ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-14-4016-00
DATE: 2015 09 28
BETWEEN
TAWFEEQUE ISMAIL ELMI and SADHIA ELMI
Elizabeth Julien-Wilson, for Tawfeeque Ismail Elmi and Sadhia Elmi
Applicants/Respondents
- and -
SALMA HIRSI and KHADIJA WARSAME
Margaret Osadet, for Salma Hirsi and Khadija Warsame
Applicants/Respondents
- and -
NADEEN TAWFEEQUE ISMAIL, incapable, THE PUBLIC GUARDIAN AND TRUSTEE
Respondents
Edgar-Andre Montigny, for Nadeen Tawfeeque Ismail
Jael Marques de Souza the Public Guardian and Trustee
HEARD: June 18, 2015
REASONS FOR JUDGMENT
FAIRBURN J
Overview
[1] Nadeen Tawfeeque Ismail is a 21-year-old woman. She is the daughter of Salma Hirsi and Tawfeeque Ismail Elmi. Nadeen faces some challenges pertaining to her ability to manage property and achieve a certain level of personal care.
[2] Ms. Hirsi and Mr. Elmi were married in 1993 and separated in 2001. They had two children. Nadeen and her brother lived with their mother from the time of separation. Nadeen’s primary residence changed in April 2014. Since that time, each parent has been involved in a dispute about the following three issues: (1) whether Nadeen should be declared incapable of managing property; (2) whether Nadeen should be declared incapable with respect to personal care; and (3) if she is found incapable with respect to one or both of these matters, the appropriate person to perform a guardianship role.
[3] On June 19, 2015, I issued an order declaring Nadeen incapable (within the meaning of the Substitute Decisions Act, R.S.O. 1992, S.O. 1992, c.30, [“SDA”]) of managing property. I also found Nadeen incapable of certain aspects of personal care, specifically as it relates to decisions affecting her health and safety. I ordered that Mr. Elmi and Ms. Sadhia Elmi (Mr. Elmi’s sister) act as Nadeen’s joint guardians in respect to these matters. Attached at Appendix “A” to these reasons is my order dated June 19, 2015.
[4] These are my written reasons for making the order.
The History of This Matter
[5] This matter has a difficult history. Tawfeeque Ismail Elmi and Salma Hirsi were once married. Nadeen is from this union. Mr. Elmi and Ms. Hirsi separated some time ago and Nadeen continued to live with her mother and younger brother.
[6] The mother alleges that on April 9, 2014 she left Nadeen in the care of Mr. Elmi’s sister, Nadeen’s Aunt Sadhia Elmi (the co-applicant to Tawfeeque Ismail Elmi). Ms. Hirsi says that she was intending on travelling to Kenya to visit her ailing mother. Ms. Hirsi had no choice but to leave Nadeen in the care of Nadeen’s Aunt Elmi as her sister, Khadija Warsame (the co-applicant to Ms. Hirsi), was unable to assist with Nadeen in Ms. Hirsi’s absence.
[7] It is alleged by Ms. Hirsi that within a few days of leaving Nadeen in Ms. Elmi’s care and control, she was served with a motion seeking to alter Nadeen’s primary residence. She was also served with an application to alter the previously ordered child support. Ms. Hirsi says that she responded by cancelling her trip to Kenya and attempted to seek the return of Nadeen. She maintains that Nadeen’s father made it clear that if Ms. Hirsi called the Family Responsibility Office (“FRO”) and told them that she was no longer seeking the money he is alleged to owe in child arrears, then Nadeen would be allowed to return to her mother’s home.
[8] Mr. Elmi paints a different picture. He says that his former wife was acting in an erratic manner in the time leading up to April 2014. Indeed, he says that he had already consulted a lawyer and was in the process of attempting to get access to Nadeen as he was fearful for her safety. He says that Ms. Hirsi was drinking and doing drugs and that he was receiving information that the children were not safe.
[9] In an affidavit sworn on March 12, 2015, Mr. Elmi filed documents obtained from the Peel Regional Police Service suggesting that Ms. Hirsi was charged with obstructing the police on September 11, 2014. This charge results from an allegation that she was intoxicated in a public place. When the police asked her to identify herself, she refused. This resulted in Ms. Hirsi being taken into custody and charged with obstruction. I note that this particular incident is alleged to have occurred after Nadeen had gone to live with her father in April 2014.
[10] I was also informed, and it does not appear to be in dispute, that Ms. Hirsi is currently charged with an alcohol-related driving offence. That matter is before the courts and, as such, no information was forthcoming from the Peel Regional Police Service. I was informed by counsel to Ms. Hirsi that Nadeen was not present during this alleged matter and I accept this as a fact.
[11] Mr. Elmi and his sister, Sadhia Elmi, take the position that Nadeen does not wish to see her mother. The mother disputes this fact and suggests that Nadeen is suggestible and has been the victim of intentional alienation.
The Appointment of Counsel for Nadeen
[12] Early in these proceedings it was clear that, given the wildly different views expressed by the parents, Nadeen needed a voice in the courtroom. This was particularly true bearing in mind the seriousness of the guardianship application, the conflicting evidence as to Nadeen’s potential challenges and needs, and the potential impact that any order respecting competency issues and guardianship may have on her autonomy and future. As such, on January 9, 2015, I issued an order pursuant to s. 3 of the SDA; I directed the Public Guardian and Trustee (PGT) to arrange for Nadeen’s legal counsel. Ultimately, counsel from the ARCH Disability Law Centre was retained. Mr. Edgar-Andre Montigny from the ARCH Disability Law Centre moved expeditiously and met with Nadeen.
[13] On February 6, 2015, Mr. Montigny informed the court that he had met with Nadeen and formed the view that she was able to provide instructions. He concluded that she was not suffering from suggestibility. He received what he described as clear instructions from his client that she wished to remain living with her father and did not wish to see her mother.
Capacity Assessments
[14] On February 6, 2015, pursuant to s. 79 of the SDA, I ordered capacity assessments with respect to property management and personal care. In accordance with input from Nadeen’s counsel, a detailed assessment of each individual head of personal care and decision-making was ordered. The criteria for consideration with respect to personal care capacity are found within s. 45 of the SDA and involve the following aspects: health care, nutrition, shelter, clothing, hygiene, and safety. An order for assessment was made with respect to each of these categories.
[15] The parties were able to agree upon Ms. Alanna Kaye as the assessor. Ms. Kaye is the president of ASK Consultants, with an expertise in capacity assessments under the SDA. I have reviewed her credentials and am satisfied that she has significant expertise in this area. It was not suggested otherwise. Indeed, she has evaluated approximately 2,000 clients under the SDA. She produced timely assessments.
[16] Ms. Kaye met with Nadeen to conduct her assessments. She also reviewed a body of background information that had been provided to her, including information from medical personnel, Nadeen’s school, and Nadeen’s counsel.
[17] I have reviewed the reports done by Ms. Kaye as required under the SDA. They reveal a careful and detailed analysis. Some of the highlights from Ms. Kaye’s reports are set out below.
Assessment Report on Property Management
[18] Ms. Kaye notes that Nadeen is able to count money. She can also identify small things that can be purchased for certain amounts of money. She understands the concept of change and can calculate change for small amounts. For instance, when asked how much money she should receive in change if she provides five dollars for a one-dollar drink, she is able to calculate the correct amount. Nadeen’s abilities, though, do not go beyond these more common monetary matters. For instance, she thinks that a house can be bought for $500 or $1000. She cannot identify a basic budget to meet her needs.
[19] Ms. Kaye concludes that Nadeen suffers from global developmental delay. She is able to grasp simple financial concepts, but cannot understand complex ones. The assessor concludes that Ms. Ismail cannot make financial decisions.
Assessment Report on Personal Care Management
[20] Ms. Kaye assessed Nadeen’s ability to manage her personal care under the individualized heads of personal care set out above. Having conducted what I am satisfied was a careful assessment of Nadeen’s situation, Ms. Kaye concludes that Nadeen is competent as it relates to issues of shelter, nutrition, hygiene, and clothing. The two areas that cause concern are safety and health care. Ms. Kaye’s ultimate opinion is expressed in the following passage taken from her report:
Ms. Nadeen Ismail, a single twenty one year old woman, suffers from global developmental delay. . . Although her thinking tends to be concrete and simplistic, she demonstrates the ability to think through routine life issues. She does, however, exhibit difficulty in generating options and weighing risks/benefits in changing and more complex situations, such as issues related to unexpected safety and medical situations. It is, therefore, my opinion that at this time, Ms. Ismail meets the legal tests of “understand” and “appreciate” in relation to shelter, nutrition, hygiene and clothing and is capable of making decisions within these domains. It is my opinion, however, that she does not meet these tests within the domains of health care and safety, and thus is incapable of making these decisions.
[21] The factors below include some of the ones considered by Ms. Kaye in reaching the conclusion that Nadeen has more serious challenges when it comes to health care and safety.
Safety
[22] Nadeen is not able to say how she would react if she got lost. While she is able to identify how she would cross the street using street lights correctly, she is unable to figure out options or alternatives if she is unable to find her way home.
Health Care
[23] While she knows 911 is the emergency number, she feels that an emergency may arise from a knee injury. She is unable to weigh the risks or benefits to taking or abstaining from medication.
The Law: Findings Related to Capacity and Guardianship
[24] Individual autonomy is to be respected, fostered and encouraged. Whether with respect to property or personal care, an adult individual is presumed to be in a position to make decisions about their own current and future circumstances. The dignity and integrity of the individual depends upon this presumption. It should not be lightly interfered with. Any usurping of an individual’s right to self-determination must be exercised sparingly and only on the basis of clear evidence.
[25] Capacity issues are statutorily governed under the SDA. A person will only be found “incapable of managing property” if he or she is “not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision”: s. 6, SDA. Before appointing a property guardian, the court must find that the person is incapable of managing property: s. 25(1), SDA.
[26] As for personal care, similar considerations apply. A person will only be considered “incapable of personal care” if he or she is unable to understand information relevant to “making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision”: s. 45, SDA. Before appointing a personal care guardian, the court must find that the person is “incapable in respect of the functions referred to in section 45, or in respect of some of them, and, as a result, needs decisions to be made on his or her behalf by a person who is authorized to do so”: s. 58(1), SDA. Full guardianship may only be granted where the court is satisfied that the person is “incapable” in respect to all of the functions listed within s. 45.
[27] Consistent with the emphasis on individual autonomy, the SDA prohibits the appointment of a guardian for property or personal care where an alternative, less intrusive course of action is available. This finds statutory expression within both ss. 22 and 55 of the SDA:
Court-Appointed Guardians of Property
22(1) Application for appointment The court may, on any person's application, appoint a guardian of property for a person who is incapable of managing property if, as a result, it is necessary for decisions to be made on his or her behalf by a person who is authorized to do so. …
22(3) Prohibition The court shall not appoint a guardian if it is satisfied that the need for decisions to be made will be met by an alternative course of action that,
(a) does not require the court to find the person to be incapable of managing property; and
(b) is less restrictive of the person's decision-making rights than the appointment of a guardian.
Court-Appointed Guardians of the Person
55(1) Application for appointment The court may, on any person's application, appoint a guardian of the person for a person who is incapable of personal care and, as a result, needs decisions to be made on his or her behalf by a person who is authorized to do so.
55(2) Prohibition The court shall not appoint a guardian if it is satisfied that the need for decisions to be made will be met by an alternative course of action that,
(a) does not require the court to find the person to be incapable of personal care; and
(b) is less restrictive of the person's decision-making rights than the appointment of a guardian.
Conclusion as to Nadeen’s Capacity: Property and Personal Care
[28] It seems to me that Ms. Kaye’s conclusions are well founded on the facts elicited before the court. The parties are in agreement that, at a minimum, Nadeen has competency issues in respect to these areas. On the basis of these facts, and the information collected during the expert’s assessment of Nadeen, I agree with the conclusions reached.
[29] Based on the expert report provided, as well as my own review of the materials filed with the court, including the school reports filed by the father, I conclude that Nadeen is incapable as it relates to property. While Nadeen has some concept about personal finances, she is unable to understand information relevant to making decisions about the management of her property. She is also unable to appreciate the reasonably foreseeable consequences of a decision or the impact of failing to make a decision.
[30] Moreover, I conclude that, based on the evidence filed, and with a particular emphasis on Ms. Kaye’s assessment as to the heads of personal care, that Nadeen is incapable only as it relates to health care and safety. Having regard to all of the evidence filed, and bearing in mind the submissions of Nadeen’s counsel, she is capable as it relates to the majority of the heads of personal care, including clothing, hygiene, nutrition and shelter. I conclude that when it comes to decisions about safety and health care, Nadeen is unable to understand and appreciate the reasonably foreseeable consequences of a decision or lack of decision.
Conclusions as to Nadeen’s Guardianship
[31] Given my findings as it relates to Nadeen’s capacity under both of these heads, the question remains as to who would be the appropriate guardian to administer Nadeen’s affairs with respect to these heads. I have come to the conclusion that the appropriate guardians in this matter are Nadeen’s father, Tawfeeque Ismail Elmi, and his sister, Sadhia Elmi. I have come to this conclusion for the following reasons.
[32] It is quite clear that Nadeen, a 21-year-old adult, wishes to reside with her father and her aunt. Her counsel has been quite clear in expressing his client’s wishes and instructions in this respect. As a starting point, it makes sense that the guardian be someone who Nadeen lives with and has shown confidence in.
[33] There is objective evidence that supports the fact that Nadeen is doing well in her father and aunt’s care. The environment appears to be good for her. The Applewood School, where Nadeen attends, in the Peel District School Board, has kept meticulous notes with respect to their involvement with Nadine and her family. I have reviewed these notes.
[34] The mother seems to have had a difficult relationship with the school. Some records suggest that the mother has not been cooperative with the school authorities. I have regard to a September 17, 2014 letter sent by the school to Nadeen’s mother where the principal set out clear guidelines to be followed when attempting to communicate with Nadeen while she is at school. I also have regard to the parent communication log that suggests that the mother has been at the school a good deal, attempting to communicate with her daughter in that location without following the clear guidelines set out by the principal. While the mother’s anxiety level has no doubt been high since the spring of 2014, when Nadeen stopped living with her, this does not excuse the mother’s behavior at the school.
[35] The records suggest that the school takes the position that Nadeen is an adult and has expressed a clear and unequivocal desire to be with her father and aunt. Barring a court order, the school is not prepared to interfere with this approach. The Peel District School Board’s lawyer sets out the following in October 28, 2014 correspondence to Ms. Hirsi’s lawyer:
[Nadeen’s] wishes must be respected.
As you know, the authorities were involved on one occasion, and in light of Nadeen’s age and her clear expressed desire not to leave with your client, the authorities indicated that they would not enforce an order from several years ago requiring her to go with her mother in all of the circumstances.
The Board, as well, is not in a position to require an adult student to leave with a party against his or her wishes, in the circumstances.
It is my understanding that the Board has not made reference to a trespass order, although perhaps the authorities have made such a reference.
[36] Respecting who should perform the guardianship responsibilities, I have also reviewed an Equifax report produced in regard to Nadeen’s personal finances. It would appear that during a period of time when she was living with her mother, she accumulated some significant debt, including a Rogers Communications bill of $1,772, a Bank of Montreal debt of $1,340, and a Bell Canada bill in the amount of $2,450.01. The Equifax report shows that a file was opened on Nadeen at Equifax on or about May 23, 2013, when these bad debts were accumulated.
[37] In an affidavit from Sadhia Elmi, sworn on March 12, 2015, Ms. Elmi suggests that she spoke with Nadeen about these bills. Nadeen advised her that Ms. Hirsi had told her to “sign all the papers”. No one has suggested that Nadeen accumulated the debt on these bills. I find that Ms. Hirsi, or someone who had access to Nadeen’s information while Ms. Hirsi was responsible for caring for Nadeen, accumulated significant debt under her name. She knows nothing of this debt. This leaves me with serious reservations about leaving her property management in the hands of the mother.
[38] Ultimately, I find that Nadeen’s wishes should be honoured in this matter. She is a 21-year-old woman whose autonomy and decision making powers should be respected to the extent possible. She has been residing with her father and Sadhia Elmi for over a year now and doing well. I was informed by her counsel on the hearing of this application that she has just graduated from high school and, in fact, is slated to attend community college in the fall of 2015. She is registered in the program of Early Childhood Education.
[39] While both the mother and father produced property and guardianship management plans that are acceptable to the court, the father’s plan is more sophisticated. It demonstrates a clear recognition of the need for Nadeen to pursue post-secondary education and obtain life skills to promote as much independence and quality of life as possible.
[40] Importantly, Nadeen, as expressed through her counsel, wishes to remain with her father and Aunt Sadhia Elmi. Her counsel is satisfied with the father and Sadhia Elmi performing all guardianship responsibilities. This factor alone bodes in favour of appointing the father and aunt as the guardians. This conclusion is bolstered by my satisfaction that they are otherwise satisfactory guardians.
Conclusion: Terms and Conditions of the Order
[41] In all of the circumstances, with respect to capacity and guardianship, I come to the following conclusions:
(i) Nadeen is incapable as it relates to managing property and it is necessary for decisions to be made on her behalf by a person who is authorized to do so.
(ii) Tawfeeque Ismail and Sadhia Elmi are appointed as joint guardians of property for Nadeen.
(iii) Nadeen is incapable in respect to personal care decisions related to her health and safety and, as a result, it is necessary for decisions in those areas to be made on her behalf by a person who is authorized to do so.
(iv) Tawfeeque Ismail Elmi and Sadhia Elmi are appointed as joint guardians of Nadeen for the purposes of decisions related to her health and/or safety. This guardianship does not extend to personal care decisions related to shelter, nutrition, clothing and hygiene. and
(v) For clarity, Nadeen is capable in respect to personal care decisions related to shelter, nutrition, clothing and hygiene.
[42] Having regard to the need to foster Nadeen’s independence and autonomy, albeit within the boundaries dictated by her particular situation, her personal care guardians must act in accordance with the duties and responsibilities outlined in s. 66 of the SDA. While they must comply with all aspects of s. 66 of the SDA, for purposes of clarity, they must exercise their powers and duties diligently and in good faith, including, but not limited to fulfilling the following obligations:
(i) Within 15 days of the court’s order (which was made June 19, 2015) permit Nadeen to see her s. 3
SDA counsel, so that he may explain to Nadeen the nature of the order and the powers and duties of her guardians. He may provide to Nadeen, for safekeeping, any documents or aids deemed appropriate in the circumstances.
(ii) Within 30 days of the yearly anniversary of this order, the guardians must permit Nadeen to see her counsel (or another counsel who has been arranged through ARCH) to have a solicitor-client privileged meeting. During the meeting, Nadeen and counsel may discuss any matters relevant to this order and her wellbeing.
[43] As well, with a view to encouraging and ensuring maximum autonomy for Nadeen, I further order that the guardians encourage Nadeen to participate, to the best of her abilities, in decisions made on her behalf, foster her independence, and choose the least restrictive and intrusive course of action available and appropriate in any particular situation.
[44] These reasons would not be complete if I was not to express my concern about the seemingly dysfunctional nature of the relationship between Nadeen’s parents. Nadeen will obviously do better if her entire family starts to communicate, get along and show respect for one another. This would serve to improve Nadeen’s quality of life. It is difficult enough for people who do not face challenges like Nadeen to live with and reconcile the emotional turmoil that results when their parents do not get along. In the best interests of Nadeen, her entire family should make strong and selfless efforts to start getting along and respecting one another. In Nadeen’s presence, they should speak in respectful terms about one another.
[45] As it relates to her relationship with her mother and mother’s relatives, and with a view to remaining hopeful that the relationship may repair over time, I order as follows:
(i) If Nadeen expresses a decision to see or communicate, in any fashion, with her mother, Aunt Khadija Warsame, or any other family members, the guardians will not interfere with any such communication and/or contact. Should Nadeen express the decision to see any of the above individuals, the guardians are ordered to facilitate such communication and/or contact in a manner consistent with their assigned guardianship obligations and responsibilities as it relates to Nadeen’s health and safety.
(ii) Pursuant to s. 66(6) of the SDA, and for the sake of clarity, the guardian shall seek to foster regular personal contact between Nadeen and her supportive family members and friends.
[46] If at any time the guardians become unable to fulfill their guardianship responsibilities under this order, provided they are able, they shall bring an application for substituted guardianship.
[47] The amount of support received by Nadeen from the Ontario Disability Support Program [“ODSP”] was unclear at the time of the final argument in this matter because her benefits had been suspended. As a result, within 30 days of the benefits having been reinstated, an updated Management Plan and Guardianship Plan must be provided to the PGT’s office. If an irreconcilable issue arises, then the PGT shall inform the guardians. In the event this occurs, within 90 days of being informed by the PGT that the issue is irreconcilable, then the guardians shall bring a motion for the resolution of the matter.
[48] I wish to thank all counsel for their assistance in this matter.
[49] Order in accordance with Schedule “A”.
FAIRBURN J
Released: September 28, 2015