Gustafson v. Gustafson, 2026 ONSC 2476

COURT FILE NO.: CV-26-009-00

DATE: 2026-04-27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dawn Gustafson also known as Dawn Marie Gustafson and Janet Gustafson, Applicant

Rudolph Joseph Gustafson also known as Rudy Gustafson and Grant Gustafson, in his personal capacity and also in his capacity as power of attorney for person and property of Rudolph Joseph Gustafson, Respondents

HEARD: April 23, 2026

BEFORE: Wojciechowski J.

COUNSEL: E. Mendelsohn, for Dawn Gustafson also known as Dawn Marie Gustafson &

G. Verdicchio, for Janet Gustafson, Applicants

Self-Represented, Respondents

E N D O R S E M E N T

1This urgent motion which was partially heard on Thursday, April 16, 2026, was continued with respect to remaining outstanding issues on Thursday, April 23, 2026. E. Mendelsohn appearing on behalf of the applicant, Dawn Gustafson also known as Dawn Marie Gustafson (“Dawn”). G. Verdicchio appearing on behalf of the applicant, Janet Gustafson (“Janet”). The respondents, Rudolph Joseph Gustafson, also known as Rudy Gustafson (“Rudy”), and Grant Gustafson, in his personal capacity and also in the capacity as power of attorney for person and property of Rudolph Joseph Gustafson(“Grant”) (collectively “the Respondents”), appearing in person via Zoom without legal representation. The applicants also appearing in person via Zoom.

2The urgent motion originally brought Dawn and Janet (collectively, “the Applicants”), sought their appointment as interim co-guardians for the property and personal care of Rudy, and the appointment of section 3 counsel to represent Rudy in an application which has been commenced.

3On Thursday, April 16, 2026 the motion was argued which resulted in my endorsement of April 17, 2026 which did not deem the nature of the relief which was sought to be urgent, and should instead be addressed within the context of the broader application issued by the Applicants. In addition, based upon submissions of the Applicants, and with the consent of Grant, the PGT was directed to appoint section 3 counsel to represent Rudy’s interests in this litigation.

4I directed the parties to return to motions court in order to address a number of issues which were identified in my endorsement, and to receive the submissions of the parties as to any other relief which they sought to be granted.

5One of the issues which I asked Grant to address in my endorsement of April 17, 2026 involved the duties he owed to Rudy and the Applicants pursuant to section 32 of the Substitute Decisions Act, 1992. My endorsement asked that he file affidavit evidence in order to address the following:

i. Confirmation is required that Grant will exercise his duties diligently, with honesty and integrity and in good faith for Rudy’s benefit.

ii. What is Grant’s plan to provide personal care to Rudy as required, including ongoing and regular medical care to ensure any health care issues are addressed, including the recent episode of blood clots?

iii. Has Grant explained to Rudy what Grant’s duty and powers are, and how will he involve Rudy in decisions which Grant will be making about Rudy’s property?

iv. What is Grant’s plan to seek and foster regular personal contact between Rudy and Janet and Dawn and Joan?

v. How will Grant consult with Janet and Dawn and Joan regarding decisions made and care provided to Rudy?

vi. How will Grant keep Janet and Dawn and Joan updated with respect to the status of Rudy’s health and general well being, including any changes in his physical or mental health status?

vii. Will Grant keep accounts of all transactions involving the property of Rudy, and if so, provide details of exactly how this accounting will be undertaken and maintained?

6Grant did not file an affidavit as requested, indicating that while he was close to retaining counsel, he had not yet done so. He did advise that he had pulled information together, and was prepared to address the issues which were raised, and after confirming he was agreeable to doing so, he was affirmed on the record and then responded to my questions on each of the above noted issues.

7While his answers are on the record and speak for themselves, to briefly summarize he confirmed that he understood the duty to act in Rudy’s best interests. In terms of medical care, he agreed to ensure that Rudy would receive that care as required. With respect to decisions made on behalf of Rudy, Grant indicated that he discussed these with Rudy before making any. On the topic of including the Applicants with decisions relating to Rudy, and fostering personal contact, Grant indicated that it was Rudy’s decision to not see the Applicants. But to the extent that serious medical issues arose, Grant would make sure that the Applicants were advised of the same. Finally, with respect to maintaining an accounting of transactions involving Rudy’s property, Grant stated that he will keep receipts of any expenditures made on Rudy’s behalf which, at the end of the day, will corelate to the transactions shown on Rudy’s bank statements.

8It was noted during discussion that while section 3 counsel has been appointed for Rudy, no one has been retained as of April 23, 2026. It has only been a week, after all. Grant has also not retained counsel, but indicated that he was speaking to a couple of law firms in the Fort Frances and Thunder Bay areas, and felt he was close to hiring a lawyer to represent him in this matter.

9I note that a previous endorsement of Brochu J. dated February 19, 2026 required the Respondents to file responding materials on or before April 24, 2026. Obviously, without Grant having secured a lawyer this deadline will not be met. As such, after confirming that Grant has had since early February 2026 to secure legal representation, and impressing upon Grant the need to respond to the litigation which has been commenced by the Applicants, he stated that he was 95% certain he would be in a position to file his responding application materials on or before June 1, 2026.

10Accordingly, the previous endorsement of Brochu J. shall be amended to reflect that Grant shall file responding application materials on or before June 1, 2026.

11It remains to be seen, pending the appointment of section 3 counsel, whether Rudy will be filing any responding materials.

12Following submissions from Ms. Verdicchio on behalf of Janet, without any contrary submissions from Ms. Mendelsohn, and upon hearing from Grant, some relief sought was agreed upon as follows:

a. As per the endorsement of April 17, 2026, an order shall issue that the PGT shall arrange for legal representation to be provided to Rudy pursuant to section 3 of the Substitute Decisions Act, 1992, and Rudy is deemed to have capacity to retain and instruct counsel.

b. Rudy’s reasonable legal fees and disbursements shall be paid from his property. The initial retainer for section for section 3 counsel, up to $5,000, will be paid personally by the Applicants, without prejudice to the Applicants seeking the recovery of that initial retainer from Rudy’s property.

c. Section 3 counsel arranged by the PGT to act as the legal representative for Rudy, shall be entitled to the production and delivery of copies of any and all documents filed in this proceeding.

d. In addition, section 3 counsel will have unfettered and unsupervised access to Rudy by telephone, virtually, and/or in person as required.

e. On consent, Grant shall provide a copy of the discharge documents from LaVerendrye General Hospital which are in Grant’s possession with respect to Rudy’s last admission which arose from the blood clots which developed in Rudy’s leg(s) by sending the same via regular mail to Ms. Verdicchio.

f. On consent, Grant shall provide the Applicants with copies of Rudy’s powers of attorney for personal care and property by sending same via regular mail to counsel for the Applicants.

g. Grant shall advise the Applicants immediately if Rudy requires medical attention, or if there is a material change in Rudy’s physical or mental health, including if Rudy is hospitalized for any reason.

h. On the basis that the Respondents file their responding materials on or before June 1, 2026, the Applicants shall have until June 15, 2026 in order to serve and file their reply materials, if any.

13There was also additional relief which the Applicants sought.

14First, they requested that any meeting between section 3 counsel and Rudy occur outside of Grant’s residence – where Rudy is currently living – and at 713 Nelson Street, Fort Frances, where Rudy previously resided with his spouse. The Applicants were concerned that Rudy’s relationship with section 3 counsel would be impacted, influenced or subject to interference by Grant if Rudy’s interactions with section 3 counsel occurred at Grant’s residence.

15I declined to make any such order at this time on the basis that if section 3 counsel encountered any interference in his or her solicitor client relationship with Rudy, to the extent that this results from Grant’s actions or other reasons, then section 3 counsel can seek directions from me at the appropriate time.

16There were also a series of orders proposed in a draft order submitted by the Applicants and uploaded to Case Center at pages A446 to A452, which provided that Rudy would submit himself to a designated capacity assessor of the Applicants’ choosing. The assessment which was sought was with respect to Rudy’s ability to manage his property and his personal care. Ms. Verdicchio submitted that this capacity assessment should be ordered as soon as possible in order to ensure that there was no delay in the hearing of the application which is scheduled for August 18, 2026.

17When asked whether this decision should wait for the appointment of section 3 counsel, Ms. Verdicchio again insisted that time was of the essence, and to wait another week or two for section 3 counsel to arrive on the scene was not necessary given the inevitability of this relief, i.e., a court ordered capacity assessment, being granted.

18While it is acknowledged that the heart of this matter involves a determination of Rudy’s capacity, and even Grant acknowledged that it would likely be useful to have this assessment, I am not prepared to make orders impacting Rudy and his rights in the absence of having an opportunity to receive Rudy’s position.

19The necessity of appointing section 3 counsel was vigorously argued at the initial stage of this motion on April 16, 2026, to which Grant ultimately agreed, in order to ensure that Rudy’s best interests, views and preferences, were front and center in this litigation. I granted that order, and in doing so recognized the need for Rudy to have legal counsel available to provide him with advice as to his position in this litigation which has been commenced by his family.

20It is therefore not in Rudy’s interests to ignore the basis for appointing section 3 counsel by now making orders impacting those interests without Rudy having had an opportunity to instruct counsel and provide his position to the court. While I recognize the utility in making a capacity assessment order as soon as possible, that utility cannot trump Rudy’s interests which will soon be canvassed by section 3 counsel and be able to be shared with the parties and the court.

21Any order for a capacity assessment will only be made once section 3 counsel is able to participate in a motion seeking that relief.

22Other relief sought by the Applicants will also not be granted until section 3 counsel has an opportunity to weigh in and make submissions on behalf of Rudy. This includes the orders sought which involve providing the Applicants with “unfettered and unsupervised access to Rudy” for the purposes of administering his medication which I already ruled was not an issue based upon the evidence I heard on April 16, 2026 directly from Rudy. The Applicants also seek an order allowing the Applicants unrestricted access to Rudy’s health care providers, and records at La Verendrye Hospital.

23Grant submitted under oath that Rudy has told Grant that Rudy does not want to see the Applicants. This was more or less the same sentiment expressed by Rudy during the April 16, 2026 hearing. While I understand the desire of the Applicants to reconnect with Rudy, and that Rudy’s new residence away from the Applicants and his spouse is understandably upsetting, there is no reason to force Rudy to do anything he does not want to do, nor to force Rudy to hand over personal and private information regarding his health care and medical status contrary to his wishes. Grant’s evidence on what Rudy wants and does not want is on the record. If the Applicants’ position on Grant’s alleged undue influence on Rudy is supported by section 3 counsel, then there will be remedies available at that time to address that situation. But to decide Rudy needs a lawyer, but before that lawyer has a chance to fill that need, order Rudy to do the very things that the Applicants and Grant are in a dispute over as to whether these steps need to be taken, flies completely in the face of the section 3 counsel decision made on April 17, 2026.

24Aside from what was agreed upon by the parties and reflected in this endorsement, I am not prepared to make any orders which impacts the rights of Rudy without Rudy’s lawyer making representations on his behalf.

25And more to the point, once Rudy’s lawyer is appointed, and that lawyer has instructions, it may be that the Applicants and the Respondents in this matter will find themselves on the same page and not require further interim orders to move this matter along.

26As was the case with the appearance of April 16, 2026, the costs of this appearance are reserved and shall be determined by the judge determining the merits of the application of the Applicants.

DATE: April 27, 2026 The Hon. Mr. Justice S. J. Wojciechowski