An individual who is determined to be incapable of managing their affairs may require a guardian to oversee and assist them.
The Substitute Decisions Act 1992,1 (the “SDA”) provides that “An order appointing a guardian of property for a person shall include a finding that the person is incapable of managing property and that, as a result, it is necessary for decisions to be made on his or her behalf by a person who is authorized to do so.”2 But what happens if that individual refuses to have a capacity assessment to determine if they are in fact incapable?
Section 79(1) of the SDA provides a mechanism to allow a party to compel another to be assessed for their capacity.3 Similarly, s. 105 of the Courts of Justice Act, provides that where a physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.
However, the case law reflects that judges will only rely upon these sections as a last resort as it is seen as a “substantial intervention into the privacy and security of the individual”.4
This article provides a brief overview of what considerations a court makes when determining whether to order a capacity assessment for an individual who does not wish to consent to one.
The Substitute Decisions Act, 1992
The SDA is designed to strike a balance between protecting personal autonomy, while also trying to protect those who are vulnerable by reason of capacity (or lack thereof).5 To reflect this purpose, the SDA has statutorily enshrined a number of provisions to affirm that the dignity, privacy, and legal rights of an individual are to be assiduously protected.6 For example, section 2 of the SDA provides that an individual who is sixteen years or more is presumed to have capacity.7 Section 78(1) provides that an assessor shall not perform an assessment if the person refuses to be assessed.
It has been recognized by the courts that a judge must resist the temptation to order an assessment based on the argument, “it can’t hurt”.8 To the contrary, courts view such assessments as being “intrusive and demeaning” which override an individual’s privacy and freedom. The courts are reluctant to order assessments which they see as coercive interference with one’s physical and mental autonomy. These sentiments have long been recognized as core values of Canadian society.9
In light of the above, it is typically difficult to obtain an order compelling an individual, who resists being assessed, to undergo a capacity assessment.
The Abrams Decision
The Ontario Superior Court of Justice decision in Abrams v. Abrams10 and cases that have followed it, set out a useful overview for how and under what circumstances a court may order a person to undergo a capacity assessment.
In Abrams, the applicant, Stephen Abrams, was the estranged son of the respondents Ida and Phillip Abrams, aged 86 and 90 respectively. Philip and Ida had accumulated a tidy fortune over the course of their lives. In addition to their son Stephen, Philip and Ida had two daughters, Judith and Elizabeth. Jealousies, and mistrust began to ferment amongst the siblings when the matter of estate planning and succession began to be addressed.
In January of 2007, Ida executed a Continuing Power of Attorney for Property and a Power of Attorney for Personal Care. She appointed her husband Philip as her attorney and Judith as her substitute attorney, in the event Philip was unable to act for any reason (the “2007 POAs”). In response, Stephen brought an application seeking a declaration that Ida lacked capacity to grant the 2007 POAs and that Philip lacked the capacity to manage Ida’s property. He also sought to be named as their guardians for property. Stephen asked that the court compel his parents to have capacity assessments performed in this regard. Philip and Ida opposed this relief.
At the time of the hearing, Ida and Philip had both obtained multiple capacity assessments which stated that they had sufficient capacity.11
As part of his efforts to compel capacity assessments for his parents, Stephen filed affidavit evidence with the court to show Ida’s deteriorating mental capacity as early as 2004. His evidence stated that in 2005, Ida could not recognize that Philip had suffered a stroke, she was confused about simple household activities and there were allegations that she was delusional. As for Philip, the allegation was that Philip had suffered a stroke in September, 2005, had Parkinson’s Disease and had both short-term and medium-term memory loss. Stephen alleged that Philip was continuing to make speculative investments – that he “thrives on speculation and risk” – at a time when he ought to be focusing on more conservative investments. Stephen also claimed that his father had been making distributions of assets from Philip’s company in an improvident fashion.
Despite this evidence, Justice Strathy was not prepared to compel Stephen’s parents to undergo further capacity assessments against their wishes. Rather he noted that the court should balance Ida and Phillip’s fundamental rights to dignity and privacy, as well as their legal rights, against the court’s duty to protect the vulnerable. His Honour then listed the following factors that a court should consider when exercising discretion to order a capacity assessment:
(a) the purpose of the SDA;
(b) the terms of section 79:
(i) the person’s capacity must be in issue; and
(ii) there are reasonable grounds to believe that the person is incapable;
(c) the nature and circumstances of the proceedings in which the issue is raised;
(d) the nature and quality of the evidence before the court as to the person’s capacity and vulnerability to exploitation;
(e) if there has been a previous assessment, the qualifications of the assessor, the comprehensiveness of the report and the conclusions reached;
(f) whether there are flaws on the previous report, evidence of bias or lack of objectivity, a failure to consider relevant evidence, the consideration of irrelevant evidence and the application of the proper criteria;
(g) whether the assessment will be necessary in order to decide the issues for the court;
(h) whether any harm will be done if an assessment does not take place;
(i) whether there is any urgency to the assessment; and
(j) the wishes of the person sought to be examined, taking into account his or her capacity.
Justice Strathy was satisfied that neither Ida nor Phillip should be required to undergo a capacity assessment or be restrained from dealing with their property. Accordingly, Stephen’s application was dismissed.
The majority of reported decisions have followed both the considerations set out in Abrams and the outcome of that case — i.e. the court is generally loath to order a capacity assessment against a party’s will.12
The Kischer Decision
The decision in Kischer v. Kischer13 is an interesting case in that a) less than a month after releasing his decision in Abrams, Justice Strathy was tasked with adjudicating another capacity assessment issue, and b) while he applied the same criteria as set out in Abrams, this is one of the rare cases in which the court did in fact order a capacity assessment to be conducted over an individual’s objections.
The applicant, Rudolf Kischer, was the son of the co-respondent, Daisy Kischer, and the brother of the other co-respondent, Kristine Kischer. Kristine was the daughter of Daisy and had been named as attorney for property and personal care. Rudolf brought an application under the SDA seeking a declaration that Daisy was incapable of managing property and making personal care decisions. Rudolf also sought to be appointed as Daisy’s guardian.
In reaching his decision, Justice Strathy noted that unlike Abrams, in the present case no capacity assessment had yet been undertaken.
In reviewing the evidence, Justice Strathy remarked that although the nature and quality of evidence will vary on a case-to-case basis, it would be beneficial to any court in these circumstances to receive the evidence of at least one disinterested person who is familiar with the individual whose capacity is at issue. His Honour then reaffirmed that court ordered assessments should only be ordered where a court is satisfied that there are reasonable grounds that necessitate the protection of a vulnerable person by way of an intrusive measure such as a court order assessment.
Justice Strathy found that the evidence established that: (a) Daisy’s memory had significantly declined; (b) Daisy had displayed personality changes and inappropriate behaviour; (c) Daisy would become confused about her family and relationships; (d) Daisy’s personal care had deteriorated and her living conditions were unhealthy; (e) Daisy’s physician was concerned about Daisy’s capacity; and, (f) there were questionable transfers of Daisy’s assets to Kristine that may have been improvident in nature.
Ultimately, Justice Strathy was satisfied that the evidentiary record provided reasonable grounds to believe that Daisy was incapable and concerns for her protection would override any reluctance to intrude on her privacy.
As evident by the Abrams and Kischer decisions, every case stands on its own particular facts. It is clear that while courts are reluctant to compel someone to be assessed, there are circumstances when a court will exercise its discretion and make such an order. To succeed in persuading a court to grant or deny such an application it is imperative to understand how judges view their roles. In the words of Justice Brown:
Proceedings under the SDA are not designed to enable disputing family members to litigate their mutual hostility in a public court. Guardianship litigation has only one focus — the assessment of the capacity and best interests of the person whose condition is in issue. This court, as the master of its own process and as the body responsible for protecting the interests of the vulnerable identified by the Legislature in the SDA, should not and will not tolerate family factions trying to twist SDA proceedings into arenas in which they can throw darts at each other and squabble over irrelevant side issues….my assessment that this proceeding has gone badly off the rails and that the parties have lost sight of the key issue — the best interests of Ida.14
Judges endeavour to strike a balance between an individual’s rights and the need for protection of a vulnerable person. Judges will not compel an allegedly incapable person to be assessed simply to provide certainty or comfort to the court and/or concerned relatives.15 They are more likely to order that an assessment take place if the risk to the vulnerable person warrants conducting one.
- Substitute Decisions Act, 1992, S.O. 1992, c. 30 at s. 79(1) (SDA). ↵
- S. 25(1) of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 at s. 79(1) (SDA) ↵
- The section also provides that the court may order an assessment on its own initiative, This reflects the difference between commercial litigation and litigation under the SDA. In the latter instance the court views its role as a protector of the vulnerable allegedly incapable person. ↵
- Abrams v. Abrams, (2008) O.J. No. 5207 (S.C.) at para. 50 leave to appeal ref’d (2009) O.J. No. 1223 (Div. Ct.) ↵
- Beretta v. Beretta, 2014 ONSC 7178 at para. 34. ↵
- Abrams v. Abrams, (2008) O.J. No. 5207 (S.C.) at para. 49 leave to appeal ref’d (2009) O.J. No. 1223 (Div. Ct.) ↵
- Substitute Decisions Act, 1992, S.O. 1992, c. 30 at s. 2; see also ss. 3, 22(3), 24(5)(b), 27(4), 57(3)(b), 62(4), 78. ↵
- Kischer v. Kischer, (2009) O.J. No. 96 (S.C) at para. 10. ↵
- Kischer v. Kischer, (2009) O.J. No. 96 (S.C) at para. 10; Flynn v. Flynn, 2007 CarswellOnt 10220 (S.C.); Beretta v. Beretta, 2014 ONSC 7178 at paras. 30-31. ↵
- Abrams v. Abrams, (2008) O.J. No. 5207 (S.C.) at para. 49 leave to appeal ref’d (2009) O.J. No. 1223 (Div. Ct.) (Abrams). ↵
- As an aside, there are different types of capacity, with different legal tests for their determination depending upon the capacity in question. An individual may have capacity in one area, while simultaneously lacking it in another. For example, an individual may have the capacity to appoint someone as their attorney for property even if that same individual does not have the capacity to manage their own property or to make a will. As noted by the Supreme Court of Canada in Starson v. Swayze, 2003 SCC 32 at para. 15: “(c)apacity is an abstract concept.” For further information on the different levels of capacity and the various legal tests see: Comparing The Various Test of Capacity, Kimberely Whaley, prepared for the Law Society of Upper Canada 13th Annual Estates and Trusts Summit, November 18, 2010 ↵
- For example see the following cases where a court declined to order capacity assessments even when conflicting evidence about capacity was before the court including “clear evidence of cognitive decline”: Urbisci v. Urbisci, 2010 ONSC 6130 at paras. 29, 33-51, 100; Beretta v. Beretta, at paras. 46-54, 70; Erlich v. Erlich, 2018 ONSC 2911at paras. 9, 13-20, 31 36; Jhuaj v. Kooner, 2015 ONSC 4598 at paras. 6, 20, 24. ↵
- Kischer v. Kischer, (2009) O.J. No. 96 (S.C.) ↵
- Abrams v. Abrams, 2010 ONSC 1254 at para. 35. ↵
- Zheng v. Zheng, 2012 ONSC 3045 (Div. Ct.) at paras. 34, 37; Beretta v. Beretta, 2014 ONSC 7178 at para. 32. ↵