Court File and Parties

Court File No.: CV-22-00000807-0000 Date: 2025-10-10 Ontario Superior Court of Justice

Between:

Nanson Chalimon, Applicant

– and –

Fouaad Warda and The Public Guardian and Trustee, Respondents

Counsel:

• Efe Jesuorobo, Counsel for the Applicant
• Robert Lepore, Counsel for Warda Respondents, Zaki Warda, Jargis Warda, Mariam Warda-Hanna, Zakia Kano, Lora Warda, Georgette Warda, and Manna Israel
• Edgar-Andre Montigny, Section 3 Counsel

Heard: August 5, 2025

Reasons for Decision

Justice R.E. Charney

Introduction

[1] This is an Application brought by Nanson Chalimon, ("Nanson"), the wife of Fouaad Warda, ("Fouaad"), seeking to be appointed as guardian of Fouaad's personal care and property pursuant to sections 22 (guardian of property) and 55 (guardian of the person) of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (SDA).

[2] The Application is opposed by Fouaad's siblings, Zaki Warda, Jargis Warda, Zakia Kano, Lora Warda, Georgette Warda and Manna Israel and Fouaad's mother Mariam Warda-Hanna (collectively "the Warda Respondents").

[3] The Warda Respondents ask that Zaki Warda be appointed as guardian for Fouaad's personal care and property.

[4] On July 2, 2025, I issued an Endorsement (Chalimon v. Warda, 2025 ONSC 3961) addressing procedural issues that had arisen during the hearing on May 30, 2025. I also addressed the findings of the "Section 3" counsel appointed pursuant to s. 3 of the SDA.

[5] In brief, I granted the Warda Respondents an opportunity to make written submissions in response to the documents uploaded to Case Center by the Applicant after the May 30, 2025 hearing. The Warda Respondents were also given an opportunity to respond to the Applicant's request that both she and her daughter, Bianca Warda, be appointed as guardians for property and personal care. This request was not referenced in her Notice of Application.

[6] I also concluded that the inquiries of s. 3 counsel were inconclusive. Fouaad's current wishes could not be ascertained and the report of the s. 3 counsel did not assist in the resolution of the dispute in this case (see paras. 11 – 22).

Facts

[7] Fouaad was born on December 6, 1973. He emigrated with his family from Syria to Canada in 1990. Fouaad and Nanson married on September 11, 1999. They have two children, a girl born in 2003 and a boy born in 2008.

[8] In or about August, 2020, Fouaad suffered a series of debilitating strokes which resulted in his hospitalization. He has resided in a long-term care home since 2021, where he receives 24/7 care.

[9] The Application was commenced in January 2022. A court-ordered assessment was ordered on March 23, 2022.

[10] Capacity assessments of Fouaad were undertaken in August 2022 and October 2022, by M. Ismail Shaikh, a Designated Capacity Assessor. Mr. Shaikh concluded that Fouaad was incapable of managing property and personal care and incapable of retaining and instructing counsel as well as granting and revoking a Power of Attorney for property and personal care.

[11] There is no dispute that Fouaad is incapable of managing his personal and financial affairs, and that a guardian of his person and property must be appointed. The issue in this case is whether the guardian should be Fouaad's wife and daughter, or Fouaad's brother.

[12] This Application was originally scheduled to be heard on August 16, 2023, but could not proceed because there was insufficient time to deal with the Application in its entirety. Justice Casullo granted an Order declaring Fouaad Warda incapable of managing property, and granted an interim, without prejudice Order appointing Zaki Warda and Nanson Chalimon as joint Guardians of the property of Fouaad Warda with respect to the closing, sale or assignment of a condominium property purchased by Fouaad as investment property with other persons before Fouaad's incapacity.

[13] The closing of the condominium property took place on December 1, 2023. The net proceeds of sale totalled $55,430, and Fouaad's share was $28,415.94. In accordance with Casullo J.'s Order, Fouaad's share was paid into Court.

[14] I am advised by counsel that neither Zaki Warda nor Nanson Chalimon wish to continue the joint guardianship. It is clear from these proceedings and the material filed by each party that there is considerable animus between the parties, and that continued joint guardianship is not likely to work.

Position of the Parties

[15] Although she did not amend her Application, the Applicant, Nanson, states that the application is brought by herself and Bianca Warda, the 22 year old daughter of Nanson and Fouaad. At the time of the hearing, Bianca was entering third year law school at Osgoode Hall Law School. Nanson and Fouaad also have a 17 year old son.

[16] Nanson and Fouaad were married on September 11, 1999 and lived together as husband and wife until Fouaad's stroke and hospitalization in 2020. Prior to Fouaad's stroke, he was self-employed as a party planner and earned approximately $18,000 per year.

[17] Fouaad does not have a Will.

[18] Nanson and Fouaad purchased a home together in 2009 on Canyon Gate Crescent in Maple Ontario. It is held in their joint names, and is currently worth approximately $1 million, with a mortgage of approximately $215,000.

[19] Prior to his illness, Fouaad was in the process of purchasing a condominium in the City of Vaughan with a friend, Elliot Anderious. The deposit was $75,000. This was the investment property that was the subject of Casullo J.'s August 16, 2023 Order and, as indicated above, the proceeds of sale were paid into Court.

[20] Fouaad also has an interest in a property on Cromwell Road, Maple, Ontario. Nanson believes that this property is worth approximately $1.2 million, with a mortgage of approximately $189,000, although she is not certain of the status of the mortgage. That property is in the name of Fouaad and Fouaad's brother's wife, Munira Youkhanna. Fouaad's brother is Jargis Warda, one of the Respondents opposing this Application. Jargis Warda and his family, as well as Fouaad's mother, Mariam Warda-Hanna, live in the Cromwell Road property.

[21] Nanson takes the position that the entire proceeds of the $189,000 mortgage on the Cromwell Road property were used by Jargis Warda for his business.

[22] Nanson has filed a management plan and a guardianship plan. The Public Guardian and Trustee have reviewed the management plan and set out its position in correspondence dated February 28, 2022, May 2, 2023[1], and April 4, 2024. This correspondence has been filed with the Court, and I have reviewed this correspondence in arriving at my decision in this matter.

[23] Nanson has also filed letters from the Social Service Worker at Fouaad's long term care home attesting to her dedication to Fouaad's care and her frequent visits. The letter states that Nanson visits Fouaad "several times a week and is a Designated Essential Caregiver as per ministry guidelines".

[24] There is also an affidavit from Nanson and Fouaad's daughter Bianca, now a proposed joint guardian, attesting to the closeness of the family and their intention to continue to support her father and visit and care for him.

[25] Nanson requests that the Court waive the necessity of obtaining a guardianship bond because of her limited resources, but state that if she is appointed guardian of her husband's property she will consent to an order that she be prohibited from selling or encumbering the family home on Canyon Gate Crescent, Maple, Ontario without the approval of the PGT or further order of the Court.

[26] Nanson opposes appointing Zaki Warda as guardian for Fouaad's person and property for a number of reasons. One reason relates to a dispute over ownership of the Cromwell Road property, which the Warda Respondents allege is owned entirely by Jargis Warda's wife, on the basis of an allegation that Fouaad's share of the property was bought out by Jargis several years ago. Nanson is concerned that Zaki Warda will use his authority as guardian of Fouaad's property to transfer Fouaad's interest in the Cromwell Road property to Jargis Warda.

[27] The Warda Respondents oppose the application by Nanson and Bianca, and ask that Zaki Warda be appointed guardian in their place.

[28] The Warda Respondents argue that "Fouaad and his mother and siblings are a "tightly knit" family who have always supported one another. Fouaad and Zaki are particularly close: in addition to being brothers, they are confidantes and best friends".

[29] The Warda Respondents allege that although Nanson and Fouaad lived together as husband and wife, they were "estranged". They allege that prior to Fouaad's hospitalization, Fouaad and Nanson "were not getting along" and that Fouaad was "reluctant to be in Nanson's company".

[30] The Warda Respondents allege that "Nanson has not shown any interest in Fouaad's well being or his recovery. Zaki, their mother, and his siblings together with Fouaad's nurses and PSW's, continue to be Fouaad's caregivers and his sole advocates in relation to his health care and rehabilitation." They allege that Nanson and Bianca visit Fouaad "sporadically" and "rarely".

[31] Finally, the Warda Respondents argue that "Nanson cannot be trusted to act in Fouaad's best interest as there is reason to believe that: she bears Fouaad animus; she has sought to isolate and "warehouse" Fouaad; she cannot distinguish between her interests and that of Fouaad".

[32] The Warda Respondents object to the addition of Bianca Warda as a proposed guardian since the Applicant did not seek to amend the application to add Bianca as a proposed guardian. They point to Rule 38.04 of the Rules of Civil Procedure which requires that the notice of application state "the precise relief sought".

[33] Section 69(9) of the SDA provides that certain persons are entitled to be added as a party "at any stage" in the application. Pursuant to s. 69(6) of the SDA, these persons include the children over 18 years of age of the person alleged to be incapable. This includes Bianca Warda.

[34] It would have been preferable for the Applicant to have moved to amend her notice of application to include Bianca as a proposed guardian. The Warda Respondents were, however, given a right to reply to this belated proposal by way of written submissions. My primary concern in reaching my decision must be the best interests of Fouaad, and I require all available information in considering these issues.

Analysis

[35] Sections 24(5) and 57(3) of the SDA sets out the criteria for consideration when appointing a guardian. The criteria for each are identical. Section 24(5) provides:

24(5) Except in the case of an application that is being dealt with under section 77 (summary disposition), the court shall consider,

(a) whether the proposed guardian is the attorney under a continuing power of attorney;

(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.

[36] In this case, none of the proposed guardians is the attorney under a continuing power of attorney, and the incapable person's current wishes could not be ascertained.

[37] While the Act does not list which family members are to be given priority, it is my view that the spouse and daughter who lived with Fouaad prior to his stroke are in a closer relationship with Fouaad than his brother. This closeness is confirmed by the fact that the residence was jointly owned by Nanson and Fouaad, they continued to live together and operated as a joint economic unit prior to his stroke.

[38] The Warda Respondents impugn the relationship between Nanson and Fouaad, alleging that Nanson and Fouaad were "estranged", an allegation denied by both Nanson and Bianca.

[39] The Warda Respondent's allegation that Fouaad and Nanson were "estranged" is based on the flimsiest of evidence constructed on the hearsay evidence of Zaki Warda and inferences drawn by a friend of Fouaad's named Raby Shahin. For example, Mr. Shahin states in his affidavit, at paras. 3 and 6:

While doing the landscaping in the backyard, Fouaad went to the sliding door and asked Nanson to bring us some water. She appeared to ignore him and Fouaad asked again. They ended up arguing after which she brought him the water. It appeared to me that they were not getting along.

He also confided in me about how poorly Nanson treated him at home, including how in an attempt to save money he would by groceries for family from No-Frills only to have Nanson refuse the groceries because he didn't buy the groceries from the more expensive Fortinos. It got to the point, where he was giving me the groceries rather than throwing them out.

[40] Both paragraphs may well be true. Any couple that has been married for over 20 years might sometimes argue about finances or other domestic matters. I do not doubt that one spouse may not respond immediately to a request from another spouse, and that this might result in an argument.

[41] The word "estrangement" does not appear in either the Divorce Act or the Family Law Act, but it is often used as a synonym for living "separate and apart" as this term is used in s. 8 of the Divorce Act.

[42] Bickering does not amount to "estrangement" in any sense of the word. Nor were Nanson and Fouaad separated at the time of his stroke.

[43] Moreover, Mr. Shahin's inferences, based on his casual and limited observations, are contradicted by Bianca's evidence, and, as the daughter who lived with both parents, I prefer her evidence on this issue.

[44] There is much dispute over who is taking care of Fouaad at the long term care home. As indicated, Nanson has filed letters from the long term care staff supporting her position that she is a frequent visitor to the long term care home and her dedication to Fouaad's continued care.

[45] The Warda Respondents argue that since March 2022, Zaki has personally been taking care of Fouaad's daily needs, including administering his insulin and addressing his personal hygiene needs.

[46] This statement is contradicted by Rachel Smith the Administrator of the long term care facility where Fouaad resides. Ms. Smith was examined for the purposes of this Application. Ms. Smith testified that the home's rules require that insulin injections be performed by nursing staff and that visiting relatives are not permitted to administer insulin at the home.

[47] I am also concerned about the conflict over the ownership of the Cromwell Road property. Fouaad remains on title as a joint owner, but Zaki Warda takes the position that Fouaad was paid $75,000 for his share/interest in the home in 2008 when he and Nanson moved out of the house and moved to their own house on Canyon Gate Crescent. In his affidavit, Zaki states that he paid Fouaad $25,000.00 and Jargis paid Fouaad the balance of $50,000.00. Nanson disputes this claim.

[48] It is not for this Court to resolve this dispute at this time. But the dispute does put Zaki in a conflict of interest with Fouaad and his family over the ownership of the Cromwell Road property, and, in my view, is sufficient in itself to disqualify him as a guardian of property.

[49] Counsel for the Warda Respondents suggested that I could just carve out the Cromwell Road property from Zaki's guardianship. I have two difficulties with this. The first is that money is fungible, and a conflict of interest over part of the property results, directly or indirectly, in a conflict of interest over the whole of the property.

[50] The second difficulty is that this unnecessarily complicates the guardianship, perhaps requiring two guardians. That complication is to be avoided.

[51] Finally, the Warda Respondents contend that Fouaad had approximately $170,000 in cash somewhere in his house prior to his stroke, and that Nanson's management plain fails to account for this cash. There is no evidence to corroborate this allegation other than comments allegedly made by Fouaad to Zaki prior to his stroke. There is no explanation as to where this cash could have come from.

[52] Nanson expressly denies the existence of such cash-on-hand, and I find that it does not exist.

Conclusion

[53] The Application is granted.

[54] This Court declares that the Respondent, Fouaad Warda, is incapable of managing property and incapable of personal care, and it is necessary for decisions to be made on his behalf by a person who is designated to do so.

[55] This Court further orders:

a. Nanson Chalimon and Bianca Warda are appointed as joint guardians of property for Fouaad Warda and joint guardians of the person for Fouaad Warda.

b. Nanson Chalimon and Bianca Warda shall file a revised Management Plan and a revised Guardianship Plan indicating that they are to be joint managers/guardians.

c. The Management Plan shall require that the managers/guardians pass accounts two years from the date of this Order, and thereafter to be passed every two years.

d. The necessity of obtaining a guardianship bond is dispensed with.

e. The joint guardians may act as litigation guardians for Fouaad Warda, except in respect of litigation that relates to their status or powers as guardians of person or property.

f. Nanson Chalimon shall not sell, transfer or encumber the family home on Canyon Gate Crescent, Maple, Ontario without the approval of the PGT or further order of the Court.

g. The Applicant's costs of this proceeding shall be paid from the property of Fouaad Warda on a full indemnity basis.

[56] As indicated in para. 55(g) above, it is my preliminary view that the Applicant's costs should be paid from the property of Fouaad Warda, and the Warda Respondents should be responsible for their own costs. If either party wants to make submissions for some other costs resolution, they may do so within 20 days of the date of these Reasons, and the other party may have an additional 15 days to respond. Any such submissions shall be limited to 3 pages plus offers to settle and costs outline. Costs submissions should be uploaded on Case Center and forwarded directly to my Judicial Assistant, Robyn Pope, at Robyn.Pope@Ontario.ca

Justice R.E. Charney

Date: October 10, 2025

[1] The May 2, 2023 correspondence relates primarily to Zaki Warda's management plan.