In the recent decision of Francois v Francois[1], 2025 ONSC 589, the court was faced with an interesting dilemma surrounding an allegedly incapable moving party who sought to vary the appointment of her guardian under a guardianship application. The court dismissed this motion, on the basis that the moving party appeared before the court without a litigation guardian, and due to the courts doubt that the moving party was truly incapable.
To be found incapable of managing property, s.6 of the SDA[2] indicates that the court must find that an individual is unable to understand the relevant information required to make a decision, or to appreciate the reasonably foreseeable consequences of a decision or lack of decision.[3]
The moving party, and the allegedly incapable, Stephanie Dubuisson (“Ms. Dubuisson”), was deemed incapable of managing her property on March 22, 2012, by a court order. At this time, Ms. Dubuisson was married, and the court had appointed her spouse as her guardian. Unfortunately, Ms. Dubuisson and her spouse later divorced, and her spouse could not be reached or located, as he had moved to Haiti. On this basis, Ms. Dubuission sought to appoint Mr. Bailey as her substitute guardian under s.26 of the Substitute Decision Act (“SDA”).[4]
Rule 26 of the SDA provides the following on varying or substituting an appointment order:
26 (1) The court may vary an order appointing a guardian of property under section 22 or substitute another person as guardian, on motion in the proceeding in which the guardian was appointed. 1996, c. 2, s. 15.[5]
In this proceeding, the court was agreeable that Ms. Dubuisson had standing to substitute Mr. Bailey as her guardian under s. 26.[6] However, the court asserted that Ms. Dubuisson was unable to do so without a litigation guardian as she was deemed a person under disability as per s. 6 of the SDA.[7] Counsel for Ms. Dubuisson stated that under Rule 7.01 (1)-(2) of the Rules of Civil Procedure she may appoint Mr. Bailey as her alternate guardian. Such sections set out the following:
Party under Disability
7.01 (1) Unless the court orders or a statute provides otherwise, a proceeding shall be commenced, continued or defended on behalf of a party under disability by a litigation guardian. O. Reg. 69/95, s. 2.[8]
Substitute Decisions Act Applications
(2) Despite subrule (1), an application under the Substitute Decisions Act, 1992 to appoint a guardian of property or a guardian of the person may be commenced, continued and defended without the appointment of a litigation guardian for the respondent in respect of whom the application is made, unless the court orders otherwise. O. Reg. 69/95, s. 2; O. Reg. 281/16, s. 2.
The court found that Rule 7.01(2) was not applicable in Ms. Dubuisson’s circumstances, since this Rule is usually only applicable to “the prospective guardian” who is usually the applicant in such proceedings.[9] Often Rule 7.01(2) would allow the prospective guardian to continue through the litigation without having to appoint an additional guardian for the proceeding.
The court asserted that the Public guardian and Trustee (“PGT”) often assists in such matters, where they will act as the guardian for an individual under disability if they are unable to attain a guardian for a proceeding.[10] However, the PGT declined to assist Ms. Dubuisson in this matter because they deemed that she was entitled to bring the motion, and the PGT was satisfied that she remained incapable to make decisions relating to her property.
The second issue of this proceeding related to Ms. Dubuisson’s “capacity to ask the court to rule that she remains a person who lacks capacity”.[11] Ms. Dubuisson’s counsel asserted that he was comfortable taking instructions from “Ms. Dubuisson for the purpose of deciding who could be her guardian, as opposed to if she needed a guardian”.[12] The court was not in favour of this distinction, or “technicality” as described by the court, which was put forward by Ms. Dubuisson’s counsel because it insinuated that Ms. Dubuisson was capable to some degree, or at least to sign a power of attorney for property. The court asserted that If Ms. Dubuisson was capable of signing a power of attorney document, it would have defeated the entire purpose of the guardianship application before the court in this proceeding.
In response, Ms. Dubuisson’s counsel stated that it would be far too costly for Ms. Dubuisson to deliver a new power of attorney for property and initiate further proceedings to lift the guardianship order required to access her banking. Ms. Dubuisson’s counsel requested that the court overlook what he described as a “technicality”.[13]
The court found that this was not a mere technicality. The court was unable to hear from Ms. Dubuisson as she was represented by counsel, and even if so, the court would not have been able to utilise the information provided by Ms. Dubuisson herself, given she was deemed “incapable”. Moreover, the court was not equipped to conduct a capacity assessment of Ms. Dubuisson.[14]
Considering the foregoing, the court asserted that it was unclear as to whether Ms. Dubuisson was truly incapable of managing her property. In addition, Ms. Dubuisson’s counsel stated he was able to successfully take instructions from her.
The court concluded the endorsement by stating there were various other avenues that Ms. Dubuisson’s counsel could have proceeded in order to substitute her current guardian with another. This included “adding Mr. Bailey as applicant in substitution for Ms. Dubuisson’s former spouse”.[15] On this note, the court stated the following:
[21] Ms. Dubuisson’s counsel asks me to provide a route to a quicker and less expensive outcome for his vulnerable client. Deciding whether such a thing exists and, if so, how to accomplish it, I dare say, is his role.[16]
The court goes on to reflect on the gravity of ruling an individual as incapable of managing their property:
[2] The seriousness of depriving someone of their civil rights under such an order cannot be overstated. Courts are very careful to ensure that a person is truly in need of protection before someone else is put in charge of their property and ousts them from making the important financial decisions that affect their lives.[17]
This decision demonstrates the sensitivity of guardianship proceedings and the difficulty of litigating with incapable individuals.
—
[1] Francois v. Francois, 2025 ONSC 589 (‘’Francois’’)
[2] Substitute Decisions Act, 1992, S.O. 1992, c. 30 at s.6 (“SDA”)
[3] Ibid at para 1
[4] Ibid at para 3
[5] SDA at s.26
[6] Francois at para 6
[7] Ibid at para 8
[8] R.R.O. 1990, Reg. 194: RULES OF CIVIL PROCEDURE at s. 7.01 (1) – (2)
[9] Francois at para 8
[10] Ibid at para 9
[11] Ibid at para 13.
[12] Ibid at para 23
[13] Ibid at para 14
[14] Ibid at para 14
[15] Ibid at para 19
[16] Ibid at para 21
[17] Ibid at para 2
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Written by: Gabriella Banhara
Posted on: February 14, 2025
Categories: Commentary, Guardianship, WEL Newsletter
In the recent decision of Francois v Francois[1], 2025 ONSC 589, the court was faced with an interesting dilemma surrounding an allegedly incapable moving party who sought to vary the appointment of her guardian under a guardianship application. The court dismissed this motion, on the basis that the moving party appeared before the court without a litigation guardian, and due to the courts doubt that the moving party was truly incapable.
To be found incapable of managing property, s.6 of the SDA[2] indicates that the court must find that an individual is unable to understand the relevant information required to make a decision, or to appreciate the reasonably foreseeable consequences of a decision or lack of decision.[3]
The moving party, and the allegedly incapable, Stephanie Dubuisson (“Ms. Dubuisson”), was deemed incapable of managing her property on March 22, 2012, by a court order. At this time, Ms. Dubuisson was married, and the court had appointed her spouse as her guardian. Unfortunately, Ms. Dubuisson and her spouse later divorced, and her spouse could not be reached or located, as he had moved to Haiti. On this basis, Ms. Dubuission sought to appoint Mr. Bailey as her substitute guardian under s.26 of the Substitute Decision Act (“SDA”).[4]
Rule 26 of the SDA provides the following on varying or substituting an appointment order:
26 (1) The court may vary an order appointing a guardian of property under section 22 or substitute another person as guardian, on motion in the proceeding in which the guardian was appointed. 1996, c. 2, s. 15.[5]
In this proceeding, the court was agreeable that Ms. Dubuisson had standing to substitute Mr. Bailey as her guardian under s. 26.[6] However, the court asserted that Ms. Dubuisson was unable to do so without a litigation guardian as she was deemed a person under disability as per s. 6 of the SDA.[7] Counsel for Ms. Dubuisson stated that under Rule 7.01 (1)-(2) of the Rules of Civil Procedure she may appoint Mr. Bailey as her alternate guardian. Such sections set out the following:
Party under Disability
7.01 (1) Unless the court orders or a statute provides otherwise, a proceeding shall be commenced, continued or defended on behalf of a party under disability by a litigation guardian. O. Reg. 69/95, s. 2.[8]
Substitute Decisions Act Applications
(2) Despite subrule (1), an application under the Substitute Decisions Act, 1992 to appoint a guardian of property or a guardian of the person may be commenced, continued and defended without the appointment of a litigation guardian for the respondent in respect of whom the application is made, unless the court orders otherwise. O. Reg. 69/95, s. 2; O. Reg. 281/16, s. 2.
The court found that Rule 7.01(2) was not applicable in Ms. Dubuisson’s circumstances, since this Rule is usually only applicable to “the prospective guardian” who is usually the applicant in such proceedings.[9] Often Rule 7.01(2) would allow the prospective guardian to continue through the litigation without having to appoint an additional guardian for the proceeding.
The court asserted that the Public guardian and Trustee (“PGT”) often assists in such matters, where they will act as the guardian for an individual under disability if they are unable to attain a guardian for a proceeding.[10] However, the PGT declined to assist Ms. Dubuisson in this matter because they deemed that she was entitled to bring the motion, and the PGT was satisfied that she remained incapable to make decisions relating to her property.
The second issue of this proceeding related to Ms. Dubuisson’s “capacity to ask the court to rule that she remains a person who lacks capacity”.[11] Ms. Dubuisson’s counsel asserted that he was comfortable taking instructions from “Ms. Dubuisson for the purpose of deciding who could be her guardian, as opposed to if she needed a guardian”.[12] The court was not in favour of this distinction, or “technicality” as described by the court, which was put forward by Ms. Dubuisson’s counsel because it insinuated that Ms. Dubuisson was capable to some degree, or at least to sign a power of attorney for property. The court asserted that If Ms. Dubuisson was capable of signing a power of attorney document, it would have defeated the entire purpose of the guardianship application before the court in this proceeding.
In response, Ms. Dubuisson’s counsel stated that it would be far too costly for Ms. Dubuisson to deliver a new power of attorney for property and initiate further proceedings to lift the guardianship order required to access her banking. Ms. Dubuisson’s counsel requested that the court overlook what he described as a “technicality”.[13]
The court found that this was not a mere technicality. The court was unable to hear from Ms. Dubuisson as she was represented by counsel, and even if so, the court would not have been able to utilise the information provided by Ms. Dubuisson herself, given she was deemed “incapable”. Moreover, the court was not equipped to conduct a capacity assessment of Ms. Dubuisson.[14]
Considering the foregoing, the court asserted that it was unclear as to whether Ms. Dubuisson was truly incapable of managing her property. In addition, Ms. Dubuisson’s counsel stated he was able to successfully take instructions from her.
The court concluded the endorsement by stating there were various other avenues that Ms. Dubuisson’s counsel could have proceeded in order to substitute her current guardian with another. This included “adding Mr. Bailey as applicant in substitution for Ms. Dubuisson’s former spouse”.[15] On this note, the court stated the following:
[21] Ms. Dubuisson’s counsel asks me to provide a route to a quicker and less expensive outcome for his vulnerable client. Deciding whether such a thing exists and, if so, how to accomplish it, I dare say, is his role.[16]
The court goes on to reflect on the gravity of ruling an individual as incapable of managing their property:
[2] The seriousness of depriving someone of their civil rights under such an order cannot be overstated. Courts are very careful to ensure that a person is truly in need of protection before someone else is put in charge of their property and ousts them from making the important financial decisions that affect their lives.[17]
This decision demonstrates the sensitivity of guardianship proceedings and the difficulty of litigating with incapable individuals.
—
[1] Francois v. Francois, 2025 ONSC 589 (‘’Francois’’)
[2] Substitute Decisions Act, 1992, S.O. 1992, c. 30 at s.6 (“SDA”)
[3] Ibid at para 1
[4] Ibid at para 3
[5] SDA at s.26
[6] Francois at para 6
[7] Ibid at para 8
[8] R.R.O. 1990, Reg. 194: RULES OF CIVIL PROCEDURE at s. 7.01 (1) – (2)
[9] Francois at para 8
[10] Ibid at para 9
[11] Ibid at para 13.
[12] Ibid at para 23
[13] Ibid at para 14
[14] Ibid at para 14
[15] Ibid at para 19
[16] Ibid at para 21
[17] Ibid at para 2
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