Rast v. Rast, 2011 SKQB 394

• Judge: Ryan-Froslie, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: October 21, 2011
• Jurisdiction: Saskatchewan
• Citations: 2011 SKQB 394;(2011), 384 Sask.R. 237 (FD)

Rast v. Rast (2011), 384 Sask.R. 237 (FD)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. NO.015

Sylvia Rose Rast (petitioner) v. Larry Rast and Kevin Rast (respondents)

(2011 Q.B.G. No. 148; 2011 SKQB 394)

Indexed As: Rast v. Rast

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Battleford

Ryan-Froslie, J.

October 21, 2011.

Summary:

At issue was personal guardianship under the Adult Guardianship and Co-decision-making Act regarding a 75 year old man who suffered from dementia. The man's wife of 17 years sought an order appointing her as personal guardian. The application was opposed by the man's son from his first marriage, who filed a competing application, supported by his brother.

The Saskatchewan Court of Queen's Bench, Family Law Division, appointed the man's wife as his personal guardian.

Guardian and Ward - Topic 241

Appointment and qualifications of guardian - Of incompetent persons - General principles - [See Guardian and Ward - Topic 254 ].

Guardian and Ward - Topic 254

Appointment and qualifications of guardian - Of incompetent persons - Persons qualified as guardian or committee - At issue was personal guardianship under the Adult Guardianship and Co-decision-making Act regarding a 75 year old man who suffered from dementia - The man's wife of 17 years sought an order appointing her as personal guardian - The application was opposed by the man's son from his first marriage, who filed a competing application, supported by his brother - The son sought to have the man placed in a nursing home, while the wife wanted to care for him in their home - The Saskatchewan Court of Queen's Bench, Family Law Division, appointed the man's wife as his personal guardian with decision-making authority regarding, inter alia, his living arrangements - In determining an adult's best interests, the court had to look not only at the adult's physical needs, but also at his or her emotional and psychological needs, relationships, family ties and connections to the community as well as what resources were available - There was no presumption in favour of either party - Both had the necessary capacity and capability to carry out the duties of a personal guardian - The wife had been the man's wife, companion and caregiver for 17 years - While a nursing home would provide a set routine, the caregivers would be strangers - Meeting a person's basic physical needs addressed only part of the duties of a personal guardian - Under s. 3(d) of the Act, an adult was entitled to receive "the most effective, but the least restrictive and intrusive, form of support, assistance or protection" - The application of s. 3(d) meant that the wife should be the man's personal guardian.

Cases Noticed:

Zazula, Re (2004), 247 Sask.R. 152; 2004 SKQB 32, refd to. [para. 26].

Hanke, Re, [2003] Sask.R. Uned. 86; 2003 SKQB 177, refd to. [para. 26].

R.F., Re, [1999] S.J. No. 113 (Q.B.), refd to. [para. 26].

H.M.K., Re, [2009] Sask.R. Uned. 111; 2009 SKQB 238, refd to. [para. 27].

Statutes Noticed:

Adult Guardianship and Co-decision-making Act, S.S. 2000, c. A-5.3, sect. 3(d) [para. 28].

Counsel:

R. Ard, Q.C., for the petitioner;

M. Sheppard, for the respondent.

These applications were heard by Ryan-Froslie, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Battleford, who delivered the following judgment on October 21, 2011.