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.

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 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.