During estate litigation, all parties must have sufficient capacity to participate in the proceedings. If a litigant is represented by a lawyer, the requisite capacity is described as capacity to instruct counsel, whereas self-represented litigants must have capacity to represent one’s self, or alternatively, capacity to participate at trial.
Broadly speaking, capacity to participate in litigation involves the ability to understand financial and legal issues. When a lawyer is involved, the test for capacity requires the litigant to “a) understand what they have asked the lawyer to do for them and why; b) be able to understand and process the information, advice, and options the lawyer presents; and c) appreciate the advantages and drawbacks and potential consequences associated with the options they are presented with”: see Constantino v. Constantino, 2016 ONSC 7279. That said, it’s not necessary for a client to understand all technical matters addressed by counsel or experts – clients are permitted to rely on their counsel to understand specific details and processes involved in the litigation: see RMK v. NK, 2020 ABQB 328.
The capacity needed for a self-represented litigant to represent him or herself has been explored in family lawcases – see, for example, Laferriere v Laferriere, 2019 ONSC 879. For self-represented litigants, capacity is assessed in light of whether the party is able to understand information relevant to making decisionsregarding pertinent legal issues, or is able to appreciate the reasonable consequences of a decision regarding those issues. Evidence that may be used to assess a self-represented litigant’s capacity includes medical and psychological evidence, evidence from people who know the litigant well, the litigant’s appearance and demeanour, the litigant’s testimony, and, when applicable, the opinion of the litigant’s counsel.
Regardless of whether a litigant is self-represented or assisted by counsel, incapacity which renders a party unable to participate in litigation need not rise to thedefinition under the Substitute Decisions Act, 1992, S.O. 1992, c. 30 or the Mental Health Act, R.S.O. 1990, c. M.7. As noted by the Court of Appeal in Kowalsky v. Asselin-Kowalsky, 2018 ONCA 539, incapacity simply has to be in respect of an issue in the proceeding, not necessarily for all aspects of life.
However, the cause of a litigant’s incapacity may be relevant. In Constantino, Justice Price remarked that “the cause of incapacity must stem from a source of mental incapacity, such as mental illness, dementia, developmental delay, or physical injury, and not from a non-legal capacity-related reason, such as lack of sophistication, education or cultural differences” (emphasis in the original).
If litigation proceeds when a party does not have capacity, the consequences can be quite counterproductive. For example, mental incapacity can vitiate a settlementagreement. Alternatively, if a litigant is self-represented and unable to participate in an application or trial due to incapacity, a court decision may be set aside on this basis, as was the case in Kowalsky.
Given the potential consequences of proceeding with litigation when a party lacks capacity, this is a matter that may warrant revisiting as litigation proceeds, particularly if the litigation spans a long period of time.
Thank you for reading, and have a great day!