Can an “Uninvolved” Father be an Adult Child’s Guardian?

By Saul Benary
Alberta’s Adult Guardianship and Trusteeship Act lists a range of factors in sections 26, 28, and 40 for judges to consider regarding who should be an adult’s guardian. As shown in the case of Miles (Re), 2019 ABQB 636, however, a Court’s exercise of its discretion in this area may lead to unexpected results in practice.

In this case, Jason Miles was the represented adult. His mother, Karen Lutton, was Jason’s alternate guardian since February 2001, a period of more than 18 years. She applied to become Jason’s guardian and for her husband, Phillip Lutton, to become Jason’s alternate guardian. Jason’s father, Brian Miles, was Jason’s guardian since February 2001. Brian did not oppose Karen’s application for guardianship but instead applied to become Jason’s alternate guardian. The Court did not comment as to whether or why the application was now necessary after so long.

The Court did not discuss them, but considerations under the Act are important for context. To be eligible, a potential guardian or alternate must:

  • be at least 18 years old.
  • consent to act as a guardian, and
  • satisfy the Court they will act in the adult’s best interests.

In assessing whether the proposed guardian is a suitable guardian or alternate, the Court may consider:

  • the views and wishes of the adult,
  • the potential guardian’s relationship with the adult,
  • the apparent ability of the proposed guardian to effectively exercise their authority to carry out their duties, and
  • any other relevant matter.

A Court may also discharge a guardian if:

  • they are not acting as guardian,
  • they fail to apply for a review of the guardianship order as required,
  • they have not complied with their duties and responsibilities as guardian,
  • they act improperly or endanger the adult’s well-being,
  • they are no longer suitable to be a guardian,
  • their relationship with the adult has “broken down”, or
  • it is in the adult’s best interests.

For his case, Brian had submitted no affidavit or evidence for the Court to consider. Though Brian was Jason’s guardian, Jason moved 200km away to live with his mother in 2013. The Court did not comment, but presumably Brian had cared for Jason during the preceding 12 years. Since then, Brian was “uninvolved” in Jason’s life. The Court did not comment further about what that meant or the state of Brian and Jason’s relationship. Brian had also failed to apply for a review as required by the original guardianship order. Karen had apparently not done so either since it appeared no review had ever been done. The Court did not comment on the significant expense involved with a review or the financial circumstances of the parties.

For her case, Karen submitted an affidavit, though the Court did not mention the presence further evidence. Since Brian moved in 6 years before filing this application, Karen and Phillip had assisted and supported him financially and in maintaining his employment, among many other ways. Karen submitted she did not have a good relationship with Brian, though the Court rejected this without further evidence. While alleging Brian was an unfit guardian, Karen also appeared to submit no corroborating evidence to support that submission. The Court did not directly comment on the suitability of Karen as guardian.

Interestingly, a Review Officer from the Office of the Public Guardian and Trustee filed a report regarding Karen’s application less than two weeks before the hearing, representing possibly the only independent evidence available. In it, the Review Officer reported she had spoken with Jason and that he appeared to understand the application. She did not state whether he understood the application would remove Brian as his guardian.

Importantly, the Review Officer also stated Phillip might have a criminal record, but fingerprint comparisons would need to be done to confirm this. They could not be done in time for the application, however, as they would take one to three months to complete. The Court did not comment further about what the record may be or its relevance to the application.

Based off the slim evidence available, the Court struck a position halfway between the parties. It indicated the Review Officer’s report was influential in not appointing Phillip as an alternate guardian. Therefore, Karen would be the guardian, Brian would be the alternate, and all other parts of the 2001 order would remain the same. The Court required the order to be reviewed within 6 years.

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