Court File and Parties

COURT FILE NO.: CV-20-84061-ES and CV-22-90284-00ES DATE: 2023/10/13

Court file no. CV-20-84061-ES ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Berouk Terefe Applicant – and – Emmanuel Berouk, The Office of the Public Guardian and Trustee and Neguest Alemayehu Respondents

Counsel: Stéphane MacLean, for the Applicant Frances Shapiro Munn, for the Respondent Nequest Alemayehu Vasu Naik, for the Respondent Emmanuel Berouk

Court file no. CV-22-90284-00ES ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Neguest Alemayehu Applicant – and – Emmanuel Berouk, Public Guardian and Trustee and Berouk Terefe Respondents

Counsel: Frances Shapiro Munn, for the Applicant Stéphane MacLean, for the Respondent Berouk Terefe Vasu Naik, for the Respondent Emmanuel Berouk

HEARD: May 16 and June 15, 2023

Reasons for Judgment

RYAN BELL J.

Overview

[1] Berouk Terefe and Neguest Alemayehu have each brought an application under the Substitute Decisions Act, 1992, seeking to be appointed sole guardian of property and personal care for their adult son, Emmanuel Berouk (“Manny”). For simplicity’s sake, I will refer to Manny’s family members and friends by their first names.

[2] Manny is now 25 years of age. He has autism and a history of developmental challenges.

[3] In 2005, Manny’s parents separated. Under the terms of a final order made by Lalonde J. in November 2007, Berouk and Neguest had joint decision-making for Manny and shared parenting time, with Manny residing with each of his parents on a week about basis. The parties continued to adhere to the weekly parenting schedule after Manny turned 18 in 2016.

[4] This state of affairs continued until the onset of the COVID-19 pandemic in March 2020. Citing the transmissibility of COVID-19, Berouk did not return Manny to Neguest’s home. Since March 2020, Berouk has been, in his own words, Manny’s sole and primary caregiver and Manny has resided exclusively with Berouk.

[5] Berouk and Neguest agree that Manny is incapable of managing property and his personal care (other than in respect of clothing) and that Manny requires a court-appointed guardian for property and personal care. Berouk submits that it is in Manny’s best interest that he, Berouk, be appointed Manny’s sole guardian because Manny has “prospered” under his care and has expressed a preference to reside with Berouk. Berouk also says that the parties’ shared custody of Manny resulted in conflict and hostility that was harmful to Manny.

[6] For her part, Neguest says that she should be appointed Manny’s sole guardian because she has always acted in Manny’s best interest, has always encouraged Manny to be independent, and is committed to fostering Manny’s personal relationships.

[7] Manny expressed his views and wishes through his s. 3 counsel.

[8] For the following reasons, I find that Manny is incapable of managing property and his personal care (other than in respect of clothing) and that he requires a court-appointed guardian. In these reasons, I explain why I am appointing Neguest as Manny’s sole guardian of property and personal care.

Brief background and procedural history

[9] Manny was born on March 7, 1998. He began showing signs of delay at 18 months of age when he failed to reach developmental milestones at appropriate times. He was diagnosed with autism in 2002.

[10] Berouk commenced his application seeking to be appointed Manny’s sole guardian of property and personal care in July 2020. Initially, Berouk did not name Neguest as a respondent to his application. Nor did Berouk consult with Neguest in retaining a capacity assessor, Dr. Francine Sarazin. In reports dated February 25, 2020, Dr. Sarazin concluded that Manny is incapable of managing property or granting a power of attorney for property and incapable of making personal care decisions regarding health care, nutrition, shelter, hygiene, and safety.

[11] Neguest was not provided the opportunity to participate in Dr. Sarazin’s assessment of Manny and she disputes the assertions Berouk made about her that are reflected in the assessor’s reports. Neguest does, however, agree with Dr. Sarazin’s findings that Manny is incapable with respect to managing property and his personal care.

[12] In February 2021, Berouk served a supplementary application, record, including an amended management plan and guardianship plan.

[13] In March 2021, Berouk and Neguest consented to the appointment of s. 3 counsel for Manny. The consent order also provided that Neguest would be added as a respondent to Berouk’s application.

[14] Following a case conference in November 2021, Berouk and Neguest agreed to retain Dr. Mark Ferland to complete an independent capacity assessment for Manny with respect to property and personal care. Dr. Ferland’s property assessment for Manny was completed on May 12, 2022. He determined that Manny is incapable of managing his property.

[15] Following Berouk’s cancellation of Dr. Ferland’s personal care assessment of Manny and two case conferences, Associate Justice Kaufman, as he then was, set down a timetable for the delivery of Neguest’s application materials, cross-examinations, and the exchange of factums. Neguest’s application was commenced in October 2022.

[16] On the return of the applications, Neguest sought leave to file an amended notice of application seeking procedural remedies arising from Berouk’s failure to follow court-ordered and consent timetables and his failure to attend a cross-examination on his evidence. The amended notice of application was filed on consent.

[17] Neguest also sought an order striking numerous paragraphs of Berouk’s supplementary and responding affidavit dated April 3, 2023 on the basis that the impugned portions were scandalous, frivolous, or vexatious and/or failed to comply with r. 39.01(5) of the Rules of Civil Procedure. After hearing submissions, I provided the parties with my ruling on Berouk’s April 3, 2023 affidavit and advised that these reasons for judgment would include my reasons for striking portions of the affidavit.

Berouk’s April 3, 2023 affidavit

[18] In her written submissions, Neguest advanced the argument that limited weight should be afforded to Berouk’s affidavit given his refusal to comply with a court-ordered timetable and his refusal to attend a cross-examination. However, the primary position pressed in oral argument was that numerous paragraphs of the affidavit should be struck on the basis that they were non-compliant with r. 39.01(5) and/or they contained statements that were scandalous, frivolous, and/or vexatious.

[19] Rule 39.01(5) provides that an affidavit for use on an application may contain statements of the deponent’s information and belief with respect to facts that are not contentious if the source of the information and the fact of the belief are specified in the affidavit.

[20] In Botelho v. Faulkner, 2020 ONSC 6471, at para. 39, Fowler Byrne J. provided a summary of the principles dealing with the definition of scandalous, frivolous, and vexatious pleadings and what constitutes an abuse of process. These principles include:

• if a fact has no effect on the outcome of the proceedings, whether true or not, and is inserted solely for atmosphere, it is scandalous, frivolous, and vexatious;
• if historical facts are pleaded that have no relevance to the proceedings, they will be struck; and
• a scandalous pleading is one that is irrelevant, argumentative, and inserted for colour, contains bare allegations with no facts to support those allegations, or contains unfounded and inflammatory attacks on the integrity of a party.

[21] I struck portions of Berouk’s April 3, 2023 affidavit for the following reasons:

• The last sentence of paragraph 34: This sentence contains hearsay from Manny about Manny’s speech therapy and is contrary to r. 39.01(5). No evidence was provided from Manny’s former speech therapist.
• The last sentence of paragraph 41: The sentence about the timing of Neguest’s graduation gift for Manny has no effect on the outcome of the proceedings and was inserted for the purpose of making Neguest “look bad.”
• The last four sentences of paragraph 44: These sentences address who paid for Manny’s piano books and lessons. These are historical facts that have no relevance to the proceedings.
• Paragraph 45: This paragraph deals with Manny’s ski lessons and Berouk’s attendance at those lessons. These, too, are historical facts that have no relevance to the proceedings. They were inserted to cast Neguest in a negative light.
• Paragraph 48: This paragraph deals with the cost of Manny’s ski equipment rental and includes an allegation that Neguest violated the final order of Lalonde J. These are historical facts and inserted to cast Neguest in a negative light. They are argumentative and inserted solely for colour.
• Paragraph 49: This paragraph deals with the division of shared expenses in proportion to the parties’ incomes, in accordance with the final order of Lalonde J. These are historical facts of no relevance to these proceedings. They were inserted solely for atmosphere and to attack Neguest’s integrity.
• The fourth sentence of paragraph 69: Berouk recalls that Neguest did not think that Manny would attend college. This statement is irrelevant and argumentative.
• Paragraphs 82-84: In these paragraphs, Berouk casts aspersions on Neguest’s ability to deal with money. These are historical facts, of no relevance to these applications. They were included to cast Neguest in a negative light.
• Paragraphs 87-88: In these paragraphs, Berouk makes statements about Neguest damaging the car. Again, these are historical facts and, whether they are true or not, they have no relevance to the outcome of these proceedings. They were inserted for the purpose of casting Neguest in a negative light.
• Paragraphs 105-106: In these paragraphs, Berouk addresses his “genuine concerns” that he had “many years ago” that Neguest was administering “unregulated products” to Manny. These paragraphs fit the textbook definition of a scandalous pleading: the allegations are historical, irrelevant, and argumentative, and constitute unfounded and inflammatory attacks on Neguest.
• Paragraph 127: Berouk makes allegations that Neguest “routinely tries” to manipulate Manny. These allegations are argumentative and aimed at casting Neguest in a negative light.
• Paragraph 135: Berouk asserts his belief that Neguest has not always acted in Manny’s best interests regarding his education. Berouk’s views in this regard are of no assistance to the court. This paragraph is also argumentative.
• Paragraph 141: Berouk asserts his belief that it would have been harmful to Manny’s development if he had been placed in the educational program proposed by Neguest. Berouk’s views on these historical facts are of no assistance to the court. This paragraph is argumentative and irrelevant.
• Paragraph 144: Berouk provides his belief as to why Neguest wanted Manny to be in the applied educational stream at high school. Berouk’s views do not assist the court. The paragraph is also argumentative and was, in my view, included to cast Neguest in a negative light.
• The second sentence of para. 146: Berouk states that he has “since learned” information about the applied stream in high school. He does not disclose from whom he learned this information. In any event, the statement is hearsay. It is contrary to r. 39.01(5).
• Paragraph 147: In this paragraph, Berouk states that he learned information from unidentified “staff at the high school.” The statement is hearsay and is contrary to r. 39.01(5).
• Paragraph 148: Berouk complains that his exclusion from communications between Neguest and staff at Manny’s high school was a breach of Lalonde J.’s final order. There is no foundation for this paragraph given that paragraph 147 has been struck. In addition, the allegations are historical facts, of no relevance to the outcome of these proceedings.
• Paragraph 149: Berouk states his belief that Neguest “may” not encourage Manny’s full potential and “may” exclude Berouk from decisions. Berouk’s opinion in this regard is irrelevant and of no assistance to the court.
• Paragraph 150: In this paragraph, Berouk states that he learned from Manny’s English teacher about a request by Neguest. The name of the teacher is not disclosed. In any event, the statement is hearsay and is contrary to r. 39.01(5).
• Paragraph 152: Berouk refers to his communications with unidentified staff members at Manny’s high school. The statements are hearsay and contrary to r. 39.01(5).
• The second sentence of para. 154: Berouk states his belief that Neguest intended to “deceive” staff at Manny’s high school by providing them with the OCL report and to “circumvent” the joint-decision making provisions of the order of Lalonde J. These statements are irrelevant, argumentative, and inflammatory attacks on Neguest’s integrity in relation to matters that allegedly occurred ten years ago.
• Paragraphs 159-160 and 162-163: Berouk alleges that Neguest sometimes interfered in Manny’s education after Manny started attending college. Paragraph 160 relies on hearsay from Manny and “staff” at the college as to what transpired. No medical evidence was provided that Manny fell ill as set out in that paragraph. The statement that Neguest accessed Manny’s student file without his authorization is a bald allegation, aimed at attacking Neguest’s personal integrity. Paragraphs 162 and 163 are predicated on Berouk’s “understanding” from Manny. They are hearsay and contrary to r. 39.01(5).
• Paragraphs 166-168: Berouk recounts, based on what Manny told him, an alleged incident with a blood test at Neguest’s home. Not only are these paragraphs founded on hearsay, contrary to r. 39.01(5), but also, in my view, they were inserted for colour and to cast Neguest in a negative light.
• Paragraph 169: Berouk states that “Manny and I have been subjected to “years of bullying and intimidation.” In my view, this bald allegation can only have been inserted for colour and to cast Neguest in a negative light.
• The last sentence of paragraph 171: Berouk claims that an incident in 2015 harmed his reputation in his neighbourhood. The statement offends r. 39.01(5).
• The last sentence of paragraph 173: Berouk refers to Neguest and her husband being “warned” by a police officer. This is hearsay and offends r. 39.01(5).
• Paragraph 174: Berouk states that when Manny began high school, Neguest told staff she had sole decision-making authority for Manny. This statement is hearsay and offends r. 39.01(5).
• Paragraph 175: Berouk alleges that Neguest had a “practice” of misleading the staff at Manny’s high school and that this practice created challenges for them while Manny was in school. In addition to this paragraph being founded on hearsay, contrary to r. 39.01(5), the allegations are argumentative and aimed at casting Neguest in a negative light.
• Paragraph 176: Berouk goes further and suggests that Neguest shared the OCL report with staff at Manny’s high school to try to humiliate Berouk and harm his reputation. This constitutes an unfounded and inflammatory attack on Neguest’s integrity.
• Paragraph 177: For this paragraph, Berouk reiterates what he was allegedly told by Manny about what occurred on a trip Manny and Neguest took in 2016. It is hearsay and offends r. 39.01(5). Other information in the paragraph is vague and unspecified, and is clearly aimed at casting Neguest in a negative light.

[22] Counsel for Neguest confirmed that Neguest was not relying on paragraph 4 of her affidavit. Because paragraphs 11 to 18 of Berouk’s April 3, 2023 affidavit were said to be in response to paragraph 4 of Neguest’s affidavit, I have placed no weight on any of these paragraphs in reaching my decision.

Findings of incapacity

[23] Before turning to the merits of the dispute as to who should be appointed guardian of Manny’s property and personal care, I confirm my independent view that such appointment is warranted in the circumstances.

[24] The evidence I rely upon includes Dr. Sarazin’s assessment reports with respect to personal care and property dated February 25, 2020. Dr. Sarazin concluded that Manny does not have the ability to fully understand, learn, and retain all relevant information pertaining to his property and lacks capacity to grant a power of attorney for property. Dr. Sarazin was also of the opinion that Manny is not capable of making personal care decisions in the care domains of health care, nutrition, shelter, hygiene, and safety.

[25] I also rely upon Dr. Ferland’s May 12, 2022 assessment report with respect to determination of incapacity for property. In Dr. Ferland’s opinion, Manny is not capable of managing property and Manny did not demonstrate a basic understanding of his finances and demonstrated only a limited ability to retain details.

[26] Through s. 3 counsel, Manny expressed the view that he can and wants to make the decisions that are “easy”; with respect to the “difficult” decisions, he would seek his father’s help. In his report, Dr. Sarazin addressed Manny’s inability to identify any limitations or difficulties he might encounter with money management. Similarly, in regard to decisions relating to health, Dr. Sarazin reported that Manny denied his autism might impact or interfere with his ability to understand complex medical conditions or treatment options, and noted that if Manny did not know about something, he would turn to his parents.

[27] I find that Manny lacks capacity to manage property, as outlined in s. 6 of the SDA. I find that Manny is not able to understand information that is relevant to making a decision in the management of his property and he is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. In accordance with s. 25(1) of the SDA, I further find that because Manny is incapable of managing his property, it is necessary for decisions to be made on his behalf by a person who is authorized to do so. I find there is no alternative course of action available that is less restrictive of Manny’s decision-making rights than the appointment of a guardian: SDA, s. 22(3).

[28] I also find that Manny lacks capacity to look after his personal care in the domains of health care, nutrition, shelter, hygiene, and safety, as outlined in s. 45 of the SDA. I find that Manny is not able to understand information that is relevant to making a decision in these domains and is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. In accordance with s. 58(1) of the SDA, I find that because Manny is incapable of looking after his personal care in the identified domains, he needs decisions to made on his behalf by a person who is authorized to do so. I find there is no alternative course of action available that is less restrictive of Manny’s decision-making rights than the appointment of a guardian: SDA, s. 55(2).

Appointment of a guardian or guardians

[29] The general principles and considerations to be borne in mind when the court is called upon to appoint a guardian pursuant to the SDA were summarized by Leach J. in K.R. v. Y.R. et al., 2015 ONSC 6874, at para. 22. They include:

• The SDA provides criteria for the type of person that the court may appoint as a guardian of property or a guardian of personal care. In particular, except in the case of an application by summary disposition, the court shall consider: (a) whether the proposed guardian is the attorney under a continuing power of attorney or power of attorney for property; (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. See ss. 24(5), 57(3) and 77 of the SDA.
• However, the overarching and fundamental factor in appointing a guardian or having one replaced or removed is what is in the best interest of the incapable person. [citations omitted]
• In selecting an appropriate person for appointment, the court also may consider the duties of a guardian of property and guardian of the person, and indications of whether or not a suggested appointee is likely to fulfill such responsibilities. Such duties include obligations to act as a fiduciary and in good faith, (focusing on the best interest of the incapable person rather than the guardian’s own interest); to ascertain and consider the incapable person’s wishes; to consult from time to time with supportive family members and friends of the incapable person; and to foster regular personal contact between the incapable person and his or her supportive family members and friends. A candidate for appointment who demonstrates an inclination to act in a manner not consistent with such duties, (e.g. by permitting his or her ego or self-interest to take precedence over the welfare of the incapable person, by engaging in petty bickering or gamesmanship, and/or by making plain a determination to shun or limit communication with other family members), is unlikely to be a suitable guardian. See, for example: ss. 32 and 66 of the SDA. [emphasis added; citations omitted]
• The court may, with their consent, appoint two or more persons as joint guardians of property and/or joint guardians of the person. See ss. 24(6) and 57(4) of the SDA.

[30] Neguest and Berouk are Manny’s mother and father respectively. The closeness of their respective relationships to Manny is not at issue; each enjoys a strong bond and loving relationship with their son.

[31] The parties’ competing positions rest on a consideration of who is more likely to fulfill the following responsibilities: (i) the duty to foster regular contact between Manny and his supportive family members and friends; (ii) the duty to consult with supportive family members and friends; and (iii) the duty to foster Manny’s independence. I have considered Manny’s expressed wishes but, for reasons I will explain, I have placed little weight on those wishes. Finally, I considered, but ultimately rejected, the appointment of Neguest and Berouk as joint guardians of property and of the person of Manny.

(i) Duty to foster regular contact between Manny and his supportive family members and friends

[32] Guardians for property and personal care “shall foster” regular personal contact between the incapable person and their supportive family members and friends: SDA, ss. 32(4) and 66(5). Prior to March 2020, Neguest and Berouk shared parenting time and responsibilities on an equal basis, with Manny spending a week at Neguest’s home, followed by a week at Berouk’s home. Since March 2020, Manny has lived exclusively with Berouk, with Berouk being Manny’s “sole and primary caregiver.”

[33] There can be no question that Berouk has served as Manny’s de facto guardian during this period. While Berouk was not legally obligated to comply with the duties of a court-appointed guardian, including the duty to foster regular contact with family and friends, Berouk’s past conduct in this regard is certainly relevant to my assessment of whether or not Berouk is likely to fulfill such responsibilities.

[34] There is ample evidence in the record that since March 2020, Berouk has done little to foster regular contact between Manny and his mother, Neguest. In an April 2020 email to Neguest, Manny stated that he would not go for a walk outside while the pandemic was ongoing. Calls from Neguest to Manny in mid-May 2020 went unanswered. On July 11, 2020, Manny told Neguest that he no longer wanted to speak to her by telephone because Neguest would ask him why he was not returning to her home. On September 9, 2020, Manny sent an email to Neguest in which he stated he was unwilling to have phone calls with her because their conversations were stressful and that he wanted to stay with his father full time because he was “tired of the old routine going back and forth.”

[35] Between March 2020 and October 2022, Neguest had only seven in person visits with Manny – all in public settings. One of these visits occurred by chance and none lasted for more than two hours. Since March 2020, Manny has spent no time in Neguest’s house. Neguest has reached out to Manny repeatedly, offering to meet him for a socially distanced walks, to play basketball, or to go apple picking. Manny has not responded to these overtures and there is no evidence that Berouk has facilitated these types of visits.

[36] Manny has a close and loving relationship with his stepfather, Richard, and his younger brother, Simon. However, since March 2020, Manny has not spent any time with Richard and he has seen Simon only a few times, and always in a public setting.

[37] Neguest’s friends, Peka and Makonnen, have known Manny since he was two years old. They are like an aunt and an uncle to Manny. Manny is also close their children. Peka and Makonnen have reached out to Berouk in an effort to make plans to see Manny – all to no avail. Their daughter, who thinks of Manny like a cousin – has also been unsuccessful in her efforts to see Manny.

[38] Berouk’s evidence is that Manny texts with and prays for Neguest every day and he, Berouk, encourages Manny to buy gifts for Neguest and Simon. I agree with Neguest, however, that texts, prayers, and gifts are not the same as Manny spending meaningful time with her and Simon.

[39] Berouk also emphasizes that the period during which Manny has lived exclusively with Berouk “overlaps almost entirely with the course of this highly contentious and acrimonious litigation.” That, however, does not justify Berouk’s failure to foster regular contact with Manny’s mother, his family, and his friends. It is certainly not in Manny’s best interest.

[40] Berouk has filed three guardianship plans in support of his application: July 20, 2020, February 26, 2021, and April 3, 2023. While the plans recognize Manny’s strong relationship with his mother, they fail to explain how Berouk intends to ensure that relationship continues. Two of the plans are silent as to how Berouk would foster Manny’s relationship with his stepfather and brother. It is telling that in his first affidavit, Berouk testified that Manny does not have any siblings.

[41] I am also troubled by the fact that in the April 3, 2023 guardianship plan, Berouk states that he will make sure Manny continues to have a “loving, healthy, and respectful relationship with his mother and her family,” and in the same plan, Berouk describes Neguest as manipulative, controlling, belittling, and damaging to Manny’s self-esteem. Berouk complained to Dr. Sarazin that Manny was easily “tricked” by Neguest and Neguest “manipulated” Manny into making decisions that were not in his best interest. Having regard to Berouk’s complaints to Dr. Sarazin, reiterated in the guardianship plan, Berouk’s assertion that he will foster a loving and respectful relationship between mother and son is simply not credible.

[42] In contrast to Berouk, Neguest has outlined a detailed plan to foster Manny’s relationships with his father and his father’s family. If appointed Manny’s guardian, Neguest would encourage Manny to visit Berouk at least twice a week for at least four hours per visit. The visits would include at least one dinner each week. Neguest would also encourage Manny to attend birthday celebrations with Berouk, spend holidays together, and ensure that Manny attended any family gatherings with Berouk’s family.

[43] There is ample evidence in the record that Neguest has a history of fostering Manny’s relationships with supportive family and friends. In her affidavit, Peka states that Neguest encouraged Manny to come over to Peka and Makonnen’s house while he was growing up so that he could spend time with one of their daughters. Makonnen testified that Neguest enrolled Manny in piano lessons with another of their daughters. Given the likelihood that Manny will likely outlive Neguest and Berouk, it is important to Neguest that Manny’s social circle be as wide and supportive as possible. As Manny’s guardian, Neguest would take steps to expand Manny’s circle of friends by encouraging him to join a choir and to take up skiing again.

[44] In my view, Neguest is more likely than Berouk to fulfill this responsibility as Manny’s guardian.

(ii) Duty to consult with Manny’s supportive family members and friends

[45] Guardians for property and personal care “shall consult” from time to time with the incapable person’s supportive family members and friends: SDA, ss. 32(5) and 66(7).

[46] I am troubled by Berouk’s past failures to consult with Neguest. Berouk arranged for a capacity assessment by Dr. Sarazin without consulting with Neguest and without providing her an opportunity to participate. He commenced his application to be appointed Manny’s sole guardian without consulting with Neguest and without naming her as a respondent. He unilaterally cancelled Dr. Ferland’s assessment of Manny for personal care, even though the parties jointly agreed to retain Dr. Ferland.

[47] While Berouk acknowledges that he did not consult with Neguest before commencing his application and that he would have an obligation to consult if he were appointed Manny’s guardian, he attempts to excuse his behaviour by alleging the ability to make decisions for Manny jointly with Neguest “has become increasingly difficult and impossible.” There is, however, no evidence to support Berouk’s assertion and he has not provided any examples of decisions for Manny that could not be made or were difficult to make jointly with Neguest.

[48] Berouk’s first guardianship plan states only that he would communicate regularly with “those who care for [Manny].” Berouk consulted with his sister (Manny’s aunt) and Manny’s doctor to prepare the plan. While Berouk’s updated management plan of April 3, 2023 reflects an intention to consult with Manny’s supportive friends and family, “including his mother Neguest”, the plan is bereft of details. Berouk did not consult with Neguest in preparing his most recent plan for Manny.

[49] Berouk’s failure to consult with Neguest regarding significant matters and decisions concerning Manny is manifest in the record. For example, it is only as a result of these proceedings that Neguest learned that Manny has graduated from college, received a student loan to pay for his education, applied for and began receiving Ontario Disability Support Program benefits, and agreed to pay Berouk rent from his ODSP benefits. She does not know how much Manny receives in benefits, nor does she know the amount of his rental payment to Berouk. It is clear that over the past three years, Berouk has not demonstrated a willingness to consult with Manny’s mother in respect of major matters in Manny’s life.

[50] In her management plan, Neguest highlights that she would schedule regularly planned visits between Manny and Berouk. She would also consult with Manny about maintaining positive relationships with his extended family members.

[51] Regrettably, Berouk’s failures over the past three years to consult with Neguest and his unsubstantiated allegations that it has become impossible to make decisions for Manny jointly with Neguest lead me to doubt Berouk’s commitment to consult with Manny’s supportive family members and friends, and in particular, Neguest. By contrast, I have no reason to doubt Neguest’s commitment in this regard. In my view, Neguest is more likely than Berouk to fulfill this responsibility as Manny’s guardian.

(iii) Duty to foster Manny’s independence

[52] Under ss. 66(7) and (8) of the SDA, a guardian for personal care has a duty to foster the incapable person’s independence and to choose the least restrictive and intrusive course of action that is available and appropriate. Both Berouk and Neguest say they have always acted in a manner consistent with fostering Manny’s independence.

[53] Berouk highlights the following as ways in which he has sought to foster Manny’s independence: Berouk helped Manny secure ODSP assistance and taught him how to prepare a budget; Manny graduated from college in the business accounting program while he was under Berouk’s care; Manny participated in resumé, job search, and interview preparation sessions while he was under Berouk’s care; Berouk assisted Manny in applying for a deferral of the repayment of his student loan; and Berouk requested and negotiated employment support services for Manny. Berouk submits that these efforts will assist Manny in finding suitable employment that will, in turn, help foster his independence.

[54] Neguest states that in the past, she has fostered Manny’s independence by having him complete minor errands, with or without her, building Manny’s confidence for using buses and public transportation, encouraging Manny to go to the movies, the library, the swimming pool, and the bookstore by himself for short periods of time, encouraging Manny to complete his homework himself, registering Manny for extra-curricular activities, including overnight summer camps, teaching Manny to prepare meals on his own, and enrolling Manny in employment readiness programs. Neguest’s evidence in this regard is corroborated by the evidence of a retired educational assistant who worked closely with Manny through grades one to eight.

[55] Berouk’s guardianship and management plans provide few details as to how he would fulfill this duty going forward if he were appointed Manny’s guardian. For example, in the July 20, 2020 guardianship plan, Berouk states that he would foster Manny’s independence by encouraging Manny to carry out his activities independently while ensuring appropriate safety measures are in place; however, no specific steps or goals are set out. While the April 3, 2023 management plan states that Berouk intends to ensure that Manny continues to maintain his regular fitness regime, the plan does not refer to Berouk encouraging Manny to participate in outdoor recreational activities that he used to enjoy with Neguest, Richard, and Simon. Invitations to Manny by Neguest and Peka to engage in outdoor activities with them have been ignored. The April 3, 2023 guardianship plan speaks only in general terms about Berouk’s plans to assist Manny with finding employment.

[56] Neguest’s guardianship and management plans explain how she would continue to foster Manny’s independence. For example, in her guardianship plan, Neguest states that to foster Manny’s independence she will work to improve his confidence and autonomy by reintegrating simple tasks such as purchasing a limited number of groceries in Manny’s routine, speaking to third parties about available support services, and registering Manny for any available services. Neguest also states she will consult with Manny’s medical professionals to identify health supports such as therapy and vocational training that Manny may need to continue to foster his independence.

[57] Both Berouk and Neguest have demonstrated their commitment to foster Manny’s independence.

(iv) Manny’s wishes

[58] A guardian for personal care must act in the best interest of the incapable person and take the incapable person’s current wishes into account. The incapable person’s current wishes must be balanced against whether the guardian’s decision is likely to improve the quality of the person’s life, prevent the quality of the person’s life from deteriorating, or reduce the extent to which the quality of the person’s life is likely to deteriorate: SDA, s. 66(4).

[59] Central to Berouk’s position that he should be appointed Manny’s sole guardian is Manny’s repeatedly expressed preference that he wishes to continue to reside with Berouk, that Berouk assist him with decision-making, and that he not be subject to going “back and forth” between his parents’ homes. In coming to my conclusion as to who should be appointed Manny’s guardian, I have placed limited weight on Manny’s views and wishes for the following reasons.

[60] I have had the benefit of a memorandum prepared by s. 3 counsel (prepared in advance of the November 2021 case conference) and counsel’s submissions at the hearing. It is important to note Manny’s limited understanding of these proceedings: he sees the proceedings as a means to change the parenting arrangement established under the final order of Lalonde J. in 2007. Manny’s understanding is that the present arrangements – him residing with his father and seeing his mother only occasionally in the community – were to keep him from becoming infected with COVID-19 as a result of going back and forth between his parents’ residences.

[61] Manny has been consistent that he wishes to reside primarily with Berouk and that he does not want to continue the previous arrangement of residing equally with both parents. In addition, Manny does not want a schedule in place for when he can see Neguest. Manny wants to decide that on his own, with his father’s assistance, and will email Neguest when he wants to see her.

[62] As set out in s. 3 counsel’s memorandum, Manny’s wishes are based on the following:

• he feels his father understands him better;
• his dad would permit him to seek an exemption from writing his final exams while his mother would not (Manny did, in fact, obtain this exemption);
• when he was spending time at his mother’s house, it was annoying because she would wake him up, and go on bike rides with him, which would exhaust him; and
• his mother sends him many emails and calls him to make arrangements to see him – Manny wants his mother “to let him be without interruptions so he would have some peace and quiet in his dad’s home.”

[63] Regarding decisions, Manny has expressed that he wants to make decisions for himself, he wants to make decisions that are best for him, and he sometimes needs help to make these decisions. Manny wants his father to be the one to help him with the decisions, including when it is safe to see his mother and his brother.

[64] While s. 3 counsel notes that Manny has expressed his wishes strongly and consistently, the independence of those views cannot be confirmed, “given that he expresses his views in a repetitive fashion using the same words and expressions each time.” For example, in his letter written to the court in November 2021, Manny wrote that he would like to stay at his father’s “permanently, because I don’t want to go back and forth to my mom’s like the usual way.” In his April 2022 letter addressed to the court, Manny again wrote “I wish to live with my dad permently [sic] because I don’t want to go back and forth from my dad’s to my mom’s.”

[65] Manny’s wishes are seemingly at odds with what he expressed to Dr. Sarazin in early 2020. Dr. Sarazin reported in her personal care capacity assessment report that Manny expected he would continue to live between both parents indefinitely. As reported by Dr. Sarazin, Manny expressed a preference for being at his father’s home when he had schoolwork to do, but otherwise “could not describe advantages and/or disadvantages of living with either parent.”

[66] Berouk relies on Manny’s emails as evidence of Manny’s wish to live with his father. While Berouk steadfastly denies writing any of these emails, Berouk acknowledges that he assists Manny “from time to time” in preparing his emails. I am unable to conclude that the emails were written independently by Manny. These multi-paragraph emails, with correct spelling and grammar and complex sentence structure, stand in stark contrast to Manny’s handwritten letters to the court.

[67] In Carey v. Carey, 2018 NSC 4564, at para. 19, Kurz J. cautioned that it would be “dangerous” to rely on a letter written by Jennie, the incapable person in that case, for the truth of its contents because at the time she wrote the letter, Jennie “was secluded from her other children and in the care of Arthur and Douglas.” Similarly, in this case, Manny was in the sole care of Berouk when he wrote the emails. As in Carey, I conclude that it would be dangerous to rely on these emails as reliable evidence of Manny’s wishes.

Joint guardians not appropriate in this case

[68] I also considered the appointment of Berouk and Neguest as joint guardians for Manny. A joint appointment would, however, require the consent of both parties: SDA, ss. 24(6), 57(4). Neither party provided their consent to act jointly as Manny’s guardian for property or of the person. In any event, while I acknowledge Neguest’s submission at the hearing that she would “make [joint guardianship] work”, given the history of these proceedings, joint guardianship would be inadvisable and would likely foster further litigation, contrary to Manny’s best interest.

Conclusion on the appointment of a guardian

[69] The overarching and fundamental factor in appointing a guardian is what is in Manny’s best interest. I have determined that it is in Manny’s best interest that Neguest be appointed guardian of property and guardian of the person in the specified domains. Having regard to the totality of the record, I conclude that Neguest is more likely to fulfill the duties of a guardian, and in particular, the duties to foster regular contact between Manny and his family and friends and to consult with supportive family members and friends. Manny shall reside on a permanent basis with his guardian, Neguest.

Bond requirement waived

[70] Manny has minimal assets and property. In these circumstances, the requirement to post a bond is waived.

Disposition

[71] I declare that Manny is incapable of managing property and making personal care decisions (other than with respect to clothing), as referred to in ss. 6 and 45 of the SDA and that it is necessary for decisions to be made on his behalf by a person who is designated to do so. I appoint Neguest as Manny’s guardian of property and personal care pursuant to ss. 22 and 55 of the SDA. There will be an order directing that Manny is to reside with Neguest at her home. The requirement to post a bond is waived.

[72] On the consent of the parties, there will be an order that the reasonable fees of s. 3 counsel for Manny will be paid by both parties.

[73] In the event the parties are unable to agree on costs of the applications, they may make written submissions limited to a maximum of three pages, exclusive of relevant attachments. Neguest shall deliver her costs submissions by October 27, 2023. Berouk shall deliver his responding costs submissions by November 10, 2023. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

Released: October 13, 2023 Justice R. Ryan Bell