Can I be compensated from an estate for the care I provided to a deceased person prior to their death?
The short answer is “yes.” The court routinely awards compensation after-the-fact for services rendered in a variety of situations, and there is little preventing caregivers or powers of attorney for personal care from claiming compensation from an estate for caregiving services that were legitimately provided.[1]
The longer answer is that the court has struggled to establish a predictable way to assign value to these claims, and claimants have often been unsuccessful. These are difficult claims that require care and attention.
Before addressing these claims, it is first important to distinguish between compensation claims for work done as an attorney for property; as an attorney for personal care; and as a caregiver.
An attorney for property makes decisions with respect to an incapable person’s property. They can typically do anything with respect to property that the incapable person could have done, except make a will. Compensation for an attorney for property is often set out in the granting document. If it is not, then O.Reg 26/95 provides that they are entitled to 3% of income and capital receipts; 3% of income and capital disbursements and 0.6% per year of the annual average value of the assets being administered.[2]
An attorney for personal care is entitled to make decisions with respect to personal care, which includes healthcare, shelter, clothing, hygiene and safety. Acting as an attorney for personal care does not, on its own, oblige that person to provide care directly although in many cases the attorney for personal care will also act as a caregiver. Conversely, a caregiver is not necessarily an attorney for personal care.
Both caregivers and attorneys for personal care can claim compensation for the work they have legitimately performed, whether that be arranging and making decisions concerning care, or providing care directly. However, there is no statute or regulation to guide us on the value of that compensation and a review of the case law provides mixed and possibly conflicting results. A few key points, however, emerge from the chaos.
First, and perhaps predictably, the amount to be awarded must be “reasonable.” Reasonableness” is assessed with reference to the specific needs of the person, the qualifications of the caregiver, the value of the services to that person and the period over which the services were provided. [3] Reasonable is also assessed with reference to ability to pay, so compensation must be proportional to means.[4]
Second, we have moral obligations to provide a certain level of care to our parents or children and we are expected to fulfill those obligations gratuitously. Compensation, then, appears only to be available for care that goes over and above what we would otherwise provide out of natural love and affection.
In Shibley Estate (Re), for example, Justice Molloy wrote: “A parent is expected to provide care for a child without compensation. ”[5] In Childs Justice Tranmer at the Superior Court of Justice wrote: “A child should not be paid to care for an ailing mother. Eileen Childs was not paid for raising her four children.”[6]
Courts have used both a subjective and objective standard to assess what level of care is to be compensated. The objective standard bars compensation claimed for work that a loving relative in the claimant’s position would or should have provided gratuitously out of natural love and affection. The subjective standard bars compensation claimed after the fact for work provided with no expectation of compensation at the time it was performed.
In Sasso v. Sasso, for example, the claimant sought $198,850.00 for the care he provided to his father. His evidence was that he spent 4 hours a day on care, for seven and a half years. He described the care as “helping to feed, wash, shave, groom [the Deceased] and in shopping for and generally caring for [his] needs.”[7] The claimant also lived with his father for some of those seven and a half years. Justice Deitrich, using an objective standard, was not satisfied that the caregiving services provided were “in excess of what a loving son living with his father, on a rent-free basis, in his father’s residence, would have provided out of natural love and affection.”[8]
In Childs, the Ontario Court of Appeal relied on the claimant’s assertion that she would have provided the services to her mother even if she was not to be compensated, writing: “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.”[9]
Finally, a claimant needs clear, compelling, and corroborated evidence of the care that was provided.[10] It is remarkable how many of these cases fail because of an inadequate record.[11]
Ideally, contemporaneous and detailed notes indicating the time spent performing caregiving work and of the work that was completed will be provided, and that evidence will be corroborated by an independent source. In Byrne Estate (Re), the claimants acted as attorneys for personal care. They did not provide care directly but arranged care and made decisions concerning care. They were lawyers who kept detailed time dockets of the work they did arranging care and were successful in their claim for compensation for that work.[12]
In the absence of contemporaneous and detailed notes, a compensation claim will be more challenging. However, in Daniel Estate (Re), the court awarded compensation in the absence of time dockets, but on the basis of affidavits detailing the time spent and services performed, and a cost of care report provided by a paralegal, Certified Case Manager and Certified Canadian Life Care Planner.[13]
The notes above are intended as a non-exhaustive list of the factors you should consider before pursuing a claim for compensation. Understanding these issues as early as possible, and ideally while providing any care, is critical to building a strong case.
[1] Re Brown [1999] O.J. NO. 5851 (ONSC) [Brown]
[2] Substitute Decisions Act, 1992, S.O. 1992, c. 30; O. Reg. 26/95
[3] Brown supra note 1 at para 4(h)
[4] Kiomall v. Kiomall, 2009 CanLII 20349 (ON SC), <https://canlii.ca/t/23b7n>, retrieved on 2024-05-17
[5] Shibley Estate (Re), 2004 CanLII 49204 (ON SC) at para 6 <https://canlii.ca/t/1jjj2>, retrieved on 2024-05-23.
[6] Childs v Childs, 2015 ONSC 4036 (CanLII) at para 33, <https://canlii.ca/t/gjr5n>, retrieved on 2024-05-17 [Childs ONSC]
[7] Sasso v. Sasso, 2021 ONSC 3259 (CanLII) at para 44, <https://canlii.ca/t/jfz4b>, retrieved on 2024-05-23 [Sasso]
[8] Sasso, ibid at para 53.
[9] Childs v. Childs, 2017 ONCA 516 (CanLII) at para 61 <https://canlii.ca/t/h4dfk>, retrieved on 2024-05-23
[10] Brown supra note 1.
[11] See for e.g., Ventura v. Ventura, 2022 ONSC 6351 (CanLII) at para 119 <https://canlii.ca/t/jt9w3>, Sasso, supra note 8 at para 47; Childs ONSC, supra note 7 at para 40; Picone v. Mossetti, 2023 ONSC 1038 (CanLII) at para 92 <https://canlii.ca/t/jvq4b>, retrieved on 2024-05-23i; Brown, supra note 1 at para 7
[12] Byrne Estate (Re), 2004 CanLII 190 (ON SC), <https://canlii.ca/t/1hdc1>, retrieved on 2024-05-23
[13] Daniel Estate (Re), 2019 ONSC 2790 (CanLII), <https://canlii.ca/t/j03fh>, retrieved on 2024-05-23