December 6, 2013

In a recent Ontario case, divorced parents each sought sole guardianship of their mentally incapable adult daughter.

The parents, who divorced in the 1980s, were unable to work together as joint guardians of their 42 years old mentally incapable daughter (“Isabella”). While both parents, who are now in their 70s, agreed that it would be ideal for Isabella to reside in a group home for mentally challenged adults, they could not find a placement for her.

Unable to work together, each parent brought an application seeking to be appointed the guardian of person and property for Isabella. Her father sought to be appointed her sole guardian of property and personal care. Isabella’s mother sought to be appointed her sole guardian of personal care and property under the supervision of the Public Guardian and Trustee. The Public Guardian and Trustee sought the termination of their interim appointment and were unwilling to be appointed Isabella’s guardian on a permanent basis.

The court first looked at the relevant provisions in the Substitute Decisions Act and found that Isabella was unable to manage property and unable to make personal care decisions.

Noting that Isabella’s parents had not been able to cooperate with each other for decades and any joint guardianship plan would fail, the court considered which parent would be the better guardian of property and personal care. Isabella spent almost equal time with both parents and the court examined her daily activities with each parent. The court looked at her diet, exercise regime, parents’ encouragement of her independence, and parents’ accessing community services for Isabella’s benefit.

Isabella’s father believed that her life skills had declined significantly due to lack of stimulation and community support for Isabella when she lived with her mother. Evidence from Isabella’s doctors and social workers confirm a decline in Isabella’s development.

While both parents provided a loving home to Isabella, the court found that Isabella’s father was more oriented towards providing stimulus and training to Isabella. For example, Isabella attended school when she lived with her father but had irregular attendance when she resided with her mother. Isabella’s father became her sole guardian of property and personal care.

It is not an ideal situation for parents in their 70s to be the primary caregivers to mentally incapable adults who require a high level of care and stimulation. In this family’s case, Isabella had been on a waiting list since 2008 for a placement in a group home. The court noted that due to inadequate funding, the time wait for community support is 5 to 15 years and there are currently 19,000 people in Ontario waiting for group home accommodation.

Thanks for reading.