



COURT OF APPEAL FOR ONTARIO

CITATION: Public Guardian and Trustee v. Gaumont, 2018 ONCA
    731

DATE: 20180907

DOCKET: C64463

Sharpe, van Rensburg and Brown JJ.A.

IN THE MATTER of the
Substitute Decisions Act, 1992
,
    S.O. 1992, Chapter 30, as amended, section 22;

AND IN THE MATTER of the property of personal care of MONICA
    GAUMONT;

BETWEEN

The Public Guardian and
    Trustee

Applicant (Respondent)

and

Monica Gaumont and
Catherine M. Gaumont

Respondents (
Appellant
)

R. Michael Rodé, for the appellant

Jael Marques de Souza, for the respondent

Heard: September 5, 2018

On appeal from the judgment
    of Justice M. Charbonneau of the Superior Court of Justice, dated September 21,
    2017.

REASONS FOR DECISION

[1]

The appellant appeals a judgment appointing the Public Guardian and
    Trustee (the PGT) as guardian of the property and personal care of her
    daughter, Monica, pursuant to the
Substitute Decisions Act, 1992
, S.O.
    1992, c. 30. Monica, who is now 30 years old, has a form of epilepsy that leads
    to seizures. As her seizure disorder progressed, her cognitive development has
    regressed. Since 2014, Monica has lived in a home operated by Ongwanada
    Community Resource Centre, which provides support for persons with
    developmental disabilities.  Before then, Monica lived with her mother.

[2]

The application judge refused a request for an adjournment.  Proceeding
    on the basis of the PGTs evidence, he concluded that Monica lacked capacity
    and the circumstances were such that she needed a guardian. He accepted the
    PGTs evidence about the difficulties that arose when Monica was visiting her
    mother.  He concluded that the appellants claim that, with more time and by
    providing updated information she could show she was a proper guardian, had
    very little chance of success.  He noted that Monica was vulnerable, and that
    her mother had been unable in the past to make appropriate decisions for her. 
    As such, the application judge refused to make a temporary order and he granted
    the judgment appointing the PGT Monicas guardian of property and personal
    care.  The judgment provided that the appellant could apply to be appointed
    guardian  on the grounds of an important change in her circumstances and/or
    the circumstances of Monica.  It also provided that the PGT was to encourage
    maximum access between Monica and her mother to the extent that such access was
    in Monicas best interest.

[3]

There are several grounds of appeal.

[4]

First, the appellant argues that she was denied procedural fairness when
    the application judge refused to adjourn the hearing or to make a temporary
    order only, so that she could bring forward evidence.

[5]

We disagree.  The matter was outstanding for several months and had been
    adjourned on a peremptory basis.  This application judge considered whether
    there would be any benefit in adjourning the matter or making only a temporary
    order.  He observed at the outset that there was no competing application for
    the appointment of the appellant as Monicas guardian.  As argument progressed,
    and it appeared that the appellant might put herself forward as a suitable
    guardian, the application judge concluded that there was very little chance of
    success of such an application.  There is no reason to interfere with this decision,
    which reflects the application judges fair assessment of the circumstances that
    existed at the time the parties were before him.

[6]

Second, the appellant contends that a finding of incapacity ought not to
    have been granted without a formal assessment.  There was evidence to support
    the finding that Monica lacked capacity, and no evidence to the contrary. 
    Moreover, although appellants counsel suggested that a more detailed
    assessment would be desirable, Monicas lack of capacity was not challenged at
    the time of the hearing, and there is no basis for the appellant to raise this
    issue for the first time on appeal.  Accordingly, this ground of appeal has no
    merit.

[7]

Third, the appellant asserts that the application judge erred by failing
    to consider whether a power of attorney signed by Monica in 2010 in favour of her
    mother was valid.  The existence of this document, which was raised at the very
    end of the hearing before the application judge, has no effect on the outcome. 
    Whether or not the power of attorney was valid, the evidence before the
    application judge was that Monica required someone other than her mother to
    make decisions for her.

[8]

Finally, the appellant says that the application judge erred by refusing
    to consider whether there was any other suitable person who was available and
    willing to be appointed as Monicas guardian.  The matter had been outstanding
    for several months, and no one had come forward as an alternative guardian for
    Monica. There was no evidence that any other suitable person was willing to act
    in this capacity. In any event, should circumstances change and an alternative
    guardian wish to make an application in the future, this is not precluded by
    the judgment under appeal, and is expressly contemplated in respect of the appellant.

[9]

The appeal is therefore dismissed.  No order as to costs.

Robert J. Sharpe
    J.A.

K.
    van Rensburg J.A.

David
    Brown J.A.


