Case card

A.S. v. Evergreen House Long Term Care, 2026 BCSC 102

A BC judge rejected a son's habeas corpus challenge to his father's placement in long term care. A lawful substitute consent from the Public Guardian and Trustee and compliance with discharge procedures defeated the detention challenge, while a separate statutory review route remained available.

Source reviewed · Court holding

Held. A BC judge rejected a son's habeas corpus challenge to his father's placement in long term care.

An adult son wanted his 86 year old father discharged from a long term care home and returned to their former home. His father, identified in the judgment as M.S., had Alzheimer's dementia and had spent months in hospital before entering Evergreen House in November 2024. The son, A.S., believed that family support and home care could meet his father's needs, at least until they chose another facility. He argued that his father was effectively being held without lawful authority.

The circumstances behind the placement were difficult and had unfolded over several years. Care providers had repeatedly assessed the older man as needing supervision because of disorientation, wandering and difficulties managing daily activities. An earlier plan for care at home had not worked as intended. Hospital staff eventually assessed him as incapable of consenting to admission to a care facility and concluded that the son was not an appropriate temporary substitute decision maker for that particular decision. After approaches to the other adult children, the Public Guardian and Trustee gave substitute consent to admission under BC's Health Care (Consent) and Care Facility (Admission) Act.

M.S. lived at Evergreen House but could receive visitors and go on outings under an appropriate safety plan. The son disputed the facility's restrictions, including controlled exits and supervision when leaving, and said that his request to discharge his father had been ignored. He petitioned for relief in the nature of habeas corpus, seeking an order to produce the legal authority for the placement and release if that authority was absent.

How the court examined the placement

Justice E. McDonald dismissed the petition. The first question was whether admission itself was lawful. The judge found that the Public Guardian and Trustee had validly consented as temporary substitute decision maker under section 22 of the provincial Act. The consent followed an assessment of incapacity and a decision that the son could not serve in that role for admission. This was a statutory consent process, not a situation where the home simply decided for itself that the resident could not leave.

The next question was whether continued residence and supervised outings amounted to unlawful detention. The Court acknowledged that the doors were secured, that M.S. wore a locating device and that unsupervised departure was restricted. It reviewed the habeas corpus principles requiring an applicant to establish a deprivation of liberty and a legitimate ground for questioning its legality before the authority must justify the deprivation. Even assuming the restrictions amounted to a deprivation of liberty, the judge found no sufficient ground to question their legality on this record. Admission had been authorized and the health providers had followed the relevant statutory procedures for addressing a wish to leave.

The evidence about M.S.'s wishes wasn't one dimensional. In November 2025 he had told a social worker he wanted to live with his son. During a later interview in January 2026, the evidence recorded that he said he wanted to return to Evergreen House. The care team had explored his earlier expression of a wish to leave, and the Public Guardian and Trustee confirmed that the original admission consent remained valid. The Court considered the statutory rules governing a resident's wish to leave and the arrangements for safe outings, rather than treating an admission decision as authority to disregard any later request.

What the ruling does and doesn't settle

The Court did not conclude that the son's objections were unimportant or that a family's challenge to placement can never succeed. It held that this petition was the wrong vehicle to determine whether he should replace the substitute decision maker or whether the earlier consent decision ought to be varied. Section 33.4 of the Health Care (Consent) and Care Facility (Admission) Act provides a separate route for judicial oversight, including review or variation of decisions about substitute consent. That avenue remained available.

This distinction matters to families and care institutions. An argument about whether someone should be in care is not always the same legal question as whether their liberty is being unlawfully restricted. Capacity assessments, valid substitute consent, a documented response to expressed wishes and a meaningful path to review each matter. None should be assumed merely because a family member disagrees with the placement.

For care homes, the decision is a reminder that a lawful admission needs to be supported by a traceable decision making process, and restrictions on movement should be connected to safety needs and the applicable statutory authority. For families, the route to challenge who decides or whether the consent should stand may be a specific review application rather than a detention petition. The judgment is grounded in BC legislation and its particular evidence, and shouldn't be read as a general power to keep a capable adult in care against their wishes.

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Original source Supreme Court of British Columbia, independent review of complete court decision ↗

This publication provides general information, not medical or legal advice. Applicable rules depend on the institution, capacity, consent and jurisdiction.