Ontario Superior Court Judge Dennis Brown finally lost his patience with a trio of squabbling siblings who waged a legal war of attrition as their 87-year-old mother, Ida Abrams, sank deeper into dementia.
In a blistering decision Wednesday that shed light on a growing social problem, Judge Brown said there has been a huge increase in litigation regarding elderly people's ability to manage their own finances.
He said the Abrams case shows just how badly things can go off the rails.
"Each, in his or her own way, has bickered and delayed, leading me to believe that Ida's best interests have been shoved to the back seat whilst other problems amongst these battling family members have been brought to the fore," Judge Brown said.
May I respectfully suggest that had any of the parties really cared about Ida's well-being, they would have moved heaven and earth to have had this matter adjudicated yesterday. Justice Dennis Brown
"May I respectfully suggest that had any of the parties really cared about Ida's well-being, they would have moved heaven and earth to have had this matter adjudicated yesterday."
The Abrams children - Stephen, Judith and Philip - fell out in 2005 over what they expected their parents to leave them as an inheritance. In January, 2008, Stephen applied to be designated his mother's guardian, arguing that she was mentally incapable.
According to Judge Brown, the siblings fought and dragged their feet through a barrage of court applications, motions and adjournments - causing extensive delays and mocking judicial demands to speed up the process.
He exhorted his fellow judges to take a stand against relatives who subject vulnerable, elderly people to litigation "in which they can throw darts at each other and squabble over irrelevant side issues."
Toronto lawyer Jan Goddard, a specialist in elder law, said in an interview that many elderly people these days were postwar "savers." She said that they are reaching an age at which their children have begun to eye their fortunes.
"It seems that people believe there is a pot of gold at the end of the rainbow," Ms. Goddard said. "It is all about the big three - jealousy, greed and control. People literally help themselves to people's money. The person at the centre of the dispute really gets lost."
Ms. Goddard said that siblings often covet an aging parent's home or seek to deplete investments and bank holdings. She cited a recent case in which a man had obtained several credit cards for his elderly mother, and promptly ran the cards up to their limits.
While Ontario's Substitute Decisions Act is considered one of the most progressive in the country, Ms. Goddard said that cases are not being processed speedily and effectively.
"I don't think that anyone foresaw that the court proceedings the act planned for would become a forum for high-conflict families to engage in disputes," Ms. Goddard said. "It really was unanticipated, and there are lots of shortcomings in the law. The court process moves fairly slowly and is relatively expensive. It isn't a very good fit for the needs of the person who is central to the dispute."
In many cases, Ms. Goddard said, the court process causes delivery of an elderly person's mail to be stopped and their finances frozen while relatives struggle for control.
"I have been on cases where a person's money was tied up for months and months … with no money available to provide for their basic needs," she said. "If something comes up, there is no ability to provide for it. You have to prepare a motion and go back to the court.
"You also get cases where one family member will deny access by another family member to an older person with dementia. Who is being punished? Mum, who can't go on an outing and is stuck 24-7."
Ms. Goddard said that more than half of the clients she deals with resist efforts to mediate or to quietly resolve their disputes.
"They want to fight," she said. "I think a lot of people just do not understand what they are getting themselves into. They think this is something a court should deal with, and it's impossible to resolve otherwise."
Others realize that it will cost them tens of thousands of dollars to litigate, Ms. Goddard said. They recognize that the result will be a horrendous conflict that can traumatize the parent who is at the centre of it.
In his decision Wednesday, Judge Brown issued strict new deadlines in the Abrams case and warned lawyers that they may have to pay legal costs personally if the matter is dragged out any further.
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