Ontario Court Denies Guardianship Change, Questions Capacity Ruling and Procedural Barriers in Substitute Decision-Making
Case: Francois v. Francois, 2025 ONSC 589 (CanLII)
Justice Myers dismissed Stephanie Dubuisson’s motion to replace her former spouse, who had been appointed as her guardian in 2012, with John Bailey as her new guardian. The court noted that Dubuisson had previously been found mentally incapable of managing her property under the Substitute Decisions Act (SDA), which meant she was a “person under disability” and could not bring this motion without a litigation guardian.
While Dubuisson’s counsel argued that she should be allowed to choose a guardian, the court questioned whether she still lacked capacity, noting that if she were capable of deciding who should manage her property, she might be capable of managing it herself or appointing an attorney under a power of attorney. The court also pointed out that requiring a litigation guardian was not a mere technicality but a safeguard for an individual previously deemed incapable.
Since no one required Dubuisson to bring this motion in her own name, the court suggested alternative paths, such as having Bailey apply as a substitute guardian or appointing a litigation guardian for Dubuisson. Ultimately, the court dismissed the motion, leaving open the question of whether Dubuisson remains incapable of managing her affairs, given the passage of time since the 2012 determination.
THE LAW
Under section 6 of the Substitute Decisions Act, 1992 (SDA), a person is deemed incapable of managing property if they are unable to understand relevant financial information or appreciate the consequences of their financial decisions. The appointment of a guardian is an extreme measure that restricts an individual’s decision-making rights and is only imposed when absolutely necessary.
In this case, Stephanie Dubuisson had been found incapable in 2012, resulting in her former spouse being appointed as her property guardian. Years later, following their divorce and his emigration, she sought to appoint John Bailey as her new guardian. The court acknowledged her right to move for a change in guardianship under section 26 of the SDA, but procedural rules required her to act through a litigation guardian due to her ongoing designation as a “person under disability” under Rule 7.01 of the Rules of Civil Procedure.
The court’s key concern was how someone deemed incapable of managing property could have the capacity to request that a specific person be appointed as their guardian. This paradox reflects a broader legal tension: if a person is competent enough to choose a guardian, are they competent enough to manage their own affairs—or at least execute a power of attorney, which would eliminate the need for guardianship altogether?
Capacity determinations are not static; a person’s cognitive abilities and decision-making skills may change over time. The court noted that Dubuisson’s 2012 incapacity finding may no longer be accurate and that her lawyer’s ability to take instructions from her suggests she may have regained at least some capacity. This highlights a significant legal issue:
- Should courts routinely re-evaluate individuals under guardianship to ensure they are not unduly confined by an outdated incapacity ruling?
- Should there be easier legal pathways for individuals seeking to challenge or modify past incapacity determinations?
Currently, the Public Guardian and Trustee (PGT) often acts as a litigation guardian when no other suitable person is available. However, in this case, the PGT declined to intervene, leaving Dubuisson caught in a legal limbo—unable to advance her own motion without a litigation guardian, yet facing procedural barriers to lifting her incapacity designation.
The court recognized the inefficiencies and costs involved in requiring Dubuisson to either secure a litigation guardian or have Bailey apply as an independent guardian, yet emphasized that these procedural steps are necessary safeguards rather than mere bureaucratic hurdles. The judgment underscores the judiciary’s responsibility to protect vulnerable individuals, even if doing so results in additional litigation steps.
However, the decision also raises practical concerns:
- Should procedural requirements be streamlined to allow greater access to justice for individuals under guardianship?
- Should there be a more flexible mechanism for courts to assess an individual’s present capacity when a past incapacity ruling is contested?
This case highlights the tension between protecting vulnerable individuals and ensuring their autonomy, particularly when their capacity status has not been reassessed in years. Courts must strike a balance between upholding procedural safeguards and avoiding unnecessary legal barriers for individuals who may be capable of handling their affairs.
Moving forward, Ontario’s capacity laws may benefit from greater flexibility in reassessment procedures, allowing individuals under guardianship to more easily challenge their status while still ensuring adequate protections remain in place.
