Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Lori Diane Groves and Mark John Groves, personally, and in their capacity as attorneys for property and personal care of John Martin Groves
AND:
John Martin Groves, the Public Guardian and Trustee and Lourdes Palmer
BEFORE: J.T. Akbarali J.
COUNSEL: Matthew Rendely and Nicole Cianci, for the applicants
Kimberley Gale and Palak Mahajan, s. 3 counsel for the respondent John Martin Groves
Lourdes Palmer, in person
HEARD: February 10, 2026
ENDORSEMENT
Overview
1The applicants, Lori Groves and Mark Groves, are the children of the respondent John Groves, and the named joint attorneys for property and personal care for John Groves. On this application, they seek a declaration that John Groves is incapable as to personal care and property, and to be named John’s guardians for personal care and property. They seek an order allowing them to apprehend John Groves from his current residence with Lourdes Palmer. They seek an order restraining Lourdes Palmer from having contact with John Groves or interfering in their management of John’s property or personal care.
2The applicants also bring a motion seeking to adduce further evidence. They also seek an order striking from the record the letter filed by s. 3 counsel purporting to set out John Groves’ wishes and the statement of law filed by s. 3 counsel.
3Because many of the parties to this application share the same last name, I respectfully use first names in these reasons for clarity.
Brief Background
4John is 85 years old. He has been diagnosed with Alzheimer’s disease as well as occult cancer, hyperlipidemia, and diverticulosis.
5John was married to Lori and Mark’s mother Eleanor Groves for about 30 years until their divorce in 2017. John subsequently married Vera Del Vecchio in August 2017. Vera died in November 2020.
6After Vera’s death, Lori and Mark noticed a cognitive decline in John. He became forgetful, repetitious in conversation, misinterpreted information, and required frequent reminders of his appointments. This decline continued; by September 2023, John was no longer capable of living independently. In this time period, John became involved in two predatory relationships with women, one of which was romantic.
7The respondent Lourdes was a friend of Vera’s. In 2021, Lourdes sold John an annuity during which process she reviewed his financial holdings. John has a net worth of $6-7 million.
8Lourdes and John began an intimate relationship around January 2023. Lori and Mark allege this is the third predatory relationship that John has been involved in. Lourdes denies this characterization.
9In September 2023, Lori and Mark, with the involvement of John and his lawyer, used their power of attorney for property to facilitate the sale of the rural property in which John lived in Utopia, Ontario. Mark and Lori took over managing John’s property, with regular meetings with John to keep him updated.
10John moved into Amica Bayview Village in Toronto, after consultation with a geriatrician and his family doctor. There, he received services to assist him with his memory loss, including medication management, laundry and suite cleaning, cognition assistance as required, safety checks and reminders for meals. John did not like living at Amica.
11On December 27, 2023, Lourdes removed John from Amica without taking his medication. Lori and Mark arranged for John’s return to Amica on December 29, 2023.
12On January 14, 2023, Lourdes again removed John from Amica. She advised Lori and Mark that John was moving out of Amica, because John wanted to live with her and pay her instead of Amica. She indicated her intention to retire to give John the attention he deserves.
13Lourdes took John to a bank branch in Barrie, Ontario, where she resides. There, she assisted him in opening a new bank account and changing his home address on his profile to her address in Barrie. She assisted him with transferring $40,000 into the new account from his business account.
14Around the same time, Lourdes sought to cancel cataract surgery that had been scheduled for John in Toronto and instead schedule surgery for him in Barrie.
15Mark and Lori retained counsel and were able to arrange for John’s return to Amica on January 30, 2024.
16On March 9, 2024, Lourdes removed John from Amica for a third time. Since that time, John has been living with her. Lourdes has insisted that all calls and communication between John and his children or his friends go through her. Mark and Lori allege that Lourdes has behaved improperly in multiple respects, including by interfering with John’s medical care, and by sending emails to Mark and Lori, and to John’s financial advisors, purporting to be John. I address the specifics of some of the allegations below, in my analysis of the issues.
17A number of capacity assessments have been done by qualified capacity assessors, and medical assessments undertaken by specialists, which I summarize below:
a. February 10, 2023 – John was found incapable of managing property by designated capacity assessor Alanna Kaye;
b. June 13, 2023 – Dr. Kim McKenzie, a specialist in geriatric medicine, found John incapable of managing property and incapable as to personal care;
c. July 5, 2023 – Amelia Hansen, nurse practitioner at Toronto Memory Program, found John to lack insight into his cognitive impairment but found he was well supported by Lori and Mark;
d. August 2023 – John’s family doctor, Dr. Giuseppe Spano Greco, found John to have progressive cognitive and functional decline and to be vulnerable to financial and medical abuse;
e. March 1, 2024 – Dr. Richard Shulman found John to be incapable of managing property and of all realms of personal care, except possibly hygiene, incapable of making powers of attorney for property and personal care, and incapable of making a will;
f. June 15, 2025 – Dr. Richard Shulman found John to be incapable to instruct legal counsel and incapable to make a decision about his shelter.
18In May 2024, Lourdes contacted and retained counsel for John, Kimberley Gale. Efforts to reach a resolution were not successful. As part of those efforts, Mark and Lori purchased a condominium for John in Richmond Hill, into which he has not moved. The parties disagree about whether, by doing so, Mark and Lori breached the parties’ understanding or whether they were acting in accordance with it.
19Although Ms. Gale was of the view that John was capable of instructing her, the capacity assessment conducted by Dr. Shulman in June 2025 indicated that he was not. Ms. Gale’s retainer was converted by the Public Guardian and Trustee (“PGT”) into a s. 3 counsel retainer. As will become clear, Ms. Gale has a different view about the scope of her role than do Mark and Lori.
20Mark and Lori have been unable to secure John’s return from Lourdes’ home. Although they are his attorneys for property and personal care, they seek guardianship orders because they require an order for John’s apprehension. They also seek orders restraining Lourdes from accessing John, given her history of ignoring their decision-making authority and by acting as his de facto guardian when she is not.
21Lourdes does not have a cross-application to be named John’s guardian. In her materials, she sets out expenses she says she has incurred for John, which she sent to Mark and Lori in an invoice. At the hearing of this application, she stated that she was not seeking reimbursement of any expenses, with the exception of the fees she paid to Ms. Gale for John’s representation. She argues that a neutral guardian for property ought to be appointed and criticizes Mark and Lori’s involvement in John’s life. She states that she and John have just celebrated their three-year anniversary. In her view, all she has done is respond to John’s stated wish that she protect him from his children, and that he has thrived while living with her.
22Section 3 counsel delivered lengthy submissions setting out John’s wishes to remain living with Lourdes, to have access to his funds for travel with Lourdes, and for living a good quality life, among other things. She argues that by paying rent at Amica for months after John moved in with Lourdes, and now by purchasing the condominium in Richmond Hill where he has not been and does not want to live, Lori and Mark have wasted his money. She argues for a third-party attorney for property to manage John’s money. She opposes any guardianship order.
Issues
23The issues raised for determination on the applicants’ motion and application are:
a. Should leave be granted to the applicants to adduce further evidence?
b. Should s. 3 counsel’s submissions and letter of position be struck?
c. Should John be declared incapable of managing property and/or of personal care?
d. If so, should Lori and Mark be appointed John’s guardians for property and/or for personal care?
e. Should Lourdes be restrained from having contact with John and/or from interfering with Mark and Lori’s management of his property and personal care?
Motion to Adduce Further Evidence
24At the outset of the hearing, the applicants sought leave to adduce further evidence, consisting of an affidavit with exhibits. Among the exhibits was a handwritten note written by Lourdes at a mediation indicating her position with respect to an issue in dispute between the parties.
25At the hearing, I gave oral reasons for decision. I admitted most of the affidavit and exhibits, but I excluded the paragraphs of the affidavit that made reference to discussions at the mediation, and the notes made during the mediation on the basis that they were subject to settlement privilege.
26During Lourdes’ submissions, she made reference to having recently celebrated her three-year anniversary with John. Based on that submission, the applicants asked me to reconsider my decision on the motion to exclude the materials that are subject to settlement privilege. They argue that the evidence sheds light on what they allege are Lourdes’ financial motives behind her care of John, and it is in the interests of justice to waive settlement privilege to admit the evidence.
27In my view, nothing about Lourdes’ submissions changes the analysis I described or the conclusions I reached in my oral reasons for decision delivered on February 10, 2026. I thus dismiss the applicants’ motion for reconsideration of my decision.
Should s. 3 counsel’s written submissions be struck?
28Section 3 counsel filed with the court a “letter containing John Groves’ position” and a statement of law. The applicants argue that the letter is, in effect, counsel offering evidence on behalf of John, insulated from cross-examination, and purporting to set out John’s wishes, when he is incapable as to personal care and incapable of instructing counsel. In the “statement of law,” s. 3 counsel seeks substantive relief without any underlying originating proceeding or motion having been commenced.
29Section 3 counsel argues that it is common for someone occupying the role of s. 3 counsel to set out their client’s position by way of letter. She notes that the Substitute Decisions Act, 1992, S.O. 1990, c. 30, s. 3(1)(b), deems a person for whom s. 3 counsel is appointed capable of retaining and instructing counsel. She argues that her representation of John is consistent with the role of s. 3 counsel as set out in Dawson v. Dawson, 2020 ONSC 6724.
30In Dawson, Gomery J. (as she then was) discussed the role of a litigation guardian and s. 3 counsel in an application for guardianship. She noted that r. 7.01(2) provides for an application to appoint a guardian of property or a guardian of the person to be commenced without the appointment of a litigation guardian for the respondent in respect of whom the application is made unless the court orders otherwise. The court thus has discretion as to whether a litigation guardian is appointed for such a person: Dawson, at paras. 14-15.
31In Dawson, the PGT argued that a litigation guardian is usually unnecessary in a guardianship application because the SDA permits the appointment of s. 3 counsel. Gomery J. held that the argument raised by the PGT “miscasts the role played by litigation counsel appointed pursuant to s. 3.” Both are responsible for protecting the interests of a vulnerable litigant, but “they do so in significantly different ways”: Dawson, at para. 25.
32Gomery J. noted that the argument that s. 3 counsel is appointed where it is important that the court understand the alleged incapable person’s wishes and preferences “implies that s. 3 counsel can speak for [the alleged incapable person] such that the appointment of a litigation guardian would be redundant”: Dawson, at para. 27. She went on to find, at para. 28:
This argument is premised on s. 3 counsel having a role that they do not and cannot have. A lawyer appointed to assist a vulnerable person under the Act has the same obligations as any other litigation counsel. Their job is to advise their client of his or her rights and to act on their instructions. If a client has capacity issues, ascertaining their wishes and preferences may be difficult or even impossible. Every lawyer, however, is limited by their understanding of their client’s wishes. If the client’s instructions cannot be ascertained, no lawyer – including a lawyer appointed under s. 3 – can take a position in a proceeding on the assumption that their client would have agreed with it or that it is in their best interest.
33Gomery J. noted that many s. 3 counsel make a tremendous effort to discern their client’s wishes and often provide the court with very helpful insight as a result. However, if they are unable to understand what a client wants, they cannot make decisions on that person’s behalf. By contrast, a litigation guardian stands in the shoes of someone under disability. They do not take instructions from the person under disability but make substitute decisions on their behalf, in accordance with their obligations and powers set out in r. 7.05: Dawson, at paras. 29-30.
34Gomery J. adopted the succinct conclusion of Goodman J. in Miziolek v. Miziolek, 2018 ONSC 2841, at para. 13: “The role of s. 3 counsel is to obtain instructions form the person whose capacity is in issue and absent instructions, counsel is not to act. Section 3 Counsel is not to take on the role of a Litigation Guardian.”
35In this case, I have no doubt that Ms. Gale believes that she has discerned John’s wishes and has endeavoured to provide the court with helpful insight. However, while s. 3 counsel benefits from the statutory deeming of capacity to instruct counsel, in this case we have an opinion from Dr. Shulman that, as of at least June 2025, John was not capable of instructing counsel with respect to this application. Since at least June 2023, John has been found to be incapable of personal care. No party disputes the capacity assessments. For reasons I explain below in the context of my analysis of the guardianship issues, I accept the assessors’ conclusions that John is not capable of making decisions as to his shelter.
36With respect to his capacity to instruct counsel with respect to this application, in his report, Dr. Shulman first noted that John does not agree that he has been diagnosed with Alzheimer’s disease and claims not to have any memory loss. He noted that John had no impairment in language comprehension or expression, and no bizarre delusions. He did, however, note problems in John’s ability to confirm an adequate understanding of new information.
37When asked if he had any conflict with someone in his family or supportive friends, John responded “no.” When cued about the current litigation, he denied having a legal conflict with his children. He was aware that Mark and Lori are his attorneys, but he denied ever receiving an opinion that he is not capable to manage property or personal care.
38John denied that he had a lawyer. He identified his long-time lawyer, George Crossman. He said he had retained Ms. Gale at one time but he denied that he was “using her now.” He was not able to say why he might have retained Ms. Gale, or what he had asked her to do for him. When Dr. Shulman explained the nature of the guardianship application, John stated his opposition to the application and agreed he would want Ms. Gale to oppose it on his behalf. He also indicated he was opposed to moving to a condominium in Richmond Hill and would want Ms. Gale to oppose it. However, he stated he had no recall of discussing these issues with Ms. Gale. John reported that his children’s motivation is to control his money but at the same time, he denied that they would want to take advantage of him or misuse their authority.
39John had no understanding of his legal fees. When asked about fees, John became antagonistic and wanted to know about Dr. Shulman’s fees instead.
40Dr. Shulman found that John was unable to understand what he had his lawyer to do and why. He could not explain the reasons for the litigation. He did not remember the guardianship application. After cueing about the application, within minutes after distraction he was not able to remember the application again.
41Dr. Shulman found that John is not able to understand and process the information, advice and options Ms. Gale presents to him. He may be able to receive information, but he cannot process and store it in his memory, especially where the information is complex. Dr. Shulman also found that John cannot appreciate the advantages, disadvantages and potential consequences of the various options regarding the guardianship application. He noted that John is not able to have an understanding of the financial aspect of retaining a lawyer.
42Dr. Shulman opined:
a. John appears able to understand the minimum choices or decisions required because he can clearly express his desire to oppose the guardianship application. However, his reasoning does not take into consideration his Alzheimer’s disease, of which he cannot recognize its manifestations.
b. John cannot appreciate the consequences and effects of his choices or decisions. He would not be able to apply and evaluate the relevant information, particularly of any complexity. He does not recognize his own limitations and cannot apply the relevant information to his circumstances to make reasoned choices.
c. John is not able to demonstrate his ability to appreciate the nature of the proceedings.
d. John is not able to choose and keep counsel. Nor is he able to represent himself.
e. John cannot distinguish between relevant and irrelevant issues.
43For all of those reasons, Dr. Shulman found John to be not capable to instruct counsel, and concluded John would not be able to regain capacity due to the neuropsychiatric manifestations of his Alzheimer’s disease. I accept this conclusion. John is incapable of instructing counsel in this application.
44Because Ms. Gale cannot obtain capable instructions from John as a matter of fact, she is without capable instructions notwithstanding the deeming provision in the SDA.
45In my view, Ms. Gale has strayed into the role of litigation guardian, which is not a role that she occupies.
46I reach this conclusion in part because Ms. Gale has taken positions, including, for example, on the motion to adduce further evidence, in which John has no discernible interest. The positions that s. 3 counsel have taken advance the position that Lourdes would have been expected to take. The flavour of this litigation is that s. 3 counsel is acting for John and Lourdes as a unit; that is not her role.
47Moreover, in her submissions, Ms. Gale does not even attempt to account for John’s incapacity to make decisions as to his shelter, or his incapacity to instruct counsel. She has litigated this matter as if John were capable, when everyone has accepted he is not.
48Ms. Gale has also made assertions that are incorrect. For example, she asserts John has advised that he no longer maintains any relationship with his children. The evidence from Lori and Mark does not support that conclusion; Lourdes has disrupted the relationship between John, and Lori and Mark, but even during the hearing, the three of them sat together in the body of the courtroom. When they have been able to meet, John has expressed a wish to spend time with Lori and Mark.
49I am concerned that Ms. Gale is not respecting the limits of her role as s 3 counsel. But having said that, I do not strike the letter containing John’s position or the statement of law from the record. Rather, I do not place any significant weight on John’s wishes as expressed by Ms. Gale because he is not capable of making decisions as to his shelter, and he is not capable of instructing counsel. Nor do I place significant weight on Ms. Gale’s assertions of fact. Not only are they not evidence, but assuming John is the source for those facts, it is apparent that his memory problems and capacity issues render his recitation of past events unreliable.
Should John be declared incapable, and if so, of what?
50Although there are a number of capacity and medical assessments that conclude that John is not capable of managing property, or personal care, or is vulnerable to abuse, for purposes of my analysis, I need only focus on the most recent report, from Dr. Richard Shulman, who was jointly engaged by Ms. Gale and applicants’ counsel. The other assessments and medical conclusions are, in any event, consistent with Dr. Shulman’s most recent report.
51When Dr. Shulman assessed John on June 15, 2025, he assessed John’s capacity to instruct legal counsel with respect to this application, and his capacity to make a decision about his shelter.
52In the course of completing his assessment, Dr. Shulman reviewed a report from Silver Sherpa, an elder management consultant company, dated May 7, 2025, that suggested that John requires assistance with activities of daily living for personal care such as bathing, dressing, and toileting; he requires prompting and cueing to choose clothing appropriate for the weather; he requires assistance with medication management; he requires prompting to eat; and he requires support including round the clock supervision due to impaired cognitive function, short-term memory loss and significantly diminished capacity. Dr. Shulman noted that those findings were confirmed by a comprehensive geriatric assessment undertaken by Dr. Corinne Fischer on February 27, 2025.
53Dr. Shulman noted that John, while agreeing that he had been diagnosed with Alzheimer’s disease, expressed that he was not convinced of the diagnosis, and he does not agree that he has a neurological or mental health condition. He claimed not to experience any significant effects from Alzheimer’s disease or any difficulty with memory loss. At the same time, Dr. Shulman noted that John did not recall the purpose of the assessment which Dr. Shulman had explained to him at the outset, and which Dr. Shulman had to repeat several times during the assessment.
54Dr. Shulman administered the Montreal Cognitive Assessment; John scored positive for mild cognitive impairment. He contrasted John’s results with those from the MoCA that Dr. Shulman had previously administered to John, and noted that the pattern of points loss between the results is highly consistent with an Alzheimer’s disease process. John’s delayed recall did not improve with multiple choice cueing, and he was almost fully disoriented to time except for the year. Dr. Shulman reported that John’s deficits suggest moderately severe impairment in learning new information. Despite cueing and repetition, John cannot confirm an adequate understanding of new information.
55With respect to John’s capacity to manage personal care decisions as they relate to shelter, Dr. Shulman noted that John was clear that he wants to continue living with Lourdes. John denied having any limitations to consider that could affect his ability to make a decision about choosing where to live.
56John reported that he and Lourdes were living at his Utopia property together. When reminded that the property had been sold, he agreed, and stated he was living with Lourdes at her home in Barrie. He does not know the address.
57When reviewing his past residences, John did not mention living in Amica until cueing.
58John was unaware of Lori and Mark’s plan to move him into the condominium in Richmond Hill. He expressed opposition to this idea because he is happy living with Lourdes. John stated that the risks of moving to Richmond Hill would be to leave behind Lourdes, his friend, and his dog, who is cared for by friends, but which he sees regularly. He denied any risks of living in Lourdes’ home. He described the benefits of living with Lourdes as including that she provides meals, does cleaning and laundry, and provides companionship.
59When asked what he would do if Lourdes was not able to have him live with her any longer, he said he would rent an apartment and claimed he could live independently.
60John was not able to explain the circumstances that led him to move in with Lourdes. He maintained he could live independently but prefers to have a companion.
61Dr. Shulman found that John is able to understand information provided to him about alternative living options but is opposed to considering any alternative because he is happy living with Lourdes.
62John recognized some personal limitations in caring for himself, and particularly that he does not drive. He prefers not to prepare his own meals, do laundry, or clean. However, John is not able to recognize the manifestations of his Alzheimer’s disease and cannot apply the relevant information to himself for his caregiving needs. Dr. Shulman was not convinced John could provide an adequate plan for choosing shelter should he have to move from Lourdes’ home. He does not recognize his need for supervision and caregiving.
63Dr. Shulman concluded that despite John’s ability to understand the options for shelter as explained to him, he is not able to appreciate the reasonable foreseeable consequences of a decision or lack of decision for his own shelter, because he does not recognize the manifestations of his condition, does not adequately recognize his limitations and caregiving needs, and cannot apply the relevant information to his circumstances.
64Dr. Shulman’s report is consistent with the evidence of Lori and Mark. For example, Mark deposes that after being informed by Ms. Gale’s office that John did not want to have lunch with them following John’s appointment with Dr. Fisher, John was surprised and denied having given those instructions. Mark deposes that they had the same conversation with John several times during his appointment.
65Lori deposes that, at the appointment with Dr. Fisher, John was unable to describe where he lives or recollect members of his immediate family. For example, he told Dr. Fisher that his sister was his daughter.
66Based on the evidence in the record, I have no hesitation in finding that John is incapable to make decisions as to his shelter.
67For the reasons that follow, I need not consider his incapacity any further.
Should a guardianship order be made?
68In their application, Lori and Mark seek full guardianship orders over John with respect to personal care and property.
69Sections 22(3) and 55(2) of the SDA provides that the court shall not appoint a guardian if it is satisfied that the need for decisions to be made will be met by an alternative course of action that (a) does not require the court to find the person to be incapable of personal care; and (b) is less restrictive of the person’s decision-making rights than the appointment of a guardian.
70The court is thus directed to consider whether less restrictive measures than an order for full guardianship will suffice. See also Corewyn v. McCulloch, 2015 ONSC 6039.
71As John’s attorneys for personal care, Lori and Mark already have the ability to make decisions for him regarding his shelter, as well as to tend to other aspects of his personal care. The problem is not that they do not have the authority to make the decisions they wish to make; the problem is that Lourdes has interfered with their ability to do so; the root of the interference lies in the fact that John resides with her and is, from a practical perspective, under her care and control.
72The record is replete with examples. Lourdes has cancelled medical appointments that Lori and Mark have made for John and made her own arrangements for his medical care without even consulting them. She has taken John to live with her despite their disagreement as his attorneys for personal care, and despite the clear conclusion that John is incapable of making decisions regarding his shelter. She has declined to share information with Lori and Mark about John’s care. She has kept Lori and Mark from him. John’s old friends have deposed that Lourdes has monitored their conversations with John and they are worried that she will cut them out of his life. She has isolated John from supportive family members and friends.
73Lori and Mark were frank that they seek full guardianship orders because they seek access to the provision in the SDA that would permit them to apprehend John, with support of the police, which is unavailable to them because it is not a power contained in the power of attorney for personal care that John signed. Without it, their ability to exercise the powers of attorney that John granted to them will continue to be frustrated by Lourdes’ behaviour.
74In my view, keeping in mind the need to adopt less restrictive methods than guardianship orders where it is possible to do so, it is more appropriate to make a partial guardianship order to which specific powers shall attach.
75Under s. 60(1) of the SDA, the court may make an order for partial guardianship of the person for an incapable person if it finds that he is incapable in respect of some but not all of the functions referred to in s. 45. Those functions are: health care, nutrition, shelter, clothing, hygiene or safety.
76In this case, I need not pronounce on John’s capacity with respect to health care, nutrition, clothing, hygiene, or safety. Under the power of attorney for personal care, Lori and Mark already have the authority they require to ensure John’s personal care in those domains is looked after. I note that under s. 53(1) of the SDA, a power of attorney for personal care is revoked when the court appoints a guardian for the grantor under s. 55. Here, where I am considering a partial guardianship order under s. 60, the revocation provision does not apply.
77I have found John incapable of making decisions with respect to his shelter. I thus make an order for partial guardianship of John in respect of decisions regarding his shelter.
78I find that Lori and Mark are appropriate guardians for John to make the decisions regarding his shelter. They have had a long and loving relationship. John trusted Lori and Mark when he was capable, which is evidenced by his having named them his attorneys for personal care and his attorneys for property. Lori and Mark have acted in his best interest throughout. Their concerns for him are warranted on the evidence, and his history of falling into predatory relationships. They tried to work with Lourdes, but she has failed to respect the decision-making structure that John chose while he was capable. Her unilateral actions left them no choice but to bring this application.
79Under s. 60(3) of the SDA, under an order for partial guardianship, the guardian may exercise those of the powers set out in subsections 59(2), (3), (4) and (5) that are specified in the order.
80Here, I order that as guardians under the partial guardianship, Lori and Mark may exercise the following powers:
a. Under s. 59(2)(a) –exercise custodial power over the person under guardianship, determine his or her living arrangements and provide for his or her shelter and safety;
b. Under s. 59(2)(b) – be the person’s litigation guardian in matters related to his shelter, except in respect of litigation that relates to the guardians’ status or powers;
c. Under s. 59(2)(c) – settle claims and commence and settle proceedings on the person’s behalf related to his shelter, except claims and proceedings that relate to the guardian’s status or powers;
d. Under s. 59(2)(d) - have access to personal information to which the person would be entitled to have access if capable, and consent to the release of that information to another person, in matters related to his shelter, except for the purposes of litigation that relates to the guardian’s status or powers;
e. Under s. 59(2)(f) – make decisions about any social services provided to the person in matters related to his shelter;
f. Under s. 59(3) – to, with the assistance of a police officer, enter Lourdes’ home between 9 a.m. and 4 p.m. and search for and remove John, using such force as may be necessary.
81This latter power is appropriate because (i) Lori and Mark have been granted custodial power over John, and (ii) I am satisfied that it may be necessary to apprehend John. Accordingly, I authorize them to apprehend him in accordance with the terms of para. 80(f) above. The draft order counsel provides should include the full address of Lourdes’ home in Barrie. I do not wish to include it in these reasons to respect her privacy to the extent possible.
82It is, of course, preferable if the parties make arrangements for John to leave Lourdes’ home rather than involving the police. But given the history of Lourdes’ disruptive behaviour, I am persuaded that the apprehension power may be required, and should be available to Lori and Mark.
83Lori and Mark must revise their guardianship plan to reflect the limited nature of the guardianship. I have no concerns with the substance of the plan proposed; it simply needs to be tailored to the scope of the guardianship ordered. The guardianship plan shall be revised and attached as a schedule to the draft order which counsel should prepare based on these reasons.
84With respect to Lori and Mark’s application to be named guardians of John’s property, I conclude that I do not need to pronounce on John’s capacity to manage property. Lori and Mark have the authority to manage John’s property consistent with his interests under the power of attorney for property. While some money may have been wasted on Amica rent fees, and on a perhaps too-early purchase of a condominium, the decisions they made were based on their attempts to meet John’s caregiving needs, and to reach compromises that would protect John, in furtherance of agreements that had perhaps not perfectly crystallized. I would not have found that those decisions warrant removing them as John’s attorneys for property if anyone had properly placed that question before me. Although s. 3 counsel makes some submissions on the removal of attorneys, there is no motion or application before me seeking that relief, and her own submissions leave it unclear what, exactly, she seeks, especially as she also notes that an attorneyship is less restrictive than a guardianship.
85Lori and Mark also seek an order dispensing with the need to post security. I have not made a guardianship order with respect to property, so no dispensation is required.
Restraining Order
86In their notice of application, Lori and Mark seek an order restraining Lourdes from interfering with Mark and Lori’s management of John’s property and/or personal care in any manner or extent whatsoever. In their factum, they seek directions from this court under ss. 39 and 68(1) of the SDA to restrain Lourdes from any ongoing contact with or access to John.
87The court has jurisdiction to make a mandatory order, codified in s. 101(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
88Section 39 of the SDA provides that a court may give directions on any question arising in connection with a guardianship or power of attorney where an incapable person has a guardian of property or an attorney under a continuing power of attorney. It falls under the “Property” provisions of the SDA. I have not made an order appointing any guardian for property. While theoretically Mark and Lori could seek directions related to the power of attorney for property that John granted them, that is not what is sought in the notice of application, so I do not address it.
89Section 68(1) provides that, if an incapable person has a guardian of the person or an attorney under a power of attorney for personal care, the court may give directions on any question arising in the guardianship or under the power of attorney.
90Again, the applicants did not seek directions on a question related to the power of attorney for personal care. In this case, s. 68(1) may apply to the partial guardianship I have ordered; no one made any submissions in that regard.
91In any event, it is clear I have the jurisdiction to make mandatory orders under s. 101(1) of the Courts of Justice Act. It is also clear that there is no surprise to any party that Lori and Mark seek orders restraining Lourdes from interfering with their management of John’s personal care or property, and restraining Lourdes from contacting or having any access to John.
92I have made reference to the body of evidence that proves how Lourdes has interfered with Mark and Lori’s efforts to manage John’s personal care, including his medical care and his shelter, and also his property, by pretending to be John in emails to his financial advisors. In at least one instance she falsely identified herself as John’s substitute decision maker. I have not gone through the evidence in detail because it is copious; the examples I have given are enough.
93I have no hesitation in enjoining Lourdes from interfering in any way with Mark and Lori’s management of John’s property or his personal care, pursuant to the powers of attorney, or pursuant to the partial guardianship order I have made.
94I have some hesitation in enjoining Lourdes from having any contact with John at all. That seems to me to be a restriction without nuance, and broader than necessary to achieve the objective of protecting John.
95I find that it is in the interests of justice to restrict Lourdes’ access to John in a more limited way, to ensure that she cannot interfere with the management of John’s property or decisions about his shelter and personal care. I order that:
a. Lourdes shall not visit or spend time with John at any home which she owns, rents, or in which she resides;
b. Lourdes shall not visit or spend time with John in any form of transportation, whether she is in control of the transportation or not, including cars, taxis, buses, trains, or airplanes;
c. Lourdes may visit or spend time with John in public places no more than two hours at a time, no more than twice a week on the following conditions: (i) Lori or Mark shall make the arrangements for John’s drop-off and pick up from a public place agreeable to all parties; (ii) Lourdes shall not take John from that place to any other location; and (iii) should Lori or Mark chose, they may attend the visit, or arrange for someone else to attend the visit between Lourdes and John, but any such person shall maintain sufficient distance from Lourdes and John to afford them a reasonable amount of privacy;
d. Lourdes may visit with or spend time with John otherwise as Lori and Mark both agree.
96These limitations will allow Lourdes and John to continue their relationship if they desire while protecting John’s interests.
Costs
97At the hearing of the application, I proposed that the parties upload their costs submissions, together with any offers to settle, clearly marked so I did not review them prior to writing reasons on the merits. Once the reasons on the merits were written, I would review the costs materials filed and proceed to determine costs. The parties agreed with my proposal; that is the process I have followed.
98The three main purposes of modern costs rules are to indemnify successful litigants for the costs of litigation, to encourage settlement, and to discourage and sanction inappropriate behaviour by litigants: see Fong v. Chan (1999), 46 O.R. (3d) 330, at para. 22.
99Subject to the provisions of an act or the rules of this court, costs are in the discretion of the court, pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The court exercises its discretion considering the factors enumerated in r. 57.01 of the Rules of Civil Procedure, including the principle of indemnity, the reasonable expectations of the unsuccessful party, and the complexity and importance of the issues. Overall, costs must be fair and reasonable: see Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (Ont. C.A.), at para. 38. A costs award should reflect what the court views as a fair and reasonable contribution by the unsuccessful party to the successful party rather than any exact measure of the actual costs to the successful litigant: see Zesta Engineering Ltd. v. Cloutier (2002), 21 C.C.E.L. (3d) 161 (Ont. C.A.), at para. 4.
100The applicants seek their full indemnity costs of $228,745.94, all inclusive. They seek $183,300.61 in substantial indemnity costs from Lourdes. They seek fixed costs from John in the sum of $45,445.34 (partial indemnity costs of 20%) pursuant to the law of fiduciary indemnification: Troy et al. v. Troy et al., 2024 ONSC 5767. Finally, they seek orders that no further monies are owed to Ms. Gale as s. 3 counsel for John, and that her role as s. 3 counsel for John is immediately terminated.
101Section 3 counsel submits that John’s wishes are that his costs be paid by Mark and Lori personally on a full indemnity basis, including the accounts of s. 3 counsel that are outstanding.
102Lourdes seeks her full indemnity costs of $33,725, of which she seeks $21,921.25 from Lori personally, and $11,803.75 from Mark personally. In the alternative, she seeks indemnity for the costs she paid to lawyers in respect of John’s legal costs: $361.60 to Aulis Law, $23,953.65 to Gale Law. The remaining amount of $7,542.75 represents the amount she paid on her own behalf to Arora Lunau LLP. In addition, she states she incurred disbursements on behalf of John of $1,867.00.
103Lori and Mark are the successful parties on this application and are presumptively entitled to their costs. Lourdes is not entitled to her costs. I address below whether she is entitled to reimbursement for John’s costs.
104With respect to costs against Lourdes, Lori and Mark argue that they were fully successful in having Lourdes abandon her claim (not properly brought or constituted, and not technically placed before me) for payment of $117,173.26 (less $23,659.40 which Lourdes paid to Ms. Gale which claim Lourdes did not abandon).
105The issues in this application were very important to the parties. They impacted John’s physical and financial security and well as his dignity and the wishes he expressed when he was capable.
106The application materials prepared by Mark and Lori were thorough, reflecting the importance of the issues to them.
107The entirety of the litigation was necessitated by Lourdes acting in a manner that disrespected the decision-making scheme that John had put in place for himself while he was capable. Her behaviour during the currency of the litigation led to increased costs, as Mark and Lori had to place multiple updating affidavits before the court detailing Lourdes’ ongoing disrespect of the powers of attorney John granted.
108However, I am not persuaded that substantial indemnity costs against Lourdes are warranted. She consented to the application in an affidavit she filed in the proceedings (although she still did not return John to the care of Mark and Lori).
109Lourdes was mostly self-represented (although with apparent assistance from Ms. Gale). John’s costs of the application are detailed in his bill of costs; they total $142,833.02. Based on this amount, the fact that Ms. Gale’s first attendance in connection with this litigation was on January 29, 2025, after it had been ongoing for some time, and the respective length of the parties’ materials, Mark and Lori’s costs are within Lourdes’ reasonable expectations.
110I note Ms. Gale’s argument that Lori and Mark were needlessly aggressive during the litigation which could have been resolved amicably and at a fraction of the cost. I disagree. It was Lourdes’ unilateral conduct that impeded a resolution of this matter. In any event, the offer of resolution included in Ms. Gale’s material did not provide the necessary protections for John, and Mark and Lori have been successful at obtaining a more comprehensive order than John proposed. I specifically reject Ms. Gale’s submission that Mark and Lori acted in bad faith during this litigation.
111I find that it is fair and reasonable for Lourdes to pay Mark and Lori’s partial indemnity costs of this proceeding, which I fix at $137,855.29, all inclusive, consistent with the amount supported by their bill of costs.
112The balance of Mark and Lori’s fees, that is, $90,890.65 shall be paid to them from John’s assets in accordance with the principles set out in Troy et al. v. Troy et al., 2024 ONSC 5767, and Lockhart v. Lockhart, 2020 ONSC 7620, at para. 42. As John’s attorneys for property and personal care, and now his guardian in respect of the order for partial guardianship with respect to his shelter, they ought not to be out of pocket in connection with this application.
113That leaves the question of Ms. Gale’s costs, and relatedly, Lourdes’ claim for reimbursement of the legal fees she paid on John’s behalf. Mark and Lori note that, on January 29, 2025, in an aide memoire filed with the court, Ms. Gale took the position that John did not have the capacity to make a new power of attorney or manage his property or personal care, yet she asserted he did have the capacity to instruct counsel. They note that if John could not manage property, he was not capable of contracting with her firm. Ms. Gale’s fees up to June 18, 2025 when Mark and Lori sought and obtained an order terminating her retainer, were $72,770.20 inclusive of HST.
114As of June 15, 2025, Dr. Shulman found that John admitted he had no understanding of his legal fees, and he was incapable of instructing counsel. Once appointed s. 3 counsel, between June 18, 2025 and February 10, 2026, Ms. Gale charged a further sum of $70,062.82 inclusive of HST.
115To date, Ms. Gale has been paid $77,439.37, although it is not clear to me whether this sum includes the $23,953.65 that Lourdes paid to her on John’s behalf.
116Mark and Lori argue that the totality of Ms. Gale’s fees are unconscionable and unwarranted in the circumstances of the numerous findings of incapacity of John’s doctors and capacity assessors, including findings that predated Ms. Gales’ retainer. They argue that I should find that Ms. Gale’s costs are unreasonable and disentitle her to seek payment of any further costs.
117Ms. Gale argues that, as John’s attorneys for property, Mark and Lori could have sought an assessment of her accounts if they felt it was warranted. She rejects that she has stepped outside the boundaries of her role, and, as I have already noted, argues that the high costs associated with this application are the result of the needlessly aggressive positions taken by Lori and Mark throughout.
118The June 18, 2025 order of Dietrich J. appointing Ms. Gale as s. 3 counsel includes a provision that John’s “reasonable legal fees and disbursements shall be paid from his property by the Applicants.”
119In my view, there is no reason why I cannot fix what Ms. Gale’s reasonable legal fees and disbursements of this application are. It is consistent with s. 130(1) of the Courts of Justice Act that provides that the costs of a proceeding are in the discretion of the court.
120Ms. Gale’s costs would have been appropriate for a responding party fully contesting the application, including through the provision of evidence. I have grave concerns that her costs are excessive having regard to the fact that she put forward a statement of John’s position rather than an evidentiary record, that she took positions that appeared to be on behalf of Lourdes, not John, and that her costs are not proportional to the circumstance in which she acted: that is, acting for a person incapable of making decisions as to his shelter, and incapable of instructing counsel.
121I share the concern raised by Mark and Lori that a s. 3 counsel appointment ought not to be a licence to incur fees. When a client’s capacity is in issue, many s. 3 counsel appropriately take a restrained approach while assisting the court. That was not Ms. Gale’s approach. I question the usefulness of Ms. Gale’s aggressive approach in advancing the incapable wishes of a client incapable of instructing counsel; Ms. Gale’s approach benefitted her financial interests more than it benefitted John.
122In the circumstances, Ms. Gale is entitled to her fair and reasonable full indemnity costs from John’s assets. I give Ms. Gale the benefit of the doubt up to June 15, 2025, by which time it was clear that John did not understand his legal fees and was incapable of instructing counsel. Taking into account the fact that about half of her costs were billed before receiving Dr. Shulman’s opinion, I fix her costs at $85,000. This is the amount John’s attorneys for property are required to pay pursuant to Dietrich J.’s order dated June 18, 2025. They shall pay the full amount of those fees to Ms. Gale and Ms. Gale shall refund Lourdes the amount she paid on John’s behalf, subject to any different agreement reached by the parties.
123I also direct Mark and Lori to reimburse Lourdes from John’s assets the sum of $361.60 which she paid to Aulis Law on John’s behalf, and the disbursements she incurred on his behalf in the amount of $1,867.
124Ms. Gale is hereby discharged as s. 3 counsel.
Other Matters
125Finally, I note that Mark and Lori sought, among other things, orders governing their passing of accounts as guardians for property, and s. 3 counsel sought orders requiring them to pass their accounts in their capacity as attorneys for property. Again, there was no originating process or notice of motion before me placing the question of whether to order Mark and Lori to pass their accounts in their capacity as attorneys for property. I decline to address that issue. I need not make any order as to when Mark and Lori qua guardian for property ought to pass their accounts, because I have not ordered a guardianship for property.
Summary of Orders
126I make the following orders:
a. I declare that John is incapable of making decisions about his shelter.
b. I make an order for a partial guardianship for John with respect to decisions about his shelter. Mark and Lori shall be his guardians for this purpose.
c. Mark and Lori, qua guardian for John with respect to decisions about his shelter shall have the following powers:
i. Under s. 59(2)(a) of the SDA – they may exercise custodial power over the person under guardianship, determine his or her living arrangements and provide for his or her shelter and safety;
ii. Under s. 59(2)(b) of the SDA – they may be the person’s litigation guardian in matters related to his shelter, except in respect of litigation that relates to the guardians’ status or powers;
iii. Under s. 59(2)(c) – they may settle claims and commence and settle proceedings on the person’s behalf related to his shelter, except claims and proceedings that relate to the guardian’s status or powers;
iv. Under s. 59(2)(d) – they may have access to personal information to which the person would be entitled to have access if capable, and consent to the release of that information to another person, in matters related to his shelter, except for the purposes of litigation that relates to the guardian’s status or powers;
v. Under s. 59(2)(f) – they may make decisions about any social services provided to the person in matters related to his shelter;
vi. Under s. 59(3) of the SDA – they may, with the assistance of a police officer, enter Lourdes’ home between 9 a.m. and 4 p.m. and search for and remove John, using such force as may be necessary.
d. Mark and Lori shall revise their guardianship plan to reflect the limited nature of the guardianship order. It shall be attached as a schedule to the draft order arising out of these reasons.
e. Lourdes is enjoined from interfering in any way with Mark and Lori’s management of John’s property or his personal care, pursuant to the powers of attorney, or pursuant to the partial guardianship order I have made.
f. Lourdes shall not visit or spend time with John at any home which she owns, rents, or in which she resides;
g. Lourdes shall not visit or spend time with John in any form of transportation, whether she is in control of the transportation or not, including cars, taxis, buses, trains, or airplanes;
h. Lourdes may visit or spend time with John in public places no more than two hours at a time, no more than twice a week on the following conditions: (i) Lori or Mark shall make the arrangements for John’s drop-off and pick up from the public place to which all parties agree; (ii) Lourdes shall not take John from that place to any other location; and (iii) should Lori or Mark chose, they may attend the visit, or arrange for someone else to attend the visit between Lourdes and John, but any such person shall maintain sufficient distance from Lourdes and John to afford them a reasonable amount of privacy.
i. Lourdes may visit with or spend time with John otherwise as Lori and Mark both agree.
j. Lourdes shall pay Mark and Lori their partial indemnity costs of this application fixed at $137,855.29 all inclusive;
k. Mark and Lori, as John’s attorneys for property, shall pay themselves the balance of their full indemnity costs, fixed at $90,890.65 all inclusive from John’s assets;
l. Ms. Gale’s fair and reasonable costs of this application are fixed at $85,000 all inclusive. Mark and Lori, as John’s attorneys for property, shall pay the difference between this amount and the amount already paid to Ms. Gale from John’s assets in satisfaction of para. 2 of Dietrich J.’s June 18, 2025 order. Ms. Gale shall reimburse Lourdes the $23,953.65 she received from Lourdes on behalf of John.
m. Lori and Mark shall cause to be paid to Lourdes from John’s assets the legal fees she paid to Aulis Law and disbursements she incurred on his behalf, in the amounts of $316.60 and $1,867 respectively.
n. Ms. Gale is hereby discharged as s. 3 counsel.
J.T. Akbarali J.
Date: February 26, 2026