COURT FILE NO.: CV-23-0465-00

DATE: JUNE 6, 2023

SUPERIOR COURT OF JUSTICE – ONTARIO

7755 Hurontario Street, Brampton ON L6W 4T6

RE: MAHJABIN, plaintiff

AND: OFFICE OF CHILDREN’S LAWYER, defendant

BEFORE: Justice P. Daley

COUNSEL:

The plaintiff, MAHJABIN, Mehroz, is self-represented. Email: Mehroz.mahjabin@gmail.com

LEUNG, Angela, for the defendant Email: Angela.Leung2@ontario.ca

HEARD: June 6, 2023, by video conference

ENDORSEMENT

[1] The applicant is the mother of Aaron Dimitrious Lake, a minor, who is involved in an underlying civil action as represented by this applicant as his litigation guardian. The civil action is proceeding in Toronto under civil action CV – 21 – 658312.

[2] The applicant seeks an order appointing her guardian as to property of her minor son in respect of the underlying civil action.

[3] The evidence submitted on behalf of the Office of the Children’s Lawyer is clear that the underlying civil action remains ongoing. No judgment has been granted in favour of the minor plaintiff nor has there been a settlement of the action in his favour.

[4] The applicant confirmed that examinations for discovery in that action are presently being scheduled.

[5] Thus, there is no property owned by the minor or in respect of which he has any entitlement whether by court order or by settlement and as such there is no property in respect of which an order could be made appointing the applicant as guardian of property for her son.

[6] The applicant is of the view that she must firstly obtain a guardianship order appointing her as guardian as to property for her minor son before any judgment is granted in his favour or where a settlement is achieved providing for a payment to him. Unfortunately, her understanding of the law is inaccurate.

[7] The application is premature as there is no basis whatsoever for granting such an application.

[8] Under the Children’s Law Reform Act, a guardian of property cannot be appointed where the minor has no property which would be the subject of such an order.

[9] Furthermore, in the event of the settlement of the applicant’s son’s claims in the underlying civil action, as he is a minor, such a settlement would require approval of the court. The monies resulting from such a settlement would be paid into court to the Accountant of the Superior Court of Justice, unless ordered otherwise.

[10] On an application for the appointment of a guardian as to property in respect of property owned by a minor i.e. a judgment or settlement amount the court must be satisfied that the plan of management put forward by the proposed guardian of property is in the best interest the child. In order for a court to make such a determination, it is fundamental that the minor owns property and that the proposed plan of management has merits and is in the best interest of the minor.

[11] On this application, there is no evidence that the minor owns any property that could possibly require the assistance of a guardian as to property.

[12] On this application, the applicant is seeking an order “in the air” or hypothetically in respect of any monies or property that “may” come into the hands of the minor and as such I have concluded that this court has no jurisdiction to make such an order in the circumstances. There must first be a determination of the underlying civil action and if it is determined to be in favour of the minor plaintiff, and a judgment is granted to him either by a court or upon settlement, then and only then would a detailed plan of management be considered.

[13] The typical and recommended practice is that if litigation is settled on behalf of a minor a motion is brought on behalf of the minor for approval of the settlement in accordance with rule 7.08, and concurrent with that an application is brought for the appointment of a guardian as to property, setting out a specific plan of management for the property and monies awarded to the minor.

[14] I agree entirely with the position as submitted by counsel on behalf of the Office of the Children’s Lawyer. This application is premature for the reasons outlined. If and when the minor receives property or monies, and the applicant seeks to be appointed guardian as to property, the full particulars of the settlement or judgment would be placed before the court along with a plan of management of those funds for the court’s consideration.

[15] In the result, the application is dismissed, without prejudice to the applicant bringing a fresh application for her appointment as guardian as to property if judgment is granted in favour of the minor or a settlement is achieved in his favour as a result of which he will receive monies or property.

[16] Despite that this application was ill-conceived from its outset, counsel for the Office of the Children’s Lawyer did not seek costs upon the dismissal of the application.

[17] An order shall issue accordingly dismissing the application without costs, and without prejudice to a future application on the terms indicated.

Dated: June 6, 2023

Daley J.