



COURT OF APPEAL FOR ONTARIO

CITATION: Carey-Patel v. Carey, 2019 ONCA
    960

DATE: 20191205

DOCKET: C66897 (M50434 and M51042)

Watt, Hourigan and Trotter JJ.A.

BETWEEN

Lydia Carey-Patel, Robert Patel and David Aello

Applicants
    (Respondents)

and

Douglas Carey, Arthur Carey,
    Jennie Carey and The Office of The Public Guardian and Trustee

Respondents
    (Respondents)

and

David Carey and Edward Carey

Respondents
    (Appellants)

Kenneth Wise, for the appellants

Matthew Harris and Yonatan Lipetz, for
    Douglas and Arthur Carey

Richard Watson, for Lydia Carey Patel,
    Robert Carey and David Aello

Heard and released orally: November 28, 2019

On
    appeal from the judgment of Justice Kurz of the Superior Court of Justice,
    dated April 26, 2019.

REASONS FOR DECISION

[1]

This is a dispute about the care of the parties
    90 year old mother. Specifically, the issue is who should act as guardians for
    the mothers property and personal care. David and Edward Carey were originally
    applicants but decided on the return of the application not to support the
    position of the applicants.

[2]

By order dated March 8, 2018, the motion judge removed
    them as applicants, but he did not order that they be made respondents. The
    motion judge then made an interim order regarding guardians on July 26, 2018. A
    final order was made on April 26, 2019, appointing guardians of personal care
    and property.

[3]

David and Edward Carey seek an order appointing
    them as appellants. That order is unopposed and shall go. They argue that the
    motion judge erred in not appointing them as respondents. However, they never
    appealed that interlocutory order. Instead, they said nothing and waited until
    after the final order to raise objections to their lack of party status.

[4]

We would not give effect to this ground of
    appeal. The motion judge explained why he was not making them respondents in
    the proceeding. The time to object to that order was when it was made, not
    after months of hearings and subsequent orders of the motion judge.

[5]

Ultimately, the motion judge made a decision
    after having an opportunity to evaluate the performance of the children as
    guardians. We see no error in that decision, and are satisfied that he properly
    considered all the surrounding circumstances and made an order that was in the best
    interests of the mother.

[6]

In the result, an order will go naming David and
    Edward Carey as appellants. The appeal is otherwise dismissed. David and Edward
    Carey shall pay costs in the amount of $5,000, all inclusive, to the respondents
    Lydia Carey-Patel, Robert Patel, and David Aello. No costs were sought or are
    ordered in respect of any other party.

David Watt J.A.

C.W. Hourigan J.A.

G.T.
    Trotter J.A.


