Philip Cornish

Following a substantive decision under the Substitute Decisions Act, 1992 appointing family members as guardians of an incapable adult, the court determined costs arising from competing guardianship applications.

The successful parties sought elevated costs due to the applicant’s conduct in initiating and pursuing the litigation.

The court held that costs in SDA proceedings follow the general civil litigation principles under s.131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure.

Finding the applicant’s conduct precipitous, belligerent, and motivated by collateral dissatisfaction with estate arrangements rather than concern for the incapable person’s welfare, the court ordered costs on a substantial indemnity basis.

Fixed costs were awarded to the successful parties, payable by the unsuccessful applicant.

The applicant brother brought an application to be appointed the sole guardian of property and personal care for his developmentally disabled sister.

The respondent mother and sister brought a counter-application seeking joint guardianship.

The court found the sister incapable of managing property and personal care.

Applying the best interests test under the Substitute Decisions Act, the court dismissed the brother's application, finding he acted in bad faith and was motivated by financial interests.

The court appointed the mother and sister as joint guardians, noting the mother's lifelong devotion to the incapable person's care.

The applicant brother brought an application to be appointed as the sole guardian of property and personal care for his sister, who has significant cognitive and developmental limitations.

The respondent mother and sister brought a counter-application seeking joint guardianship.

The court found the sister incapable of managing property and personal care.

After reviewing the history of care and the conduct of the parties, the court dismissed the applicant's application and appointed the mother and sister as joint guardians, finding it was in the incapable person's best interests to remain in the care of her mother with a transition plan to her sister.