Civil Procedure Rules of Nova Scotia  
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Part 15 - Other Kinds of Proceedings

Rule 71 - Guardianship

Scope of Rule 71
71.01 (1) A person may seek the appointment of a guardian for a child under the Guardianship Act or the approval of a contract by a child, in accordance with this Rule.
  (2) A person becomes a litigation guardian in accordance with Rule 36 - Representative Party, and is not appointed under this Rule.
  (3) A trustee appointed under Rule 36.14, of Rule 36 - Representative Party, may also be appointed guardian in accordance with this Rule.
  (4) This Rule also supplements procedures under the Adult Capacity and Decision-making Act.
       
Application
71.02   A person who seeks the appointment of a guardian under the Guardianship Act may file a notice of application in chambers under Rule 5 - Application.
       
Notice to person who is subject of application
71.03 (1) A child must be notified of an application under the Guardianship Act, in accordance with Rule 31 - Notice.
  (2) A child who is twelve years of age or older must be informed about each step in the proceeding, unless a judge directs otherwise.
       
Notice to other persons
71.04 (1) A copy of a notice of application to appoint a guardian for a child must be delivered to each of the following persons, unless a judge directs otherwise:
   
(a)
each parent of the child other than the applicant or, if the child has no parent who is not an applicant, the child’s next of kin other than the applicant;
   
(b)
a person, other than the applicant, who has custody of the child under an agreement or order.
  (2) A judge may direct that another person be notified of an application to appoint a guardian.
  (3) The parent of a child, and a person who has custody of a child, for whom a guardian is sought to be appointed must be notified of the proceeding in accordance with Rule 31 - Notice.
  (4) Despite Rule 31 - Notice, each other person who must be notified of an application to appoint a guardian may, unless a judge directs otherwise, be notified by delivery, by mail or hand, of a certified copy of the notice of application to the person’s last known address.
       
Affidavits
71.05 (1) The applicant must file an applicant’s affidavit, an affidavit proving notice, and a draft order no less than ten days before the day the application is to be heard.
  (2) Affidavit evidence in support of an application for the appointment of a guardian of a child must include all of the following, unless a judge directs otherwise:
   
(a)
proof of the child’s date of birth by birth certificate, or by other means if a birth certificate cannot be obtained;
   
(b)
if the child is over twelve years of age but less than sixteen, the child’s position on the proposed appointment;
   
(c)
if the child is sixteen years of age or more, whether the child consents to the proposed appointment and, if not, the reasons for going against the child’s wishes.
  (3) An application for an order under the Incompetent Persons Act must also be supported by affidavits of two medical practitioners giving evidence of the present state of health of the person alleged to be incapable of managing their affairs.
  (4) An applicant may make an ex parte motion for an order giving a medical practitioner permission to include relevant confidential information in an affidavit.
       
Order appointing guardian
71.06   The order appointing a guardian must provide for all of the following:
   
(a)
the appointment of the guardian;
   
(b)
the filing of a bond, unless the guardian is the Public Trustee, in compliance with the Guardianship Act;
   
(c)
the amount of the bond, calculated at one and a quarter times the value of the property to be administered by the guardian, excluding real property;
   
(d)
a requirement for the bond to be filed no later than thirty days after the date of the order, or such other time the applicant seeks to be set by the judge who hears the application;
   
(e)
a requirement that the guardian file an inventory of all property of the person who is the subject of the order and a deadline for doing so;
   
(f)
a requirement for the guardian to account as directed by a judge;
   
(g)
a requirement for the guardian to account to the child, and file the accounts, by a deadline after the child’s nineteenth birthday;
   
(h)
a requirement that the guardian produce a copy of the inventory or accounting to an interested person who demands the production;
   
(i)
termination of the guardianship of a child on the child’s nineteenth birthday;
   
(j)
the powers and other obligations of the guardian.
       
Bond
71.07 (1) The bond may be executed by a recognized surety company, or the applicant.
  (2) An applicant’s bond must be supported by two sureties and affidavits of justification showing that the sureties have assets, worth at least the amount of the bond, available for realization on a judgment.
       
Inventory
71.08   The inventory must include a concise description of each item of property, a concise description of the basis on which it was valued, the valuation amount, and a total.
       
Motion or application for disposition of property
71.09   A guardian may make a motion for an order for the sale, mortgage, lease, or other disposition of property in the proceeding in which the guardian is appointed.
       
Disposition of proceeds
71.10 (1) A judge who grants an order for disposition of property, such as a license to sell real property, of a child may provide for payment of the proceeds in any of the following ways:
   
(a)
to pay the expenses of the motion or application, and of the sale, to a maximum amount approved in the order or an amount to be approved by a judge;
   
(b)
to cover an expense paid, or to be incurred, in the interest of the child;
   
(c)
to pay the balance into a trust.
  (2) An order for disposition of property that provides for a payment into trust must also provide the terms of the trust and include all of the following kinds of terms:
   
(a)
appointment of the guardian, or some other fit person, as trustee;
   
(b)
payment of the trustee’s fees and expenses;
   
(c)
payments for the benefit of the child, including a specific description of the kinds of payments that may be made;
   
(d)
safe investment of trust funds, or provisions for the safekeeping of other property;
   
(e)
variation of the trust on motion of an interested person;
   
(f)
termination of the trust and distribution to a child who turns nineteen;
   
(g)
extension to the trust of the accounting requirements in the order appointing the guardian;
   
(h)
the filing of a further bond, if the bond filed as a result of the order appointing the guardian is inadequate or a person other than the guardian is appointed trustee.
  (3) The person who makes the motion for disposal of property must obtain approval of the payment of the expenses of the motion or application, and the sale, in either of the following ways:
   
(a)
approval of a maximum amount for the expenses of the sale except counsel’s fees and disbursements and a separate maximum amount for counsel’s fees and disbursements;
   
(b)
if no maximum amount is approved or it is exceeded, approval of the actual payments by a judge after the sale.
       
Report on disposal
71.11   A party who obtains an order for disposition of property must file a report on the sale no more than twenty-five days after the day it is completed.
       
Approval of contract to be made by child
71.12 (1) A child, or a person who has custody of a child, may make an application, under Rule 5 - Application, for an order approving a contract to be made by the child.
  (2) A child who applies for approval of a contract must join as respondents the other party to the proposed contract, and, unless the person is the child’s litigation guardian, each person who has custody of the child.
  (3) A person who has custody of a child, and applies for approval of a contract, must join as respondents the other party to the proposed contract, the child, and any other person who has custody of the child.
     
Supplement to Adult Capacity and Decision-making Act Procedures
71.13 (1) A document, other than a notice, pleading, or draft order, authorized by the Adult Capacity and Decision-making Act or the regulations made under that statute to be filed with the court must be proved by affidavit and filed as part of the affidavit.
  (2) An application referred to in the statute or regulations, other than an application for a representation order under sections 5, 8, or 65 of the statute, must be made by motion in the proceeding started by the notice of application for a representation order.
  (3) A right to apply provided by the statute or regulations, other than to apply for a representation order under sections 5, 8, or 65 of the statute, must be exercised by motion in the proceeding.
       

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