In law, expressed choices are not necessarily a reflection of capable decision making. For example, regarding testamentary capacity, the Ontario Court of Appeal in Hall v. Bennett Estate (2003)[i] stated in paragraphs 15 and 16 that it is not sufficient simply to show that a testator had the capacity to communicate his or her testamentary wishes. Those wishes must be shown to be the product of a sound and disposing mind and the mere capacity to communicate testamentary wishes is not determinative of the issue.

Capacity evaluation is an assessment of ‘decisional’ capacity in that it is the decision-making process that is at issue. Capacity evaluation is not a judgement of the expressed choice. Two equally fundamental and essential cognitive tasks apply to capacity evaluation in respect to the decision making process:

1. The ability to understand information relevant to making the decision.
2. The ability to appreciate the consequences of making the decision or not.

The question of capacity evaluation for an individual who has underlying cognitive impairment and is considering divorce is described in the 1997 Ontario Court of Justice case of Calvert (Litigation Guardian of) v. Calvert.[ii] The contract of marriage has been described as the essence of simplicity, not requiring a high degree of intelligence to comprehend. The threshold for capacity required for separation and divorce is described as being low with the legal test being whether the person understands what he or she is doing, why they are doing it, and whether they want to do it. The recent divorce trial George and Joanne Chuvalo, in which I was called as an expert witness, exemplifies the issue of capacity evaluation of an expressed choice.

The trial was reported by Mary Ormsby for the Toronto Star.[iii] As Ormsby reported, the legendary Canadian boxer, age 80, was found by Ontario Superior Court Justice Frances Kiteley to not have capacity to make a decision on whether to reconcile with his wife. Ormsby reported that while Justice Kiteley noted “there is evidence that Mr. Chuvalo says he wants to live with his wife,” she said the decision to reconcile is more complex than simply saying so and “there is no evidence that he understood whether there would be consequences to a decision to live with his wife.” Ormsby wrote:

In Shulman’s latest report, dated Dec. 20, 2017, he wrote that in his clinical opinion “George is no longer able to appreciate the consequences of his choices in regard to the matrimonial proceedings.” “Cognitive tasks required for appreciation include realistic appraisal of outcome and justification of choice,” Shulman’s report continued. “It is an examination of the line of reasoning employed by the person in making decisions. George does not demonstrate a satisfactory ability to appreciate the potential consequences of reconciliation or divorce.” …Chuvalo’s cognitive ability had sharply declined and that Chuvalo no longer had the ability to consider “all the risk evaluation” associated with making a decision to reconcile. “It was all lost,” Shulman testified.

The Chuvalo case demonstrates the inter-connectivity of the two pronged legal test of the ability to understand information relevant to making a decision and the ability to appreciate the consequences of making a decision or not. Without the ability to remember and thus understand the relevant information that determine the context of a decision, then one cannot appreciate the potential consequences of that decision as the ability to evaluate prior concerns and justify one’s choice is unfortunately lost.

[i] Hall v. Bennett Estate, 2003 CanLII 7157 (ON CA) — 2003-05-14

[ii] Calvert (litigation guardian of) v. Calvert, 1997 CanLII 12096 (ON SC)

[iii] https://www.thestar.com/news/gta/2018/01/13/george-chuvalo-lacks-capacity-to-decide-on-his-marriage-judge-rules.html