Court File and Parties

COURT FILE NO.: CV-16-566419 DATE: 20170104 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Munir Nuri Saed and Shilan Hasan, Applicants AND: The Office of the Public Guardian and Trustee, Respondent

BEFORE: Madam Justice Kristjanson

COUNSEL: Firaz Mohamed for the Applicants No submissions from the Respondents

HEARD: In Writing

Endorsement

[1] This is an application in writing to appoint the applicant Shilan Hasan as guardian of the person and guardian of property for Munir Nuri Saed pursuant to the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”), and the Rules of Civil Procedure. Ms. Hasan is the wife of Mr. Nuri Saed.

[2] There are two procedural alternatives for appointments of guardian of the person and guardian of property: the standard procedure (which requires a court hearing), and the summary disposition procedure (which is done in writing and does not require a hearing.) As the application is made in writing, the applicant is moving pursuant to the summary disposition procedure set out in section 77 of the SDA. However, the applicant has failed to follow the statutory requirements under the SDA, which provide important protections for allegedly incapable persons, and provide the court with important information required to make guardianship orders.

[3] The SDA is based on the principle that all individuals over the age of 18 are presumed to be capable of managing property, and all individuals over the age of 16 are presumed to be capable of making personal care decisions. A finding of incapacity and appointment of a guardian by the court is not done lightly, as it is a significant elimination of a person’s autonomy and right to make his or her own decisions. Accordingly, the SDA provides a rigorous application process that must be followed. While the applicant’s affidavit evidence indicates that Mr. Nuri Saed is largely non-responsive, non-verbal and non-mobile following a catastrophic automobile accident, compliance with the SDA is essential before these orders can be granted. In this decision I indicate the additional steps that must be taken by the proposed guardian in order to obtain guardianship orders pursuant to the s. 77 summary disposition procedure.

Service Issues and Style of Cause

[4] Service on Allegedly Incapable Person: Mr. Nuri Saed is the allegedly incapable person. The SDA provides that the allegedly incapable person is to be served with notice of an application to appoint a guardian of property (s. 69(1) 1) and to appoint a guardian of the person (s. 69(3) 1). The proposed guardian seeks to be relieved of this obligation, given Mr. Nuri Saed’s alleged incapacity. Brian Shnurr, Estate Litigation, 2d Ed, section 9.3 (Westlaw) states that it does not appear that the court is permitted to dispense with such service under the SDA.

[5] Service on Family: Section 69(6) requires service by mail to Mr. Nuri Saed’s children who are 18 (re property) or 16 (re personal care.) Mr. Nuri Saed and the applicant have two children over the age of 16, who must also be served. That section also requires service on Mr. Nuri Saed’s parents, brothers and sisters; they must be served by mail at the last known address if they are still alive.

[6] Style of Cause: Section 69(8) of the SDA provides that as the allegedly incapable person, Mr. Nuri Saed is to be a respondent to the application and not an applicant. In addition, any of the family members served pursuant to s. 69(6) who choose to participate may be added as parties pursuant to s. 69(9).

Missing Required Documents

[7] While the applicant has filed an affidavit setting out some information, she has not filed significant documents which the SDA requires. Again, compliance with the SDA is essential, as the court must be advised of all relevant information in order to make the guardianship orders sought.

[8] Management Plan: Section 70(1)(b) of the SDA requires a proposed guardian of Property to file a Management Plan “in the prescribed form.” (O. Reg. 26/95, Form 2). The ten page Management Plan may be located on-line on the Government of Ontario’s Central Forms Repository. The completed Management Plan must be included as an exhibit in the Application Record. It sets out a detailed listing of the finances of the person for whom guardianship is sought, and the plans for management of the person’s property. Of note, s. 32(10) of the SDA requires the guardian to act in accordance with the plan.

[9] Guardianship Plan: Section 70(2)(b) of the SDA requires a proposed guardian of the person to file a Guardianship Plan “in the prescribed form” (O. Reg. 26/95, Form 3). The seven page Guardianship Plan may be located on-line on the Government of Ontario’s Central Forms Repository, and the completed Guardianship Plan must be included as an exhibit in the Application Record. This requires a careful consideration of personal care decision-making authority, and a plan for decision-making.

[10] Statement of Assessors and Other Person: SDA sections 72 (property) and 74 (person) set out important requirements for a summary disposition application. Section 72 provides in part:

72. (1) If the applicant wishes an application to appoint a guardian of property to be dealt with under section 77 (summary disposition), it shall also be accompanied by two statements made in the prescribed form, one by an assessor and the other by an assessor or by a person who knows the person alleged to be incapable and has been in personal contact with him or her during the twelve months before the notice of application was issued. (emphasis added)

[11] Ontario Regulation 460/05 sets out the required qualifications of an assessor, and the required forms which the assessor must complete for the purpose of the application. It is important to note that the assessment must be performed during the six months prior to issuance of the notice of application (s. 72(4), SDA). The Office of the Public Guardian and Trustee maintains a Capacity Assessment Office and a roster of qualified assessors; information is available on the Office’s website.

[12] The statement by the non-assessor is also required to be set out in a prescribed form available on the Government of Ontario Forms Depository, the “Statement to Appoint a Guardian of Property by Summary Disposition under Section 72”, which must also be included in the application record (O. Reg. 26/95, Form 8).

[13] Section 74(1) of the SDA sets out similar requirements for filing two statements, each made in the prescribed form by an assessor, on an application to appoint a guardian of the person on a summary disposition application. The required forms are set out in O. Reg. 460/05.

[14] Certification by Applicant: Section 77(2) provides that a summary disposition application must include a certification by the applicant with respect to matters set out therein.

Disposition

[15] In light of the significant information not contained in the Application Record, if the applicant wishes to proceed by way of a motion in writing pursuant to SDA s. 77, she must obtain the missing documents, serve the persons required by the SDA, change the style of cause, and re-submit the application.

[16] If the applicant chooses to pursue the standard route, it is important to review the SDA and requirements, as many of the forms set out herein are also required to be included in the application record for a standard route guardianship application and the SDA requires that additional persons must also be served with the application record. The requirement for assessors is unique to the summary disposition application.

[17] I decline to grant the guardianship applications at this time because the materials do not comply with the SDA. This decision is without prejudice to the ability of the applicant to re-apply with the materials required by the SDA.

[18] I note that the court did not have the benefit of submissions from the Office of the Public Guardian and Trustee. Where a guardianship application is clearly deficient, the court would greatly benefit from such submissions, given the Office’s vital role in representing and protecting the personal and property interests of incapable people.

[19] I direct that the applicant serve this endorsement on the Office of the Public Guardian and Trustee, and that the Office review any further application brought in relation to Mr. Nuri Saed to ensure that the application is in compliance with the SDA.

Kristjanson J. Date: January 4, 2017