A guardian of property often plays an essential role in the life of the person under disability for whom they act. When a guardian of property cannot be located or reached, it often results in frozen funds which cannot be invested or spent for the benefit of the person under disability. Depending on the circumstances, it may be critically important to seek the removal of the absent guardian. However, just as they cannot be located or reached for the purposes of fulfilling their obligations, what can be done when the guardian of property cannot be served with a removal application?
Dispensing with Service
Rule 16.04(1) of the Rules of Civil Procedure allows the court to dispense with personal service of an originating process or any other documents otherwise required in the interests of justice.
The Test for Dispensing with Service under Rule 16.04
To dispense with the requirement for service, a party must prove that all reasonable steps have been taken to locate the party and to serve them with the originating proceeding. What is reasonable will depend on the nature of the case, the relief claimed, the amount involved and all other surrounding circumstances (Ramnarine et al v. Marino et al, 2021 ONSC 5935 at para 4).
If the court is satisfied that a respondent is being intentionally evasive then the court is more likely to dispense with the requirement to serve them (Ramnarine at para 5).
In Laframboise v. Woodward, 2002 CarswellOnt 1448, [2002] O.J. No. 1590, 113 A.C.W.S. (3d) 576, 59 O.R. (3d) 338 at para 12, Justice Quinn states: “I would not rule out requiring a plaintiff to hire a private investigator to make an attempt to find a defendant”.
In Bailey v. Beale, 2010 ONSC 4342, the court found that reasonable efforts were made by making enquiries to close friends and family of the respondent and placing notices of the application in the Toronto Star, Toronto Sun and Mississauga News newspapers. The court dispensed with the requirement for service in this matter.
Reasonable steps is a broad standard which requires consideration of all contextual factors that may inform whether the standard has been met.
Conclusion
It can be difficult to navigate how to proceed when a guardian of property cannot be located or contacted. Rule 16.04 is a vital tool which may dispense with the requirement for personal service of an application to remove the guardian of property. There is no defined standard for what will satisfy the court that all reasonable steps have been taken to serve a respondent. It is a broad and contextual standard which requires careful consideration and guidance to maximize the likelihood of success.