“The main issue before me on this motion is whether I should make an order directing the wife to undergo a capacity assessment under s. 105 of the Courts of Justice Act or s. 79 of the Substitute Decisions Act, 1992.
The court has jurisdiction under s. 105 of the Courts of Justice Act to make an order for a capacity assessment. The parties agree that the husband bears the burden of establishing that the order should be made. Section 105(2) provides that:
Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.
Where, as here, the request for a capacity assessment comes from another party, s. 105(3) applies. It provides:
Where the question of a party’s physical or mental condition is first raised by another party, an order under this section shall not be made unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe that there is substance to the allegation.
In 626381 Ontario ltd. v. Kagan, Shastri, Barristers & Solicitors, 2013 ONSC 4114 (CanLII), Stinson J. made clear that a mental examination should not be the norm on a motion to appoint or remove a litigation guardian. Rather, an order under s. 105 is exceptional. He wrote, at para. 40:
A s. 105 order to obtain the required evidence should be the rare exception and not the rule. Moreover, such an order is discretionary and should not be granted lightly or without good reason. Due consideration must be given to the autonomy of the individual, having regard to the intrusive nature of a mental examination.
Stinson J. went on to find that a contextual analysis must be employed to determine whether an order should issue under s. 105 in a civil proceeding. He held that the court must balance the affected party’s fundamental rights against the court’s duty to protect the vulnerable, the interests of the other parties and the court, as well as the societal interest in a fair, efficient and effective dispute resolution process: para. 58. He noted that the court cannot make a determination whether a party requires the assistance and protection of a litigation guardian without adequate evidence. Where it is not available, it may be necessary to require a mental examination under s. 105: para. 59.
Although Kagan, Shastri was a decision made in a civil context, the principles enunciated therein with respect to litigation guardians apply equally in the family law context: Costantino v. Costantino, 2016 ONSC 7279 (CanLII) at paras. 36-37. In a family law case, in my view, when considering the possible appointment of a litigation guardian, the court is not concerned only with the litigant, the other parties, itself, and society’s interest; it must also be concerned with the interests of the children who may be affected.”