Court File and Parties

Court File No.: CV-20-644620-0000 Date: 2022-12-30 Superior Court of Justice - Ontario

Re: Konthear Saing, Applicant And: Sokly Saing, Phary Saing and The Public Guardian and Trustee, Respondents

Before: Vermette J.

Counsel: Peter Askew, for the Applicant Marc Cumbo, for the Respondent Sokly Saing Sarah Latimer, for the Respondent Phary Saing Jamie Chiang, for the Respondent The Public Guardian and Trustee

Heard: September 19, 2022

Endorsement

[1] The Applicant moves for an order appointing her as litigation guardian and guardian of property for the Respondent Phary Saing. In the alternative, if the Applicant is not appointed, she asks for an order appointing the Public Guardian and Trustee (“PGT”) as litigation guardian and guardian of property for Phary Saing.

[2] I heard this motion as the Case Management Judge appointed for this matter.

A. FACTUAL BACKGROUND

1. Phary Saing and her siblings

[3] Phary Saing is 55 years old. She does not have a partner and she has no children. She has five siblings: one brother, the Respondent Sokly Saing, and four sisters, Vothy, Sokhan, Pharin and the Applicant Konthear (Connie) Saing. Pharin and Sokhan Saing are not involved in this litigation, but they have provided affidavit evidence in support of the Applicant’s position. While Vothy Saing is not a party to the litigation, she generally supports the position of Sokly Saing and also seeks to be appointed as litigation guardian and guardian of property for Phary Saing.

[4] Phary Saing cannot read or write in her native Khmer or in English. Over the years, she worked as a factory labourer and, subsequently, as a cleaner for the cleaning business run by the Applicant and her partner. Phary Saing accumulated significant savings over time, although it is unclear what the status of these savings currently is.

[5] Phary Saing, her mother and her siblings – more particularly the Applicant, Sokly Saing and Vothy Saing – shared a number of residences over the years, sometimes with their respective partners and children. It happened a few times that some siblings moved out of the shared residence for a few years and moved back into the shared residence some years later. The family members living in the shared residence would usually contribute to the expenses related to the property (e.g. mortgage, utilities, etc.) and household expenses (e.g. groceries).

[6] The parties’ mother passed away in December 2019. At that time, Phary Saing, the Applicant, their mother and the Applicant’s partner were living together in a house in Newmarket.

[7] Conflicts between the family members arose in 2019 and have continued to this date. On July 7, 2020, Sokly Saing sent the following text message to the Applicant:

Hey by the way just let you know since I’m half own [sic] of that house 553 Heddle crescent [sic]. I’m moving in on August 15 2020. I will bring company with me. Let let [sic] you know

[8] The Applicant commenced this Application shortly thereafter, on July 27, 2020.

[9] In August 2020, two days before Phary Saing was scheduled to participate in a capacity assessment, Vothy Saing’s partner picked up Phary Saing at the residence where Phary Saing was living with the Applicant and her partner in Newmarket and brought her to their house in Bradford. Phary Saing has been living with Vothy Saing’s family in Bradford since then. After she left the Newmarket residence, Phary Saing did not return to work as a cleaner. She has been unemployed since August 2020.

2. The Application

[10] In the underlying Application, the Applicant seeks the following relief, among others:

a. An order, pursuant to the equitable jurisdiction of the Court, that the interest of the Respondent Sokly Saing in the property municipally known as 553 Heddle Crescent in Newmarket, Ontario (“Property”) is subject to a resulting or constructive trust in favour of the Applicant and Phary Saing;

b. A declaration that the Applicant is the sole legal owner and the Applicant and Phary Saing are the sole beneficial owners of the Property; and

c. An order that Sokly Saing provide an accounting of all proceeds from mortgages and/or credit facilities secured against the Property from September 23, 1998 to present, and in particular the withdrawal of $50,036.55 on or about July 30, 2003, and repay any improper withdrawals to the Applicant.

[11] Whether Phary Saing contributed to the purchase price of the Property and her legal and/or equitable interest, if any, in the Property, are live issues in the Application. The Applicant’s evidence is that Phary Saing has contributed approximately $279,000 toward the Property’s purchase price, mortgage payments and expenses.

[12] The adjudication of the issues in the Application that relate to the Property has been deferred until after the determination of whether Phary Saing requires a litigation guardian and a guardian of property.

[13] In an endorsement dated October 13, 2020, Justice Pinto, who was the Case Management Judge for this matter at that time, held that the question of whether Phary Saing has capacity must be determined before the other aspects of the Application can proceed. Among other things, he ordered that Phary Saing seek independent legal advice and/or retain counsel forthwith if she had not already done so, and that such counsel advise the other parties and the Court by October 16, 2020 as to Phary Saing’s position on whether she would voluntarily submit to a capacity assessment.

[14] Despite the order of Justice Pinto, Phary Saing did not retain counsel, nor did she seek independent legal advice.

[15] With respect to the issue of Phary Saing’s representation, I note that on August 18, 2020, a few months prior to the endorsement of Justice Pinto, counsel for Sokly Saing sent the following letter to counsel for the Applicant (“August 18, 2020 Letter”):

Please be advised that I have been retained by both Sokly Saing and Pharry [sic] Saing, the latter of which is competent to make litigation decisions without the need of a litigation guardian. No further attempts from your office ought to be made to contact Pharry [sic] Saing. All communications must be directed to myself and this firm.

With respect to the issue of the property municipally known as 553 Heddle Crescent, Newmarket and the ownership of same, it is both the position of Sokly Saing and Pharry [sic] Saing that Pharry [sic] Saing has no ownership in that property. In fact, the evidence and facts surrounding the ownership of the property support the position of Sokly Saing that your client, Konthear Saing holds title in Trust for Sokly Saing.

Notwithstanding Mr. Saing’s position that ownership of the home vests solely in himself, it is ultimately his intention to hold the home in trust for Pharry [sic] Saing and for Pharry [sic] Saing to be the beneficial owner of 100% of the home as long as your client, Konthear Saing has no part in it.

With respect to the current status of the home, my client advises that your client, Konthear Saing is undertaking a number of renovations without consultation or permission. My client demands that the renovations cease and that the home be restored to its original state. Konthear Saing will be held responsible for any damage to the home and Mr. Saing will seek to recover against her.

[16] On February 4, 2021, counsel was appointed for Phary Saing under section 3 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”) pursuant to an endorsement of Justice Papageorgiou. Phary Saing subsequently took the position, through her appointed counsel, that she would not voluntarily undergo a capacity assessment.

3. Justice Akbarali’s decision dated June 14, 2021

[17] As a result of the position taken by Phary Saing, the Applicant brought a motion to compel Phary Saing to undergo a capacity assessment. Justice Akbarali heard the Applicant’s motion on June 9, 2021.

[18] On June 14, 2021, Justice Akbarali released her decision and ordered that Phary Saing submit to a capacity assessment under section 79 of the SDA to assess:

a. whether Phary Saing was mentally incapable within the meaning of section 6 of the SDA in respect of an issue in the proceeding such that she required a litigation guardian;

b. whether Phary Saing was incapable of managing property within the meaning of section 6 of the SDA;

c. whether Phary Saing was incapable of granting or revoking a power of attorney for property under section 8 of the SDA;

d. whether and/or to what extent Phary was susceptible to undue influence.

[19] Justice Akbarali found that Phary Saing’s capacity was in issue in the Application and that there were reasonable grounds to believe that Phary Saing was incapable, vulnerable to manipulation, and unable to determine who was acting in her best interest. Justice Akbarali relied on the following grounds, among others:

a. The evidence is consistent that Phary Saing has had observable, but undiagnosed, cognitive limitations throughout her entire life.

b. She attended a high school for special needs students.

c. She has always lived with a family member.

d. She has never arranged for utilities on her own.

e. She has never applied for a job on her own, but has only worked at positions family members have arranged for her.

f. A client gave evidence that when Phary Saing worked with the Applicant cleaning houses, the Applicant had to provide “careful and consistent on-the-job support ... that went well beyond typical supervision.”

g. Phary Saing appears to have little understanding of the consequences of giving away money. For example, when asked if it would be fair for someone to borrow money against a property she owned without asking her, she said it would be fair.

h. Phary Saing was not able, on cross-examination, to explain what the underlying application was about, except to say it was a domestic dispute. She was not able to explain her role in it.

i. Despite being aware that she contributed at least $130,000 to the Property, Phary Saing took the position that she has no interest in it, and it belongs entirely to Sokly Saing. Phary Saing stated on cross-examination that Sokly Saing’s position was better for her because he helps her with food, took her to buy groceries and gave her some money. Several times on cross-examination she stated that she would take “whatever they give” her.

j. There is evidence that indicates that Phary Saing has been exploited in the past, and has not understood when she has been used to further other people’s interests. For example, she was twice married to men from her country of origin, and sponsored them to Canada, once in 1996 and once in 2005. The evidence indicates that the marriages were sham marriages, and that Phary Saing did not participate in the decision to marry, nor did she resist it.

k. There is also evidence that Phary Saing has difficulty understanding when people are acting in her best interest. For example, three or four years ago, Phary Saing related to the Applicant that she met friends at a Tim Horton’s. She said that they had fun together while her “friends” threw condiment packages at her head.

[20] I note that all of the grounds identified by Justice Akbarali are in evidence before me as well.

[21] Justice Akbarali also stated the following in her reasons:

[28] In the circumstances of the underlying application, I am very concerned about the possibility that Phary may be taken advantage of with respect to whatever interest she may have in the property. The tangled web of family dynamics, and the polarizing of the family into two camps, makes it difficult to know whether some, all, or none of the family members claiming to act in Phary’s best interest are in fact doing so.

[29] Phary argues that I should be suspicious of Konthear, because she seeks both to assert her and Phary’s interest in the property and act as Phary’s guardian for property. In contrast, Phary argues that Vothy has no interest in the litigation. However, Konthear’s affidavit provides some reason to wonder if Vothy is aligned with Sokly. And I have already repeatedly noted my grave concern that, when represented by Sokly’s lawyer, Phary’s position was that Sokly was the sole owner of the property. Phary has no other property of significance apart from whatever interest she may have in the property at issue.

[30] The only thing I can safely conclude about the nature and circumstances of the proceedings is that Phary’s interests are impacted and may well be at risk.

[36] I am concerned that not undertaking an assessment may cause Phary harm.

[37] At this juncture, it is not my role to determine who the most appropriate litigation guardian is, nor is it my role to determine if Phary requires a guardian for property. Accordingly, I make no findings as to whether Konthear, Vothy, or Sokly are acting in Phary’s best interest. However, if Konthear’s suspicions are correct – and it is possible that they are – doing nothing has the potential to set Phary up for exploitation and loss.

[38] While Vothy is not directly involved in the litigation, Phary has been living with her since just before a consent capacity assessment was to take place (albeit without Phary having obtained legal advice). Konthear believes Vothy picked up Phary for what was ostensibly a short visit, but prevented her from returning in alliance with Sokly to prevent the assessment and take control of Phary’s assets. It was after Phary began living with Vothy that Phary ostensibly took the position, through her and Sokly’s lawyer, that Sokly is the sole owner of the property. Perhaps Vothy was unaware of that position being taken – she was not Phary’s litigation guardian after all – but I remain very concerned about what was going on behind the scenes to cause this to play out.

[39] Moreover, there are some inconsistencies in the evidence around why Phary stayed at Vothy’s house instead of returning to the property where she was living with Konthear and Konthear’s boyfriend. At one point during her cross-examination, Phary says she did not go back because no one drove her. At other times in her cross-examination, she testified that someone would take her back if she wanted to go. Her affidavit makes reference to being afraid living with Konthear and her boyfriend, but it appears from her cross-examination transcript that neither Konthear nor her boyfriend were abusive towards Phary, but sometimes shout at each other. Phary has lived with Konthear for lengthy stretches of time at least twice, and has worked with Konthear. It appears that Konthear has dedicated a great deal of time to looking after Phary. It is possible that their relationship has changed. But in my view, independent evidence in the form of a capacity assessment will place the court in a position to better understand the risks Phary may be facing, and perhaps from whom. In that sense, it may be an important step to take to prevent harm to Phary and her financial, and other, interests.

[52] On cross-examination, Phary declined to produce her bank records, except for a statement from the ATM showing her current balance, which is less than the cost of an assessment.

[53] I have concerns about Phary’s bank statement. I have concerns about her lack of disclosure with respect to the benefits she received, and how they have dwindled, especially when she has not been paying rent.

[22] As set out below, I share many of the concerns expressed by Justice Akbarali. These concerns are exacerbated by the information and opinions contained in the Capacity Assessment Report that was prepared pursuant to Justice Akbarali’s Order.

4. Capacity Assessment Report

[23] Phary Saing was assessed by Shauna MacEachern, Occupational Therapist and Designated Capacity Assessor, for nearly two hours on June 30, 2021 pursuant to the Order of Justice Akbarali.

[24] Ms. MacEachern found that Phary Saing was mentally incapable within the meaning of section 6 of the SDA in respect of an issue in the proceeding such that she required a litigation guardian. Her opinion on this issue is summarized as follows in her report:

It is my professional opinion as a Designated Capacity Assessor that Ms. Phary Saing DOES NOT have capacity to make decisions regarding the legal and/or financial proceedings currently before the court. Specifically the dispute between Konthear (Connie) Saing and Sokly Saing that underlies the application relates to the ownership of a residential property in Newmarket, Ontario.

Ms. Phary Saing has a well documented, but not formally diagnosed, cognitive impairment since childhood. The dispute has been before the court since at least July 2020 and Ms. Saing has been an active participant in the proceedings as recently as June 9, 2021. Despite this, Ms. Saing has a very limited understanding of the purpose of the proceedings or how the proceedings affect her. Ms. Saing’s cognitive impairment limits her ability to understand the facts of the situation. She required substantial cuing, prompting and reminders before she was able to recall or report even the most basic information about her brother and her sister disagreeing over who owns the house. Ms. Saing actively denied having any financial interest or having made any financial investment in the property, despite considerable collateral information to the contrary. Over the course of my two hour meeting with Ms. Saing she was noted to fixate and perseverate on certain issues, to the exclusion of others. For instance, she repeatedly expressed concern that her sister Connie had taken money from her bank account and yet could not recall that she had invested more than 20x that amount in a house, despite numerous attempts to educate her. Ms. Saing lacks the ability to understand the financial implications of the case due to her lack of financial literacy skills. Ms. Saing lacks the ability to understand financial concepts such as mortgages, compound interest, living expenses, maintenance and repair costs. Ms. Saing was markedly distracted and confused as she tried to understand that her sister reported that she has contributed $280,000 towards living expenses for a house that cost only $220,000 over 20 years ago. Ms. Saing was educated numerous times about her financial contributions towards the house but she fixated on her belief that her sister Connie intends to take that money for herself. Ms. Saing has no comprehension of the concepts of “legal ownership” and “beneficial ownership.” Ms. Saing is a highly concrete thinker and she lacks higher level problem solving and reasoning skills. She is passive and dependent on others. Despite spending nearly two hours discussing the issues and her interest in the court case, Ms. Saing took no responsibility and showed no insight into her role. When asked what the key issues were she advised, “I don't know. Whatever they do, I don’t know. If the court asks me to do it, I have to comply.” Ms. Saing showed a complete lack of understanding of the difference between the order for her to undergo a capacity assessment and the issues being examined in the court case.

[25] Ms. MacEachern also found that Phary Saing was incapable of managing property within the meaning of section 6 of the SDA:

It is my professional opinion as a Designated Capacity Assessor that Ms. Phary Saing DOES NOT have capacity to make decisions regarding property matters.

As detailed above, Ms. Saing has a cognitive impairment which has impacted her since at least adolescence and likely since childhood. Ms. Saing does not have the intellectual ability to understand the facts of her financial situation. Ms. Saing understands that she currently does not have any income or money, but has no ability to understand what sources of income she may be eligible for or how to access them. With considerable cuing and prompting Ms. Saing was able to recall isolated facts such as, previously receiving money and having applied for and been denied Ontario Works, but she was not able to put those facts together to help her form a plan or even to understand that she has options.

Ms. Saing is passive and highly dependent on others. When asked to consider what she could do to secure an income she invariably deferred to family or deflected the questions with unrelated and tangential information. Ms. Saing was unable to problem solve or brainstorm how to monitor or review her bank account and she advised consistently that she has always relied on her family to look after her banking. Ms. Saing has a very limited understanding of day to day expenses, and even with encouragement she was only able to consider that food and phone bills were things that she needed money for.

Ms. Saing was highly concrete in her thinking, several different times she mentioned that she paid “rent” to Connie, previously $900 per month and more recently she was requested to pay $1000 per month, but when asked about what that money was for, she was unable to brainstorm. Ms. Saing’s financial understanding is very simple and concrete. She knows that she paid money but has no comprehension of how that money is used to pay for the mortgage or utilities or to buy food.

Ms. Saing lacks the ability to understand the relative value of money. Ms. Saing fixated on her belief that it was unreasonable for the judge to order her to pay about $800 since she failed to understand that her interest in the home was hundreds of thousands of dollars. Ms. Saing fixated and perseverated on not being able to afford to pay $100 per month to her sister to cover the cost of the capacity assessment and yet she failed to understand that it was reasonable to expect that she should have been receiving regular monthly income over the past 6-9 months whether through ODSP or Ontario Works or CERB.

Ms. Saing lacks the ability to understand the facts of her financial situation and lacks the ability to understand her own needs and options for meeting those needs. Ms. Saing is financially dependent on others and she lacks appreciation of her options to establish and maintain an income and to monitor or manage her expenses. Ms. Saing does not have capacity to make property decision secondary to an intellectual impairment.

[26] Ms. MacEachern also found that Phary Saing was incapable of granting or revoking a power of attorney for property under section 8 of the SDA and highly susceptible to undue influence. She stated the following in her report with respect to the last point:

It is the opinion of this assessor that Ms. Phary Saing is highly susceptible to undue influence. Ms. Saing has been dependent on family members for all of her life. Ms. Saing has some limited insight into this dependency and she repeatedly expressed a lack of confidence and a lack of control over her own affairs and her own life. Ms. Saing grieves for her mother. She reported numerous times how things were “better when her mother was alive,” and how, “After my mother passed away she [Connie] promised to take care of me.”

Ms. Saing is not a reliable historian. Numerous times I asked Ms. Saing to provide information about her income, her assets and her expenses and her responses were always vague and uncertain. Ms. Saing was noted to frequently amend her report based on the cuing provided. She struggled to think abstractly and has a memory impairment. Due to this, she was noted to frequently recall and add new pieces of information depending on what questions I asked and what memories I triggered. Ms. Saing was also noted to confabulate. By this I don’t suggest in any way that she is lying, but rather that her story changes as new memories and new perspectives are presented to her. Ms. Saing showed no evidence of dishonesty at any point, but rather her report changed based on the influence of our conversation.

Ms. Saing lacks the ability to think abstractly. Due to this, she cannot reliably consider what information might be relevant to a particular discussion or decision. Ms. Saing presents as impulsive, often she would draw conclusions or offer observations based on a small subset of the information, without the cognitive ability to consider all the information at the same time. For example, consistently during our meeting, Ms. Saing advised that her sister Connie had taken advantage of her financially and would do so again if given the opportunity. When presented with information and evidence that suggested that Connie Saing was trying to protect Ms. Saing’s interest in the house, Ms. Saing started to soften her stance. However, minutes later, when the scenario was approached from the perspective of Sokly’s interest in the house, Ms. Saing reverted to her belief that Sokly owned the house and that he was the only one who contributed financially to it. Once again, I reviewed the facts for Ms. Saing with the focus on her financial contribution to the home. When I asked her again about the house she changed her story again and reported that Connie was seeking to own half the house and Sokly was not seeking anything from the house. Ms. Saing was not lying, but she was unable to cognitively process and remember all of the information we had discussed to consider it as a whole. Ms. Saing is highly vulnerable to undue influence due to reliance on others to provide her with information, context and cues. Ms. Saing lacks the cognitive ability to objectively evaluate and consider new information and to compare that to information previously received. Ms. Saing’s cognitive impairment places her at a significant disadvantage in terms of learning and retaining new information and in terms of appraising the risks, benefits and potential consequences of her choices. She presents as accommodating, compliant and passive and these traits increase her risk of undue influence.

5. Proposed Management Plans

[27] The Applicant completed and filed a Management Plan for Phary Saing. So did Sokly Saing and Vothy Saing. The contents of the Management Plans completed by Sokly and Vothy Saing are largely the same. They indicate that Phary Saing does not own any property. They also indicate that three loans are owed to Phary Saing: (a) a loan in the amount of $70,000 to Sokly Saing; (b) a loan in the amount of $8,000 to the Applicant for renovations; and (c) a loan in the amount of $23,000 to the Applicant for the purchase of a vehicle. The plan with respect to these loans is set out as follows in Sokly Saing’s Management Plan (the plan with respect to these loans is substantially the same in Vothy Saing’s Management Plan[^1]):

Phary loaned me $70,000 so that I could pay down the mortgage on my home at 553 Heddle Crescent in Newmarket and eventually purchase a new home without first selling the Heddle property. This allowed me to maintain that home so my mother and Phary had a place to live. If Phary will no longer live at Heddle, and I am successful in the ongoing litigation, I will sell Heddle and repay the loan. It is also my intention to put any proceeds from the sale of Heddle in a trust account for Phary should she not wish to live in that home and as long as Konthear Saing or another untrustworthy person is not Phary’s guardian of property. I am only interested in supporting Phary not helping others to live off her.

With respect to the Loan to Konthear Saing, I will be seeking repayment of various damages in the main action as well and as Phary’s litigation guardian I would include Phary’s claim as well, if necessary I would bring a small claims court claim to recover any amount owed to Phary.

[28] Vothy Saing’s Management Plan states the following with respect to her plans for this Application:

If I were to become Phary’s litigation guardian, I would take no position as Sokly has been maintaining this home for my mother and Phary for years and intends to continue to support Phary. If Sokly is successful he will continue to maintain the home for Phary as long as she needs it and will sell it and put the funds in trust for Phary. The main issue is that Connie is not permitted to obtain an ownership interest and remove an asset for which Sokly has been holding to benefit Phary.

[29] I note that while Vothy Saing has prepared a Management Plan, she is not a party to this proceeding and she has not brought a formal motion pursuant to Rule 7.03(4) of the Rules of Civil Procedure to be appointed as litigation guardian for Phary Saing. Further, the affidavit that she affirmed in support of Sokly Saing’s position on this motion does not contain all of the information required by Rule 7.03(1). In addition, Vothy Saing is not currently represented by a lawyer and Rule 7.05(3) requires that a litigation guardian be represented by a lawyer.

[30] On September 15, 2022, a screening counsel of the Office of the PGT sent a letter to counsel for the parties setting out, among other things, comments regarding the Management Plans of the Applicant, Sokly Saing and Vothy Saing.

[31] With respect to the Applicant’s proposed Management Plan, the PGT stated that it would appear to be a conflict of interest for the Applicant to be both Phary Saing’s employer and guardian of property. Other comments were also provided. With respect to the Management Plans proposed by Sokly and Vothy Saing, the PGT noted that they were substantially identical, but for the proposed guardians. A number of clarifications and changes were sought.

6. Evidence on this motion

[32] Numerous affidavits were relied upon by the parties on this motion, including a number of affidavits of the Applicant, and affidavits of Sokly Saing, Vothy Saing, Pharin Saing, Sokhan Saing, the Applicant’s partner, Vothy Saing’s partner, Pharin Saing’s partner, a neighbour of Vothy Saing, and a client of the cleaning business run by the Applicant and her partner. Cross-examinations also took place. Phary Saing did not provide affidavit evidence on this motion. However, some of the evidence that she gave in the context of the motion heard by Justice Akbarali, notably the transcript of her cross-examination, was before me.

[33] The Applicant, on the one hand, and Sokly and Vothy Saing, on the other hand, have made serious allegations against each other. All of them are alleged to have misappropriated funds belonging to Phary Saing. In addition, Sokly and Vothy Saing accuse the Applicant and her partner of verbal and physical abuse towards Phary Saing, while the Applicant points out that Sokly and Vothy Saing only started showing interest in the care of Phary Saing when the issue of her interest in the Property was raised, i.e. when there was a financial incentive to do so. All of them deny the allegations made against them.

[34] In order to determine the issues that are before me – whether a litigation guardian and/or a guardian of property should be appointed for Phary Saing, I do not need to make findings about the various allegations that the siblings have made against each other. Therefore, it is unnecessary to discuss them in more detail.

B. DISCUSSION

1. The parties’ positions

[35] The Applicant asks that she be appointed as litigation guardian and guardian of property of Phary Saing. In the alternative, she asks that the PGT be appointed as litigation guardian and guardian of property for Phary Saing.

[36] While Sokly Saing does not take a position with respect to the issue of Phary Saing’s capacity, he seeks orders appointing him as litigation guardian and guardian of property of Phary Saing in the event that she is found to be incapable. In the alternative, Sokly Saing supports the appointment of Vothy Saing as litigation guardian and guardian of property of Phary Saing. In the further alternative, he asks that the PGT be appointed as litigation guardian for Phary Saing and that either he or Vothy Saing be appointed as guardian of property. As a final alternative, Sokly Saing asks that the PGT be appointed both as litigation guardian and guardian of property of Phary Saing.

[37] Phary Saing does not contest that she requires a litigation guardian in this Application. She requests that Vothy Saing or, in the alternative, the PGT be so appointed. She does not want the Applicant or Sokly Saing to be her litigation guardian. With respect to guardianship of property, she submits that the Court ought to consider less restrictive alternatives to guardianship that would avoid a declaration that she is incapable of managing her property. In the alternative, Phary Saing requests that Vothy Saing manage her property, reserving to Phary Saing the day-to-day management of her property. In the further alternative, Phary Saing asks that the PGT become her guardian of property on an interim basis, pending the outcome of the Application respecting the ownership of the Property. Phary Saing does not want the Applicant or Sokly Saing to be her guardian of property.

[38] The PGT did not file any materials on this motion. At the hearing, counsel for the PGT indicated that the PGT took no position if the Court were to decide to appoint the PGT as Phary Saing’s litigation guardian in the event it was found that Phary Saing needed a litigation guardian and that there was no other proper person willing and able to act as litigation guardian. Counsel for the PGT also indicated that the PGT would accept an appointment as guardian of property of Phary Saing in the event the Court found that someone other than a family member should look after Phary Saing’s financial interests on a long-term basis. Counsel for the PGT expressed the view that the application for guardianship of property should be determined on a final, not interim, basis.

2. Phary Saing’s capacity

[39] Rule 1.03 of the Rules of Civil Procedure provides that a party under a disability includes a person who is mentally incapable within the meaning of section 6 or 45 of the SDA in respect of an issue in the proceeding, whether the person has a guardian or not.

[40] Section 6 of the SDA is the relevant provision for the purpose of this motion. It reads as follows:

Incapacity to manage property

6 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.

[41] The law presumes capacity. Anyone alleging lack of capacity has the onus to prove it. See Royal Bank of Canada v. FTVRB2 Inc., 2016 ONCA 73 at para. 18.

[42] In her Factum, Phary Saing is critical of Ms. MacEachern’s capacity assessment. Among other things, Phary Saing criticizes the capacity assessment as being only based on the Applicant’s court documents and allegations. Phary Saing also points out that the record discloses no cognitive disorder or mental health diagnosis and that her siblings’ evidence regarding her capacity is anecdotal and non-specific.

[43] In my view, when one reads Ms. MacEachern’s report as a whole and pays attention to the nuances in it, it is clear that she did not accept the Applicant’s position as having been established. Further, and in any event, Ms. MacEachern’s report contains evidence that is unrelated to the Applicant and that supports a finding of incapacity.

[44] Ms. MacEachern’s findings are supported by the evidence given by Phary Saing herself during a cross-examination that took place on April 27, 2021, a few months prior to the capacity assessment. I note that some of the statements that Phary Saing made to Ms. MacEachern, as set out in her report, are inconsistent with statements made by Phary Saing during her cross-examination, which supports some of the findings made by Ms. MacEachern. I also note that during her cross-examination, Phary Saing agreed that “it would be fair for someone to borrow money against a property that you paid for without asking you”.

[45] Ms. MacEachern’s findings are also supported by the evidence of Phary Saing’s siblings, especially the Applicant’s, as summarized in Justice Akbarali’s endorsement. This evidence is consistent with the other evidence regarding Phary Saing’s capacity and supports a finding of incapacity. A formal medical diagnosis is not required to find someone incapable to manage their property under section 6 of the SDA.

[46] Based on all the evidence before me, I conclude that Phary Saing is not able to understand information that is relevant to making a decision in the management of her property, and is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. Thus, she is incapable of managing property within the meaning of section 6 of the SDA.

[47] I also find, based on all the evidence before me, that Ms. Saing is mentally incapable within the meaning of section 6 of the SDA in respect of an issue in the proceeding.

3. Appointment of litigation guardian

[48] In Gronnerud (Litigation Guardians of) v. Gronnerud Estate, 2002 SCC 38 at paras. 20-21 (“Gronnerud”), Major J. discussed the criteria for appointing a litigation guardian. He stated the following:

The Szwydky criteria provide guidance in defining the “best interests” test set out in Rule 49(1). The third criterion, that of “indifference” to the result of the legal proceedings, essentially means that the litigation guardian cannot possess a conflict of interest vis-à-vis the interests of the disabled person. Indifference by a litigation guardian requires that the guardian be capable of providing a neutral, unbiased assessment of the legal situation of the dependent adult and offering an unclouded opinion as to the appropriate course of action. In essence the requirement of indifference on the part of a litigation guardian is a prerequisite for ensuring the protection of the best interests of the dependent adult. A litigation guardian who does not have a personal interest in the outcome of the litigation will be able to keep the best interests of the dependent adult front and centre, while making decisions on his or her behalf. Given the primacy of protecting the best interests of disabled persons, it is appropriate to require such disinterest on the part of a litigation guardian.

It is acceptable in most cases, and perhaps desirable in some cases, to have a trusted family member or a person with close ties to the dependent adult act as litigation guardian. […] However, there are exceptions. One such exception is the situation currently presented by this appeal, in which there is a particularly acrimonious and long-standing dispute among the children concerning their dead parent’s estate. In such cases, the indifference required to be a litigation guardian is clearly absent.

[49] The case law applying Gronnerud in Ontario confirms that there is no significant difference between an “indifference approach” and a “conflict of interest approach”: see Zabawskyj v. Zabawskyj, 2008 ONSC 19248 at para. 29 (Ont. S.C.J.) (“Zabawskyj”). Thus, a court must ascertain whether the financial interests of the proposed litigation guardian in respect of the litigation might be adverse to the interests of the party under a disability: see Zabawskyj at para. 30. Ultimately, a litigation guardian must act in the best interests of the party under disability.

[50] The criteria set out in Gronnerud is consistent with the requirements and powers contained in Rule 7 of the Rules of Civil Procedure, including: (a) the requirement that the litigation guardian has no interest in the proceeding adverse to that of the party under disability (Rules 7.02(2)(g) and 7.03(10)(i)(iii)); (b) the requirement that the litigation guardian shall diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests (Rule 7.05(2)); and (c) the power of the court to substitute a new person as litigation guardian where it appears to the court that a litigation guardian is not acting in the best interests of the party under disability (Rule 7.06(2)).

[51] I agree with Phary Saing’s submission that, in the present case, the financial interests of both the Applicant and Sokly Saing are adverse to the interests of Phary Saing in the litigation. This is because whatever legal or equitable interest Phary Saing has in the Property will not belong to the Applicant or Sokly Saing. In other words, the characterization of Phary Saing’s financial contributions to and interest in the Property, if any, will necessarily impact the Applicant’s and Sokly Saing’s own personal claims to the Property.

[52] With respect to Sokly Saing, I add that, like Justice Akbarali, I am deeply concerned by the attempt that was made to have Sokly Saing’s lawyer also act for Phary Saing and by the statement in the August 18, 2020 Letter that Phary Saing’s position was that she had no ownership in the Property. These concerns are exacerbated in light of the capacity assessment report, in particular the finding that Phary Saing is highly susceptible to undue influence. The August 18, 2020 Letter strongly suggests, in my view, that Sokly Saing is prioritizing his own interests over Phary Saing’s interests in the litigation.

[53] It is also my view that Vothy Saing would not be an appropriate litigation guardian for Phary Saing. Leaving aside the fact that Vothy Saing has not brought a motion to be appointed as litigation guardian, has not adduced the specific evidence required under Rule 7.03(10) and is not represented by a lawyer, Vothy Saing has not demonstrated that she has the indifference that is required of a litigation guardian, i.e. she has not demonstrated that she would be capable of (i) providing a neutral, unbiased assessment of the legal situation of Phary Saing and (ii) offering an unclouded opinion as to the appropriate course of action.

[54] Vothy Saing has clearly aligned herself with Sokly Saing in this litigation. She provided an affidavit in support of his position on this motion. Further, the Management Plan that she prepared is almost identical to Sokly Saing’s Management Plan. Vothy Saing’s proposed Management Plan is very concerning because, among other things:

a. It indicates that Phary Saing has no interest in land or property while this Application alleges that she does.

b. As stated above, Vothy Saing’s plan with respect to this litigation is to take no position. I reproduce again what she states in her Management Plan:

If I were to become Phary’s litigation guardian, I would take no position as Sokly has been maintaining this home for my mother and Phary for years and intends to continue to support Phary. If Sokly is successful he will continue to maintain the home for Phary as long as she needs it and will sell it and put the funds in trust for Phary. The main issue is that Connie is not permitted to obtain an ownership interest and remove an asset for which Sokly has been holding to benefit Phary.

[55] There is no evidence that Vothy Saing has done any due diligence and/or sought legal advice to ascertain whether Phary Saing could have an interest in the Property. Vothy Saing appears to simply accept Sokly Saing’s position without any assessment of the evidence and without any legal basis to do so. Her main concern with respect to the litigation does not appear to be the best interests of Phary Saing, but, rather, to achieve an outcome that is unfavourable to the Applicant. The main issue for Phary Saing’s litigation guardian should not be that the Applicant not be permitted to have any ownership interest in the Property. After all, the Applicant is on title and has contributed to the payment of at least some expenses related to the Property. The main focus for Phary Saing’s litigation guardian should be that any legitimate interest of Phary Saing in the Property be recognized.

[56] Further, Vothy Saing appears to be content to accept Sokly Saing’s unsupported assurances that he will continue to maintain the Property for Phary Saing as long as she needs it and would sell the Property and put the funds in trust for Phary Saing. These unparticularized assurances, without more, are completely inadequate to ensure that Phary Saing’s interests are protected, now and in the future. Again, Vothy Saing does not appear to have sought any legal advice on this issue.

[57] I also note that while Phary Saing was living with Vothy Saing, Phary Saing consulted with Sokly Saing’s lawyer and “retained” him, and she took the position that she had no ownership in the Property. Given Phary Saing’s inability to go anywhere without some assistance and her limited ability to speak English, none of this could have happened without Vothy Saing’s knowledge and, at least to some extent, participation. This is further evidence of Vothy Saing aligning with Sokly Saing in the litigation. In addition, as pointed out by Justice Akbarali, this raises concerns “about what was going on behind the scenes to cause this to play out”. I note that Vothy Saing does not address this and other concerns raised by Justice Akbarali in her affidavit, even though her affidavit was affirmed many months after Justice Akbarali’s decision.

[58] As noted in Gronnerud, while it may be desirable in some cases, to have a trusted family member or a person with close ties to the party under disability act as litigation guardian, there are exceptions, including when there is an acrimonious and long-standing dispute between family members. Given that litigation between close family members will naturally generate feelings of resentment, deception and betrayal, a certain level of discord is inherent in the litigation process and is to be expected. Acrimony will only disqualify a litigation guardian when it interferes with the litigation guardian’s ability to act in the person under disability’s best interests. See Saleh v. Salehe, 2020 ONSC 5631 at para. 27 (“Saleh”).

[59] I find that this case is one where acrimony interferes with the ability of Phary Saing’s family members to act in her best interests. The record before me contains numerous examples showing that Vothy, Sokly and the Applicant are no longer cooperating with each other when making decisions about Phary Saing: see Saleh at para. 26. With respect to Vothy Saing in particular, she has blindly aligned with Sokly Saing and her focus with respect to the litigation appears to be to achieve an unfavourable result for the Applicant instead of a favourable result for Phary Saing. Further, she and her husband have made very serious allegations against the Applicant and her partner regarding the care that they provided to Phary Saing, but they never raised these concerns before this litigation. This significantly undermines the nature of their concerns, as well as the interest that they allegedly take in Phary Saing. Finally, I note that there have been physical altercations between the Applicant and Sokly Saing, and between the Applicant’s partner and Vothy Saing’s partner. Unfortunately, the level of acrimony in the Saing family has reached an unacceptable level where every sibling has taken sides and is unable to offer an unbiased and unclouded opinion as to the appropriate course of action for Phary Saing.

[60] Rule 7.04(1) of the Rules of Civil Procedure states that unless there is some other proper person willing and able to act as litigation guardian for a party under disability, the Court shall appoint the PGT if the party is mentally incapable within the meaning of section 6 of the SDA in respect of an issue in the proceeding and there is no guardian or attorney under a power of attorney with authority to act as litigation guardian. Given my conclusion that there is no suitable person willing and able to act as Phary Saing’s litigation guardian, I appoint the PGT as her litigation guardian with respect to this Application.

4. Appointment of guardian of property

[61] Subsection 25(1) of the SDA states that “[a]n order appointing a guardian of property for a person shall include a finding that the person is incapable of managing property and that, 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.”

[62] Section 22 of the SDA provides as follows:

Court appointment of guardian of property

22 (1) 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.

Same

(2) An application may be made under subsection (1) even though there is a statutory guardian.

Prohibition

(3) 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.

[63] I have already found above that Phary Saing is incapable of managing property within the meaning of section 6 of the SDA. As a result, it is necessary for decisions to be made on her behalf by a person who is authorized to do so.

[64] Phary Saing states that she has been able to manage her income and savings for decades by living a frugal lifestyle, managing her day-to-day expenditures and relying on help from her mother and siblings to coordinate “bigger items”. She argues that it is possible for this Court to fashion a less restrictive alternative to declaring her incapable of managing all aspects of her property while protecting her financial interests. She points out that her present assets are insignificant, and that other than her potential interest in the Property and possible debts from family members, a guardian would have no assets to manage.

[65] Because Phary Saing refused to produce her bank records, the only information before this Court is that her bank account balance on May 20, 2021 was $458.42. It is unclear where all of her savings have gone. Further, the evidence before me is that Phary Saing has no current income. This shows that Phary Saing has not been able to establish and maintain an income and to monitor and manage her expenses in light of the funds that were available to her. Her current financial situation makes the “bigger items” even more important, including her potential interest in the Property and possible debts from family members. These are issues that Phary Saing does not have the capacity to deal with. Further, Phary Saing is vulnerable to be taken advantage of and while she may be able to deal with day-to-day expenses, someone needs to review her activities periodically: see Lazaroff v. Lazaroff, 2005 ONSC 44834 at paras. 14, 16 (Ont. S.C.J.) (“Lazaroff”). Accordingly, I am satisfied that the appointment of a guardian of property is necessary and that there is no satisfactory alternative course of action under subsection 22(3) of the SDA.

[66] I also reject Phary Saing’s suggestion that a guardian of property be appointed on an interim basis with the appointment of a permanent guardian to be considered upon the conclusion of this Application regarding the Property. I have found that Phary Saing is incapable of managing property and that there is no satisfactory alternative to the appointment of a guardian of property. The determination of this Application is not going to change these findings. Further, it will not resolve all of the allegations raised by the Applicant, Sokly Saing and Vothy Saing regarding possible misappropriations of Phary Saing’s funds. For example, a guardian of property will be necessary to deal with the various loans that Phary Saing is alleged to have made, whether or not Phary Saing is found to have a legal or beneficial interest in the Property. In these circumstances, I see no advantage in having the family members come back to court once again to argue the issue of the appointment of a permanent guardian of property, which would require them to incur additional legal costs and repeat the serious allegations that they have made against each other, leading to more acrimony.

[67] The factors to be considered when appointing a guardian of property are set out in subsection 24(5) of the SDA. They are: (a) whether the proposed guardian is the attorney under a continuing power of attorney; (b) the incapable person’s current wishes, if they can be ascertained; and (c) the closeness of the relationship of the applicant to the incapable person and, if the applicant is not the proposed guardian, the closeness of the relationship of the proposed guardian to the incapable person.

[68] Subsection 24(2.1) of the SDA provides that the Court shall not appoint the PGT as a guardian of property unless: (a) the application proposes the PGT as guardian; (b) the application is accompanied by the PGT’s written consent to the appointment; and (c) there is no other suitable person who is available and willing to be appointed. While the PGT did not provide a written consent to its appointment in this case, this Court can still appoint the PGT as guardian of property: see Lazaroff at paras. 28-31. As stated above, the PGT does not oppose being appointed should this Court finds that it should be.

[69] Turning to the factors to be considered under subsection 24(5), there is no power of attorney in this case. With respect to Phary Saing’s current wishes, they can be ascertained through her appointed counsel who communicated Phary Saing’s wishes to all parties in a letter dated March 24, 2022. This letter is in evidence before me, and it is consistent with statements made by Phary Saing during the capacity assessment. While Phary Saing did not provide affidavit evidence on this motion and the letter is not Phary Saing’s direct evidence, it is my view that the letter is sufficient for this Court to be able to ascertain Phary Saing’s current wishes.

[70] As set out above, Phary Saing would like Vothy Saing to be her guardian of property or, in the alternative, the PGT. Phary Saing does not want the Applicant or Sokly Saing to be her guardian of property. While Phary Saing’s wishes are not dispositive of the issue, they should be accorded significant consideration in appointing her guardian of property: see Lazaroff at para. 17. As Justice Corbett stated in Lazaroff at para. 19:

A declaration of incapability, and appointment of a guardian, is a profound derogation of personal autonomy. It is necessary in this case. But that derogation should not be compounded by flouting the incapable person’s clearly stated desire not to be subject to the guardianship of a particular person.

[71] In Lazaroff, Justice Corbett concluded that while the incapable person was capable of expressing a negative preference in respect to her guardian of property, he was not satisfied that she was capable of exercising the requisite judgment to positively select who her guardian should be: see Lazaroff at para. 20. I reach a similar conclusion in this case.

[72] In my view, in light of Phary Saing’s expressed wishes, the Applicant and Sokly Saing should not be appointed as her guardian of property. In addition, the conflicts of interests discussed above in relation to the issue of the appointment of a litigation guardian are a relevant consideration. Further, I agree with the comment of screening counsel of the office of the PGT that it would appear to be a conflict of interest for the Applicant to be both Phary Saing’s employer (or have her partner be Phary Saing’s employer) and guardian of property. This is especially the case given that no records have been produced with respect to Phary Saing’s compensation for the period 2010-2020, and the change in Phary Saing’s employment status in 2010 from employee to contractor may not have been in her best interest.

[73] While Phary Saing would like to have Vothy Saing appointed as her guardian of property, based on the materials before me and Vothy Saing’s proposed Management Plan, I am not satisfied that Vothy Saing would be an appropriate guardian of property for Phary Saing.

[74] In addition to the concerns outlined above in relation to the appointment of Vothy Saing as litigation guardian, I note that prior to 2020, Vothy Saing did not assist Phary Saing with managing her finances and securing an income. Based on the amounts that Phary Saing is said to have received since she lives with Vothy Saing (and the prior savings she should have), a significant amount of Phary Saing’s funds appears to be missing. Vothy Saing seems to have taken no steps to deal with this issue, which has been pointed out in the Applicant’s materials and in Justice Akbarali’s decision. Vothy Saing’s proposed Management Plan sidesteps the issue by not indicating the amount of funds in Phary Saing’s bank account, which Phary Saing opened with Vothy Saing’s help. Given that Phary Saing supports Vothy Saing’s request to be appointed as her guardian of property, it is surprising that the information regarding Phary Saing’s bank account is not included in Vothy Saing’s Management Plan. There is no evidence that Vothy Saing sought to obtain this information from Phary Saing and that Phary Saing refused to provide it.

[75] Based on all the evidence before me, I find that Vothy Saing is not a suitable guardian of property for Phary Saing. I am particularly concerned by her proposed Management Plan and her apparent lack of due diligence and independent judgment, which reflect a lack of preparation and a lack of understanding of the role of guardian of property: see Lazaroff at para. 27.

[76] While there is no closeness of relationship between Phary Saing and the PGT, I conclude that it is in the best interests of Phary Saing to appoint the PGT as her guardian of property as there are no other suitable candidates.

C. CONCLUSION

[77] I order that the PGT be appointed as Phary Saing’s guardian of property and as litigation guardian with respect to this Application.

[78] I direct the parties to discuss the terms of an order which incorporates the standard appointment language commonly used by the PGT. If the parties cannot agree on the terms of an order, they should contact my assistant to schedule a case conference.

[79] If costs cannot be agreed upon, the parties shall deliver submissions of not more than three pages (double-spaced), excluding the costs outline, by January 13, 2023. The submissions of all parties shall also be sent to my assistant by e-mail and uploaded onto CaseLines.

[80] When the parties are ready to schedule the next step in this matter, they should contact my assistant to schedule a case conference with me.

Vermette J.

Date: December 30, 2022

[^1]: This is the plan set out in Vothy Saing’s Management Plan with respect to the three loans:

> Phary loaned Sokly $70,000 so that he could pay down the mortgage on 553 Heddle Crescent in Newmarket and eventually purchase a new home without first selling the Ileddle property. This allowed Sokly to maintain that home so my mother and Phary had a place to live. If Phary will no longer live at Heddle, and Sokly will sell the home and repay the debt. It is also his intention to put any proceeds from the sale of Heddle in a trust account for Phary should she not wish to live in that home as long as Konthear Saing or another untrustworthy person is not Phary’s guardian of property.
>
> With respect to the Loan to Konthear Saing. I would bring a small claims court claim to recover any amount owed to Phary.