her to be overly zealous.  Section 3 Counsel is to be
    commended for her efforts  not pilloried.

[96]

Of the many instances of alleged misrepresentations
    to the court, we will speak only to that concerning Section 3 Counsels conduct
    on the vary motion.  Peter and Carolines position on this is untenable.  All those
    at the vary motion, other than Caroline and Peters counsel, agreed that the
    June 2015 Letter was inconsistent with the guardianship plan that Caroline had
    presented on the Applications and that was the finding of the applications
    judge. The other alleged misrepresentations are nothing more than a difference
    of opinion on certain matters.

[97]

The
    allegation that Section 3 Counsel neglected to investigate Carolines suspicion
    that Andrew had abused Mrs. Childs cannot stand.  The record shows that Section
    3 Counsel explained to the applications judge that none of the other
    professionals who had met with Mrs. Childs privately had heard of such allegations.

[98]

The
    allegation of an improper relationship between Section 3 Counsel and BMO
    reflects another attempt by Caroline and Peter to circumvent an order to which
    they consented. The record demonstrates that Section 3 Counsel initially proposed
    that Michael engage BMO as guardian of property, but that Peter and Caroline
    asked Section 3 Counsel to undertake that task instead. Furthermore, as Section
    3 Counsel points out, she had no personal or banking relationship with BMO. She
    engaged BMO on the parties consent and in compliance with Mrs. Childs
    expressed preference that a bank manage her money.

[99]

There
    is absolutely no merit to the allegation that Section 3 Counsel prolonged the
    litigation in service of her own pecuniary interest. Section 3 Counsel
    demonstrated her commitment to protecting Mrs. Childs interests at all steps
    of the proceedings including by initiating settlement discussions, negotiating
    consent orders wherever possible, and attempting to resolve concerns raised by the
    June 2015 Letter without recourse to the courts.

[100]

This ground of
    appeal is flatly rejected.

c. The Costs Orders

[101]

It will be recalled that as a
    result of the Simmons Decision, upheld on the review motion, Caroline and Peter
    may not challenge the quantum awarded in the various costs orders below.  Thus,
    this ground of appeal relates solely to whether the applications judge erred in
    ordering Peter and Caroline to personally pay certain of the costs.

[102]

This ground of appeal rests on
    Peter and Carolines contention that they were substantially successful in the
    proceedings below because they succeeded in having Mrs. Childs remain in her
    own home, as she wished, rather than be moved into an elder care facility.

[103]

Even if Peter and Carolines view of
    what occurred in these proceedings is correct, it does not amount to a reason
    to interfere with the costs decisions below.  In the Applications Decision, the
    applications judge made findings of fact that fully warrant costs being ordered
    against Peter and Caroline personally.  It will be recalled that he found that
    all issues  other than costs  had been resolved prior to the oral hearing of
    the Applications with the exception of Carolines compensation and that Caroline
    and Peter were the ones who had caused litigation of that issue.  When deciding
    costs of the vary motion, the applications judge found that it was Caroline and
    Peters actions that had caused the motion to be brought and that they had
    leveraged their mothers health and best interests to manipulate a more
    favourable financial result for Caroline than he had ordered in the
    Applications Decision.

[104]

As we explained above, an appellate court is to accord
    a high degree of deference to first instance costs awards:
Open
    Window Bakery Ltd.
, at para. 27.  In the
    circumstances of this case, we see no error in principle in the applications
    judges decision to require Peter and Caroline to pay certain costs personally
    nor are the orders plainly wrong.

DISPOSITION

[105]

For these reasons, the review motion and both of the appeals are
    dismissed.  If the parties are unable to agree on the matter of costs, they may
    make written submissions on the same, limited to four pages, such submissions
    to be filed with the court within fourteen days of the release of these
    reasons.

Released: E.E.G. June 20, 2017

Eileen E.
    Gillese J.A.

Grant
    Huscroft J.A.

Gary T. Trotter J.A.


