KC (Re), 2016 ABQB 202

Court of Queen’s Bench of Alberta Citation: KC (Re), 2016 ABQB 202 Date: 20160413 Docket: DA01 012744 Registry: Calgary Court File Number DA01 012744 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial Centre Calgary Represented Adult Name KC Applicant/Respondent (Mother) KS Respondent/Applicant (Father) RNC _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice M.C.

Erb _______________________________________________________ [ 1 ] The parents of KC, who was diagnosed with a developmental delay at an early age and is presently a Represented Adult, have brought competing applications for sole guardianship and trusteeship of their son. They separated and divorced several years before KC reached 18 years of age. [ 2 ] There is no dispute that KC should continue to be a Represented Adult as designated by the original Guardianship and Trusteeship Order dated April 8, 2013. In that Order, KS (“the Mother”) and RNC (“the Father”) were named joint representatives of their son.

The Order was granted after the parent’s had executed a written Agreement to work together and to have some independent

decision making. The Agreement also provided for alternate dispute resolution through mediation/arbitration because of the parents’ history of difficulties reaching a consensus on matters affecting their son. [ 3 ] The parents now each seek a review of the 2013 Order and the granting of a new order for sole representation of their son. The applications have been filed pursuant to the provisions of the Adult Guardianship and Trusteeship Act , SA 2008, c. A-4.2 (“the Act ”).

The parents had originally sought a simple renewal order to continue their joint representation, however, the Mother changed her mind and brought her application to be named sole guardian and trustee. She has proposed that the Office of the Public Guardian and Trustee (OPGT) be named her alternate.

In response, the Father filed a cross-application for sole representation. [ 4 ] Areas in which KC requires assistance are primarily the following: health care, education/training, living arrangements, legal issues, employment and social activities. [ 5 ] The OPGT was not represented in these proceeding having not been served with the Mother’s application. Issue [ 6 ] The issue to be determined is what guardianship and trusteeship arrangement would best serve KC’s best interests. KC’s Circumstances [ 7 ] KC is 21 years of age and is the youngest in a sibling line of three.

His cognitive disability is set out in Capacity Assessment Reports (“the Assessments”) prepared between 2011 and 2015 and filed in support of this and the previous applications. The Assessments confirm that the level of KC’s financial and personal decision making limitations require a need for guardian and trustee support. KC has been prescribed medication for anxiety which is substantially related to stress caused when under pressure to make decisions. [ 8 ] While the Assessments indicate that KC remains vulnerable to deception and manipulation by others, there have been improvements over time.

In the 2015 Assessment, Dr. Arlin Pachet indicates that because KC is still relatively young, “he may demonstrate functional improvement with time and maturity.” [ 9 ] At age eight, KC had bowel surgery and continues to have periodic regularity difficulties alleviated by a high fibre diet and exercise. At a pre-school age, KC was diagnosed with a serious speech development issue but the assistance of skilled therapists and much parental involvement and encouragement have resolved this as confirmed by Dr.

Pachet’s comment in the 2015 Assessment: [KC] “has strong receptive communication skills and relatively intact social skills.” [ 10 ] KC has had many educational supports from an early age. He attended classes at school with typical students until this environment became overwhelming for him and remedial tutoring and other assists were engaged. The Mother had significant direct involvement in organizing his educational needs on many levels. When other options did not appear to be successful, she arranged for home schooling which was supported in both parent’s homes on alternate weeks.

KC successfully completed the Pace Learning Program at Ernest Manning High School and graduated with a strong sense of accomplishment. While in high school, he had a weekend job at a restaurant working in the kitchen. [ 11 ] Following high school, KC successfully completed the two-year Transitional Vocational Program (“TVP”) at Red Deer College, a program designed for students who exhibit cognitive disabilities. While there, he and a classmate lived in a basement apartment in the home of a family development worker who is a qualified social worker and he was in close contact with his parents.

His mother moved from Regina to Red Deer during his last year of college. [ 12 ] In addition to residing away from either parent in a supported residential environment during college, he was assigned work tasks arranged through TVP as part of the learning experience. He had a job at a grocery store bagging and handling produce with hours approaching a full time work week. [ 13 ] He was able to get himself to and from work using public transit and at times by bicycle.

He has taken short flights on his own and has travelled by bus on his own between Edmonton and Calgary. [ 14 ] It is clear from his background that KC is a person who can live relatively independently with appropriate supports in place similar to his living arrangement while attending college in Red Deer. KC presently lives with both parents in Calgary on a week-on- week off rotation. His second older brother, RC, a student, also resides with their mother. KC has funding from Assured Income for the Severely Handicapped (AISH) and is presently seeking appropriate supplementary employment in Calgary.

KC’s Perspective [ 15 ] During these proceedings, KC requested and was granted an opportunity to “talk to the judge” to provide input and thoughts of his own. He was well aware of the nature of the proceedings, in particular, that the Court would be deciding who would be helping him with decision making on a go-forward basis. [ 16 ] KC asked that the conversation be conducted outside the courtroom with neither parent nor legal counsel present.

He agreed that the conversation should be recorded and a transcript made available to his parents and their counsel. [ 17 ] A Queen’s Bench Case Management lawyer, Catherine Christopher, Q.C., was present during the one-on-one conversation at

the request of the Court. The transcript was provided to both parents through their counsel prior to the completion of the Court proceedings. [ 18 ] KC presented as a very pleasant, talkative, polite young man. He acknowledged that decision making on big issues was hard for him, made him anxious and caused him stress. He spoke warmly and acceptingly of both parents in their decision-making role and early in the conversation, expressed his desire for both of them to continue to work together on his behalf.

He recognized that he needs help with certain aspects of his life in particular, financially, described in his own words as “making sure I’m not taken advantage of money-wise”. [ 19 ] He also stated confidently that his parents would make sure that wherever he lives and works will be a “safe” place. [ 20 ] KC spoke at length about his interest in sports as both a spectator and participant. It was clear that sports activities give him opportunities for fun, often with his father, and a sense of accomplishment being part of a group or team. He enjoys soccer, running, biking, working out at a gym in particular.

He happily spoke of a hockey game he had recently attended and his hopes for his favourite team, the Calgary Flames. [ 21 ] KC understood, unfortunately from personal experience, that participating in sports can result in injuries. He talked about an injury to his knee years ago while playing soccer that has now resolved.

He beamed with pride in deeming himself a better runner than his father, routinely passing him when they run together in organized activities. [ 22 ] KC acknowledged that sports are important to him not only because they are fun and give him a sense of accomplishment, but also reduce anxiety and stress.

KC is close to both his older brothers, SC and RC and was happy to report that RC is getting back on track after struggling for a time with personal issues. [ 23 ] While he describes his present living arrangement as “awesome”, he expressed a strong desire to live independently with a roommate in a manner similar to his college experience in TVP, after he finds a job so that he can pay for it himself. [ 24 ] KC also stated that he would like to have an arbitrator or other third party involved when his parent’s cannot agree.

Legal Framework [ 25 ] Section 28(1) of the Act provides that a Court may appoint a guardian for an adult, an individual who is 18 years of age or older, who consents to act as guardian and whom the Court is satisfied will act in the best interests of the represented adult. Section 49(1) of the Act provides a similar test for the appointment of a trustee. [ 26 ] The Act requires compliance with the principles set out in

Section 2 of the Act in the

interpretation and administration of guardians and trustees. The focus is entirely on the represented adult and his needs, not the needs of those who wish to represent him as indicated. The principles are these: (

a) an adult is presumed to have the capacity to make decisions until the contrary is determined; (

b) an adult is entitled to communicate by any means that enables the adult to be understood, and the means by which an adult communicates is not relevant to a determination of whether the adult has the capacity to make a decision; (

c) where an adult requires assistance to make a decision or does not have the capacity to make a decision, the adult’s autonomy must be preserved by ensuring that the least restrictive and least intrusive form of assisted or substitute decision-making that is likely to is provided; (

d) in determining whether a decision is in an adult’s best interest, consideration must be given to (

i) any wishes known to have been expressed by the adult while the adult had capacity, and (ii) any values and beliefs known to have been held by the adult while the adult had capacity. [ 27 ] Sections 35(1)(a) – (

e) and Section 56(1) of the Act reinforce the best interests focus and set out the duties owed to represented adults: Guardians and Trustees must represent the adult’s best interests, diligently in good faith, and in a way that encourages the represented adult to become, to the extent possible, capable of caring for himself and of making decisions in respect of matters relating to his own person, and in the least intrusive and least restrictive manner, that in the opinion of the guardian, is likely to be effective. [ 28 ] It is clear from the legislation that the involvement of the OPGT should be an option when there is no other competent choice and must be based on the consent of the OPGT upon having had notice of the application. [ 29 ] In Dank (Re) 2013 ABQB 112 , Tilleman J., conducted a comprehensive review of the limited case authorities in similar applications and identified the following general principles: (

a) A Representative must be a person who will not place any personal interest above the best interest of the Adult: Re Anna Anspach , 2007 SKQB 457 , 309 Sask R 95; (

b) An Applicant must have no ulterior motives regarding the responsibilities and commitments to the Represented Adult in managing personal and financial affairs: Re Bell , 2005 SKQB 30 ; (

c) Family members are acceptable in the roles of guardians and trustees provided there is no conflict of interest and the best

interests of the Represented Adult are met: Gronnerud (Litigation Guardian of) v. Gonnerud Estate, 2002 SCC 38; [2002] SCR 417. (

d) The Represented Adult must have proper care and be able to engage in activities that promote physical, emotional and mentalhealth as well as independence. (

e) The Represented Adult should be provided with opportunities to maximize his independence: Re D(RF) 2005 ABQB 761, para 7; (

f) Representatives should not be overly controlling, unnecessarily restrictive and should create an environment in which theRepresented Adult can thrive: (Re) JAC Estate, 2010 ABQB 270; (

g) Representatives must act in good faith and responsibly. Cycles of litigation should not be encouraged within the family circle:Frame v. Smith (SCC), [1987] 2 SCR 99. (

h) The Courts have the ultimate responsibility of ensuring the protection of adults whose ability to oversee and protect their owninterests including financial interests is impaired: Re Roy Estate, 2004 ABQB 624. [30] The court in Dank (Re), also outlined what the best interests test means in terms of the exercise of guardianship/trusteeshipresponsibilities. This list has been modified to KC’s circumstances and includes the following: (

a) Ensuring that the Adult's daily requirements are met; (

b) Ensuring that the Adult has as much socialization and independence as he wants; (

c) Encouraging the Adult’s independence by providing an environment with the least possible restrictions and intrusions; (

d) Ensuring that the Adult’s residence is safe and supervision is appropriate taking into account any health or other reasonableconsiderations; (

e) Ensuring that his bank accounts and/or property are being managed properly with bills being paid on time and accounts beingregularly reconciled ; (

f) Using the Adult’s income and property only for the Adult’s benefit; (

g) Assisting the Adult in achieving his life’s values and aspirations, where possible and appropriate, including his comfort andhappiness in the context of his surroundings; (

h) Generally, tending to his temporal welfare and physical needs and in doing so, providing reasonably prompt attention to those needs;and (

i) Respecting the Adult’s reasonable choices for his care, housing, disposal of assets communicated to the Representative.

Summary of the Mother’s Application and Submissions [31] The Mother has applied for an Order naming herself sole guardian and trustee of KC and appointing the OPGT as alternaterepresentative. She had no clear reason for asking that the OPGT act on KC’s behalf in her stead rather than his father. She stated thatthe Father refuses to cooperate with her in joint decision making.She appears to misunderstand the purpose of naming an alternaterepresentative.

KS appeared dismissive of any need for the Father’s involvement in decision making. [32] The Mother has stated that there have been approximately 100 disagreements between herself and the Father over decisionsrequired for KC but conceded in cross examination that this may have been over stated. She acknowledged that she invoked thearbitration process only once, then abandoned the process before a hearing was scheduled, apparently without explanation. Thedisagreement was over KC’s use of his bicycle and his safety. [33] In the end, both parents provided additional safety gear.

The Father took KC for a Red Deer city-sponsored bike safetyevaluation, which the Mother criticized because she was told about it after the fact. KC was considered safe in the use of his bicycle andwas given some pointers on things to work on. KC abandoned driving his bicycle after dark. [34] The Mother also submits that the Father pushes KC too hard setting him up for disappointment and frustration. She stronglycriticized the Father’s expressed hope that his son will be able to achieve more independence over time.

She interpreted this as evidencethat the Father has not accepted KC as a person with cognitive disabilities. She did not see his approach as an attempt to follow what theAssessments and medical practitioners recommend or suggest. [35] The Mother says KC has been affected by the antagonism between the parents but offered no evidence about why KC isaware of such communication The parents appear to communicate largely by email. [36] The Mother has characterized herself as the parent best able to tend to her son’s needs. She has primary care giver duringKC’s growing up years.

She discussed at length her involvement in KC’s educational journey and her key role in it when, in particular,KC was home schooled. She diminished the Father’s similar role in KC’s life. References in the filed materials indicate that there wasstrong support of the arrangements notable in both households. [37] KS also repeatedly criticized the Father’s support for KC’s participation in competitive soccer. He injured his knee at age 15while playing with typical teenagers organized in teams.

[ 38 ] The Mother also stated her view that KC’s participation in road races should be limited because of two incidents. In one event, KC got the route confused and was unsure where he was for a time which upset him. She saw his getting mixed up on the running path as a cognitive inability to follow the route and an example of the Father’s failure to properly supervise. In another race, KC slipped on some gravel wanting to make a strong finish and fell.

The Mother repeatedly referred to this as a ‘dislocation’ despite the medical information that the injury amounted to a stretched ligament. [ 39 ] On health issues, KS points repeatedly to her view that the Father failed to take KC to the hospital after the fall on his shoulder despite being told that he had driven part way to the hospital when KC stated that the shoulder was fine, had full range of motion and he had no pain. A year later, the shoulder popped and KC told his Mother about the fall.

She said finding out about it a year later indicates the Father’s lack of cooperation. [ 40 ] The Mother also expressed her view that KC should not be running despite the orthopaedic surgeon’s recommendation that KC limit himself to shorter runs (10K and under) and consider lower impact activities to preserve long-term mobility in his right knee.

She stated that Special Olympics programs, some of which KC participates in, were better for him than running events in with typically developed runners, despite knowing that KC is a good athlete and enjoys both. [ 41 ] She had many complaints about the Father enrolling KC in activities that were designed for typically developing youth. She pointed to the Father having registered KC in a high school dance class to help him “face his fears” and have a growing experience.

KC did not like the class because of the confusing step sequences and feelings of inadequacy. [ 42 ] It was the Mother’s opinion that some activities should not be discussed with KC at all and that he should engage in exercising at the gym, participating in Special Olympics activities and refraining from main stream sports teams and competitive running events. In cross examination, she was dismissive of the recommendation by Dr.

Wiley, a sports injury specialist at the Talisman Centre, that KC take a “give it a try” approach to activities. [ 43 ] She also stated that the Father sets KC up for failure by suggesting pursuit of work opportunities beyond his ability such as cutting meat while knowing he did not pass his culinary arts class in high school. [ 44 ] She says the Father fails to keep her informed about decisions he makes while KC is in his home and that he does not respond to her electronic messages quickly enough.

In support of this she pointed to the Father’s arrangements for KC’s housing after first year at college without consulting with her despite repeated requests while she was residing in Regina. [ 45 ] The Mother also claimed that the Father was not attentive to KC’s dietary needs to prevent frequent constipation for which he requires high fibre and ignored her repeated demands that the Father commit to daily monitoring, among other things. [ 46 ] The Mother asserts that her sole decision making would not interfere with KC’s relationship with his Father.

However, she did admit that she held KC back from his Father on one occasion because he did not commit to the daily monitoring for KC’s regularity issues within her time frame. She was dismissive of the Father’s stated support for Dr. Bryden’s recommendation that KC take responsibility for self- administering and managing his bowel issues himself as a life skill. [ 47 ] The Mother indicated that she has encouraged KC’s independence by encouraging use of public transportation, getting his own groceries, involving him in Special Olympics, and similar activities consistent with his abilities.

Summary of Father’s Application and Submissions [ 48 ] The Father presents himself as the better choice for sole guardianship and trusteeship if this Court determines that the parents are in sufficient conflict that the co-representative arrangement should end. He is prepared to continue to work together with the Mother on KC’s behalf as co-guardians and trustees. [ 49 ] The Father said that he tries is to encourage KC to stretch and to try new things to build his confidence and enhance his life skills. He denies the Mother’s claim that he has not accepted KC for who he is as a person with cognitive challenges.

He said his approach is realistic and he has been helping KC to acquire the skills to live as independently as possible. The Father disputed the Mother’s claim that he puts KC at risk by lack of supervision. [ 50 ] He submits that the Mother is over protective and would restrict KCs sports activities which it is well documented by health care professionals as a requirement for KC to maintain both mental and physical health. [ 51 ] He said that while the Mother criticizes his approaches, she had to enlist his help to get KC to comply with bicycle safety rules, something she admitted, in her evidence, was accurate.

The Father says the Mother refuses to acknowledge that KC’s activities were cleared by his medical practitioner on a give it a try basis and that she points to selective medical and other information to restrict his activities. [ 52 ] The Father takes the position that the disagreements on various issues have been minimal when viewed over the three years the Order has been in place. He also submits that the Mother has wanted sole responsibility from the beginning and has exaggerated minor differences to achieve that result.

He stated that over the three years they have made decisions together for KC, the Mother invoked the arbitration process on only one occasion. [ 53 ] The Father disputed the Mother’s claim that he does not respond to her emails. The Mother admitted in cross examination that the Father does respond, although not with the immediacy she would wish.

RNC says that the mother sends him long instructional emails that frequently do not require a response. [ 54 ] The Father says that the Mother takes full credit for activities that the Father was also involved in such as KC’s home schooling provided during alternate residential weeks in both homes. He said KC’s step mother has had substantial involvement and that

KC has a warm relationship with her. [ 55 ] He said that while the Mother asserts that she will not interfere with KC’s relationship with his father, yet she withheld KC for one day in the residential rotation because KC had had constipation after the prior week with his Father. The Mother unreasonably insisted that the remedy, All-Bran cereal, was not available in his home.

She demanded that he commit to monitoring KC’s regularity and provided lengthy instructional emails for which she was seeking his compliance with a deadline for response. [ 56 ] The Father states that the Mother interfered with a potential job opportunity by calling the business and telling them that KC was mentally retarded despite KC’s distaste of the terminology.

The Mother denied having used that terminology in KC’s presence and asserted that the job was clearly beyond KC’s abilities prior to finding out what it entailed. [ 57 ] The Father states that the Mother has repeatedly misstated the shoulder injury KC had after slipping and falling while in a road race, for her own purposes.

Other points of exaggeration involved KC’s knee injury in 2010 while playing soccer with other teenagers. [ 58 ] The Mother uses this injury to support her view that KC should to stop running despite knowing that he enjoys it and the medical evidence does not support refraining from running altogether. [ 59 ] The Father submits that he is the parent who would ensure KC has the best quality of life and work with him towards as much independence as he can reasonably achieve. Perspective of KC’s Siblings [ 60 ] Sibling letters were provided to the Court by agreement of the parties.

The oldest son, SC who lives independently from either parent, provided a letter of support for the Father’s application. He stated that his Father has always inspired and encouraged him throughout his life. SC provided a reasoned analysis of why he support’s his Father’s application. He did so without showing any disrespect for his Mother. [ 61 ] RC, the middle son who resides with the Mother, provided a letter of support for her application. He described his mother as empathic and compassionate.

RC is not presently in communication with his father and stated that, in the alternative to his Mother as sole representative role, the OPGT would be better than his father. His references to his father could only be described as disrespectful. [ 62 ] The letter appears to have been an opportunity for RC to air historical grievances of his own, rather than a reasoned analysis of the question. Analysis [ 63 ] The Mother and Father clearly have different views of KC's needs and abilities. The Mother sees KC as a child who will always need her hands on guidance and oversight.

The Father sees KC as a young person who has limitations but given opportunities can achieve greater independence. [ 64 ] This Court is directed by the legislation which references specific factors in addition to “any other relevant factor”. Accordingly, a consideration of past conduct is relevant in a consideration of these applications. [ 65 ] Past conduct provides the Court with a window into what the future might hold in the context of these applications.

A consideration of the parent’s conduct towards each other is helpful in forecasting what the future might be for KC with either his parents continuing as his joint representatives or one of them making sole decisions on his behalf. [ 66 ] Because the Mother has raised the issue of sole guardianship and trusteeship, her evidence and submission largely informs the next step since both parents are obviously qualified to be guardians and trustees pursuant to the legislation, despite the fact that the Mother also seeks an appointment of the OPGT as her alternate. [ 67 ] The Mother’s hostile attitude toward the Father is apparent in the tone of her many emails; in her application for the OPGT to be alternate guardian while clearly having no idea what the implications would be for KC; and in her demeanour testifying in this Court. [ 68 ] It is this Court’s view that the Mother has been excessively demanding for information and reporting by the Father when KC is in his home.

This exceeds even more than what would be expected in a shared parenting regime for very young children. [ 69 ] The Mother provides to the Father detailed reporting of KC’s ordinary day-to-day activities in a manner not contemplated by either the Agreement or the subsequent Order. This reporting raises credibility issues. An example of this appears in emails from the Mother to the Father in June 2015.

In a long detailed email of KC’s week with her, she states that while in her home, KC had dinner with “his older brother”, RC, and attended the university convocation of “his older brother”, SC. [ 70 ] Surely the Father does not need to be told that RC and SC are KC’s older brothers. References like these, along with lengthy instructive and critical emails about things the Father would already know, suggest that the purpose of them is to support her application. [ 71 ] Other indications include the Mother’s dismissal of the advice of health care professionals unless it supports her view. A few examples are: Dr.

Wiley’s ( give it a try) advice on activities; the Assessments indicating KC may improve his abilities with time and maturity; Dr. Bryden’s recommendations that KC learn to care for his own bowel needs as a life skill. [ 72 ] This applies to other professionals engaged to assist the decision -making process such as the mediator-arbitrator in the issue

over bicycle safety. She objected to a casual reference to the arbitrator stating his understanding that she had abandoned the arbitration and that this must mean that the issue was resolved. The Mother’s five-page letter in response objecting to his comments was remarkable for her many disrespectful professional criticisms of his earlier attempt to resolve the issue in mediation. [ 73 ] Many of her emails to the Father followed the same abrasive tone. Her approach to co-representation has been defined by criticism, blame and a palpable need to control.

Upon receiving such emails, the Father responded in a blunt, business like manner or appears to have delayed responding. [ 74 ] While the Mother has provided very attentive and high quality care for her son in his growing up years, KC’s needs are clearly different now. [ 75 ] KC looks forward to becoming more independent while recognizing, to his credit, his own need for ongoing support.

This is a healthy look forward and he should be supported in doing so as soon as reasonably possible. [ 76 ] The Mother asserts that she knows KC best but at the same time diminishes abilities that are well supported by both medical and anecdotal evidence. In particular her references to KC’s childhood speech issues as if they persist rather than having been resolved years ago. [ 77 ] The Mother has not accepted KC for the person he has become. She has a need to protect him from every potentiality and to confine his activities to do so.

The Mother appears to have little insight into the fact that KC’s sports injuries are little different than what children in their growing up years and active individuals of all ages incur with or without cognitive challenges. [ 78 ] Further, the Mother declares that she would never interfere with KC’s relationship with his Father but there is evidence to the contrary including her hostility towards him. [ 79 ] It is also apparent that the Mother as sole decision maker for KC would continue to take a micro-management approach on every decision, however large or small.

This expansive approach would be inconsistent with what KC aspires to do and be within his abilities. [ 80 ] In her efforts to supervise KC and keep him safe, she has missed the fact that KC has become a vibrant young person who needs to live his life with as much independence as he wants and can handle. That is what the legislation requires. [ 81 ] The Mother’s application to have OPGT named as Alternate Representative is a troubling aspect of her Application. She finds a way to criticize or diminish the Father’s influence on KC, yet she initially agreed to continue the co-representation.

She then changed her mind and sought sole representation giving the Father no choice but to do the same. Now she would not even name him as an alternate. [ 82 ] This Court has no doubt that the Mother’s criticism of the Father and her hostility will continue and as sole guardian, she would most certainly limit KC’s time with his Father, a relationship he clearly values and welcomes and one which is in his best interests. [ 83 ] While the Father may have set expectations for KC too high a times, his intentions are towards greater independence and a full life for his son.

The Father can learn to be more watchful of how KC is responding to a new activity. Frustration and disappointment can be avoided by pacing activities or making changes to better suit KC, rather than eliminating the “give a try” approach. [ 84 ] As the legislation provides, the role of a guardian and trustee is to allow the Represented Adult to be involved in activities that promote physical, emotional and mental health as well as independence.

It is also to provide opportunities to maximize his independence and to refrain from overly controlling and unnecessarily restricting the adult. [ 85 ] KC is a young person who is entitled to live his life with dignity and joy and to be respected. There is no doubt that KC will always have a need for a guardian and trustee. The focus of guidance for KC needs to be on can rather than cannot .

The Father embraces the former, the Mother the latter. [ 86 ] Fortunately, the decisions KC needs are straight forward for the most part: living arrangements, suitable employment, recreational activities, general health and well being and legal matters. [ 87 ] Some have simple solutions. As a life skill, taking medications and attend to dietary needs can be tracked by KC himself perhaps with the use of electronic devices that provide reminders and information. KC is actually doing that already.

He has his entire workout routine for selective days on his sports watch and demonstrated how it works during our one-on-one conversation. I have no doubt that KC is capable of also using it for reminders (once properly programmed for him) with no more difficulty than riding his bicycle. In other words, there are better ways to help KC acquire this and other life skills than utilized so far.

Conclusion [ 88 ] I find that the evidence, information and materials in the context of the legislation and the factors to be considered clearly indicate that the KS and RNC cannot work together as guardians and trustees for their son in the manner required by the legislation. [ 89 ]

Section 28 and 49 of the Act require that a Court appointing a guardian and trustee must be satisfied that the appointee will act in the best interests of the adult. [ 90 ] The Court must also be satisfied that the appointee is suitable having regard to the factors including the relationship between the adult and the proposed guardian and or trustee, and any other matter the Court considers relevant, including factors addressed earlier in these reasons.

[ 91 ] KC needs a sole guardian and trustee who will represent his best interests diligently, in good faith and in a way that encourages him to become, to the extent possible, capable of caring for himself, and who will exercise decision making on his behalf in the least intrusive and least restrictive manner that, in the opinion of the guardian and trustee, is likely to be effective.

That is what the legislation requires. [ 92 ] Upon a review of the submissions, evidence, case law, materials and the legislative objectives, I appoint the Father, RNC as sole guardian and trustee of the person and estate of KC. [ 93 ] I also find that it is not in KC's best interests to have the OPGT as alternate guardian and trustee when there are family members who can fulfill this rol e.

It remains a mystery why the Mother would think that it would be in KC’s best interests to invoke a last resort governmental option, requiring him to deal with his personal and financial needs in an institutional environment when his Father would have been a far kinder, gentler approach. [ 94 ] In a ny event, the proper procedure for appointing the OPGT does not appear to have been followed nor has that Office been represented in these proceedings. [ 95 ] Accordingly, I appoint the Mother, KS, as alternate guardian and trustee of the person and estate of KC.

Heard on the 16 th , 17 th and 18 th days of February, 2016 and the 17 th day of March, 2016. Dated at the City of Calgary, Alberta this 13 th day of April, 2016. M.C. Erb J.C.Q.B.A. Appearances: Jennifer Lamb for the Applicant/Respondent, KS Tiffany Franklin for the Respondent/Applicant, RNC