Weilers LLP

Even Guardianship can be a Battleground

Even Guardianship can be a Battleground

October 2, 2023

By Jonathon Clark

It is always sad when families do not agree on how to care for the assets of elders or incapable persons generally. Just as we have seen a huge increase in estate litigation, there are more fights over the control of assets while the owner is still alive.

Whether you seek to have a guardian of property appointed for a loved one or are trying to protect that loved one from the efforts of another person (often a relative) to pillage the estate before death, as in many situations, this illustrates the importance of putting your best foot forward in the first instance – it is unlikely that you will get a “do-over”.

The appointment of a guardian of property depends upon a finding of incapacity- that is, that the person for whom the guardian will act is incapable of managing their own affairs.

In Gefen v Gefen, the Ontario Court of Appeal reaffirms that this is a question of fact to be determined by the Superior Court judge hearing the application. Therefore, the appeal court will not substitute its own judgment for that of the initial judge who heard the evidence – this will be true whether that was evidence of witnesses (in person or via Zoom) or documentary evidence.

In Gefen, a neutral party was appointed as guardian, but one faction of the family appealed without success. It appears that they really did have the weaker evidence, so this is no surprise.

Gefen also clarifies a point of procedure. The request to appoint the guardian was made via a motion in an existing action involving the parties. The group that lost tried to convince the Court of Appeal that due to the wording of the Substitute Decisions Act, a separate “application” – a different sort of proceeding with a fresh set of steps- was necessary. Therefore, they argue, the motion judge had no power to appoint the guardian. The Court of Appeal disagreed, saying that it was not “necessary or mandatory” to start a fresh application to appoint. They say this would be “form over substance” – the issue of guardianship was intertwined with issues in the existing action, so hearing it by motion made sense. The Court referred to one of our favourite rules (yes, we have favourite rules). Rule 1.04 of the Rules of Civil Procedure states that rules are to be liberally construed in order to “secure the just, most expeditious and least expensive determination” of the issues. That supported the motions judge’s decision.

We have written before about what we see as a trend in the courts, encouraged by the Court of Appeal to make decisions based on common sense. Perhaps nowhere is this more necessary than in bitter inter-family squabbles. The result of a guardianship application should always reflect what is best for the possibly incapable person and not depend upon who is more clever in manufacturing arguments.


We are in the midst of the largest intergenerational transfer of wealth in history, and unfortunately, that has created undue amounts of estate litigation, sometimes involving people who are still alive.

At Weilers LLP, we seem to have attracted more than our share of these cases. We combine this current experience with our long history of excellence in litigation and our equally valuable experience as trusted advisors on issues of family wealth to battle hard when necessary but to avoid costly fights where possible. Common sense is nothing new to us.

If you have questions about estate litigation or guardianship, give Weilers LLP a call and see if we are the right lawyers for you.