When a person is acting as a guardian (of property or of the person) or an attorney (for personal care or for property), there are many duties that they must observe and comply with as set out in the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”). Acting in accordance with these duties is crucial to ensure that the decisions being made by the guardian or attorney are made in good faith and for the incapable person’s benefit.
Two of the many duties of a guardian or attorney are to (1) ensure that supportive family members and friends are able to keep in contact with the incapable person and (2) to consult with supportive family members and friends from time to time about the decisions that are being made. In the context of a guardian or attorney for property, section 32 of the SDA reads:
Family and friends
32 (4) The guardian shall seek to foster regular personal contact between the incapable person and supportive family members and friends of the incapable person.
Consultation
32 (5) The guardian shall consult from time to time with,
(a) supportive family members and friends of the incapable person who are in regular personal contact with the incapable person; and
(b) the persons from whom the incapable person receives personal care.
These same duties are also listed verbatim at sections 66(6) and 66(7) of the SDA in the context of a guardian of the person or attorney for personal care.
One of the key details to consider is that a guardian or attorney need only communicate with “supportive” family members and friends. The SDA does not define what it means to be supportive and gives no further guidance on how it might be interpreted. In this regard, Justice Nolan in Schleifer v. Schleifer, 2009 CanLII 63958 (ON SC) (“Schleifer”) stated that:
“Although ‘supportive’ is not defined in the Substitute Decisions Act, it is defined in the Concise Oxford Dictionary of Current English Eighth Edition as ‘providing support or encouragement.’ ‘Support’ has various meanings, including ‘give strength to,’ and ‘encourage.’”[1]
In Schleifer, the mother of the incapable person sought increased visitation or access rights to her son who became incapable at the age of 23 as the result of a tragic car crash, over 9 years before the hearing of the application. Justice Nolan found that the mother was not a “supportive family member” and dismissed the application. Justice Nolan explained in her reasoning that the bulk of the evidence put forward by the mother related to her being supportive at the time of the accident that incapacitated her son, but not in recent years. It was clear that the mother loved her incapable son very much, but those feelings of love did not translate into an acknowledgement that his needs and wishes as a now 32-year-old adult had changed and that he still had boundaries that she must respect:
“To be supportive, in my view, means a willingness to meet Jeffrey’s (incapable son) needs as they are today, not as they were at the time of the accident. Louise’s (mother) request that she be given a visit every year on the anniversary of Jeffrey’s accident is indicative of how she thinks of Jeffrey and her apparent need to focus on the tragedy of the accident rather than Jeffrey’s courage in making progress with the help and support of Louise immediately after the accident…”[2]
The mother kept referring to her 32-year-old son as a “child”, and seemed to be stuck in the past as she could not give any detailed evidence about her son’s progress or condition even though she was visiting him every two weeks. After a consideration of all of the evidence, Justice Nolan found that the mother’s focus was on herself and her own wishes and perceived rights, rather than on her incapable son and his needs.
In Groh v. Steele, 2017 ONSC 3625, a son argued that his mother’s attorney’s for property had an obligation to consult with him under s.32(5)(a) of the SDA as, in his submission, he was a supportive family member. Justice Lemay found that since the son was not in regular contact with his mother in the six months prior to the attorney’s for property being appointed and since the son had been engaged in litigation with his mother and her attorney’s for property for over a year, this did not qualify as him being supportive towards his mother in any way.
The scope of what it means to be “supportive” in terms of the behaviour or actions of a family member or friend of an incapable person is not clearly defined by the SDA or by the limited case law on this issue. Whether a family member or friend will be deemed as “supportive” seems to be determined on a case-by-case basis after a consideration of the evidence in the specific circumstances of the case, and whether the inclusion of that person in the group of “supportive family members or friends” is truly in the best interests of the incapable person.
[1] Schleifer v. Schleifer, 2009 CanLII 63958 (ON SC) at para 109.
[2] Schleifer v. Schleifer, 2009 CanLII 63958 (ON SC) at para 115.
