Endorsement

Introduction

Raymond Laxton and his adult son Gregory Elliott Laxton commenced this application, seeking appointment as the joint guardians of property and guardians of personal care of Josephine Margaret Laxton. Raymond and Josephine are both in their eighties; they have been married for many decades. Gregory is one of the couple’s two adult sons. The couple’s other son, Geoffrey, consents to the relief sought on the application.

In late 2024, the court granted relief requested related to guardianship of personal care for Josephine. Raymond and Gregory were appointed as joint guardians of Josephine’s personal care, and a guardianship plan was approved: Laxton v. Laxton, (November 18, 2024), Ottawa, CV-24-95049 (ONSC). The court required additional evidence and written submissions to address relief requested related to guardianship of Josephine’s property.

In March 2025, Raymond and Gregory filed a supplementary application record and a factum. In those documents, the applicants address their requests to (a) dispense with the posting of security; and (b) defer the passing of accounts, as guardians of property, from the two-year anniversary to the three-year anniversary of the date of their appointment as guardians of property.

The following issues are determined in this endorsement:

1. Is Josephine incapable of managing property within the meaning of s. 6 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30?
2. If Josephine is incapable of managing property, are Raymond and Gregory to be appointed as the joint guardians of property for Josephine in accordance with the Management Plan filed in support of the application?
3. Are the joint guardians of property required to post security?
4. When are the joint guardians of property first required to pass their accounts?

Issue No. 1 – Josephine is Incapable of Managing Property

In January 2024, capacity assessor, M. Ismail Shaikh assessed Josephine’s capacity to manage her property. That assessment was conducted approximately two months prior to the date on which this application was commenced. At the date of the assessment, Josephine was 82 years old. Mr. Shaikh concluded that Josephine is incapable of managing property.

At the date of the assessment, Josephine had been ‘allegedly’ diagnosed with Schizophrenia and it had been several years since Josephine suffered a stroke. Josephine was diagnosed with dementia several years prior to the date of the assessment.

Based on the assessment, Mr. Shaikh expressed the following opinions regarding Josephine’s condition and capacity:

• Josephine’s presentation during the interview was consistent with the Dementia diagnosis;
• There was “clear and compelling evidence” that Josephine lacked both insight into her financial circumstances and the skills required to meet the demands of managing her finances;
• Josephine’s answers to questions were replete with incoherent and tangential remarks; and
• From Josephine’s answers to questions, it was clear that she was having difficulty understanding financial information even to the point of not being educated about her financial circumstances.

Relying on the opinions expressed by Mr. Shaikh and the additional evidence available regarding Josephine’s condition, I find that Josephine is a person who is incapable of managing property and that, as a result, it is necessary for decisions to be made on her behalf by a person or persons authorized to do so.

Issue No. 2 – Appointment of Joint Guardians of Property

Raymond and Josephine have, for several years, both resided at the Chapel Hill Retirement Residence. In early 2025, Josephine was admitted to an apartment in the Intensive Care Unit at that residence. Raymond continues to reside in a separate unit of the residence.

Both Raymond and Gregory filed affidavits in support of this application. I am satisfied that Raymond is devoted to Josephine’s well-being. Raymond is an experienced financial advisor by trade. He has managed his and Josephine’s finances well over time and the couple are financially secure.

Raymond and Josephine are fortunate to have their son, Gregory living near to the Chapel Hill Retirement Residence. He is able to assist when required. Raymond expresses confidence in Gregory’s ability to collaborate with him in the management of Josephine’s finances. In that regard, Raymond highlights Gregory’s analytical skills and experience in Information Technology.

The application record and supplementary application record include evidence of the couple’s joint investment management account. Josephine’s 50 percent share of that account is her largest asset. The couple structured their estate planning and financial support for their sons in such a way that each of the family members benefits now and the sons will share equally in the overall estate upon the passing of their parents.

Raymond and Gregory have the knowledge and skills required to manage Josephine’s finances and will keep her best interests at the forefront when doing so. The order made at the conclusion of this ruling provides for the appointment of Raymond and Gregory as the joint guardians of property for Josephine.

Issue No. 3 – Posting of Security is Not Required

Some of the evidence before the court is outdated by several months. Regardless, the total value of Josephine’s assets exceeds $2,000,000 and may even approach $3,000,000.

In its responding letters, the PGT highlights that its policies include recommending that security be posted where the assets of the incapable person exceed $250,000 or, where the assets include real estate, $500,000. The PGT also notes that the posting of security is not a requirement under the SDA and that the outcome on this issue is in the discretion of the court.

In support of the request to dispense with any requirement to post security, the applicants provide information from the offices of three insurance brokers as to the potential cost of posting security.

The evidence as to the potential cost of a security bond is in the form of emails sent by insurance brokers to the applicants’ counsel. Those emails are attached as exhibits to Raymond’s March 2025 affidavit. Raymond relies on the contents of the emails in support of his belief that the cost of posting security is prohibitive and would represent a significant encroachment of Josephine’s assets.

For example, one brokerage predicts that the one-time cost of the required bond would exceed $150,000. Another brokerage estimates that if the bond were posted on an annual basis, the cost would be between $15,000 and $22,500 per year; a pre-paid two-year minimum posting might be required. The third estimate received is based on a percentage of the value of the assets and would result in an annual premium of $20,000.

It is clear from the emails sent to the applicants’ counsel that the process of applying for a bond is an onerous one. In his most recent affidavit, Raymond expresses his preference for devoting his time to Josephine’s care and to continuing management of the couple’s assets (the latter as he has been doing throughout their married life) over the distraction of the process of applying for a bond.

Understandably, Raymond points out that as Josephine’s health has declined, the expenses for her care (which he personally pays) have increased. Raymond questions the application of Josephine’s funds to the payment of a bond when the funds are better spent on her care.

The manner in which Raymond and Josephine have arranged their estate planning and provided financial support, to date, to their sons, leads me to conclude that there is little, if any, risk that Raymond and Gregory will mismanage Josephine’s assets. The arrangements made are for the benefit of each of the family members. Raymond is there as a ‘check’ on Gregory and vice versa; Geoffrey trusts both his father and his brother and is content with there being no security posted.

The posting of security is an unnecessary expense for a woman whose health is in decline, whose family wishes to focus on her well-being, and whose family members are close and trusting of each other.

In any event, the requirement for the posting of security can be addressed again when the guardians of property pass their accounts. For those reasons, the order made at the conclusion of this ruling sets out that the guardians of property are not required to post security.

Issue No. 4 – The Timing of Passing of Accounts

The Public Guardian and Trustee recommends that the guardians of property be required to pass their accounts no later than six months after the two-year anniversary of the date of their appointment in that capacity. In light of the fact that the guardians do not have to post security, it is reasonable to require them to pass their accounts in the time frame recommended by the PGT. The order made at the conclusion of this ruling includes a term to that effect.

Costs

There shall be no costs of the application save and except that Raymond Laxton shall pay the costs of the PGT (in the total amount of $282.50).

Disposition

The court makes an order in the form set out in the document attached as Appendix ‘A’. For clarity, the Management Plan referred to therein is the management plan dated June 7, 2024 included in the original application record filed. The document attached to this endorsement as Appendix ‘A’ does not include a copy of the Management Plan.

Sylvia Corthorn

Released: May 27, 2025