Court of Appeal for Ontario

Date: 2018-09-07 Docket: C64463

Judges: Sharpe, van Rensburg and Brown JJ.A.

In the Matter of the Substitute Decisions Act, 1992

And In the Matter of the Property and Personal Care of Monica Gaumont

Between

The Public Guardian and Trustee Applicant (Respondent)

and

Monica Gaumont and Catherine M. Gaumont Respondents (Appellant)

Counsel

R. Michael Rodé, for the appellant

Jael Marques de Souza, for the respondent

Heard

September 5, 2018

On Appeal

On appeal from the judgment of Justice M. Charbonneau of the Superior Court of Justice, dated September 21, 2017.

Reasons for Decision

[1] The appellant appeals a judgment appointing the Public Guardian and Trustee (the "PGT") as guardian of the property and personal care of her daughter, Monica, pursuant to the Substitute Decisions Act, 1992, S.O. 1992, c. 30. Monica, who is now 30 years old, has a form of epilepsy that leads to seizures. As her seizure disorder progressed, her cognitive development has regressed. Since 2014, Monica has lived in a home operated by Ongwanada Community Resource Centre, which provides support for persons with developmental disabilities. Before then, Monica lived with her mother.

[2] The application judge refused a request for an adjournment. Proceeding on the basis of the PGT's evidence, he concluded that Monica lacked capacity and the circumstances were such that she needed a guardian. He accepted the PGT's evidence about the difficulties that arose when Monica was visiting her mother. He concluded that the appellant's claim that, with more time and by providing updated information she could show she was a proper guardian, had very little chance of success. He noted that Monica was vulnerable, and that her mother had been unable in the past to make appropriate decisions for her. As such, the application judge refused to make a temporary order and he granted the judgment appointing the PGT Monica's guardian of property and personal care. The judgment provided that the appellant could "apply to be appointed guardian … on the grounds of an important change in her circumstances and/or the circumstances of Monica". It also provided that the PGT was to encourage maximum access between Monica and her mother to the extent that such access was in Monica's best interest.

[3] There are several grounds of appeal.

[4] First, the appellant argues that she was denied procedural fairness when the application judge refused to adjourn the hearing or to make a temporary order only, so that she could bring forward evidence.

[5] We disagree. The matter was outstanding for several months and had been adjourned on a peremptory basis. This application judge considered whether there would be any benefit in adjourning the matter or making only a temporary order. He observed at the outset that there was no competing application for the appointment of the appellant as Monica's guardian. As argument progressed, and it appeared that the appellant might put herself forward as a suitable guardian, the application judge concluded that there was very little chance of success of such an application. There is no reason to interfere with this decision, which reflects the application judge's fair assessment of the circumstances that existed at the time the parties were before him.

[6] Second, the appellant contends that a finding of incapacity ought not to have been granted without a formal assessment. There was evidence to support the finding that Monica lacked capacity, and no evidence to the contrary. Moreover, although appellant's counsel suggested that a more detailed assessment would be desirable, Monica's lack of capacity was not challenged at the time of the hearing, and there is no basis for the appellant to raise this issue for the first time on appeal. Accordingly, this ground of appeal has no merit.

[7] Third, the appellant asserts that the application judge erred by failing to consider whether a power of attorney signed by Monica in 2010 in favour of her mother was valid. The existence of this document, which was raised at the very end of the hearing before the application judge, has no effect on the outcome. Whether or not the power of attorney was valid, the evidence before the application judge was that Monica required someone other than her mother to make decisions for her.

[8] Finally, the appellant says that the application judge erred by refusing to consider whether there was any other suitable person who was available and willing to be appointed as Monica's guardian. The matter had been outstanding for several months, and no one had come forward as an alternative guardian for Monica. There was no evidence that any other suitable person was willing to act in this capacity. In any event, should circumstances change and an alternative guardian wish to make an application in the future, this is not precluded by the judgment under appeal, and is expressly contemplated in respect of the appellant.

[9] The appeal is therefore dismissed. No order as to costs.

"Robert J. Sharpe J.A."

"K. van Rensburg J.A."

"David Brown J.A."