COURT FILE NO.: CV-23-00000048-0000 DATE: 2023 11 22

Ontario Superior Court of Justice

B E T W E E N:

Public Guardian and Trustee, plaintiff

Katherine Ballweg, for the Applicant Email: Katherine.ballweg@ontario.ca

Plaintiff

• and -

Deforest et al, defendants Defendants

Jenifer Stebbing, for the Respondent, Mr. Russell DeForest Antonio Circelli, for the Respondent, Ms. Kindred-Deforest

HEARD: November 21, 2023, in person

Endorsement

[1] The PGT makes an application for guardianship in relation to property for an incapable person, Russell DeForest, who is 20 years old. All the parties agree that Mr. Deforest is incapable of managing his property as defined in s. 6 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30.

[2] The PGT says that court appointment of guardian over property is “necessary” within the meaning of s. 22(1) of the SDA. Russell’s mother, Ms. Kindred-DeForest, who is Russell’s statutory guardian, opposes the application as unnecessary, and she herself has not applied for guardianship over Russell’s property. Russell’s counsel says that he does not take a position on guardianship but that he would like to benefit from the funds that he currently receives from ODSP.

The Guardianship Application

[3] The main facts are not in dispute. Russell has been the recipient of ODSP benefits since he turned 18 years old. Russell is currently living in a group home, and the fees for the group home are paid directly from his ODSP benefits, while the remaining ODSP funds are deposited into a bank account that is managed by his Mother, Ms. Kindred-Deforest. Prior to moving into the group home, all of the ODSP funds were deposited into the account such that approximately $20,000 has accumulated in the account.

[4] The PGT argues that the guardianship is necessary within the meaning of s. 22(1) and 24(2.1) because Ms. Kindred-Deforest has not been using the funds that are accumulating in the bank account for Russell’s current benefit, and because there is no other suitable person who is available and willing to be appointed. PGT says that the bank account statements show that Ms. Kindred-Deforest has never withdrawn funds for Russell’s benefit. For example, while Russell was living with her, Ms. Kindred-Deforest refused to access the funds to buy the undergarments and dietary supplements that were recommended by his treating professionals. The only time Ms. Kindred-Deforest withdrew funds was to buy a washer and dryer, and this was after Russell had already moved to the group home. PGT and Russell’s counsel say that the ODSP funds should be used to improve Russell’s current quality of life which would mean allowing him to access the funds to participate in group activities (movie nights, dinners out etc.), and to purchase clothing and personal times. They note that Russell’s life expectancy is short such that the money should be available to him now because he does not need to save for retirement or the like.

[5] The PGT and counsel for Russell also notes that Ms. Kindred-Deforest has consistently failed to apply for and/or use approved funding that was available to support Russell’s basic needs and care. For example, Russell was approved for Passport funding, but Ms. Kindred-Deforest never made arrangements to use the funding available for respite care of the like. Similarly, Russell is received CPP survivor benefits via his maternal grandmother, and Ms. Kindred-Deforest has not taken any steps to ensure that this money finds its way to Russell.

[6] Ms. Kindred-Deforest maintains that guardianship is unnecessary. She says that she has been managing the funds for Russell’s benefit. She says that she is saving his money so that he will have a nest egg one day. She says that she would be agreeable to a court order that requires her to pay for incidentals such as outings and the like. While this may be the case, it is unclear why she has not allowed Russell to access the funds for such purposes in the past.

[7] Based on the extensive investigation done by the PGT and the fact that Russell’s ODSP funds have not been being used for his benefit, I am prepared to make the order sought by the PGT. I am satisfied that this order is necessary to ensure that Russell is able to access his ODSP funds so that he can enjoy a decent quality of life. I note that PGT indicated on the record that it would not be charging any fees in relation to the guardianship because Russell is in receipt of ODSP.

[8] I now turn to the matter of costs. PGT seeks costs from Russell in the amount of $20,116.50 on a full-indemnity basis. They say that they have the legal authority to claim such costs from Russell’s estate pursuant to s. 8 of the Public Guardian and Trustee Act, R.S.O. 1990, c. P.51: Public Guardian and Trustee v. Friesen, 2022 ONSC 2904 at paras. 27-36. While I accept that PGT can certainly claim such costs, the legislation is discretionary and not mandatory. Russell’s counsel opposed me awarding any costs against Russell.

In this case, I would decline to order the full amount of the costs sought by PGT. First, these costs are excessive insofar as they reflect counsel’s preparation for an application for guardianship over both personal care and property. By the time the matter was argued before me, the only outstanding issue related to property. This is because Ms. Kindred-Russell agreed to place Russell in a group home, which obviated the need for an application for guardianship over personal care.

[9] I also note with some concern that the PGT’s claimed fees would effectively dissipate all the funds that are currently being held in Russell’s account. This is entirely inconsistent with the PGT’s argument that Russell needs these funds for his day to day living expenses.

[10] While the application for guardianship over personal property was certainly in Russel’s best interests, I find that he has fully cooperated with it. For example, he agreed to submit to an assessment of his capacity to manage property. He also instructed counsel who attended the application not to take a position on it.

[11] For all these reasons basis, pursuant to s.8 of the PGT Act, I would award costs of $5000 against Russell which can be deducted from the money being held on his behalf. In my view, this reflects the reasonable costs of the application for guardianship over personal property.

[12] I would also order that Ms. Kindred-Russell pay $5000 in costs to the PGT pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C43 and Rule 57 of the Rules of Civil Procedure. As the unsuccessful party on this Application, I find that she should bear some responsibility for her litigation conduct. Her position on the guardianship application was unreasonable in light of the clear evidence of Russell’s assets and needs.

Justice Mandhane