Mary Phan

The applicant, the mother of a severely disabled adult, sought appointment as guardian of property for her son who suffered a traumatic brain injury from a fall in 2014 when he was not yet seven years old.

The court found the son incapable of managing property based on a capacity assessment and appointed the mother as guardian.

The court determined that no less restrictive alternative was feasible given the son's significant cognitive limitations and that the mother's lifelong devotion to his care and detailed management plan made her an appropriate guardian.

Following a decision confirming the Public Guardian and Trustee as the statutory guardian of property for an incapable person, the court determined the issue of costs.

The unsuccessful respondent, who had sought to be appointed guardian, was ordered to pay costs to the Public Guardian and Trustee and to the incapable person, who had opposed his appointment.

The court rejected the argument that the publicly funded Public Guardian and Trustee should not be awarded costs, and fixed costs on a partial indemnity scale.

The Public Guardian and Trustee (PGT) sought an order confirming its refusal to issue a certificate of statutory guardianship to the respondent son in respect of his incapable mother.

The mother, who was diagnosed with dementia, strongly opposed her son's appointment due to a history of family conflict and alleged financial misappropriation.

The court considered the incapable person's wishes, the closeness of the relationship, and her best interests under the Substitute Decisions Act.

The court concluded that appointing the son would cause increased conflict and that the mother's best interests were aligned with her wish for the PGT to remain as her statutory guardian of property.

This decision addresses two related applications concerning the guardianship of Jiefu Kwok, who suffered a traumatic brain injury.

Derrick Kwok, Jiefu's son, applied to terminate his appointment as guardian for property and person, citing strained relations and difficulties in management.

Ellie Kwong, Jiefu's separated spouse, applied to be appointed as guardian in Derrick's place, with Derrick's support.

The Public Guardian and Trustee (PGT) requested the appointment of legal counsel for Jiefu Kwok under s. 3 of the Substitute Decisions Act, 1992, arguing that his capacity might have improved or that his wishes needed independent ascertainment, despite a prior court order of incapacity.

The court dismissed the PGT's request, finding it unnecessary and a waste of resources given the lack of dispute between family members, consistent medical evidence of Jiefu Kwok's continued incapacity, and Jiefu Kwok's expressed consent to Ellie Kwong's appointment in court.

Both applications for guardianship change were allowed.

The defendants sought costs following a 20-day trial where the plaintiffs' claims were dismissed and the defendants succeeded on their counterclaim.

The court awarded the first group of defendants costs on a substantial indemnity basis due to the plaintiffs' reprehensible conduct, which amounted to elder abuse.

The second group of defendants was awarded partial indemnity costs, as the claims against them were not found to be vexatious.

Total costs of over $325,000 were awarded against the plaintiffs.

The plaintiffs, a couple who sponsored the immigration of the wife's elderly parents (the Nikityuks) from Russia, sued the parents and the YMCA (and an employee) for inducing breach of contract, negligence, conspiracy, and defamation after the parents moved out of their shared home into social housing.

The Nikityuks counterclaimed for fraud, misrepresentation, conversion, unjust enrichment, breach of contract, and breach of fiduciary duty, seeking damages for lost capital and a constructive trust on the home.

The court dismissed all of the plaintiffs' claims, finding no malice or unlawful conduct by the YMCA defendants.

The court granted the Nikityuks' counterclaim, finding that the plaintiffs had financially abused the Nikityuks, breached their contract and fiduciary duties, and committed civil fraud by misrepresenting investment returns on the Nikityuks' capital, which was subsequently lost in the stock market.

The Nikityuks were awarded damages for their lost capital, interest, a constructive trust on the Innisfil property, and punitive damages.

The appellant appealed a decision of the Social Benefits Tribunal upholding the denial of her application for income support under the Ontario Disability Support Program Act.

The tribunal had found that her impairments, including social phobia and anxiety, were not substantial and she did not meet the definition of a person with a disability.

The Divisional Court dismissed the appeal, holding that the tribunal's weighing of the evidence to determine if impairments were substantial did not raise an extricable question of law.