Endorsement

Court File No.: CV-12-00003136-00ES
Date: 2025-01-27
Ontario Superior Court of Justice

Re: Patrick Jean Francois, Applicant
-and-
Stephanie Jean Francois also known as Stephanie Dubuisson and The Public Guardian and Trustee, Respondents

Before: Frederick L. Myers
Counsel:

• Edgar-Andre Montigny, for Stephanie Dubuisson
• John Bailey, representing himself

Heard: January 27, 2025

Background

[1] By order dated March 22, 2012, the court found Ms. Dubuisson incapable of managing her property. The court appointed the applicant as guardian of Ms. Dubuisson’s property. Under s. 6 of the Substitute Decisions Act, 1992, SO 1992, c 30, to take those steps, the court was required to find that Ms. Dubuisson was “not able to understand information that is relevant to making a decision in the management of … her property, or [was] not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.”

[2] The seriousness of depriving someone of their civil rights under such an order cannot be overstated. Courts are very careful to ensure that a person is truly in need of protection before someone else is put in charge of their property and ousts them from making the important financial decisions that affect their lives. It is well-established that the court cannot act simply because it thinks someone is behaving foolishly with their money. People who understand and appreciate what they are doing have the right to autonomy and self-determination. Starson v. Swayze, 2003 SCC 32.

[3] When the court found Ms. Dubuisson lacked capacity in 2012, it appointed her former spouse as her guardian. The parties divorced and the ex-spouse emigrated to Haiti several years ago. Ms. Dubuisson has not been able to find him despite reasonable efforts in this proceeding.

The Motion to Substitute Guardian

[4] Ms. Dubuisson asks the court to appoint Mr. Bailey as her substitute guardian under s. 26 of the SDA. The section provides that anyone who was required to be served with the initial guardianship may move to change the guardian. As Ms. Dubuisson is the “person alleged to be incapable of managing property” she was required to be served with the initial application under s. 69(1)1 of the SDA. Therefore, counsel submits, she is entitled now to move to change the guardian under s. 26 of the statute.

[5] I agree that Ms. Dubuisson has standing to move under s. 26. The problem today is that she cannot appear before this court without a litigation guardian.

Litigation Guardian Requirement

[6] Rule 7.01 of the Rules of Civil Procedure, RRO 1990, Reg 194 provides:

Representation by Litigation Guardian

Party under Disability

7.01 (1) Unless the court orders or a statute provides otherwise, a proceeding shall be commenced, continued or defended on behalf of a party under disability by a litigation guardian.

Substitute Decisions Act Applications

(2) Despite subrule (1), an application under the Substitute Decisions Act, 1992 to appoint a guardian of property or a guardian of the person may be commenced, continued and defended without the appointment of a litigation guardian for the respondent in respect of whom the application is made, unless the court orders otherwise.

[7] The word “disability” is defined in Rule 1.03(1) as follows:

1.03 (1) “disability”, where used in respect of a person, means that the person is,

(b) mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding, whether the person has a guardian or not, or…

[8] Ms. Dubuisson has been adjudged mentally incapable under s. 6 of the SDA and is therefore a person under disability. She cannot act without a litigation guardian. Moreover, it is apparent that Rule 7.01(2) does not apply as here, Ms. Dubuisson is trying to be the moving party rather than the respondent. Usually, the applicant in a proceeding under Rule 7.02 is the prospective guardian so that it is not necessary to ensure that an additional guardian is appointed in the proceeding.

[9] Often the PGT will act as litigation guardian for a person under disability if there are problems with having another litigation guardian appointed for a particular proceeding. In this case, counsel for the PGT wrote that it was not concerned about Ms. Dubuisson bringing this motion because she is a person referred to in s. 26 (because she has to be served under s. 69 of the SDA).

[10] But that does not solve the Rule 7.01 issue.

[11] Moreover, in a different letter commenting on this motion, the PGT’s counsel wrote that the PGT’s approval (on non-opposition) of this motion was premised on the court being satisfied that Ms. Dubuisson, “remains incapable of managing her own property.”

[12] How can Ms. Dubuisson have capacity to ask the court to rule that she remains a person who lacks capacity?

Counsel Submissions and Statutory Autonomy

[13] Mr. Montigny submits that he is satisfied taking instructions from Ms. Dubuisson for the purposes of deciding who can be her guardian as opposed to whether she needs a guardian. But even assuming that is a meaningful distinction (which I do not), if she has the capacity to decide who should represent her for property decisions, then why can she not sign a power of attorney for property? Given the statutory respect for individual autonomy, the availability of a power of attorney will generally preclude a guardianship under s. 22(3) of the SDA. Moreover, a person appointed as an attorney for property can act as litigation guardian under Rule 7.03(2.1)(b).

[14] Mr. Montigny responds that if Ms. Dubuisson delivers a power of attorney to appoint an attorney for property, the custodian of her structured settlement and the banks will still likely require a court order lifting the guardianship order. This, he submits, is exposing Ms. Dubuisson to unnecessary expense and delay for a technicality.

[15] However, this is an area in which it can be truly said that, “the price of liberty is eternal vigilance.” [1]

The Importance of Procedural Safeguards

[16] While I am not one for technicalities generally, it is no mere technicality to ensure that a person whom this court has adjudged incapable of managing her own affairs, is duly protected and heard. I declined to hear from Ms. Dubuisson herself during the proceeding today because she is represented by counsel and, unless I am about to perform a capacity assessment for which I am wholly unfit to perform, I cannot use what she would have told me in any event.

[17] I do not apologize for the requirements of Rule 7.01. I do regret the Estate List’s growing backlog. But dealing with funding of the courts and the allocation of judicial complement are beyond my pay grade.

Dismissal of the Motion

[18] No one required Ms. Dubuisson to bring this motion as she did. Mr. Bailey could have sought to be added as applicant in substitution for Ms. Dubuisson’s former spouse. Or, Ms. Dubuisson’s counsel could have appointed someone as litigation guardian for Ms. Dubuisson if she insisted on being the moving party under s. 26 of the SDA.

[19] But in light of counsel’s submissions, I am not satisfied that Ms. Dubuisson remains incapable of managing her own property. The 2012 assessment that led to the initial order may or may not still be accurate in 2025. Counsel’s submission that he is satisfied taking instructions from Ms. Dubuisson suggests that it is outdated at minimum.

[20] And I am loathe to confine to the strictures of a guardianship someone with capacity to see to her own affairs regardless of the “technicalities” as Mr. Montigny puts it. Mr. Montigny says that Ms. Dubuisson wants someone to manage her property for her. That does not necessarily require an order substituting Mr. Bailey as her guardian for property. It may or it may not.

[21] Mr. Montigny asks me to provide a route to a quicker and less expensive outcome for his vulnerable client. Deciding whether such a thing exists and, if so, how to accomplish it, I dare say, is his role. It is my role to find that for the foregoing reasons, the motion brought before me today must be dismissed.

Frederick L. Myers
Date: January 27, 2025

[1] John Philpot Curran, “Election of Lord Mayor of Dublin,” speech before the Privy Council, July 10, 1790. – The Speeches of the Right Honourable John Philpot Curran, ed. Thomas Davis, pp. 94-95 (1847).