COURT FILE NO.: CV-23-00000002 DATE: 20230301 CORRIGENDA: 20230301 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: S.B., Applicant AND: A.L. and The Office of the Public Guardian and Trustee, Respondents

BEFORE: J. Di Luca J.

COUNSEL: Dale Turner, Counsel for the Applicant No one appearing for the Respondents

HEARD: February 14, 2023

Endorsement

(Text of original Endorsement has been amended - Changes Appended)

[1] This is a guardianship application. The applicant, S.B., is the mother of the respondent, A.L. The applicant seeks a declaration that the respondent is incapable of managing her property and her personal care.

[2] S.B. proposes that she be named as her daughter’s guardian of property and personal care in accordance with the Substitute Decisions Act, 1992 (“the Act”). She also seeks an order under s. 59 of the Act authorizing A.L.’s apprehension should she run away from home.

[3] The Office of the Public Guardian and Trustee (“PGT”) has been served with the application. While it takes no position on whether the court should find A.L. incapable, it has by way of letter dated January 10, 2023, provided comments and input regarding the proposed Management Plan and Guardianship Plan put forth by the applicant.

[4] A.L. did not appear on the application. She does not have counsel. S.B. asserts that she has advised her daughter of the application and of her right to retain counsel if she wished.

Background Facts

[5] The applicant, S.B., is A.L.’s mother. A.L. was born in 2003. [^1] She is now 19 years old.

[6] A.L. has Autism Spectrum Disorder, Bi-Polar II, and other intellectual disabilities. She reads and writes at a grade 5 level. She is not permitted to obtain a driver’s licence and will likely never be employed.

[7] Starting at the age of 15, A.L., began running away from home. She would often run off to engage in sexual encounters with older adult males whom she met online.

[8] In December 2022, A.L. ended a relationship that was physically abusive. She has since returned to live at home with her mother and stepfather.

[9] Apart from Ontario Disability Support Program (“ODSP”) payments of approximately $776 per month, A.L. has no income.

[10] S.B. currently helps A.L. with all aspects of her life. She essentially manages her finances and her personal affairs. She brings A.L. to all her medical appointments and helps her with all her day-to-day needs. She has also recently arranged for A.L. to re-attend at Nova’s Ark for continued counselling and support assistance.

[11] A.L. has been attending an education program at a vocational school. She will age out of the program when she reaches 21 years of age.

[12] On October 21, 2021, A.L. was brought to hospital by police. It was alleged that she set fire to the walls and certain photographs at her school and threatened to stab certain individuals. According to S.B.’s reporting, as reflected in the medical records, A.L. stated it was “fun” to bring weapons to school. Earlier, on September 29, 2021, A.L. brought four knives to school because she was “bored.”

[13] In September 2021, A.L. was brought to hospital for assessments after having run away to a male’s house whom she had met online. Police were contacted due to a concern over non-consensual sexual activity.

[14] By January 25, 2022, S.B. reported that A.L.’s behaviour had stabilized due to a change in her medication. She was reported as feeling better and being more positive.

The Capacity Assessments

[15] A.L. was interviewed by an assessor, Ms. Susan Winton, on November 16, 2021. Based on the interview, Ms. Winton prepared capacity assessments for property and personal care. The assessments are dated October 21, 2022.

[16] In terms of A.L.’s capacity to manage her finances, Ms. Winton concludes that A.L. is incapable of managing her property. In her assessment, she notes that A.L. is unable to determine basic calculations involving denominations of money, though she understands what a bank is and what the purpose of a credit and debit card is. During the assessment, A.L. expressed a need for assistance with her finances and indicated that she has never had to take care of her finances. She explained that her mom is helping her, though she is not aware of the particulars of her financial situation. She denied being at risk of financial exploitation and explained that she does not trust anyone.

[17] Based on her assessment, Ms. Winton notes as follows: [A.L.] does not indicate she possess the requisite intellectual, insight, cognitive abilities and skills to acquire and assimilate information to assume responsibility for her basic and more complex financial demands. She is unable to actively engage in discussions, or demonstrate capacity to carry out required monetary skills such as maintaining or budgeting for weekly or monthly expenses, retain financial conceptual knowledge, manage a cheque book, comprehend a bank statement, pay bills etc. She does not display financial judgment and comprehension of basic and/or more complex fiscal responsibilities. [A.L.] would not be able to request or complete applications for any relevant fiscal income benefits. She does not have adequate calculating ability, and has limited literacy skills.

[18] Ms. Winton reaches the following conclusion about A.L.’s capacity to make decisions about her property: …[A.L.] is unable to comprehend, demonstrate, and implement the skills to responsibly manage her property. She requires ongoing assistance by means of her mother S.B. appointed as [A.L.’s] Guardian for Property.

[19] In terms of A.L.’s capacity for personal care, Ms. Winton concludes that A.L. is incapable of managing her personal care in all areas.

[20] Ms. Winton notes that A.L. is aware that she is taking medication but does not know the reason why.

[21] A.L. can use the stove to boil water and make hot dogs or pasta, though she is primarily dependent on others to prepare her meals.

[22] A.L. is unable to make decisions about her future housing needs.

[23] A.L. is able to go out and meet friends and can use a school bus. She also knows to call “911” in an emergency. That said, there have been significant concerns about incidents where she went to meet up with older men she met online.

[24] While Ms. Winton concludes that A.L. was incapable of making decisions in terms of hygiene and clothing, she notes that A.L. is independent in terms of using the washroom and requires minimal supervision with bathing and showering. A.L. is also able to dress herself in appropriate seasonal clothing. That said, at times she requires supervision and/or assistance with activities of daily living (“ADLs”) and instrumental activities of daily living (“IADLs”).

[25] Ms. Winton concludes as follows: [A.L.’s] mental health and intellectual disabilities are not expected to improve to the requisite skill level to duly independently manage her personal care demands. The behaviour I witnessed is described as typical for her. With respect to the “understand and appreciate” test of capacity as per the Substitute Decisions Act, 1992, [A.L.] “lacks the ability to intellectually understand the options for meeting her personal care needs and rationally manipulate information to reach a reasoned decision. She is unable to acquire the factual knowledge base and skills needed to manage the decision-making demands of her circumstances and cannot be educated in that regard.” I determined that [A.L.] is unable to comprehend, demonstrate and implement the skills to responsibly manage her personal care requirements. She requires ongoing assistance by means of her mother S.B. appointed as [A.L.’s] Guardian for Personal Care.

Legal Parameters of Capacity and Guardianship

[26] 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, 1992. This Act creates a scheme for determining issues of capacity in relation to personal care and in relation to managing property.

[27] 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.

[28] 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), 33 O.R. (3d) 485 (Ont. Ct. (Gen.Div.)).

[29] 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.

[30] 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.

[31] 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.

[32] 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.

[33] 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.

Findings and Conclusion

[34] In what follows, I will set out my findings in relation to the issues raised in this application. I will also address some of the concerns raised by the PGT.

[35] First, I am satisfied that A.L. has been served with the application and is aware that the matter is proceeding. Second, while I have considered whether counsel should be appointed under s. 3 of the SDA, I see no need to do so in this case. While it would have been preferable for A.L.’s views to have been more directly placed before the court, on the basis of the material before me this appears to be an instance where A.L. has expressed a desire for assistance and is content to receive it from her mother. In other words, this does not appear to be an instance where opposition might reasonably be anticipated. In addition, the application essentially appears to be an effort on S.B.’s part to put in place a formal legal structure over the existing relationship given that A.L. has reached adulthood.

[36] In terms of the capacity assessments before the court, I note they are both based on an interview that occurred approximately 15 months ago. In some cases, the passage of time might raise concerns about whether the evidence is stale dated. In this case, that concern does not arise as it appears that A.L.’s capacity is fixed and unlikely to vary or improve over time.

[37] Turning to A.L.’s capacity to manage her property, I am satisfied that A.L. is incapable of managing her property and that the appointment of her mother as guardian of property is the least restrictive option. I acknowledge that S.B. currently controls access to funds through a joint account with A.L. I also acknowledge that S.B. plans on becoming A.L.’s trustee for ODSP payments. That said, in view of A.L.’s likely fixed and quite limited level of functioning in terms of finances, I find that nothing less than a guardianship over property is appropriate in the circumstances. I also approve the revised Management Plan which was amended to reflect concerns raised by the PGT.

[38] I turn next to guardianship over the person. In this regard, I accept Ms. Winton’s conclusions regarding A.L.’s capacity to make personal care decisions. I note that in areas such as personal hygiene and clothing, A.L. appears to have some limited capacity. That said, I accept Ms. Winton’s position that A.L. nonetheless requires supervision and/or assistance with these types of tasks. Viewed as a whole, and noting that guardianship of the person is not an “all or nothing” proposition, I am satisfied that A.L. lacks the capacity to make decisions regarding all aspects of her personal care. I am also satisfied that the proposed guardianship plan is appropriate in the circumstances.

[39] I turn lastly to the request for an order under s. 59(3) of the Act, granting S.B. the authority to have A.L. apprehended and returned home as needed. Section 59(3) of the Act provides as follows:

Power to apprehend person

(3) If the guardian has custodial power over the person and the court is satisfied that it may be necessary to apprehend him or her, the court may in its order authorize the guardian to do so; in that case the guardian may, with the assistance of a police officer, enter the premises specified in the order, between 9 a.m. and 4 p.m. or during the hours specified in the order, and search for and remove the person, using such force as may be necessary.

[40] In considering whether such an order is appropriate, I note that the apprehension power contemplated in s. 59(3) appears to be restricted to a specific instance where an apprehension is required. In other words, the wording of s. 59(3) gives the court authority to make an order for the apprehension of a person by their guardian at a specific premise and at a specific time (or by default between the hours of 9:00 a.m. and 4:00 p.m.). I do not read s. 59(3) as permitting the court to delegate a free-standing power of apprehension to the guardian to exercise as and when the guardian sees fit, including with the assistance of police and using whatever force is reasonably required. In my view, that is too broad an interpretation.

[41] As such, I decline to make such an order on the facts of this case. That said, I want to make clear that I understand why S.B. is seeking such an order. A.L. has a history of running off with older men that she has met on the internet. There is an obvious concern given her limitations that these encounters may readily result in her being placed in situations where there exists a significant risk of physical and psychological harm.

[42] I note that the PGT suggests that if A.L. is undergoing psychiatric care, she may be a candidate for a community treatment order under the Mental Health Act. Such an order may provide for apprehension and return to a treating doctor and/or hospital. I am not deciding whether such an order would be available or is appropriate in this case. I simply note the PGT’s position and invite counsel to take it under advisement.

[43] In accordance with these reasons, the application is granted in part. Order to go accordingly. I have deleted the apprehension provision in the draft order and also deleted the provision dealing with the PGT’s costs as the PGT indicates that it is waiving fees in this case.

J. Di Luca J. Date: March 1, 2023 Revised: March 1, 2023

AMENDMENTS

1. Paragraph [41] has been amended from its original text: [41] … This is an obvious concern given her limitations, that these encounters may readily result in her being placed in situations where there exists a significant risk of physical and psychological harm. To now read: [41] … There is an obvious concern given her limitations that these encounters may readily result in her being placed in situations where there exists a significant risk of physical and psychological harm.

[^1]: The date of birth has now been redacted from the decision initially provided to the parties.