Disagreements are an inevitable part of relationships. With different upbringings, life experiences, and social circles, seeing eye-to-eye with another person on every decision is rare, if not impossible. The relationship between a child and their aging parent is particularly difficult to navigate, especially when determining what is in the parent’s best interests. James v James is a recent unreported decision involving a daughter who disagreed with her mother’s management and use of her assets, alleging that her mother was incapable or unduly influenced. Justice Faieta of the Ontario Superior Court of Justice held the mother was capable, emphasizing that even though we may disagree with our parent’s decisions and find them irrational, irrationality does not necessarily equate to incapacity.

In James v James, the daughter brought a motion for an interlocutory injunction to preserve her mother’s assets while awaiting the hearing of her application to be appointed as guardian of property and as full guardian of the person for her mother. The daughter alleged that her 79-year-old mother was incapable and, alternatively, that she was unduly influenced by a 31-year-old man she met in Florida and subsequently married three months later. Shortly after their initial meeting, the mother started to make seemingly out-of-character decisions concerning the management of her $11 million estate. The mother tried to withdraw money to purchase a second home in Florida in an area she previously disliked, sought legal counsel to change her Wills and Powers of Attorney that were in place for over 10 years, and ceased to communicate with her children with whom she was previously in frequent contact.

In his analysis, Justice Faieta relied on the test for incapacity established by the Supreme Court of Canada in Starson v Swayze. The test requires that a person must be able to 1) understand the relevant information to making a decision, and 2) appreciate the reasonably foreseeable consequences of the decision or lack of one. Justice Faieta also referred to ss 6 and 45 of the Substitute Decisions Act, 1992 (“SDA”), which provide the test for incapacity to manage property and personal care, respectively. The tests in Starson and the SDA make it clear that capacity is not assessed based upon another person’s standard of rationality. 

Justice Faieta did not grant the injunction. The mother was deemed capable and thus the daughter failed to establish there was a serious issue to be tried – the first criterion for an interlocutory injunction. Given the mother was alive and capable, Justice Faieta held that she was the only person who could assert that she was unduly influenced by her husband, which she refused to do. James serves as a reminder that incapacity arises from an inability to understand the information relevant to making a decision, not from irrationality. In our practices, if a client alleges that another party is incapable, we will want to ensure the results of a capacity assessment and the tests for incapacity support their claim. The belief that a decision is irrational is simply not enough evidence for a court to find a party incapable and to consequently limit their financial and personal freedoms.

Thank you for reading and have a great day! 

Suzana and Tristan Montag, summer student at Hull & Hull LLP.