Anna Chen, Associate, Gowling WLG (Canada) LLP

This was the question addressed in the recent decision Orr v Orr, 2025 ONSC 4986.

In Orr, 82-year-old William Orr (“Bill”) was diagnosed with advanced Alzheimer’s Disease and moved into a secure ward at McCormick Home, an accredited long-term care home in London, Ontario.  His capacity to manage personal care was put into dispute in the application.  The applicant was Bill’s wife Gwen Orr (“Gwen”) of almost 60 years and Bill’s attorney for property and personal care.  In addition to the issue of capacity, Gwen also sought orders to restrict the couple’s two children Alison and Nathan from visiting Bill at the long-term care home.

In determining the issue of restricting visits of Alison and Nathan, the court started by stating that the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”), imposes on every attorney important duties aimed at fostering an incapacitated person’s independence and autonomy while protecting their best interests.  The SDA also requires a guardian to make decisions in accordance with wishes or instructions of the incapable person, as expressed while the person was still capable.

Ultimately, the court found that Bill was capable of accepting the visit from Alison and Nathan on the date that they visited (August 28, 2023), but given Gwen’s own personal animus toward Alison and Nathan, the court made directions providing Alison with prescribed visiting time with Bill so as to limit contact and potential for conflict between Gwen and Alison while in Bill’s presence.

In reaching the above conclusion the court:

1. found that although Bill was angry at his children from 2019 to 2021, and did express to several people to the effect that he did not want to ever see his children again, he remained open to communications with his children and evidence showed he had a reconciliation with Alison in 2022. There is also no evidence that after 2022 Bill repeated his desire to never see his children again;
2. held that the onus was on Gwen to rebut the presumption of capacity on a balance of probabilities and she did not present cogent evidence to rebut the presumption that Bill had the capacity to decide to see Alison and Nathan on August 28, 2023;
3. rejected Gwen’s argument that it was contrary to Bill’s best interests for him to be visited by the children. Gwen relied on a geriatric specialist’s report in which the specialist opined that people with severe dementia can still have awareness of people linked to past negative events and visits from the children may have a negative effect on Bill if he was able to make the link between the children and the past trauma associated with them. The specialist further opined that it is quite possible that the negative events from 2019 contributed to Bill’s cognitive decline.

The court found the specialist’s report speculative and not proof that visits from Nathan and Alison are contrary to Bill’s best interest.  The court found that while Bill may recall traumatic past events, the potential risk of same does not outweigh the harm of restricting Bill’s autonomy and statutory right to receive visits at his home.  The court further stated:

[89]  The risk of harm of the visits must be considered in context. Bill is a resident in a long-term care home that has statutory obligations to ensure Bill is safe and free from emotional harm. The Fixing Long-Term Care Act, 2021, S.O. 2021, c. 39, Sched. 1 (“FLCTA”) regulates all long-term care homes in Ontario including McCormick Home. It sets out regulations for long-term care home staffing and care, and codifies a Resident’s Bill of Rights.

[90]  Section 3 of the FLCTA sets out the Resident’s Bill of Rights, which requires every licensee of a long-term care home to ensure that the rights of all of its residents are respected and promoted…

[91]  Every visit to Bill, whether by Gwen, Alison, Nathan or another, is made in the context Bill living in a long-term care home that owes him the duty to ensure his mental, social and emotional well-being. After Gwen expressed concern about Alison and Nathan’s visits, McCormick Home took steps to monitor the visits and ensure they were consistent with Bill’s wishes and his rights as a resident. No staff has identified any distress or harm to Bill occasioned by visits from Alison or Nathan. In the absence of any evidence of harm or distress, Bill’s presumptive right to receive visits from the children should continue.

…

[96]               Gwen appears unwilling or unable to acknowledge that Alison has visited Bill regularly for over a year, without incident. Before his dementia, Bill had a loving relationship with Alison. There is no evidence that Bill has suffered any harm from the visits. To the contrary, Bill has been observed to enjoy Alison’s visits or, at worst, has been calm and quiet. [Emphasis added.]

So, it appears, at least when an incapacitated person lives in a long-term care home, the attorney must show: (a) the incapacitated person had expressed a wish or instruction while he/she was capable to not be visited by a person; or (b) there must be evidence of actual distress or harm to the incapacitated person by the visit(s).