REASONS FOR DECISION

DI LUCA J.:

[1] The Public Guardian and Trustee ("PGT") brings an application seeking various orders, including an order declaring the respondent, Mr. Golyzniak, incapable of making decisions regarding his personal care with respect to safety, shelter, health care, hygiene, nutrition and clothing. The PGT seeks to be appointed as a full guardian of the respondent on a permanent basis.

[2] The PGT also seeks an order declaring Mr. Golyzniak incapable of managing his property, and a further order removing the respondent Ms. Hanes as Mr. Golyzniak's guardian over property, alleging, inter alia, that she has failed to properly manage his finances and has been in violation of Eberhard J.'s Order of November 9, 2009, which required that she abide by a Management Plan and pass accounts as required.

[3] There is some history to this matter. The application was initially commenced on March 13, 2020. The COVID pandemic intervened and resulted in an initial shut down of the courts. On April 14, 2020, the PGT requested a hearing of the application on an urgent basis despite the shutdown. The request was considered by Casullo J. who, in an endorsement dated April 15, 2020, held that the test for urgency had not been met.

[4] The application then came before me on February 12, 2021, at which time I granted Ms. Hanes an adjournment so that she could have some time to prepare responding materials. I also ordered Ms. Hanes to prepare and deliver a statement listing assets and disbursements for Mr. Golyzniak's funds for the period of time following the Order of Eberhard J.

[5] On March 2, 2021, the application returned before me. On that date, I made an order under s. 3 of the Substitute Decisions Act appointing counsel to represent Mr. Golyzniak's interests. I did so in order to ascertain Mr. Golyzniak's views and position on the PGT's application.

[6] On March 25, 2021, the application was spoken to before me and I was advised that counsel, Ms. Javed, was anticipating a retainer and was prepared to act. The matter was adjourned to permit completion of the retainer and preparation of materials.

[7] The matter finally came before me on June 15, 2021. On that date, counsel Mr. Northcott appeared for Mr. Golyzniak. Responding materials were filed and the application proceeded to be heard on its merits.

[8] At the outset of the hearing, the PGT questioned whether Mr. Northcott was in a position to act for Mr. Golyzniak and raised a concern that Mr. Northcott had not been able to meet with his client in private. Mr. Northcott advised the court that he was prepared to act and had received instructions from his client. Given some of the context and history of this matter, I understand why the PGT raised this concern. However, in view of Mr. Northcott's statement made as an officer of the court, it would be inappropriate for the court to inquire further. If Mr. Northcott had concerns about his client's ability to give instructions or otherwise felt that he had not been able to obtain independent instructions, I trust his concerns would have been communicated to the court.

Factual Backdrop

[9] Before I turn to addressing the requests for guardianship orders, I start with the factual backdrop to this application.

[10] Mr. Golyzniak is currently 30 years old. He lives with his mother, her partner Lloyd Hanes, his sister, Nora Marie Golyzniak, and her 10 year old son. He has cerebral palsy, spastic diplegia and asthma. He relies on a wheelchair for mobility and is incontinent. While never diagnosed with a cognitive disability, the evidence suggests he has developmental delays. He needs a significant degree of support to tend to his needs and to ensure that he is able to participate in as many community activities as possible.

[11] Mr. Golyzniak's current living arrangements are not ideal. He lives in semi-contained unit that is attached to the main residence where the family lives. The unit is small, cluttered and poorly maintained, though there have been some recent improvements, including the installation of a bathtub. The living space occupied by Mr. Golyzniak does not appear to differ from the space occupied by the rest of the family. However, it appears to be personalized and contains many items such mementos, trophies and a collection of movies. Lastly, Mr. Golyzniak has a cat and a dog that live with him in his unit.

[12] Given the state of the living unit and Mr. Golyzniak's particular needs, it may ultimately not be in his best interests to remain there long term. Indeed, at some point, likely in the relatively near future, the respondents will need to consider whether Mr. Golyzniak's health and well-being may be better served by other living arrangements. However, as I will discuss, the legal test for guardianship is not "best-interests."

[13] In terms of the respondent Ms. Hanes, I note that she has her own health and personal issues that she is struggling with. As well, her relationship with social services does not appear to be functional. It is fractured. Ms. Hanes resents the social service intrusions into her home and her affairs, and deeply distrusts any efforts to provide assistance. Her non-cooperative stance has inevitably added to the conflictual nature of the relationship and has likely thwarted substantive progress. That said, it is also clear that Ms. Hanes lives in disadvantaged circumstances. It is not surprising that she would view some types of assistance as critiques of a lifestyle that has been imposed on her by poverty and not by choice. When viewed in this context, her defensive posture is, in part, understandable.

[14] Lastly, I note that the PGT has been fair in advancing this application. It has legitimate concerns for Mr. Golyzniak's safety and well-being. Those concerns are not speculative. The PGT has managed to secure a suitable placement in community housing for Mr. Golyzniak. The availability of that placement is time sensitive and will soon be lost. Regrettably, it appears that given Mr. Golyzniak's needs and service availabilities, once he loses this opportunity he may face long wait lists should he decide to avail himself of community living opportunities in the future.

Legal Parameters of Capacity and Guardianship

[15] Against this backdrop, I turn next to the legal parameters of capacity and guardianship. Issues of capacity and guardianship are governed under the Substitute Decisions Act ("SDA"). This act creates a scheme for determining issues of capacity in relation to personal care and in relation to managing property.

[16] The scheme is premised on a recognition of the fundamental values of personal autonomy and dignity. A person's liberty and their freedom to make choices, including choices that are not in their best interests, are given primacy and protection. State intrusions into these liberties are only permitted where a person is incapable of making decisions, see Starson v. Swayze, 2003 SCC 32, at para. 7. Incapacity is a high threshold and appropriately so. It preserves freedom, autonomy and dignity, and seeks to restrict state attempts to impose value judgments and paternalism.

[17] The SDA presumes that adults are capable of making decisions regarding their personal care and property, see s. 2 of the SDA. In keeping with the primacy of autonomy, those presumptions can only be displaced on the basis of clear and compelling evidence of incapacity, see Elmi v. Hirsi, 2015 ONSC 6003 at para. 24, per Fairburn J. (as she then was) and Koch (Re) (1997), 1997 12138 (ON SC), 33 O.R. (3d) 485 (Ont. Ct. (Gen.Div.)).

[18] Section 45 of the SDA defines incapacity for personal care as follows:

A person is 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.

[19] A finding of incapacity can be made on the basis of any or all of the personal care functions listed in s. 45 of the SDA. Before appointing a guardian for personal care, the court must be satisfied that the person is incapable of some or all of the functions listed and therefore needs decisions to be made on their behalf by a person entitled to make those decisions, see s. 58(1) of the SDA.

[20] Section 6 of the SDA defines incapacity in relation to property as follows:

A person is 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.

[21] In order to appoint a guardian for property, the court must be satisfied that the person is incapable of managing their property, see s. 25(1) of the SDA.

[22] Even where a court is satisfied of incapacity on the basis of clear and compelling evidence, the appointment of a guardian for either personal care or property is not automatic. A guardian is to be appointed only where other, less intrusive or restrictive courses of action are unavailable, see ss. 22(3) and 55(2) of the SDA.

Capacity for Personal Care

[23] I turn next to assessing the evidence of Mr. Golyzniak's capacity for personal care. I note that the onus of proving that Mr. Golyzniak is incapable of personal care in relation to any one or all of the functions listed in s. 45 of the SDA rests with the PGT.

[24] In terms of evidence, I have before me the affidavits of Lisa Haarink dated May 20, 2020 and February 26, 2021, as well as the various exhibits appended to the affidavits. Ms. Haarink was not cross-examined on these affidavits. I also have an affidavit from Mr. Golyzniak and from his sister, Nora Marie Golyzniak. These affidavits include photos and recent videos of Mr. Golyzniak's living arrangements. While Ms. Hanes had an opportunity to provide an affidavit, she opted not to. That said, she did make submissions in which she advanced her views and concerns.

[25] Ms. Haarink is an Investigator with the Guardianship Investigations Unit, employed by the PGT. In her initial affidavit, Ms. Haarink conveys information received from various sources including a file review and interviews she conducted with Mr. Golyzniak.

[26] Ms. Haarink advises that on November 20, 2019, she received a complaint from Ms. Cathy Dumont, an urgent care worker at Catulpa Community Support Services. Ms. Dumont indicated her belief that Mr. Golyzniak was incapable of making decisions about his personal care, was at risk of harm and in need of a decision maker. She also expressed concerns that Mr. Golyzniak's finances were not being properly managed.

[27] In terms of living conditions, Ms. Dumont described the general state of disrepair of Mr. Golyzniak's unit, including problems with his access ramp, the presence of old ungrounded appliances, and the absence of washing facilities. She also described the cluttered and unhygienic condition of the living space, noting a terrible smell and bags of feces covered diapers left in the open, seemingly for months at a time.

[28] According to Ms. Dumont's report, she noted that the toilet and bathing facilities were inadequate for use by Mr. Golyzniak. She also noted that Mr. Golyzniak was uncomfortable letting anyone other than his step-father clean his genital areas. As a result, she noted that Mr. Golyzniak's level of hygiene was "very poor and almost non-existent." She also noted that the lack of hygiene was so extreme that it was causing issues with personal support workers who were refusing to come to the home to offer assistance.

[29] Ms. Dumont expressed doubts that Mr. Golyzniak's mother and step-father were capable of recognizing the risks posed to Mr. Golyzniak's health by the living conditions as they too lived in the same conditions. She also noted communication difficulties with Mr. Golyzniak's mother who would regularly not return calls.

[30] Ms. Haarink also refers to a medical report by Dr. Karen Kennedy, a family physician who has treated Mr. Golyzniak for many years. The report, which is dated January 8, 2020, is extremely short, merely a few sentences long, and simply offers the bald conclusory opinion that Mr. Golyzniak is incapable of making personal care decisions. Additional educational plans, home care assessments and capacity assessments in relation to the management of property are referenced, but these reports and assessments only peripherally deal with the issues relating to personal care.

[31] In terms of the anecdotal and observational evidence, Ms. Haarink reports that she attended the residence on December 13, 2019. Her observations mirrored the concerns raised by Ms. Dumont in her initial complaint. The home was cluttered, unclean and smelled intensely of ammonia. She observed a soiled diaper on the floor and evidence of bed bugs. A pet litterbox was on the kitchen counter. Mr. Golyzniak was not properly dressed and smelled strongly.

[32] During the interview, Ms. Haarink learned that Mr. Golyzniak had not had a proper bath in years, following an incident with a personal support worker. Mr. Golyzniak advised that he was responsible for taking his medications, but he admitted that he "doesn't always remember."

[33] Ms. Haarink also noted an absence of nutritional foods and raised concerns about Mr. Golyzniak's dietary needs with his mother.

[34] A second interview occurred on February 12, 2020. During this interview, Ms. Haarink and Ms. Dumont discussed the possibility of Mr. Golyzniak moving into a temporary community residence. Ms. Hanes was adamant that she did not want Mr. Golyzniak to move out. Ms. Haarink formed the impression that Mr. Golyzniak was afraid to disagree with his mother, but might otherwise be open to the possibility of moving.

[35] Ms. Haarink noted that concerns about Mr. Golyzniak's hygiene, the nature of the living conditions and Ms. Hanes' caregiving abilities, have been ongoing since at least 2014. File documents revealed concerns about accessibility issues with the home in case of fire, unsanitary and unhygienic living conditions, the presence of pressure sores on Mr. Golyzniak's feet and perineal area, and a failure to address his specific dietary requirements. Reports also revealed that during some periods, Mr. Golyzniak had been isolated, depressed, with limited social interactions. Personal support workers who attend at the home are met with resistance from Ms. Hanes and have often raised concerns about the hygiene issues and living conditions.

[36] Repeated case conferences noted a history of ongoing issues including the presence of bed bugs and lice, animal feces and urine present in the care space, inadequate heat, the presence of debris and clutter in and around the house and the potential for fire hazards.

[37] It was also noted that Ms. Hanes has repeatedly either refused to engage with or inhibited the provision of social services that could assist with the various issues observed. In particular, it was noted that Ms. Hanes thwarted attempts to arrange for bathing visits at a community home as she believed it was a strategy aimed at transitioning Mr. Golyzniak into community living.

[38] In her supplementary affidavit dated February 26, 2021, Ms. Haarink provides an update on events since the first affidavit. She notes that overall there has been little change in the home, though she notes that a new walk-in bathtub was installed in November of 2019. She also notes that Mr. Golyzniak's condition has not changed. He continues to refuse perineal care from personal support workers, and he receives no care when his workers are on vacation. That said, Mr. Golyzniak received a new wheelchair in September 2020, and it was observed to be fitted properly.

[39] Ms. Dumont also provided an update which was included in the supplementary affidavit. Ms. Dumont reported that Ms. Hanes refused to return calls for an extended period of time, resulting in a request to the O.P.P. for a wellness check on Mr. Golyzniak. Police attended and reported that the condition of the home was concerning, but no further action was taken as Mr. Golyzniak reported that he was "fine."

[40] I turn next to assessing whether the evidence satisfies me that Mr. Golyzniak is incapable of personal care as that term is defined in the SDA. On this issue, I note that in many cases the court will have the benefit of a capacity assessment which provides direct evidence of a person's capacity for personal care in relation to each of the statutory personal care functions. In this case, no request for a capacity assessment was made.

[41] The opinion of Dr. Kennedy is unhelpful and cannot provide an evidentiary basis for a finding of incapacity. It is simply a bald assertion without any supporting facts or analysis. While Dr. Kennedy may be correct in her opinion, the court's role is to form its own conclusions by assessing the available evidence and not simply accepting a bald unsubstantiated opinion.

[42] The balance of the evidence raises clear concerns about the living conditions that Mr. Golyzniak finds himself in. As indicated, they are far from ideal. He lives in extremely modest circumstances, as do his other family members. His care has been lacking, especially around issues such as hygiene and bathing. His mother has a conflictual relationship with service providers and it is clear that she is not receptive to their presence. However, in the recently taken videos appended to the responding material, it appears that some significant efforts have been undertaken to improve the living conditions, including Mr. Golyzniak's personal hygiene, the provision of ample food and snack, the availability of better appliances, and cleaner and neater surroundings.

[43] The difficulty with the evidence related to the living conditions is that it does not provide a sufficient basis upon which I can conclude that Mr. Golyzniak lacks capacity to care for himself. At best, the evidence establishes that Mr. Golyzniak's needs would probably be better addressed in another living arrangement, but that is not the test.

[44] I also consider Mr. Golyzniak's own evidence and the evidence of his sister. This evidence reveals that Mr. Golyzniak wants to remain in his home with his family and pets. He reports that he is visited on a regular basis by three personal support workers, including one who takes him on social outings such as boating and bowling. He describes how his personal support workers assist him with his hygiene needs and daily routines. He indicates that his step-father bathes him if he has an accident. He also explains that he has taken a cooking class and is able to cook an egg, warm up food in the microwave and use a Keurig to make tea and hot chocolate.

[45] Mr. Golyzniak's sister reports that Mr. Golyzniak is a big part of the family. She describes the home as loving and caring and notes that her son has developed a close relationship with Mr. Golyzniak.

[46] Ultimately, I share the PGT's concerns about lapses in the quality of care that Mr. Golyzniak has been receiving over the years and his poor living conditions. I also share their concerns about the implications of Ms. Hanes' conflictual relationship with certain service providers. However, despite these concerns, I am not prepared, on this record, to make a finding of incapacity in relation to personal care.

Capacity to Manage Property

[47] I turn next to reviewing the evidence on the issue of capacity to manage property. On this issue, I note that on January 11, 2005, Eberhard J. appointed Ms. Hanes to manage Mr. Golyzniak's property in accordance with a Management Plan. At the time of this Order, he was a minor.

[48] A Capacity Assessment dated September 16, 2008, concluded that Mr. Golyzniak was incapable of managing his property. The Assessment Report noted that he is unable to understand basic numeracy and cannot understand and retain information necessary to manage even small amounts of money.

[49] On November 9, 2009, Eberhard J. made a finding of incapacity and re-appointed Ms. Hanes as guardian over Mr. Golyzniak's property. Ms. Hanes was again ordered to abide by a Management Plan. The latter Order remains in effect.

[50] Mr. Golyzniak's condition has essentially remained the same since 2008 and it does not appear likely to improve. Indeed, there is no suggestion in the materials or submissions that Mr. Golyzniak is currently capable of managing his property.

[51] On the basis of this uncontradicted evidence, I am satisfied that Mr. Golyzniak is currently incapable of managing his property.

[52] The next issue is whether Ms. Hanes should remain appointed as guardian of Mr. Golyzniak's property. The PGT raises a number of significant concerns with Ms. Hanes' ability to perform this function and submits that Ms. Hanes should no longer be appointed as guardian.

[53] I agree with the PGT for the following reasons:

a. Ms. Hanes was required to pass accounts under both Orders of Eberhard J. She failed to do so and many years have passed.

b. Available banking records suggest that Mr. Golyzniak's funds have not been managed in accordance with the approved Management Plans. It appears that funds have been put to other uses not contemplated by the Plans. It also appears that Mr. Golyzniak is making disproportionate contributions to household expenses.

c. Ms. Hanes has been unwilling or unable to candidly explain what has been done with Mr. Golyzniak's funds. On this issue, I note that the inheritance he received from his grandfather has now been depleted. The documents provided during the hearing, which were ostensibly an accounting, raised a number of issues that call into questions their reliability and/or accuracy.

d. Ms. Hanes does not appear to be maximizing the benefits available to Mr. Golyzniak, including accessing Passport funding for transportation and activities.

e. Lastly, there are grounds to believe that Ms. Hanes may have been engaged in less than candid attempts to obtain payments on invoices for services purportedly provided to Mr. Golyzniak.

[54] Based on the foregoing, I am satisfied that Ms. Hanes should no longer act as guardian of Mr. Golyzniak's property. I am further satisfied that at this time, there is no suitable person willing to act in this capacity. I note that Ms. Hanes was given an opportunity to explore this issue and was urged to proffer a candidate, but to date that has not been done. As a result, I am satisfied that the PGT should be appointed as guardian of Mr. Golyzniak's property. In making this finding, I am cognizant that this appointment will inevitably result in conflict with Ms. Hanes. I urge Ms. Hanes to either cooperate with the PGT as it administers Mr. Golyzniak's property, or present an alternate candidate who is willing and capable of acting as a guardian of Mr. Golyzniak's property.

Conclusion

[55] In summary, based on the evidence before me, I am not satisfied that Mr. Golyzniak is incapable of personal care.

[56] I am satisfied that Mr. Golyzniak is incapable of managing his property. I will appoint the PGT as his guardian.

[57] I declare that Ms. Hanes is in breach of paragraphs 2 and 3 of the Order of Eberhard J., dated November 9, 2009, for having failed to abide by the Management Plan, and further for having failed to pass her accounts.

[58] I decline to order Ms. Hanes to provide any further accounting or commence an application to pass accounts in accordance with the Order of Eberhard J. In my view, it would be fruitless to do so at this time.

[59] I invite counsel to advise whether any additional order is required in order to give effect to my findings herein and if so, to arrange for a further brief hearing either in writing or by way of Zoom conference. I also invite counsel to consider whether in future proceedings, it would be appropriate to seek an order for a capacity assessment to allow a further determination of the personal care guardianship issue.

J. Di Luca J.

Released: June 24, 2021

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

The Public Guardian and Trustee

Applicant

– and –

Nicholes Reye Michael Golyzniak and Sherry Lynn Hanes

Respondents

REASONS FOR DECISION

Justice J. Di Luca

Released: June 24, 2021

The Public Guardian and Trustee v. Golyzniak, 2021 ONSC 4524

Case Summary

REASONS FOR DECISION

Factual Backdrop

Legal Parameters of Capacity and Guardianship

Capacity for Personal Care

Capacity to Manage Property

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues