



COURT OF APPEAL FOR ONTARIO

CITATION: Lockhart v. Lockhart, 2021 ONCA
    329

DATE: 20210519

DOCKET: C68651

Huscroft, Paciocco and Jamal
    JJ.A.

BETWEEN

Barbara
    Lockhart personally and in her capacity as attorney for property
of June Lockhart

Applicant/Moving Party (Respondent)

and

Robert Lockhart personally and
    in his capacity as attorney for property
of June Lockhart, and June Lockhart

Respondent/Responding Party (Appellant)

Robert Lockhart, acting in person

Matthew Rendely and Bryan Gilmartin,
    for the respondent

Heard: May 13, 2021 by videoconference

On
    appeal from the order of Justice Bernadette Dietrich, of the Superior Court of
    Justice, dated August 12, 2020.

REASONS FOR DECISION

[1]

In 2018, the appellant, Robert Lockhart, arranged for his mother, June
    Lockhart, to execute a Power of Attorney for Property (POAP) and a Power of
    Attorney for Personal Care (POAPC) appointing him as her attorney. His
    sister, the respondent, Barbara Lockhart, brought a successful motion
    challenging the validity of those appointments. By order dated August 12, 2020,
    the POAP and POAPC were declared to be void
ab

initio

and of no force or effect. Pursuant to the
Health Care Consent Act
, 1996
, S.O. 1996, c. 2,
    Sched. A, the appellant and the respondent were also ordered to jointly make
    personal care, health care and treatment decisions on Junes behalf. Costs were
    awarded to the respondent in the amount of $55,000 inclusive of HST and
    disbursements.

[2]

The appellant appeals the declaration relating to the POAPC and the
Health Care Consent Act

order,
    as well as the costs order.

[3]

The appellant submits that the motion judge erred in law by misapplying
    the capacity test for a POAPC and by placing the onus on him to establish
    Junes capacity to grant the POAPC. We disagree. The motion judge clearly
    understood the test of capacity under the POAPC and applied it correctly.
    Moreover, we see no error in the motion judges ruling, pursuant to s. 2(3) of
    the
Substitute Decisions Act
, 1992
,
    S.O. 1992, c. 30, that the appellant had reasonable grounds to believe that
    June was incapable of entering into the POAPC, and therefore could not rely upon
    the presumption of capacity. That holding was supported by factual findings the
    motion judge was entitled to make relating to the manner in which the POAPC was
    executed, efforts by the appellant to avoid an assessment of Junes competence
    to execute a POAPC, and the significant delay by the appellant in disclosing
    that the POAPC was executed.

[4]

Nor do we accept the appellants submissions that the motion judge
    misapprehended or failed to consider evidence, committed palpable and
    overriding errors in making findings, or failed to give adequate reasons for
    her decision. We find no errors in her analysis, and her reasons for decision
    adequately address the evidence and issues before her.

[5]

Finally, we see no basis for interfering with the costs decision. Leave to
    appeal costs is denied.

[6]

We need not address the reasonable apprehension of bias claim initially
    advanced by the appellant, as he abandoned that ground of appeal for tactical
    reasons at the outset of the oral hearing.

[7]

The appeal is therefore dismissed. Costs in this appeal are awarded to
    the respondent in the amount of $30,000 inclusive of HST and disbursements.

Grant Huscroft J.A.

David M. Paciocco
    J.A.

M. Jamal J.A.


