Guardian and ward — Public trustee or guardian — Appointment — Cost of maintaining child or adult in care — Duties and powers of guardian — Respecting ward's estate — Distribution of estate — Public wards — Maintenance of — Persons liable for.

   This was an action by Fink against the Public Guardian and the Superintendent of Child and Family Services (Superintendent) for negligence and breach of statutory duty in accepting and making payments from her estate for her maintenance.  Fink was born with significant birth defects and had not been expected to survive infancy.  Her biological parents had been unable to care for her and she was placed in the permanent care of the Superintendent when she was two years old becoming a permanent ward when she was three.  When she was four, her father died and she received the proceeds of a life insurance policy, death benefits and monthly orphan benefits all of which were placed in trust with the Public Trustee.  Amounts were withdrawn monthly from Fink's estate and paid to the Superintendent for her maintenance.  The total including interest was $80,773.  A decision had already been made on a point of law that the Public Guardian was permitted to pay maintenance from the infant's estate to the Superintendent.  When Fink's estate first came into the hands of the Public Guardian, there was a policy in place that the Superintendent could be reimbursed for maintenance payments for a child in care, if required and the estate was greater than $10,000.  No distinction was made for wards with disabilities or future needs.  By 1993, the policy allowed for payment of maintenance if the trust account exceeded $25,000 unless there was an exemption to preserve the funds for future needs.  One of Fink's case workers at the office of the Superintendent had contacted her supervisor about an exemption for Fink but never followed through with the request for more information.

   HELD:  Action against the Queen in Right of British Columbia allowed.  Action against the Public Guardian dismissed.  The Superintendent knew there was a means by which Fink's funds could be exempted but did not take proper steps to ensure that they were.  This failure was a breach of the required standard of care.  It was the responsibility of the Superintendent to obtain an exemption for Fink.  Absent an exemption, the Public Guardian had no choice but to make the payments requested by the Superintendent and was therefore not liable.

Statutes, Regulations and Rules Cited:

Counsel:

¶ 1      SATANOVE J.:— This case raises the interesting issue of whether, in the circumstances of this case, the Public Trustee (now the Public Guardian and Trustee of British Columbia) should have deducted funds from the estate of a severely handicapped child in order to reimburse the Superintendent of Family and Child Services (the "Superintendent") for her maintenance as a child in care.

¶ 2      The Plaintiff, Monique Roy Fink and her adopted mother, Eleanor Fink, are credits to the human race and shining examples of the fortitude and compassion of the human spirit. The plaintiff was born 21 years ago with such significant birth defects she was not expected to survive infancy. She had no lower jaw, no tongue, and a malformed throat opening. She required a tracheostomy to breathe and a gastrostomy to receive nourishment. To this day, the plaintiff has never taken a meal by mouth.

¶ 3      Nearly l00 surgeries later, the plaintiff has the semblance of a lower jaw created by bone graft. She has taught herself to speak without the aid of a therapist. She has had learning difficulties in the past but she is gifted musically and is presently attending the University of Victoria music program. She has had some experience playing cello with community orchestras. She testified on her own behalf and appeared in every way to be a sensible, pleasant and normal young lady, who spoke more clearly than some other witnesses who have graced my court room.

¶ 4      The plaintiff could not have reached her level of achievement without the aid of Eleanor Fink, a pediatric nurse who took the plaintiff home when she was two years old, fostered her until she was 19, and then adopted her. The plaintiff's biological parents had been unable to care for her and she had spent her first two years of life in the pediatric ward of the Children's Hospital. She was placed in the permanent care of the Superintendent with her parents' consent at age two. At age three the Superintendent was appointed Guardian of her person.

¶ 5      At age four the plaintiff's biological father died and she received the proceeds of a life insurance policy in the amount of $8l,693.15, death benefits from I.C.B.C. in the amount of $3,600.00, and monthly orphan's benefits from CPP. All these funds were placed in trust with the Public Trustee who became the guardian of the plaintiff's estate.

¶ 6      Approximately one month after the life insurance proceeds were paid out, the Public Trustee began withdrawing certain amounts from the plaintiff's estate on a monthly basis and paying them to the Superintendent for the plaintiff's maintenance (the "Payments"). The Payments were initially in the amount of $212.79 per month and increased annually to $619.00 per month in 1997 when the last payment was made. It has been agreed between the parties that the total amount of the Payments equals $50,000.00. When accrued interest on the payments is added in, the amount equals $80,773.10.

¶ 7      When the plaintiff reached the age of 19, she received the remainder of her estate in the sum of $160,000.00.

¶ 8      The plaintiff claims that the Payments should not have been made from her estate because she will need her entire estate to support her special needs in the future. She claims that the Public Trustee and the Superintendent were negligent and breached their statutory duty in accepting and making the Payments, respectively, without consideration of her best interest and special needs, as they were charged to do by statute.

¶ 9      This litigation has had a somewhat tortured history. Among other steps, the parties appeared on March 5, 2002 before Madam Justice Dillon on this question of law:

¶ 10      After a full review of the applicable statutes and case law, Madam Justice Dillon concluded, in summary, that:

¶ 11      I am bound by the above finding of law. I agree with counsel for the Public Guardian and Trustee that the only issues that remain for me to decide are: whether the Payments were actually made for the plaintiff's maintenance, whether they were reasonable and proper, and whether the Superintendent or Public Trustee were negligent in the operation of their policies.

REASONABLE/PROPER AMOUNTS

¶ 12      Over the years the Superintendent spent over half a million dollars on the care of the plaintiff. Eleanor Fink was paid about $440,000.00 as a fee for service, and $90,000.00 as maintenance payments. The Superintendent also paid about $10,000.00 for medical expenses over and above the Medical Services Plan, and about $12,000.00 for private school, music lessons, etc.

¶ 13      Eleanor Fink admitted that the amounts spent by the Crown were not excessive; in fact she complained they were not enough.

¶ 14      Thus there is no dispute that the Payments were made on account of reasonable and proper expenses.

NEGLIGENCE

¶ 15      Madam Justice Dillon has found no duty, statutory or otherwise, on the Superintendent to refrain from seeking reimbursement for maintenance of the plaintiff because of her special needs. Further, she has found that the Superintendent was authorized to request and receive reimbursement from a ward's estate for maintenance payments made by it on behalf of the ward.

¶ 16      However, over the course of the plaintiff's wardship the Crown made certain policy decisions which restricted the Superintendent's right to full reimbursement. The question remains whether in the circumstances of this case, the personnel in the employ of the Superintendent implemented those policies negligently. (Just v. British Columbia, [1989] 2 S.C.R. 1228).

Public Trustee's Policies

¶ 17      Ms. Moloo was the plaintiff's case worker at the Public Trustee's Office from 1985 to 1996. Her role was to ensure that all benefits belonging to an estate of a child in permanent care were applied for, collected and protected from dispensation other than to meet lawful obligations.

¶ 18      She testified that when the plaintiff's estate first came into the hands of the Public Trustee, the policy was, in effect, that if the estate had been established for maintenance (i.e., under the Family Compensation Act, R.S.B.C. 1996, c. 126 or last will and testament etc.) and was in excess of $10,000.00, then the Superintendent could be reimbursed for basic maintenance payments of the child in care, if required. There was no provision in this early policy for exemption for special or future needs.

¶ 19      On March 19, 1985, Ms. Moloo wrote a standard form letter to the Superintendent's accounting division advising that the Public Trustee was holding funds on behalf of the plaintiff, and asking if the Superintendent required reimbursement and in what amount.

¶ 20      Mr. Solotski of the accounting division replied that the amount was $212.00 per month. While he did not expressly request that reimbursement be made in this amount, it was inferred by Ms. Moloo in accordance with the usual procedure at that time.

¶ 21      Ms. Moloo began making the monthly payments. She testified that she did so because:

¶ 22      She proceeded to treat the plaintiff's file as she would have treated any other file belonging to a child in care. She made no distinction for wards with disabilities or future needs; all children in care were treated equally. She understood that in the absence of an exemption, the policy did not allow her any discretion, and she had to make the payments on request.

¶ 23      By 1993, the policy stated that if the trust account exceeded $25,000.00 and its terms allowed for payment of maintenance, the Public Trustee would initiate reimbursement of the basic cost of care from the child's trust account, unless there was an exemption. The exemption procedure was outlined as:

¶ 24      Ms. Moloo recognized a note on file of a telephone conversation with Peter Ballantyne, the plaintiff's social worker at the time, that he was concerned that the Superintendent would stop paying for the plaintiff's needs as a handicapped person unless the life insurance proceeds were held in trust. She did not recall agreeing with Mr. Ballantyne that these funds would not be touched. Her understanding was that in order to stop payment her office needed a written request stating the reason. Later on the policy spelled out that the social worker was to get an authorization and exemption from his supervisor or area manager. No such exemption was ever forthcoming.

¶ 25      Ms. Moloo left the Office of the Public Trustee in 1996 and was replaced by Tracy Matovitch. Ms. Matovitch was contacted by Mark Thompson, a supervisor in the Superintendent's office, and was advised by him that he was working on obtaining an exemption for the plaintiff. Ms. Matovitch advised Mr. Thompson she would need written authorization from the Superintendent. She anticipated that it would be forthcoming so she put a hold on the Payments. This hold remained in place until 1998 when the plaintiff turned 19.

¶ 26      The above policy remained in effect through 1997 when the Payments stopped.

Superintendent's policies

¶ 27      In 1985 the Superintendent's written policy was:

¶ 28      There was no express provision at this time for an exemption from the effect of the above policy. However, the use of the word "normally" implies there may be abnormal circumstances where this will not happen. Peter Ballantyne, the plaintiff's case worker from 1982 through 1988, testified that he was aware that any amount over $5,000.00 could be used for a child's care. He was not aware it was mandatory. He understood the most important consideration was the long term needs of the child. In cross-examination he said he did not understand there had to be an exemption but he did understand something had to be done to stop the Superintendent from receiving the Payments.

¶ 29      He testified that he had a telephone call with a case worker in the Public Trustee's Office shortly after he learned of the funds. He conveyed his opinion that the money should be left there in the best interest of the plaintiff. He did not put anything in writing, or give a specific direction not to pay. He made no notation on his file. He conceded that the proper procedure was to have obtained an exemption for the Public Trustee. He said he discussed the matter with his supervisor and decided not to formally apply for one. He said that when he discussed the plaintiff's special needs with the case worker in the Public Trustees Office he was left with the impression that the funds could be preserved and that they would be preserved.

¶ 30      From the evidence it appears more probable than not that Mr. Ballantyne was conversing with the plaintiff's mother's case worker, not Ms. Moloo. In any event, even if Mr. Ballantyne's evidence were not contradicted by Ms. Moloo it falls short of establishing an agreement with the Public Trustee's Office that the funds would not be used for maintenance, as pleaded by the plaintiff.

¶ 31      In 1990 the written policy was amended to read:

¶ 32      In 1996 the policy stated:

Again there was no reference to an exemption, but the words "not contrary to the child's best interest" by implication suggested that an exemption can be obtained.

Breach of Standard of Care

¶ 33      Colleen Samson took over the plaintiff's file in 1993. She learned about the payments in 1994 by way of a letter dated May 3, 1984 from the Public Trustee's Office telling her the monthly sum that was being released to the Superintendent for monthly care. Ms. Samson left on maternity leave in November 1994 and was replaced by Daphne Grant. Ms. Grant formed the opinion that it was not appropriate that the Payments were being made and brought this to the attention of her supervisor, Janice Goodall. She also recorded it in the file for Ms. Samson's return. Her recommendation that the Payments be stopped was never implemented. She left before finding out why.

¶ 34      Ms. Samson asked her supervisor, Mark Thompson, on November 8, 1995 if they could obtain an exemption for the plaintiff. Mr. Thompson forwarded the request to Mr. Wilmot who responded on November 9, 1995 that he was not opposed to the plan, however wished more detail.

¶ 35      On November 30, 1995 Mr. Wilmot reminded Mr. Thompson that if he still wanted him to consider the request that he needed to get back to him with additional details. Ms. Samson responded to Mr. Wilmot's e-mail on the same day advising that she had not had a chance to get all the details. In fact, she did not respond with any details until January 5, 1996, nearly six weeks later.

¶ 36      Inexplicably, and contrary to her opinion that the plaintiff needed her entire estate for future support, Ms. Samson advised Mr. Wilmot that she hoped that one day the plaintiff would be able to find rewarding employment and could be self supporting.

¶ 37      Mr. Wilmot responded on January 29, 1996 that because the plaintiff's care costs were less than the monthly interest on her estate and did not have a negative impact on the principal amount, he believed the Public Trustees' Office should continue to contribute. He suggested that the Public Trustee's Office might have a different opinion and that Ms. Samson might wish to ask them to submit correspondence to support her request.

¶ 38      Ms. Samson did not explain to my satisfaction why she did not follow up on Mr. Wilmot's suggestion. Mr. Wilmot asked her again by way of e-mail dated March 29, 1996 whether Ms. Samson still wished to pursue the issue. She did not respond. She said she took no further steps to have the money returned to the plaintiff's trust account because she did not believe it would have been. She had no authority to stop the Payments. Mr. Wilmot did not think it was appropriate. However, she still held the personal opinion that it was in the best interest of the plaintiff for her to have her entire estate. In fact, when the plaintiff reached 19 she advised her to get legal advice because she felt that the Payments should not have been made. She felt she had taken things as far as she could in her system. She had pressed Mr. Thompson, her supervisor, and understood he was following up with Tracy Matovitch at the Public Trustees Office and that the Payments had stopped.

¶ 39      On cross-examination she said she took Mr. Wilmot's response of January 29, 1996 as a "no". She felt she was not getting anywhere so she told the plaintiff to get a lawyer. When asked why she took so long in requesting an exemption, she said she had originally considered obtaining an exemption when Ms. Goodall was her immediate supervisor but thought she would say no. When Mr. Thompson took over he appeared more sympathetic.

¶ 40      In re-examination her explanation for not pursuing the exemption was that she had achieved what she wanted in that the Payments had stopped. She felt if she pursued the matter further she might have lost what she had gained.

¶ 41      Mr. Thomson also believed that the Superintendent should not have taken any monies from the plaintiff's estate for any reason. When he told Ms. Samson he was going to pursue Mr. Wilmot for approval, she said she thought it was better not to raise it again.

¶ 42      Mr. Wilmot was not called by either side to testify. The only evidence of the exercise of his discretion was contained in the above referred to e-mail of January 29, 1996. This evidence may go to the state of mind of the recipients, Ms. Samson and Mr. Thompson, but it is not evidence of the truth of the contents of the e-mail.

¶ 43      My interpretation of Wilmot's response was that he was not dismissing the request for an exemption. He was seeking further supporting submissions from Ms. Samson or the Public Trustees office. For some inexplicable reason Ms. Samson failed to pursue this avenue, even when reminded by Mr. Wilmot.

¶ 44      The defendant Crown relied on Mr. Wilmot's refusal to support a finding that the Superintendent had followed its own policy and that the social workers had requested an exemption but it was refused. The Crown submitted that the reasonable inference to draw was that even if Mr. Ballantyne and Ms. Samson had pursued the matter earlier, no exemption would have been obtained.

¶ 45      However, the Crown did not call Mr. Wilmot to testify. The plaintiff did not ask me to draw an adverse inference from his failure to attend, but his absence strengthens my view that he had not intended to flatly refuse the request for an exemption, but wanted to explore it further.

¶ 46      The defendants further submitted that in order to prove negligence the plaintiff had to prove that an exemption would have been forthcoming if pursued further. If this were so, then the onus would be on the plaintiff to have called Mr. Wilmot. I do not agree with the defendants because the issue is not whether Mr. Wilmot would in fact have approved the exemption, but whether he should have in keeping with the Superintendent's policy. That policy allowed a certain discretion to be exercised by the Area Manager but the discretion was not arbitrary. It was to be exercised in accordance with the statement "payment of maintenance must not be contrary to the child's best interest".

¶ 47      "Best interest" in this context is not restricted to negative financial impact alone. It must encompass such other things as health and emotional well being of the child, including any special needs for care and treatment, education and training. The Public Trustee recognized this in its policy and by implication it was recognized in the Superintendent's policy.

¶ 48      Mr. Thompson testified that case workers are always advocating to get benefits for their charges, if they are doing a good job. In my opinion, Mr. Ballantyne and Ms. Samson did not do a good job and they did not meet the standard of care required.

¶ 49      Mr. Ballantyne knew of the funds, knew they could be depleted to reimburse the Superintendent, knew they should be preserved intact for the plaintiff's special needs in the future, knew there was a means by which the funds could be exempted, but he did not take the proper steps to ensure they were exempted. Instead, he had a vague conversation with someone who was likely not the plaintiff's case worker at the Public Trustee's Office. He did not note to whom he spoke, or when, or the details of the conversation. He did not follow up with any written request or direction. His "impression" that the funds would be preserved did not constitute an agreement and it was not reasonable for him to rely on it. I believe he had good intentions in trying to circumvent the system in place to deal with these funds, but in doing so he did not meet the standard of care.

¶ 50      Similarly, Ms. Samson's efforts to meet the standard of care fell short of what is expected. Her unexcused delays, and her unexplained failure to pursue the matter in light of Mr. Wilmot's encouragement does not amount to reasonable advocacy on behalf of the plaintiff. The lack of diligence of Ms. Samson and Mr. Ballantyne cost the plaintiff $80,000.00 over the years. I have no doubt that the Superintendent should return those monies to her.

¶ 51      I do not find the same fault with the Public Trustee's Office. Their policy was supposed to mesh with the Superintendent's policy and it lay the responsibility squarely on that office to obtain an exemption for the plaintiff. No exemption was ever forthcoming and it was, or should have been, reasonably foreseeable by the Superintendent's office that the payments would continue to be made unless a written exemption was received.

¶ 52      The Public Trustee was obliged to pay all lawful debts, which included reimbursement to the Superintendent in the amount it requested. The Public Trustee had no choice but to make the remittances in the absence of an exemption.

¶ 53      The plaintiff is entitled to judgment against the defendant Her Majesty the Queen in Right of the Province of British Columbia in the amount of $80,773.10 plus interest and costs. The case against the Public Guardian and Trustee is dismissed with costs.

SATANOVE J.

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Madam Justice Satanove