Section 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and s. 79 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 provide the court with authority to order a capacity assessment, even when the individual objects. It is an extraordinary power but not one that is utilized lightly by the court. A recent decision of the Superior Court of Justice serves as good reminder and review of the test that must be satisfied before the court will make such an order.

In Gefen v. Gefen et al., 2022 ONSC 3378 (CanLII) (“Gefen”), the elderly mother was appointed the Estate Trustee of her husband’s estate. The alternate Estate Trustees were her two sons, jointly. An Estate Trustee During Litigation (“ETDL”), had been acting for many years but the appointment of the ETDL was set to expire. The main application was brought by one of the sons seeking an order passing over the appointment of his mother and brother and appointing him as sole Estate Trustee. In the course of the application, the applicant son sought to examine his mother as a non party pursuant to r. 39.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. She refused and the court was asked to order that she be examined. Following the examination the applicant son brought a motion seeking to have his mother’s capacity assessed. The motion was prompted, in part, by his mother’s behaviour and answers given during the examination. The mother’s capacity to instruct counsel became an issue, in addition to the capacity to manage property.

The court reviewed the factors articulated in the precedent case of Abrams v. Abrams, 2008 CanLII 67884 (ON SC), for determining whether to order a capacity assessment:

(a)  whether the person’s capacity is in issue;

(b)  whether 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 issue before 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.

The court reviewed the videotaped examinations and noted that, while it could not make an assessment of capacity based on the videotape, it could make factual observations, such as: many of the mother’s answers were “non-responsive” or she answered a different question than what was asked. The court noted that the mother was very focused on how much her applicant son was spending on legal fees and raised this issue several times, unprompted and unrelated to the questions asked.

The court’s findings about the mother included the following: she is 98 or 99 years old, blind and deaf; she relies on others for banking and other necessities and cannot act independently; prior capacity assessments from 2011, 2012 and 2014, were out of date given the mother’s age and were with respect to her capacity to transfer property; the mother’s capacity is a central issue in the application but the evidence was limited to the observations of the court, legal counsel and other parties; and the mother’s own wishes were not known to the court, as she did not swear an affidavit.

The court ordered that the mother undergo a capacity assessment but did not so before agreeing with the following principle from Kischer v Kischer, 2009 CanLII 495, at paragraph 10:

“The assessment process is an important tool for the court in the discharge of its responsibility to protect the vulnerable. It enables the court to obtain an objective, independent and expert assessment of the individual’s capacity, free from the partisan and subjective perceptions of the parties. Its utility cannot be understated. That having been said, it is important to resist the temptation to order an assessment based on the argument “it can’t hurt.” It can hurt. Privacy and freedom from coercive interference with one’s physical and mental autonomy are core values of Canadian society.”

Asking the court to order a capacity assessment, particularly when the individual objects to the assessment, is no easy ask, nor should it be. The court will engage in a careful analysis of the facts specific to the circumstances of the case and to the individual who may be assessed. Given what is at stake with a finding of incapacity, this analysis is not only appropriate but expected, and hopefully even demanded by all parties involved.