Harvey v. The Public Guardian and Trustee, 2026 ONSC 237

Court File and Parties

COURT FILE NO.: CV-21-00672692-00ES DATE: 2026-01-13 SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER OF THE GUARDIANSHIP OF JERMALL HARVEY

RE: Jermall Harvey, Moving Party AND: The Public Guardian and Trustee and Concentra Trust, Respondents

BEFORE: C. Gilmore, J.

COUNSEL: Ocean Enbar, Counsel for the Moving Party Philippa Goddard, Counsel for the Non-Party Leigh-Ann Harvey Mr. Stewart Jarvis appeared on behalf of the Guardian of Property, Concentra Trust, but made no submissions.

HEARD: January 5, 2026

ENDORSEMENT on motion

INTRODUCTION

1Jermall Harvey (“Jermall”) moves pursuant to s. 28 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“the SDA”), to terminate his court appointed guardianship of property and for a declaration that he is capable of managing his own property. His mother, Leigh-Ann Harvey (“Leigh-Ann”), opposes the motion. She is a party who was required to be served with this Application under the SDA but who is not formally a party to this motion. However, she is concerned that Jermall’s history demonstrates that he still suffers from the effects of a brain injury and is both financially vulnerable and impulsive.

2For the reasons set out below, the guardianship shall remain in place pending court-ordered steps to be taken by Jermall in order to satisfy the court and his mother that their concerns have been appropriately addressed. If the concerns are adequately addressed on the return, a judge may determine that the guardianship should be terminated.

BACKGROUND

3Jermall is 35 years old and lives on his own in an apartment. He is unmarried and has no children or siblings. He has had no contact with his father since 2014 and was raised by his mother alone. Service of this motion on Jermall’s father has been previously dispensed with.

4The guardianship came as a result of Jermall suffering serious injuries from an assault which led to a proceeding for civil damages. The matter was settled for total damages of $477,607.20 and on the condition that Leigh-Ann act as Jermall’s Guardian of Property. The settlement was approved on October 25, 2021. Justice Akbarali found that Jermall had suffered severe injuries and permanent brain damage due to the assault. His deficits included problems with judgment, planning, behavioural initiation and execution.

5Jermall was in third year university when the assault occurred. He did not return to school due to what he described as chronic pain. He regrets that his injuries have not permitted him to pursue his goals. His symptoms have subsided significantly, but he still sees specialists regularly.

6On July 13, 2022, Akbarali J. issued a judgment in which she ordered that Jermall was incapable of managing his property and that Leigh-Ann was appointed as his Guardian of Property. Jermall did not oppose the judgment. Justice Akbarali relied on a capacity assessment prepared by Rena Postoff, which found Jermall incapable of managing property. Ms. Postoff concluded that Jermall was unable to do simple math, identify important information in an invoice, provide the location of his bank or his source of income and could not provide information related to his bank accounts.

7Leigh-Ann and her son experienced conflicts and tension in relation to the guardianship. In essence, Jermall wanted more money than Leigh-Ann was prepared to give him after Jermall was the victim of several financial scams including bitcoin scams.

8Matters came to the point where Leigh-Ann brought a motion in August 2024, seeking to be removed as Jermall’s Guardian of Property. In order to ensure that there was no gap in the guardianship, Leigh-Ann requested that Concentra Trust (“Concentra”) be appointed to replace her. Concentra consented to the appointment. As such, Concentra has been Jermall’s Guardian of Property since August 6, 2024. At the August 2024 motion, Jermall made it clear that he intended to bring a motion to remove Concentra as Guardian of Property as he could manage his own property, but he needed more time to obtain evidence of capacity. He sought an adjournment of the August 6, 2024 motion which was denied.

9While Leigh-Ann submits that she loves her son dearly, she has grave concerns based on her interactions with Jermall when she was his Guardian of Property that he does not possess the requisite capacity to manage his property. According to Leigh-Ann, terminating the guardianship will leave Jermall vulnerable to financial exploitation and abuse by third parties.

10In January 2025 Jermall brought his motion to terminate the Guardianship before Dietrich J. He relied on an assessment prepared by Capacity Assessor Ismail Shaikh. The motion did not proceed as Dietrich J. found Mr. Shaikh’s report to be deficient. Specifically, Dietrich J. requested medical information in relation to Jermall’s cognitive functioning plus collateral verification of information provided by Jermall through third party interviews. Justice Dietrich adjourned the motion to April 29, 2025 to permit Jermall to obtain the additional information. Due to the time required to obtain the new reports, the motion was further adjourned to October 22, 2025 and then January 2026.

THE ADDITIONAL REPORT AND ASSESSMENT

11Given Dietrich J.’s concerns, Jermall filed a Supplementary Motion Record which contained the April 20, 2025 cognitive assessment report of Dr. Mitra Gholamain and a further capacity assessment prepared by designated capacity assessor, Mohammed AlMudallal, dated August 21, 2025.

12Dr. Gholamain is a clinical psychologist who interviewed Jermall twice and conducted standard testing. Her report is not intended to be a cognitive assessment, rather, it addresses the issue raised by Dietrich J. in January 2025 regarding questions about Jermall’s cognitive functioning.

13During his interviews with Dr. Gholamain, Jermall advised that he does his own grocery shopping, prepares meals and cleans his apartment on his own. His motorcycle is his main mode of transportation. Jermall told Dr. Gholamain that he is able to manage his chequing and savings accounts and pays his bills online.

14Dr. Gholamain observed that Jermall was alert and focused during the interviews. Although he was somewhat emotionally flat, he was mentally agile and understood the tasks when explained. Jermall was oriented to time and space and showed no evidence of experiencing delusions.

15Based on the various tests administered to Jermall by Dr. Gholamain, his results can be summarized as follows:

a. His overall intellectual ability is high to average.

b. Verbal comprehension skills are average.

c. Above average perpetual reasoning skills.

d. His working memory skills are in the high average range.

e. His verbal memory skills are in the low average range. He needs time to process verbal information at his pace.

f. Average attention and concentration skills.

g. Average adaptive behaviour functioning with average daily living skills, average communication skills with lower to average socialization skills. These skills were assessed based on Jermall’s self-reporting.

16Dr. Gholamain reviewed Ms. Postoff’s assessment from 2021. Her opinion was that Ms.Postoff did not provide sufficient objective evidence to support her conclusion that Jermall displayed signs of "cognitive deficit, lack of insight, poor attention skills, impaired problem-solving skills, impaired executive functions, and poor judgment." The assessment was conducted in a shopping mall when Jermall was still suffering from symptoms of PTSD after the assault.

17Dr. Gholamain added that in her opinion, Jermall did not suffer from a cognitive deficit and has no issues with concentration or executive functioning. She attributed Jermall’s unwillingness to answer Ms. Postoff’s questions to performance anxiety or a lack of understanding as to the purpose of the assessment process.

18Dr. Gholamain concluded that Jermall has no developmental delay or cognitive deficit. Most of his skills tested in the average range which would mean that he could perform basic functions such as bill payments, learning new concepts and managing personal and professional meetings.

19Mr. Mohammad AlMudallal is an Occupational Therapist and Designated Ontario Capacity Assessor. He conducted a capacity assessment on Jermall in August 2025. Mr. AlMudallal reviewed the October 2024 assessment completed by Mr. Shaikh and the endorsement of Dietrich J. dated January 9, 2025. He contacted Jermall’s counsel to verify certain information and obtained a copy of Jermall’s investment portfolio summary directly from Jermall. He also reviewed Dr. Gholamain’s report.

20The assessor contacted Mr. Stuart Jarvis from Concentra Trust by phone to discuss Jermall’s financial decisions, spending habits and overall financial management since Concentra became Guardian of Property in 2024. Mr. Jarvis reported that Jermall can pay his rent and bills on time and that he was not aware of any overspending. Further, he was not aware of any circumstance in which Jermall lacked funds to provide for his own basic needs.

21Mr. Jarvis was asked how he thought Jermall would manage a large sum of money on his own. Mr. Jarvis expressed a concern about impulsive spending. He used the example of Jermall wanting money to buy a dog which Mr. Jarvis did not think was reasonable. He suggested that Jermall sell one of his two motorcycles if he wanted a dog.

22The assessor also contacted Leigh-Ann by phone. She reported that Jermall was vulnerable to online and cryptocurrency scams. She recalled an instance where Jermall asked her for money to buy a $200,000 car. She also recalled that Jermall became very upset with her when she would not give him $10,000 for what she believed was another crypto scam. This type of tension between her and her son led to her request to be removed as his Guardian of Property. Leigh-Ann added that she was not aware of Jermall being involved in any financial scams over the last year.

23Jermall was interviewed in his apartment by Mr. AlMudallal and appeared relaxed and confident. He told the assessor that he understood the purpose of the assessment. The assessor reported that Jermall was able to tell him the balance in his bank accounts, what accounts he had, a definition of the difference between a chequing, savings and investment bank account, the difference between income and expenses, the balance on his credit card, how to read a credit card statement and determine when the next payment was due and how much he owed on his personal loan. Jermall had a good understanding of his personal expenses including rent, utilities, home and auto insurance, food, personal care and entertainment. He showed an investment statement to the assessor and was able to explain the balance and changes in his investments. Jermall was able to provide a definition of a monthly budget and produce a basic budget with his monthly income and expenses. He advised the assessor that he was confident he could manage his own money because he had been doing it his entire life.

24The assessor asked Jermall about what would happen if he could not pay his expenses or his credit card debt or buy food. Jermall advised that he would use a proactive approach to ensure that never happened, but if it did, he would perhaps sell his motorcycle, reach out to community programs, access a food bank or take out a line of credit. The assessor was satisfied that Jermall understood the risks and benefits of certain financial decisions and how to prioritize them, the consequences of making financial decisions, and the information needed to make such decisions. Mr. AlMudallal concluded that Jermall was capable of managing his own property.

LEIGH-ANN HARVEY’S CONCERNS

25Leigh-Ann remains concerned about Jermall’s impulsivity and vulnerability to financial scams. During the period from July 2022 to August 2024, when she was Jermall’s Guardian of Property, Jermall made several concerning financial requests to her which are set out below:

a. to pay thousands of dollars to an "employer", in order to "collect his pay";

b. to purchase cryptocurrency from a scam artist; and,

c. to purchase luxury vehicles, which Jermall did not have the means to afford.

26Leigh-Ann would often provide funds to Jermall for necessities such as groceries, only to discover the money had disappeared because Jermall fell victim to fraudulent schemes and scams. Jermall showed no insight into these issues but reacted negatively when Leigh-Ann refused to advance funds on demand.

27Since her removal as Guardian of Property in August 2024, Leigh-Ann helped Jermall pay his rent in July and August 2025 because he spent the funds given to him by Concentra for that purpose.

28Jermall has produced the Dr. Gholamain report and the Almudallal assessment but has provided no medical reports. Jermall remains under the care of specialists and was found to suffer from permanent brain damage in 2022.

29Dr. Gholamain is not a designated capacity assessor. There is no evidence that she has the expertise to critique the Postoff assessment. Her findings are based on Jermall’s self-reporting which is inaccurate. For example, Jermall told Dr. Gholamain that he manages his own bank accounts. Jermall has not managed his own accounts since a guardian was appointed for him in 2022. Jermall’s report to Dr. Gholamain that he had not experienced any difficult budgeting was also untrue given his inability to meet his rent in July and August 2025.

30The AlMudallal assessment does not consider Jermall’s current or past medical history. The assessor accepted Jermall’s statements that he speaks with his investment advisors to discuss his finances. This is simply untrue. Concentra manages his investments.

31Jermall denied that anyone had concerns about his spending or giving away large sums of money. This is also untrue based on Leigh-Ann’s personal experiences with Jermall’s susceptibility to financial scams.

32Jermall questioned the medical evidence of his brain injury, claiming he was doing fine. This has never been verified by his doctors.

33Jermall claimed he had a few thousand dollars in student debt. Leigh-Ann is not aware of Jermall ever having any student debt. He also told the assessor he has a loan for which he makes monthly payments. Neither Leigh-Ann nor Concentra was aware of this loan.

34Jermall told the assessor he has an interest in stocks, trading and crypto coin but failed to tell the assessor that he had been a victim of multiple financial scams.

35Leigh-Ann was concerned about Jermall’s statement that he could take out a line of credit if he could not meet his expenses. It is highly unlikely Jermall would qualify for a line of credit.

36Leigh-Ann remains concerned that Jermall will continue to be vulnerable to fraud, scams and impulsive spending which would leave him unable to meet his basic expenses.

ANALYSIS AND RULING

37The sole issue to be determined on this motion is whether Concentra Trust should continue as Jermall’s Guardian of Property or whether Jermall is now able to manage his own property.

38Section 6 of the SDA sets out that a person is incapable of managing their property if “they are not able to understand information that is relevant to making a decision in the management of their property, or is not able to appreciated the reasonably foreseeable consequences of a decision or lack of decision.”

39One of the fundamental purposes of the SDA is to protect vulnerable people while at the same time ensuring their dignity and privacy. In Park v. Park, 2010 ONSC 2627, Mrs. Park denied that she was incapable and was insulted by the suggestion that her husband should act as her Guardian.

40In that case, the court grappled with the request that Mrs. Park undergo an assessment against her will. At para. 49, the court cited Calvert (Litigation Guardian of) v. Calvert, 1997 12096 (ON CTGD), 32 O.R. (3d) 281, in which the court referred to the fact that different aspects of daily living require different degrees of capacity and that a person may be capable of making a basic decision but not capable of making a complex decision: at pp. 293-94. As well, in Calvert, the court held that “[t]here is a distinction between the decisions a person makes regarding personal matters such as where or with whom to live and decisions regarding financial matters. Financial matters require a higher level of understanding”: at p. 294.

41In the case at bar, it is particularly important to differentiate between the “understanding” requirement for capacity and the “appreciation” aspect. That is, a person may understand what is in their bank account and what their monthly expenses are but is unable to appreciate the more complex aspect of the financial consequences of buying an expensive car or going on a luxury vacation.

42In Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, the Supreme Court of Canada dealt with the meaning of “appreciation” in the context of assessing capacity. While that case dealt with accepting or declining medical treatment, the factors at para. 18 are still relevant. In Starson, the court set out three indicators as to how a person can appreciate the consequence of their decisions: 1) how the decision will affect him/her; 2) how the decision and any alternatives could affect their quality of life; and 3) whether the decision is based on a delusional belief.

43There is no evidence that Jermall is delusional. However, there are concerns about Jermall’s ability to recognize how financial decisions may affect him in the long and short term and affect his quality of life.

44The Gholamain report focuses on clinical testing results and does not purport to be a capacity assessment. While it is helpful to understand how Jermall ranks in terms of his various cognitive abilities, this is of little assistance with respect to the required test for capacity. It is of even less assistance without the context of his past and current medical diagnosis. That is, are his specialists taking the view that Jermall’s cognitive abilities will decline over time as a result of his brain injury? What caution must be exercised in terms of self-reporting from an individual with a brain injury? What effect does the injury have on the various tests Jermall underwent during his meetings with Dr. Gholamain? These questions and more with respect to Jermall’s medical condition remain unanswered.

45I appreciate that counsel for Jermall wanted to address the issues raised in Dietrich J.’s January 9, 2025 endorsement and the Gholamain report was undertaken for that purpose. However, I do not consider the report to be sufficiently relevant to Jermall’s ability to manage property such that it can be of significant assistance.

46As for the AlMudallal assessment, the court is entitled to objectively scrutinize such reports when determining their weight. In Duffy v. McDaniel, 2025 ONSC 2899, the court dealt with a motion for the removal of a Litigation Guardian. In that case, the moving party took the position that he did not need a Litigation Guardian and could personally manage the settlement of his personal injury action after receiving independent legal advice on the settlement terms. The court found that a capacity assessment finding that the moving party was capable of managing his property was incomplete and lacked relevant information and documents: at para. 55. The motion to remove the PGT as the moving party’s Litigation Guardian was dismissed.

47The AlMudallal assessment attempts to address some of the deficiencies in the Shaikh report raised by Dietrich J. in January 2025. Interviews were conducted with both Leigh-Ann and Mr. Jarvis. Both raised serious issues about Jermall’s ability to deal with large sums of money, his impulsivity and his susceptibility to scams and fraud. These concerns were effectively ignored by the assessor. He repeated the concerns in his report but they did not appear to factor into his conclusions.

48The assessor also reviewed the Dr. Gholamain report but simply repeated her findings. I do not criticize the assessor for this. As I have found above, the Gholamain report does not address the tests required for capacity to manage property.

49The assessor was not provided with any independent medical evidence of Jermall’s brain injury and the effects of that injury on his ability to manage property. This is a serious flaw in terms of assessing Jermall’s capacity when the entire reason for the guardianship was his brain injury.

50I agree with Leigh-Ann that some of the statements made by Jermall to the assessor are inconsistent with the period during which his mother was his Guardian of Property and more recent history (such as Leigh-Ann having to help him with his rent in July and August 2025 because he overspent). I reiterate some of Leigh-Ann’s concerns, which are shared by the court:

a. Jermall reported to the assessor that he has always managed his day-to-day banking. This is not true.

b. His information to the assessor implied that he was managing his own investments. This is also not true.

c. He denied that anyone had expressed concerns about him giving away money needlessly when he had previously fallen victim to cryptocurrency and other financial scams.

d. He claimed to have student debt which Leigh-Ann stated was entirely untrue.

e. He appears to have incurred a cash loan with monthly payments. This information was new to Leigh-Ann and Concentra. There was no need for Jermall to borrow money when his expenses are paid by Concentra.

f. He claims he could take out a line of credit to cover his expenses if needed. It is highly unlikely that Jermall would qualify for a line of credit.

51Finally, the court is concerned that once the Concentra funds are gone (and they appear to have been diminished to just over $200,000), Jermall has no financial plan. He has no interest in returning to school. His previous jobs were short term. If the Concentra funds were exhausted, it appears that Jermall would be reduced to surviving on social assistance or ODSP, neither of which may be sufficient to cover his current expenses. Jermall speculates on making investments as a source of income but there is no evidence that Jermall has the expertise or experience to gain any significant income that way. Rather, the evidence from Leigh-Ann is that Jermall has in fact made very negative choices with respect to investing.

52In the end, the court shares Leigh-Ann’s concerns about whether Jermall can manage his own property. That is, while Jermall may understand what bank accounts he has, how much is in them and what his ongoing expenses are, he is (currently at least) not able to appreciate the consequences of his financial decisions.

53However, the matter should not end there. Jermall has made significant efforts to provide to this court evidence of his capacity. The court wants to respect Jermall’s efforts and personal dignity, and as such, he must be given a chance to prove to his mother and to the court that their concerns can be entirely addressed.

54Given all of the above, I make the following orders:

a. The Guardianship of Property shall continue.

b. Jermall shall be forthwith provided with the sum of $15,000 (“the funds”) from Concentra Trust.

c. Jermall is to return to court within no fewer than six months for a scheduled motion. Jermall is to provide a further supplementary affidavit with an accounting as to what has happened to the funds. For example, if the funds were invested, then monthly statements showing the value of the investment should be provided. If the funds were spent, an accounting of where they were spent with receipts/vouchers verifying the expenditures should be provided. Leigh-Ann may provide a further responding affidavit if she chooses to do so.

d. Other than the $15,000 payment, Concentra shall continue to make payments to Jermall for expenses as it has done since its appointment as Guardian of Property.

e. Jermall shall obtain a report from his neurologist (or other leading specialist) with respect to his progress since 2022 including any further prognoses. The report shall be included in Jermall’s supplementary affidavit.

f. The judge presiding over the motion on the return may determine, based on the additional evidence and any other relevant evidence, that Jermall is/is not able to manage his own property.

C. Gilmore, J.