SUPERIOR COURT OF JUSTICE – ONTARIO
CITATION: Elmi v. Hirsi, 2015 ONSC 2396
COURT FILE NO.: CV-14-3377-00/CV-14-4016-00
DATE: 2015-02-06
RE: Tawfeeque Ismail Elmi et al v. Salma Hirsi et al
BEFORE: Fairburn, J.
COUNSEL: Elizabeth Julien-Wilson, for Tawfeeque Ismail Elmi and Sadhia Elmi
Margaret Osadet, for Salma Hirsi and Khadija Warsame
Jaël Marques da Souza, for the Public Guardian and Trustee
Edgar André Montigny, for Nadeen Ismail
HEARD: February 6, 2015
E N D O R S E M E N T
[1] On January 9, 2015 the parties came before the court with a number of applications, including one brought by Ms. Hirsi for interim guardianship or access to Nadeen Tawfeeque Ismail. The orignating application relates to both the mother and father seeking full guardianship over Nadeen (related both to her personal care and property). Until that application is heard, Ms. Hirsi wishes to have access to Nadeen who is residing with her father and aunt and has been since April 9, 2014. The mother has not seen her since that date.
[2] As noted in my endorsement of January 14, 2015, the parties’ positions with respect to Nadeen, her abilities and wishes, are wildly different. As such, I ordered the Public Guardian and Trustee (“PGT”) to arrange for counsel for Nadeen so that the court could receive her views and that of counsel with respect to both the mother’s application for interim access and guardianship, and with respect to the ultimate application by both parties.
[3] The PGT promptly arranged for counsel who appeared today: Edgar André Montigny. Mr. Montigny was able to meet with Nadeen on more than one occasion. He informed the court that he also had another experienced lawyer meet with Nadeen, in his presence, to canvass her views and receive instructions. Mr. Montigny informed the court that he was cognizant of and concerned for any unnecessary pressure that may have been placed on Nadeen by her father and or others, which could alter her views in any way. During his and other the counsel’s meetings with Nadeen, there was no evidence of any such pressure or suggestability.
[4] Mr. Montigny cautioned the court about making any assumptions and drawing any conclusions about Nadeen’s capacity in light of the currently poor factual record before the court. I agree.
[5] If there are any capacity issues with resepct to Nadeen, they must be fully explored by professionals with proper expertise. This has not yet occurred. The court must remain alive to section 55(2) of the Substitute Decisions Act where a guardian for personal care “shall not” be appointed if the court is satisfied that the need for decisions to be made will be met by an alternative course of action. There is much work to be done here before a full assessment of the question of guardianship is dealt with. In the circusmtances, I dismiss Ms. Hirsi’s interim application for guardianship.
[6] As it relates to Ms. Hirsi’s interim application for access to Nadeen, bearing in mind Mr. Montigny’s submissions and the instructions he has received from Nadeen – a twenty-year-old woman who he is confident can give instructions and is clear of undue influence – I dismiss the application for interim access. She clearly whishes to continue living with her father and aunt. She has clearly expressed this fact and the fact that she does not wish to see her mother.
[7] The court so orders. Application dismissed.
Fairburn J.
DATE: February 6, 2015
CITATION: Elmi v. Hirsi, 2015 ONSC 2396
COURT FILE NO.: CV-14-3377-00/CV-14-4016-00
DATE: 2015-02-06
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Tawfeeque Ismail Elmi et al v. Salma Hirsi et al
COUNSEL: Elizabeth Julien-Wilson, for Tawfeeque Ismail Elmi and Sadhia Elmi
Margaret Osadet for Salma Hirsi and Khadija Warsame
ENDORSEMENT
Fairburn J.
DATE: February 6, 2015