Month: July 2026

“Additionally, some of the information provided by both parties, particularly Ms. Van Ittersum, was said to have been, or was clearly, obtained from the internet. The clearest statement that I was able to locate about the criteria that must be met before such information may be relied on by a court was that of  Justice D.G. Price at paragraphs 87 and 88 of Sutton v. Sutton, [2017] O.J. No. 2648, where he wrote, citing the decision of Justice Tremblay-Lamer of the Trial Division of the Federal Court in ITV Technologies, Inc. v. WIC Television Ltd., [2003] F.C.J. No. 1335, 2003 FC 1056, aff’d. [2005] F.C.J. No. 438, 2005 FCA 96 (Fed. C.A.):

87  Justice Tremblay-Lamer held that internet information can be admissible if it is accompanied by indicia of reliability, including, but not limited to:

*   whether the information comes from an official website from a well-known organization;

*   whether the information is capable of being verified;

*    whether the source is disclosed so that the objectivity of the person or organization posting the material can be assessed.

88  Justice Tremblay-Lamer held that where the threshold of “admissibility” is met, it is still up to the trier of fact to weigh and assess the information to determine what significance, if any, it has on the issues to be decided. The court concluded, at para. 27, that the evidence in that case did not meet the threshold of admissibility and that it should be struck:

Accordingly, I find that affidavit evidence, “on information and belief”, including information taken from the internet, is potentially admissible in interlocutory applications,…and may be admitted “under special circumstances” where the “grounds for such information and belief” are adequately disclosed and the information is reliable. Here, the subjective basis for the reliability of the information has not been disclosed and, furthermore, there is no objective basis to believe that the various postings have any degree of reliability.”

          Den Boer v. Van Ittersum, 2024 ONSC 3761 (CanLII) at 48

“The presumption of capacity is only rebuttable under precise conditions and with clear evidence: Ohenhen (Re), 2018 ONCA 65, 140 O.R. (3d) 616, at para. 82; Royal Bank, at para. 18. Those requirements are necessary to protect the autonomy of the person whose capacity is in issue. As Major J. acknowledged in Starson v. Swayze, 2003 SCC 32 (CanLII), [2003] 1 S.C.R. 722, at para. 75, “Unwarranted findings of incapacity severely infringe upon a person’s right to self-determination.”

Further, the question of capacity is nuanced. There are varying levels of capacity – a person can be capable of making a basic decision and not capable of making a complex decision or capable of making decisions about personal matters such as where or with whom to live and not decisions regarding financial matters: Calvert (Litigation Guardian of) v. Calvert (1997), 1997 CanLII 12096 (ON SC), 32 O.R. (3d) 281 (Gen. Div.), at pp. 293-94, aff’d 1998 CanLII 3001 (ON CA), [1998] 37 O.R. (3d) 221 (C.A.), leave to appeal refused, [1998] S.C.C.A. 161; Ohenhen (Re), at paras. 79-80; and Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, 151 O.R. (3d) 609, at para. 86, leave to appeal refused [2020] S.C.C.A. No. 409. In other words, the fact that a person is incapable of making decisions regarding property does not mean that they are incapable of making decisions regarding personal care. Further, a person may be capable of making decisions regarding some aspects of property and personal care, for example, one’s residence, but not others. In sum, capacity is on a spectrum and is not “an all-or-nothing proposition”: Ohenhen (Re), at para. 79.

The onus on the party alleging incapacity and the high burden of proof required to displace the presumption of capacity serve to safeguard the important right of self-determination. So too does the low threshold set by the courts for the determination of capacity. As Benotto J. (as she then was) stated in Calvert, a case under the Act involving the capacity of a spouse living with Alzheimer’s disease to separate and divorce, at p. 294: “The courts are slow to take away a person’s right to decide. This is reflected in the low threshold the courts have set for the determination of capacity.” This is because “[a] person’s right of self-determination is an important philosophical and legal principle”: Calvert, at p. 293. Jamal J.A. (as he then was), relying on Calvert and Ohenhen (Re), further explained in Carmichael, at para. 85: “Capacity is linked to personal autonomy and a person’s self-determination and ability to make important life choices.

Against the backdrop of the right to be heard and legal presumption of capacity, I turn to interpret ss. 2(1)(b) and 16(1) of the Act. Legislation that imposes limitations on an adult person’s decision-making rights must be interpreted in a way that minimizes intrusiveness: Nova Scotia (Minister of Health) v. J.J., 2005 SCC 12, [2005] 1 S.C.R. 177, at para. 23. The determination that an adult person is a “child of a marriage” may diminish that person’s right to function autonomously, including, as here, deciding where, when, and with whom they will live.

Issues of capacity for dependent adults living with disabilities are commonly but not exclusively decided in proceedings brought for guardianship orders under the SDA. However, given the equally serious consequences to an adult’s autonomy that may flow from orders made under the Act, there is no reason to treat issues of capacity that arise under the Act any differently than they are treated in other proceedings. In consequence, s. 2(1)(b) of the Act must be interpreted and applied in the context of the common law presumption of capacity and the high burden of proof required to displace it.”

J.F.R. v. K.L.L., 2024 ONCA 520 (CanLII) at 27-31