“The law that I have considered in this matter is the following from the jurisprudence that is developed around capacity in family law matters dealing with individuals that are suffering from mental health issues. Rule 4 of the Family Law Rules speaks of “special parties” and provides for the appointment of a legal representative for these parties, as well as other procedural protections.
In the recent Ontario Court of Appeal decision of Kowalsky 2018 ONCA 539, it is clear that failure to deal with this issue of a party’s capacity in litigation is a reviewable error and it must be dealt with and recognized as the responsibility by all parties once this issue has been raised. This is the responsibility of the court, the parties’ lawyer, the opposing party. Therefore in this matter the Society has recognized this and has rightfully brought this matter to court.
This issue must be dealt with first before any other proceeding can go forward.
Justice Backhouse in the case of Children’s Aid Society of Toronto summarizes the applicable principles that were established in Re Koch (1997), 1997 CanLII 12138 (ON SC), 33 OR (3d) 485:
What is in one’s best interest must not be confused with one’s cognitive capacity. It is mental capacity and not wisdom that is the subject of the Substitute Decision Act, 1992 supra. It is immaterial whether one’s words, deeds and choices appear reasonable to others. Reasonableness in the eyes of others is not the test. The test for incapacity is an objective one. There is a distinction to be drawn between failing to understand and appreciate risks and consequences and being unable to understand and appreciate risks and consequences. It is only the latter that can lead to a finding of incapacity. Notwithstanding the presence of some degree of impairment, the question to be asked is whether one has retained sufficient capacity to satisfy the Substitute Decision Act, 1992, supra.
A person is assumed to be capable and there must be compelling evidence of incapacity for a court to find a person a special party. Nezic v. Nezic 2013 Carswell Ont 4003 at paragraph 2.
The main issue in these incapacity hearings is the difference between failing to understand versus being unable to understand. It is mental capacity and not wisdom that is at issue.
What is in one’s best interest must not be confused with cognitive capacity – capable people are permitted to make poor choices.
The test for capacity is an objective one, and compelling evidence is required to override the presumption of capacity.
Generally, in these matters evidence that is presented is from people who know the litigant over a period of time.
The appearance, demeanour and conduct of a litigant before the court.
Testimony of the litigant, their filed materials and transcripts.
The opinion of the litigant’s own counsel.
Current, relevant medical evidence is the best evidence and should be produced where possible.”
Children’s Aid Society of Peel v. S.C., 2019 ONCJ 622 (CanLII) at 35-47