COURT FILE NO.: CV-20-82639
DATE: 2021/04/20
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE PROPERTY AND PERSON OF KEVIN SIMMS, AND IN THE MATTER OF
the Substitute Decisions Act, 1992, S.O. 1992, c. 30, as amended
B E T W E E N:
MARTYN SIMMS
Applicant
– and –
KEVIN SIMMS and THE PUBLIC GUARDIAN AND TRUSTEE
Respondents
Martyn Simms, Self-represented
Richard Coutinho, for the Public Guardian and Trustee
No one appearing for Kevin Simms
HEARD: August 11 and December 17, 2020 by Zoom
RULING on application
Introduction
[1] Martyn Simms brings this application for appointment as the guardian of property and guardian of personal care for his adult son, Kevin Simms. When the hearing commenced, Martyn was represented by counsel; when the hearing concluded in December 2020, Martyn was self-represented.
[2] The respondent, the Public Guardian and Trustee (“PGT”), has been represented throughout this proceeding including at the hearing. Kevin Simms did not respond to and was not represented at the hearing of the application.
Background
[3] Kevin was born on November 13, 1993; he is 27 years old. Kevin’s parents divorced in 2003. Kevin has resided with his father for approximately 20 years. Pursuant to an order of this court made in February 2004, Martyn has sole custody of Kevin.
[4] Martyn is in his early fifties. He previously worked as an independent consultant in the field of information systems. Martyn is currently in receipt of income from the Ontario Disability Support Program (“ODSP”). There is no evidence as to the condition which is the basis for Martyn’s entitlement to ODSP. Kevin also receives income through ODSP.
[5] Martyn and Kevin live together in a rented townhome, available to them through the Ottawa Community Housing Corporation. Martyn and Kevin share equally in the rent and in the utilities, internet, and related household expenses.
[6] Martyn accesses support with respect to Kevin’s day-to-day care and activities. Martyn secures the assistance of personal support workers (“PSWs”) for overnight respite and when he is unable to provide care for Kevin. For example, in 2019, PSWs cared for Kevin when Martyn underwent surgical procedures.
[7] Kevin participates in a daytime drop-in program at the Main Street Community Services Centre in Kanata. He also participates in drop-in programs and specific activities with Family Harmonies. Through that organization, Kevin has access to a mix of education and leisure activities or programs.
[8] Kevin also attends Spark Educational Therapy. The goal of Kevin’s involvement with that organization is to improve Kevin’s reading, written communication, and verbal communication. The expenses associated with that program are paid by the Ontario March of Dimes.
[9] There are three components to Kevin’s finances. First, there is a Henson Trust, created as part of the administration of the estate of Kevin’s paternal grandfather (“the Trust”). The Trust was addressed in a separate application, with someone other than Martyn appointed as the Special Trustee: Simms v. Simms, 2017 ONSC 6624. The Trust is excluded from Kevin’s property for the purpose of the application now before the court.
[10] The second component is the monthly income Kevin receives through ODSP. There is no evidence as to the exact amount of ODSP Kevin currently receives. In the draft management plan prepared in January 2020, Kevin’s annual income from ODSP is $12,048 (or $1,004 per month).
[11] The third and final component is a Registered Disability Savings Plan (“RDSP”). Martyn is the plan holder and sole contributor. As of September 2020, the RDSP was valued at approximately $250,000.
[12] Kevin’s health and medical concerns include the following:
• Autism Spectrum Disorder resulting in severe communication delay;
• Developmental delay;
• Behaviour similar to Tourette’s syndrome;
• Food and environmental allergies; and
• Sensitivity to light, sounds, and noise.
[13] For his entire life, Kevin has been reliant on someone to care for him. Martyn has been and remains the person who sees to Kevin’s needs on a daily basis.
[14] Martyn describes Kevin as requiring assistance with most day-to-day tasks. Kevin is able to dress himself but requires reminding to brush his teeth. Kevin is able to read basic words and do some counting. He requires constant supervision when in the community.
[15] Kevin has significant challenges with communication. Kevin’s speech pathologist describes Kevin’s speech as intelligible only with careful listening and if context is known. Kevin has great difficulty in communicating his needs.
The Issues
[16] The issues to be determined on this application are as follows:
Is Kevin Simms incapable of managing property within the meaning of s. 6 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”)?
If the answer to Issue No. 1 is “yes”, is Martyn Simms to be appointed as the guardian of property for Kevin Simms and, if so, on what terms?
Is Kevin Simms incapable of personal care within the meaning of s. 45 of the SDA?
If the answer to Issue No. 3 is “yes”, is Martyn Simms to be appointed as the guardian of personal care for Kevin Simms?
[17] Before determining the substantive issues, there is a preliminary procedural issue to address.
Preliminary Procedural Issue
[18] Kevin has two siblings, both of whom are adults: Michelle Marie Hess and Peter William Hess. Michelle and Peter are both in their twenties. Kevin has not had any contact with his sister for almost three years or with his brother for almost nine years.
[19] In keeping with the procedural requirements on an application of this kind, Martyn’s former counsel communicated with Michelle and Peter in an effort to make them aware of the application and, if necessary, arrange for service on them of the application record.
[20] In his email communication with Martyn’s former counsel, Peter stated that he declined to act as guardian for Kevin. Peter’s response indicates that he misunderstood why counsel was reaching out to him. The response does, however, support a finding that Peter has no interest in becoming involved in this proceeding.
[21] In late 2019, Michelle sent an email to her father in which she requested that he not have any communication with her. Michelle did not respond to counsel’s March 2020 email with respect to this proceeding.
[22] I find that neither Michelle nor Peter has any interest in participating in this proceeding. Service of the application record on each of Peter and Michelle is dispensed with.
Issue No. 1 - Is Kevin Simms incapable of managing property within the meaning of s. 6 of the Substitute Decisions Act?
a) The Law
[23] Section 6 of the SDA defines a person as incapable of managing property, “if the person 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.”
[24] A capacity assessment is not required in every case to support a finding that an individual is incapable of managing their property. I am satisfied that a capacity assessment with respect to Kevin’s ability (or inability) to manage property is not required in support of this aspect of Martyn’s application.
b) Evidence of Incapacity
[25] The court has the benefit of evidence from three individuals who are in a position to describe Kevin’s limitations. The record includes at least one affidavit from each of Martyn, Dr. Michael Malek (Kevin’s long-time family physician), and Dr. Karen Ogston (Kevin’s long-time psychologist).
[26] Some of Martyn’s observations as to Kevin’s limitations are set out in the Background section of this ruling. In addition, Martyn describes Kevin as able to do only simple math and as unable to understand basic financial transactions.
[27] Included as an exhibit to Martyn’s January 2020 affidavit is a copy of a July 2019 progress report from Kevin’s speech pathologist. The contents of that report support Martyn’s description of the significant limitations that Kevin has with all forms of communication. For example, the speech pathologist describes efforts made for Kevin to begin building sentences using basic subject-verb-object. The speech pathologist also worked with Kevin on the comprehension of animals, colour, and size.
[28] As of August 2019, when his affidavit was sworn, Dr. Malek had been Kevin’s family physician for over 20 years. He had seen Kevin six times in the twelve-month period before swearing his affidavit.
[29] Dr. Malek describes Kevin as having “severe autism and developmental delays, a limited ability to communicate orally, and the functional level of a grade one student”. Dr. Malek’s evidence is that Kevin is completely dependent on Martyn.
[30] Dr. Ogston has been Kevin’s psychologist for 18 years. In the twelve months prior to August 2019, when her affidavit was sworn, Dr. Ogston saw Kevin five times. Her evidence as to Kevin’s limitations and level of function is, word-for-word, identical to that of Dr. Malek.
[31] Kevin’s limitations are significant. It is abundantly clear, and I find, that Kevin has neither the ability “to understand information that is relevant to making a decision in the management of his … property” nor the ability “to appreciate the reasonably foreseeable consequences of a decision or lack of decision.”
c) Summary
[32] I declare that (a) Kevin is incapable of managing property within the meaning of s. 6 of the SDA, and (b) as a result, it is necessary, within the meaning of s. 22 of the SDA, for decisions to be made on Kevin’s behalf by a person authorized to do so.
Issue No. 2 - If the answer to Issue No. 1 is “yes”, is Martyn Simms to be appointed as the guardian of property for Kevin Simms and, if so, on what terms?
a) Appointment of Guardian of Property
[33] Martyn’s devotion to Kevin is clear from all of the efforts he has made and continues to make to ensure that Kevin is cared for and finds meaning in his life. For example, the speech pathologist observed that in the three months in 2019 during which she worked with Kevin, Martyn was providing Kevin “with a rich and nurturing learning and experiential environment”. Activities and experiences that Martyn arranged for Kevin in those three months included the following:
• Almost daily bicycle rides;
• Travel excursions by bus to events in the City of Ottawa; and
• Volunteer experiences at the Dragon Boat Festival, Tulip Festival, Children’s Festival, Aboriginal Summer Solstice, and Lumiere Festival.
[34] Patience and attention to detail are required to make arrangements for Kevin – whether for therapy, programs, activities, or experiences. Patience and attention to detail are required to track and secure reimbursement or payment, either where possible, of expenses incurred for programs, PSWs, etc.
[35] I am satisfied that Martyn has the patience and attention to detail required to fulfill the obligations of a guardian of property.
[36] In December 2020, Martyn delivered a supplementary affidavit. By that point, Martyn was self-represented. In that affidavit, Martyn provides a detailed history of the Trust and of the RDSP. Martyn also sets out how Kevin’s financial needs will be met over time based on how the Trust is managed by the Special Trustee and how Martyn proposes to manage Kevin’s ODSP benefits, RDSP, and expenses for programming and care.
[37] It is clear from Martyn’s affidavits that he has an excellent grasp on the steps required to maximize the accumulation of funds in the RDSP – including, for example, through government grant top-ups. It is also clear that Martyn seeks out and, when possible, secures financial assistance to cover expenses incurred for Kevin’s care, programs, and activities.
[38] I find that, despite the limited income that he and Kevin receive, Martyn provides Kevin with a stable home and programming intended to permit Kevin to increase his level of function. I accept Martyn’s evidence when he says that he has Kevin’s best interests at heart.
[39] I appoint Martyn as Kevin’s guardian of property.
b) Terms of Appointment
[40] I find the management plan dated January 16, 2020 to be reasonable and appropriate. Martyn shall act in accordance with that management plan. Any further plan shall be approved by either the PGT or the court.
[41] To ensure that the RDSP continues to be managed in Kevin’s best interests, the PGT shall provide oversight of transactions as set out in paragraph 5 of the order made in the Disposition section below.
[42] Given the oversight by the PGT of transactions for the RDSP, Kevin’s limited income, and the Special Trustee’s management of the Trust, it is reasonable to excuse Martyn from passing accounts. Regardless, Martyn shall fulfill his obligations to provide copies of his records and accounts to persons entitled to them under s. 5(2) of the SDA.
[43] For the reasons set out in the paragraph immediately above, I dispense with the requirement for Martyn to post a bond.
Issue No. 3 - Is Kevin Simms incapable of personal care within the meaning of s. 45 of the SDA?
a) The Law
[44] Section 45 defines a person as incapable of personal care, “if the person is not able to understand information that is 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.”
[45] Once again, a capacity assessment is not always required on an application for appointment as guardian of personal care. I am satisfied that a capacity assessment is not required for this aspect of Martyn’s application.
b) Evidence of Incapacity
[46] As discussed in previous sections of this ruling, Kevin has been totally reliant on Martyn throughout his life and exclusively so since at least 2003. Kevin’s limitations with respect to activities of daily living and personal care are significant.
c) Summary
[47] I declare that (a) Kevin is incapable of personal care within the meaning of s. 45 of the SDA, and (b) as a result, it is necessary, within the meaning of s. 55 of the SDA, for decisions to be made on Kevin’s behalf by someone authorized to do so.
Issue No. 4 - If the answer to Issue No. 3 is “yes”, is Martyn Simms to be appointed as the guardian of personal care for Kevin Simms?
a) Appointment of Guardian of Personal Care
[48] For the reasons set out above under Issue No. 2 and based on the evidence discussed in previous sections of this ruling, I appoint Martyn as Kevin’s guardian of personal care.
b) Terms of Appointment
[49] I find the guardianship plan dated January 16, 2020 to be reasonable and appropriate. Martyn shall act in accordance with that guardianship plan. Any further guardianship plan shall be approved by the court.
Ancillary Matters
[50] The PGT requests and is granted its costs in the amount of $250.00, plus HST of $32.50, for reviewing the application.
[51] Kevin’s RDSP is with the Royal Bank of Canada (“RBC”). A copy of the order issued pursuant to this ruling shall be provided by Martyn to RBC.
[52] On the return of the application in December 2020, the PGT agreed to send a copy of its guardianship investigation brochure to both RBC and the Special Trustee.
[53] Each of these three ancillary matters is addressed in the order made in the Disposition section immediately below.
Costs of the Application
[54] Martyn is in the process of having the solicitor-client accounts of his former counsel assessed. It is, therefore, not possible at this time to determine the issue of Martyn’s costs of this application. That issue is adjourned.
[55] Once the solicitor-client assessment process, including any appeals, is complete, Martyn shall take the steps necessary to bring this application back before me so that the issue of his costs on this application may be determined. Martyn shall,
a) serve the PGT with a notice of continuation of the application,
b) serve the PGT with his bill of costs (prepared in accordance with the relevant form under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194),
c) file the bill of costs with the court in accordance with the deadline set by the Rules and with the most recent notice to the profession with respect to filing documents electronically, and
d) send a copy of his bill of costs to SCJ.Assistants@ontario.ca to my attention.
[56] On the continuation of the application Martyn and the PGT shall both be entitled to make oral submissions with respect to the issue of Martyn’s costs.
Disposition
[57] In summary, I order as follows:
THIS COURT ORDERS that the requirement for service of the application record and supplementary supporting affidavits on Michelle Marie Hess and Peter William Hess is dispensed with.
THIS COURT DECLARES that,
a) Kevin Simms, is incapable of managing property within the meaning of s. 6 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“the Act”),
b) as a result, it is necessary, within the meaning of s. 22 of the Act, for decisions to be made on Kevin’s behalf by a person who is designated to do so.
THIS COURT ORDERS that Martyn Simms is appointed as the guardian of property for Kevin Simms.
THIS COURT ORDERS that the guardian of property for Kevin Simms shall act in accordance with the Management Plan dated January 16, 2020 and any further management plan approved by the Public Guardian and Trustee or the court.
THIS COURT ORDERS that with the exception of deposits or reinvestments, the guardian of property shall be prohibited from making any transactions on the RDSP in account number 562163832, including the ability to transfer the funds to another financial institution, unless the guardian of property has first obtained the written consent of the Public Guardian and Trustee through their counsel or further order of the court.
THIS COURT ORDERS that the guardian of property shall not be required to pass their accounts except by court order. Nothing in this judgment, however, exempts the guardian of property from their obligation to provide copies of their accounts and records on request to the persons entitled to them under section 5(2) of O. Reg. 100/96 made under the Act.
THIS COURT ORDERS that the requirement for Martyn Simms, as the guardian of property for Kevin Simms, to post a bond is dispensed with.
THIS COURT DECLARES that,
a) Kevin Simms is incapable of making personal care decisions, within the meaning of s. 45 of the Act, and
b) as a result, it is necessary, within the meaning of s. 55 of the Act, for decisions related to personal care to be made on Kevin’s behalf by a person who is authorized to do so.
THIS COURT DECLARES that Martyn Simms is appointed as the guardian of the person for the respondent, Kevin Simms.
THIS COURT ORDERS that the guardian of the person for Kevin Simms shall act in accordance with the Guardianship Plan dated January 16, 2020 and any further guardianship plan approved by the Public Guardian and Trustee or the court.
THIS COURT ORDERS that Martyn Simms, as guardian of the person of Kevin Simms, may make any decision on Kevin Simms’ behalf to which the Health Care Consent Act, 1996, applies.
THIS COURT ORDERS THAT the Public Guardian and Trustee’s fee for reviewing this application, as approved by the Attorney General and in the amount of $250.00 plus HST of $32.50, shall be paid forthwith to the Public Guardian and Trustee from the property of Kevin Simms.
THIS COURT ORDERS that the Applicant as well as the Public Guardian and Trustee shall forthwith provide a copy of this judgment to the Royal Bank of Canada (“RBC”).
THIS COURT ORDERS that the Public Guardian and Trustee shall forthwith provide a copy of its guardianship investigation brochure to both RBC and Erin McNamara, the latter being the Special Trustee for Kevin Simms.
[58] I ask that counsel for the PGT prepare a draft order based on the materials filed in support of the application and the 14 terms of the order set out above. The requirement to seek the approval of Martyn Simms as to the form and content of the draft order is dispensed with. The draft order shall be sent to me in accordance with the instructions set out in the email communication under cover of which this ruling is released to Martyn and counsel for the PGT.
[59] I wish to thank Martyn for the detailed evidence with respect to Kevin’s personal and financial circumstances. I also wish to thank Mr. Coutinho, counsel for the PGT, for his pragmatic approach and assistance to the court in this matter. Mr. Coutinho’s work contributed significantly to the efficiency of the hearing with which this application proceeded and was heard over time.
Madam Justice Sylvia Corthorn
Date: April 20, 2021
COURT FILE NO.: CV-20-82639
DATE: 2021/04/20
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE PROPERTY AND PERSON OF KEVIN SIMMS, AND IN THE MATTER OF the
Substitute Decisions Act, 1992, S.O. 1992, c. 30, as amended
B E T W E E N:
MARTYN SIMMS
Applicant
– and –
KEVIN SIMMS and THE PUBLIC GUARDIAN AND TRUSTEE
Respondents
RULING on application
Madam Justice Sylvia Corthorn
Released: April 20, 2021