Court File and Parties

COURT FILE NOS.: CV-22-501 and CV-23-1137 DATE: 2023/10/18 SUPERIOR COURT OF JUSTICE-ONTARIO

RE: THE PUBLIC GUARDIAN AND TRUSTEE, Applicant AND: DANIEL OTIM OCHAN, Respondent AND: JOSEPH OCHAN AND CHRISTINE OCHAN JOSE, Applicants AND: DANIEL OTIM OCHAN, Respondent

BEFORE: Gibson J.

COUNSEL: Katherine Ballweg, Counsel for the Applicant PGT Roderick Flaherty, Counsel for the Applicants Joseph Ochan and Christine Ochan Jose Inderdeep Toor, Counsel for the Respondent Daniel Otim Ochan

HEARD: October 4, 2023

Endorsement

Overview

[1] This difficult matter arises from conflicting views about what would be in the best interests of a young man who lives in very challenging circumstances. Each of the parties genuinely wants what it conceives to be in his best interests, but they are unable to agree on what these are and how to achieve this.

[2] The Respondent Daniel Otim Ochan (“Daniel”) is a 20-year-old man with cerebral palsy-spastic quadriplegia. (Throughout this decision I will refer to the various members of the Ochan family by their first names. I intend no disrespect in this. It is done for the sake of clarity in referring to the various members of the Ochan family).

[3] Daniel is intellectually disabled, and all agree that he is incapable of making property and personal care decisions. Daniel has significant needs. He is non-verbal and his main method of communication is one-word answers, facial expressions or by a communication device.

[4] Daniel also has physical limitations. He cannot walk or feed himself. He uses a wheelchair and has severe dystonia (a state of abnormal muscle tone resulting in muscular spasm and abnormal posture) in his upper limbs. His muscles are contracted, and he has little use of his hands. He is medicated daily to manage his hypertonia (a state of abnormally high muscle tone) and also receives Botox injections periodically to assist with this. When not medicated, doctors have described assessing Daniel as being like “wrestling a wooden statue”. He is incontinent and uses briefs. His family reports difficulty putting on his clothing.

[5] Daniel resides with his parents Joseph Ochan (“Joseph”) and Christine Ochan (“Christine”) and his five siblings in their house in Kitchener, Ontario. Currently his parents arrange and manage his care. He has resided with the family since birth, but there is respite care for one week a month provided by Sunbeam Community and Development Services (“Sunbeam”), a residential care facility in Kitchener.

[6] The Applicant, The Public Guardian and Trustee (the “PGT”), is applying to become Daniel’s Guardian of Property and Guardian of the Person pursuant to the Substitute Decisions Act (the “SDA”). The PGT has filed an Application asking the Court to declare that Daniel does not have capacity to make decisions regarding his person nor his property. Further, the PGT seeks to become Daniel’s Guardian of his person and his property.

[7] Joseph and Christine contest the PGT’s request and have also filed an Application asking rather that they be appointed Daniel’s Guardian of his person and his property.

Summary of Facts

[8] Daniel attends a Special Education program at St. Mary’s High School in Kitchener and will continue to attend until June of 2024.

[9] Daniel has been diagnosed with spastic quadriplegia and exhibits intellectual disability, has a limited ability to communicate verbally, and uses a wheelchair for mobility. Daniel is incontinent and has difficulty swallowing. He cannot feed or bathe himself and requires a very high level of care. Daniel’s main method of communication is by way of one-word answers, or facial expressions, or by a communication device.

[10] On May 11, 2022, the PGT filed a Notice of Application, in which it sought guardianship of Daniel for both of property and of his person. If appointed, the PGT will arrange a residential placement on Daniel’s behalf. The full-time, fully-funded placement is at one of the residential group homes run by Sunbeam. Daniel currently attends the same group home on a respite basis for one week a month while the guardianship application is pending. The PGT submits that the placement has full-time care and a program designed to meet his specific needs.

[11] On March 30, 2023, Smith J. made an Order that the PGT arrange legal representation for Daniel under section 3 of the SDA. Section 3 counsel (Ms. Toor) was retained shortly thereafter. Pursuant to s.3(1)(b), in this circumstance Daniel shall be deemed to have capacity to retain and instruct counsel.

[12] In June of 2023, Daniel’s parents Joseph and Christine indicated that they contested the PGT’s Application and they themselves sought to become Daniel’s guardians. Joseph and Christine filed a Notice of Application, issued on August 29, 2023. In it, they seek an Order to be appointed jointly as full guardians of Daniel’s person and property.

[13] The PGT opposes the parents’ request, submitting that their guardianship plan will maintain an inadequate status quo that does not adequately address years of concerns about the lack of care that Daniel receives at home. It says that the plan also does not adequately address what will happen to Daniel next year when he is no longer able to attend school, and fails to include any community participation for Daniel.

[14] While it acknowledges that it is a guardian of last resort, the PGT submits that the status quo has not been effective in addressing Daniel’s personal care needs, and given the deficiencies in the parents’ plan, it is seeking guardianship of personal care for Daniel. It is also seeking property guardianship to ensure that Daniel’s funds are spent entirely for his best interests.

[15] Through his counsel, Daniel has indicated that he does not want the PGT to become his guardian of the person. In particular, he does not want the PGT to have the authority or the power to decide where he lives. His wishes were conveyed on his behalf by a letter to the Court from his appointed counsel, Ms. Toor, dated September 21, 2023. His wishes are that he continues to stay at home under the care of his parents, Joseph and Christine, and that they be guardians of his property.

Issues

[16] The issues before the Court on this matter are:

1. What criteria should the Court consider when appointing a Guardian of Property and Guardian of the Person pursuant to the Substitute Decisions Act? and,
2. What are the best interests of Daniel in this circumstance?

Law and Analysis

Issue # 1: Criteria

[17] 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: SDA, s.6.

[18] 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: SDA, s.22(1).

[19] An order appointing a guardian for property may make the appointment for a limited period as the court considers appropriate: SDA, s. 25(2)(b).

[20] 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: SDA, s.45.

[21] The court may, on any person’s application, appoint a guardian of the person for a person who is incapable of personal care and, as a result, needs decisions to be made on his or her behalf by a person who is authorized to do so: SDA, s. 55(1).

[22] An order appointing a guardian of the person may be made for a limited period as the court considers appropriate: SDA, s. 58(2)(a).

[23] Section 24(5) of the SDA specifically addresses the criteria for a court-appointed guardian of property.

[24] Section 57(3) of the SDA specifically addresses the criteria for a court-appointed guardian of the person.

[25] Both sections have the same criteria with respect to the relevant sections, one specifically for guardian of property and the other, guardian of the person. As discussed in Wong v. The Office of the Public Guardian and Trustee, 2017 ONSC 268, at para. 5, the Court shall consider:

(a) whether there is an attorney for the incapable person under a continuing power of attorney;

(b) the incapable person’s wishes (if they can be determined); and

(c) the closeness of the relationship between the proposed guardian(s) and the incapable person.

[26] There is no current attorney for Daniel under a continuing power of attorney, therefore (a) is not applicable.

[27] Daniel’s wishes have been ascertained through his section 3 counsel.

[28] An incapable person’s wishes that someone be or not be appointed as their guardian should be accorded significant consideration, but they do not dispose of the issue: Lazaroff v. Lazaroff, 2005 CarswellOnt 7007 (ON SC), at para. 17.

[29] The appointment of a guardian against the wishes of the incapable person is to be avoided where possible to prevent the imposition of a distressing situation on the person: Ontario (Public Guardian and Trustee) v. Martins, 2021 ONSC 1623, at para. 21.

[30] Daniel has clearly expressed his wishes concerning whom he wishes to be his guardian. He does not want the PGT to become the guardian of his person as this would include the decision-making authority for his residence. Daniel does not want to move to a group home.

[31] Daniel has further expressed his frustration to his care coordinator, Johnathan Turnbull. Daniel is upset at the idea of being forced to permanently move into a home provided by Sunbeam.

[32] Concerning the closeness of the relationship between the proposed guardian and the incapable person, the PGT does not hold a close relationship with Daniel. As a corporation, it does not hold any familial ties, nor is it familiar with what Daniel’s day-to-day wishes and needs. On the other hand, Joseph and Christine do hold close familial ties as they are Daniel’s parents and are accustomed to what Daniel’s wishes are, in particular his wish to continue to reside at home.

[33] Family is generally the proper choice in view of the closeness of the relationship, but there are circumstances in which the PGT can be appointed if the family’s guardianship plan is not suitable and viable: Ontario (Public Guardian and Trustee) v. Gan, 2014 ONSC 2145, at para. 17.

Issue #2: What are the best interests of Daniel?

[34] The overarching and fundamental factor a Court should consider when appointing a guardian is what is in the best interest of the incapable person: Consiglio v. Consiglio, 2012 ONSC 4629, at para. 37.

[35] The concerns regarding Joseph and Christine’s care expressed by the PGT are not without foundation. It is clear that it has at times been sub-optimal. Notwithstanding the previous shortcomings in their care of Daniel or their lack of responsiveness to medical practitioners or to his school, however, the evidence indicates that things have improved. Joseph and Christine continue to make positive decisions and take positive action for Daniel’s best interests. Most recently, Joseph has installed a ramp at the family house for Daniel’s accessibility. In most recent times, the Sunbeam care coordinator Johnathan Turnbull confirmed that some of the concerns outlined by the PGT have been “problem solved” and “have improved”.

[36] The PGT’s plan is to move Daniel to Sunbeam on a full-time basis. However, this would not be a panacea. Joseph and Christine contend that there have been multiple instances of Daniel arriving from Sunbeam with soiled briefs and requesting a shower. Furthermore, there have been instances of Daniel arriving from Sunbeam with spoiled food as well.

[37] There is no silver bullet solution here. Neither the Court nor the PGT can guarantee that Daniel’s best interest lies in moving from his family home to a Sunbeam group home. As his s.3 counsel submits, if the PGT is given guardianship of Daniel’s person and proceeds with its plan to move Daniel to Sunbeam, it will arguably contravene what the SDA directs it to do, which is to choose the least restrictive and intrusive course of action that is available: SDA, s.66(9).

[38] And there is a fundamental concern about respect for Daniel’s personal autonomy of choice, notwithstanding his limited capacity to assess and choose what course would be in his best interests. A guardian shall, as far as possible, seek to foster the person’s independence: SDA, s.66(8).

Conclusion

[39] Having regard to all the circumstances, and in particular for his personal autonomy of choice, I consider that Daniel’s best interests align with his own expressed preference, for his parents to be appointed as guardians of his person and of his property.

[40] This option is not without concern. The parents’ track record regarding their care of Daniel is mixed. They have demonstrated improvement, but it is not a foregone conclusion that this trend will continue. Daniel is clearly a vulnerable person. Therefore, I consider it advisable to make this Order for a specified duration. This will allow for the matter to return before the Court after a suitable interval for further scrutiny. If the PGT has further concerns, it can articulate them at that time, and request the Court to terminate or modify the Order.

[41] I thank all three counsel for their submissions and their assistance in this difficult case.

Order

[42] The Court Orders that:

1. This Court declares that the Respondent, Daniel Otim Ochan is incapable of managing property and that, a result, it is necessary for decisions to be made on his behalf by a person who is authorized to do so;
2. This Court Orders that Joseph Ochan and Christine Ochan be appointed as joint Guardians of Property for Daniel Otim Ochan. Pursuant to s.25(2)(b) of the SDA, this appointment shall be effective for 12 months from the date of this Order;
3. This Court declares that the Respondent Daniel Otim Ochan is incapable of personal care, and as a result, it is necessary for decisions to be made on his behalf by a person who is authorized to do so;
4. This Court Orders that Joseph Ochan and Christine Ochan be appointed as joint Guardians of the Person for Daniel Otim Ochan. Pursuant to s.58(2)(a) of the SDA, this appointment shall be effective for 12 months from the date of this Order; and,
5. The Parties shall return before the Superior Court of Justice of Ontario at Kitchener in October 2024 to allow the Court to review whether the Court should terminate, modify or extend the Orders for appointment of a guardian of property and guardian of the person. I am not personally seized of this matter.

Costs

[43] The parties are encouraged to agree upon appropriate costs. If the parties are not able to agree on costs, they may make brief written submissions to me (maximum three pages double-spaced, plus a bill of costs) by email to my judicial assistant at mona.goodwin@ontario.ca and to Kitchener.SCJJA@ontario.ca. The Applicants Joseph and Christine Ochan, and the Respondent’s s.3 counsel, may have 14 days from the release of this decision to provide their submissions, with a copy to the PGT; the PGT a further 14 days to respond; and the Applicants Joseph and Christine Ochan a further 7 days for a reply, if any. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves. If I have not received any response or reply submissions within the specified timeframes after the initial submissions, I will consider that the parties do not wish to make any further submissions, and will decide on the basis of the material that I have received.

M. Gibson, J. Date: October 18, 2023