Our blog has previously covered the developments in medical assistance in dying (MAID) since the prohibition against MAID ended in Canada in 2016.
Almost 230 thousand Canadians responded to a recent government survey on MAID, making it the largest public consultation in Canadian history. Although the complete survey results have yet to be released, respondents are reported to have shown great support for making it easier for Canadians to access MAID.
As MAID has gained recognition throughout the country, many have fought for increased accessibility and the expansion of eligibility criteria. Specifically, some believe that the criteria are too restrictive in excluding (1) individuals whose deaths are not imminent, and (2) those who cannot consent to receive MAID at the time at which it is administered. Because recipients of MAID are required to provide consent personally immediately prior to its administration (rather than in advance), health problems that may also impact mental capacity can render some of them ineligible.
In some parts of the country, MAID is already accessed at significant levels. In Vancouver Island, with the greatest access in Canada to MAID per capita, MAID accounted for over six percent of all deaths in 2019.
Given the clear engagement of Canadians regarding the issue of enhancing access to MAID, it will be interesting to see how legislation regarding MAID may be updated over time to address the potential introduction of advanced consent and/or the authority of substitute decision-makers to confirm consent.
Thank you for reading,
Other blog posts that may be of interest:
Lewis v. Lewis is a recent Ontario Court of Appeal decision in which the Appellants challenged the dismissal of their Application from the Superior Court of Justice. At issue was whether the Appellants’ mother, Marie Lewis, had the requisite capacity to execute new powers of attorney for property and personal care. The Appellants sought to invalidate the new powers of attorney and bring back into effect prior powers of attorney which Mrs. Lewis executed in 1995.
The Appellants raised several issues on appeal. In essence, they took issue with the application judge’s assessment of the evidence and exercise of his case management discretion.
In dismissing the appeal, the Ontario Court of Appeal emphasized the following principles regarding capacity:
- Since capacity is presumed, those objecting to the document(s) have the onus to rebut that presumption, with clear evidence, on a balance of probabilities.
- Similarly, those raising the issue of suspicious circumstances and undue influence bear the onus of establishing it, on a balance of probabilities.
- The fact that someone had various chronic medical conditions throughout their life does not automatically mean that they lacked capacity. It is open to the application judge to consider the evidence. In doing so, the application judge may reject any evidence that they find to be unreliable.
- Without evidence to the contrary, it is reasonable for an application judge to take “solace” from the fact that the individual executed their new powers of attorney before their solicitor of many years.
- It is reasonable for an application judge to refer to the statements of section 3 counsel, appointed by the Office of the Public Guardian and Trustee, concerning an individual’s expressed wishes.
Good things to keep in mind when dealing with capacity issues.
Thanks for reading … Have a great day!
Suzana Popovic-Montag and Celine Dookie
Under the Substitute Decisions Act, 1992 (“SDA”), if a person is eighteen years of age or more, there is a presumption of capacity. However, pursuant to section 2(4) of the SDA, if a gift, or contract is made by a person either while the person’s property is under guardianship, or within one year before the guardianship is established, the onus shifts to the other person to prove that they did not have reasonable grounds to believe the person incapable.
In the recent decision of the Ontario Superior Court of Justice (Divisional Court), Foisey v Green, the Court provides clarification on the correct test to be applied under section 2(4).
In Foisey v Green, Ms. Foisey and Ms. Green were the co-beneficiaries of their brother’s estate, who had died intestate. Ms. Foisey and Ms. Green had been estranged for many years, however, through the use of a private investigator, Ms. Green was able to locate her sister at a retirement residence in Ontario. Ms. Green then met with her sister and arranged for legal representation. Ms. Foisey ultimately renounced her right to act as estate trustee of her brother’s estate and when the time came to distribute the assets of the estate, Ms. Foisey provided Ms. Green with a release.
Shortly after having provided the release, Ms. Foisey was found to be incapable of managing her own property, and the Public Guardian and Trustee (“PGT”) was appointed as her guardian of property. The PGT became concerned that Ms. Foisey had received significantly less than what was supposed to be a 50% share in the estate. The PGT made repeated inquiries for more information from Ms. Green and her counsel, but received little to no response. In result, the PGT brought an application seeking to compel Ms. Green to pass her accounts.
In applying section 2(4) of the SDA, the application judge concluded that because of the existence of red flags, Ms. Green had not satisfied that she did not have reasonable grounds to believe Ms. Foisey was incapable when she signed the release. The red flags identified by the application judge included the fact that Ms. Foisey had a long-standing mental illness, that Ms. Foisey lived in a retirement residence, that Ms. Foisey was part of a trusteeship program and that Ms. Green and her lawyer had failed to provide the PGT with any information to satisfy their concerns. For these reasons, the application judge ordered Ms. Foisey to pass her accounts.
On appeal, the Divisional Court held that the “red flags” test applied by the application judge was the incorrect test to apply, because in doing so, the judge failed to consider the extent to which each red flag was known by Ms. Green, and whether Ms. Green had reasonable grounds to believe that Ms. Foisey was incapable of providing the release.
The Divisional Court examined the meaning of “reasonable grounds to believe” looking to jurisprudence and dictionary definitions, concluding that it means a reasonable probability, or that there be an objective basis for the belief which is based on compelling and credible information.
The Divisional Court went on to hold that when assessing whether a person has capacity to enter into a contract, at the time of entering into the contract, they must understand the information relevant to deciding whether or not to enter into the contract. If they can do this, you must further ask if the person can appreciate the reasonably foreseeable consequences of entering into the contract.
After laying out the framework of section 2(4), the Divisional Court went on to consider the red flags identified by the application judge, holding that:
- there was no evidence to suggest Ms. Green knew of her sister’s mental illness,
- no one from the retirement residence suggested that Ms. Foisey was incapable,
- Green had spoken with the case manager of the trusteeship program and had not been told that Ms. Foisey had severe mental health difficulties,
- There was evidence from Ms. Green’s lawyer that Ms. Foisey had legal representation, and appeared to be lucid and understood the release that was properly explained to her by counsel. The Court further acknowledged that a person who suffers from a cognitive impairment is competent with respect to a specific act as long as the act in question takes pace during a lucid interval.
On balance, the Divisional Court concluded that the application judge erred in pointing to “red flags” without addressing what was actually known by Ms. Green, and whether or not that knowledge would lead to reasonable grounds to believe that Ms. Foisey lacked capacity to enter into the release. The Court noted that the most alarming of red flags was the failure of Ms. Green and her lawyer to provide the PGT with information to address his concerns. However, the Court found that the lack of cooperation of Ms. Green and her counsel was not relevant to whether or not Ms. Green had reasonable grounds to believe Ms. Foisey incapable, and, it occurred many months after the execution of the release.
In reaching this conclusion, the Court noted that there is nothing inherently unusual or sinister about an estate trustee requesting a release from a beneficiary – such releases have been commonly used by estate trustees for decades.
Thanks for reading!
The Substitute Decisions Act (the “SDA”) was passed in 1992. It governs what happens when a person becomes incapable of managing their own property or personal care. Under section 3 of the SDA, if the capacity of a person in a legal proceeding is in issue, the Public Guardian and Trustee (the “PGT”) may arrange for the legal representation of that person. Section 3 also provides that the person shall be deemed to have the capacity to retain and instruct counsel.
Although section 3 seems to be fairly straightforward, the details surrounding the appointment and position of section 3 counsel are somewhat obscure. Cases such as Sylvester v Britton and Banton v Banton have added some clarity to the role of section 3 counsel. The recent case of Kwok v Kwok provides a further illustration as to when section 3 counsel is to be appointed.
In Kwok v Kwok, Jiefu Kwok was involved in two motor vehicle accidents in 2011. He suffered a traumatic brain injury as a result and commenced two legal actions in relation to the accidents. A capacity assessment was conducted in 2014, which revealed that Jiefu was incapable of taking care of himself and managing his own property. In 2015, Jiefu’s son, Derek, was appointed as his guardian for property and personal care. Derek later filed an application to be released from these roles as he stated that it was putting a strain on his relationship with his father. Derek’s mother, Ellie, brought an application to take Derek’s place and be appointed as Jiefu’s guardian of property and personal care.
The PGT took the position that section 3 counsel should be appointed to represent Jiefu and obtain his wishes before Ellie was appointed as Jiefu’s guardian of property and personal care. The PGT was of the view that Jiefu’s capacity assessment conducted in 2014 was outdated and that a more limited guardianship might be appropriate for him.
Counsel for Derek and Ellie (the “Applicants”) argued that section 3 counsel is to be used in cases where a capacity assessment has not already been conducted. They added that, since a capacity assessment was already conducted in this case, the appointment of section 3 counsel was inappropriate. Moreover, a primary concern for the Applicants was the high costs associated with the appointment of section 3 counsel.
The Court considered the arguments of the PGT and the Applicants and noted the following about the role of section 3 counsel:
- The appointment of section 3 counsel is a safeguard that protects the dignity, privacy and legal rights of a person who is alleged to be incapable
- Section 3 of the SDA does not make the appointment of legal representation mandatory
- In deciding whether to appoint section 3 counsel, the Court must consider the specific facts and issues in each case
- The Court can appoint section 3 counsel even in cases where a capacity assessment has already been conducted or where there is an existing Court order declaring that a person is incapable
The Court concluded that the appointment of section 3 counsel would not be in Jiefu’s best interests and would be a waste of resources. The Court made this finding based on the following reasons:
- There were no completing claims amongst Jiefu’s closest relatives as to who should be his legal representative. Both Derek and Ellie supported the appointment of Ellie as Jiefu’s guardian of property and personal care
- There was no evidentiary basis to question the validity of the 2014 capacity assessment
- A letter from Jiefu’s primary care physician regarding his current condition did not suggest that Jiefu’s condition had improved
- Jiefu attended Court and expressed that he supported the appointment of Ellie as his guardian of property and personal care
As a result, Derek was released from his role as Jiefu’s guardian for property and of the person and Ellie was appointed in his place.
Kwok v Kwok adds to a growing body of cases examining the role of section 3 counsel. It provides that the Court can appoint section 3 counsel even in cases where a capacity assessment has already been conducted or where there is an existing Court order declaring that a person is incapable. Furthermore, it indicates that the wishes of the incapable person are to be given a considerable amount of weight in assessing whether section 3 counsel is appropriate.
For further reading on section 3 counsel, check out these other blogs:
Thanks for reading – have a great day!
Suzana Popovic-Montag and Celine Dookie
We often encounter situations where the administration of an estate is complicated by the fact that the deceased was married multiple times, and there is a clash between children from a prior relationship and a subsequent spouse (and/or his or her children). Sometimes, a couple will be closer with one set of children, which may lead to disputes following both of their deaths. Estate of Ronald Alfred Craymer v Hayward et al, 2019 ONSC 4600, was one such case, in which Joan and Ronald had been closer for much of their 32-year marriage with Joan’s children from a prior marriage. After Joan and Ronald died in 2016 and 2017, respectively, a dispute arose between their adult children.
While Ronald’s will named his own children as beneficiaries of his estate, his Continuing Power of Attorney or Property (like Joan’s), named Joan’s daughter as alternate attorney for property, should his spouse be unable to act. Joan had acted as Ronald’s attorney for property from 2006, during which he had suffered a stroke, until her death. In 2011, Joan had transferred the couple’s matrimonial home, previously held jointly, to herself alone. During this period, however, there had been no request by Ronald’s children for an accounting. Joan’s daughter had subsequently acted as Ronald’s attorney for property and as estate trustee for Joan’s estate over the period of approximately eight months between the deaths of Joan and Ronald.
Ronald’s children sought a passing of accounts with respect to the management of their father’s property by Jane and her daughter and, specifically, challenged the change in title to the matrimonial home. The Court referred to Wall v Shaw, 2018 ONCA 929, in stating that there is no limitation period to compel an accounting. Accordingly, it considered the only bar to this relief to be laches and acquiescence. Justice C.F. de Sa commented that the there was nothing improper in the manner in which the plaintiff had sought the accounting and, furthermore, that the delay was not unreasonable in the circumstances. The Court permitted the claim regarding the matrimonial home to continue, but nevertheless declined to order a passing of accounts:
…[O]rdering the passing of accounts is discretionary. And in my view, to require an accounting at this point would result in a clear injustice as between the parties.
[Joan’s daughter,] Linda, as Estate Trustee, is hardly in a position to account for Joan’s spending while she was alive. Yet, to require a passing of accounts at this point would subject every line of Joan’s spending (as Attorney for Property) to the court’s scrutiny. Moreover, as the Estate Trustee, the Defendant would be liable to account for any unexplained expenditures.
Indeed, it is unclear that the spending was spurious given the nature of the relationship between Joan and Ronald. Joan would have been spending the money as his wife as much as his Attorney for Property. The failure to keep detailed accounts is hardly suspicious given the circumstances here.
…In the circumstances, I will not order a passing of accounts.
This decision is interesting in that it clearly considers the practicality of a passing of accounts and the inability of the deceased attorney’s estate trustee to properly account in the absence of relevant records in determining that it would be unjust to order a passing of accounts, despite there being no other apparent legal reason not to do so.
Thank you for reading.
Other blog entries that may be of interest:
There was a recent decision of the Ontario Superior Court of Justice on the issue of costs in a contested guardianship proceeding. Rather unusually, the endorsement in Howard Johnson v. Howard, 2019 ONSC 4643, dealt with the issue of costs after the parties have resolved the main dispute on consent.
In this case, there were two competing guardianship applications over Elizabeth. The applicants on the one hand were Elizabeth’s daughter and son, Marjorie and Griffin, and on the other hand, Elizabeth’s other son, Jon. All three of Elizabeth’s children were of the view that their mother was in need of a substitute decision maker for both the management of her property and for personal care.
While the endorsement does not specify who the competing applicants were seeking to appoint as Elizabeth’s guardian, the parties eventually settled on the appointment of CIBC Trust Corporation as Elizabeth’s guardian of property and all three children as Elizabeth’s guardians of personal care. On the issue of costs, Marjorie and Griffin sought full indemnity costs from Jon while Jon sought substantial indemnity costs from Majorie and Griffin or, in any event, that he be indemnified by Elizabeth for any amounts not recovered from his siblings.
Pursuant to section 3 of the Substitute Decisions Act, 1992, Elizabeth was represented by counsel throughout the proceeding and on the issue of costs. Submissions were made on Elizabeth’s behalf that she should not have to pay costs of the other parties or the outstanding balance of an invoice that was purportedly incurred by Elizabeth in a joint retainer with Jon.
The Court in this instance considered the modern approach to costs in estate litigation as set out in McDougald Estate v. Gooderham, 2005 CanLII 21091 (ON CA), with respect to Jon’s claim that Elizabeth ought to be responsible, at least in part, for his costs. The court relied on D.M. Brown J.’s (as he was then) comments that the discipline imposed by the “loser-pays” approach to estate litigation applies with equal force to matters involving incapable persons citing Fiacco v. Lombardi, 2009 CanLII 46170 (ON SC). Only costs incurred for the best interests of the incapable person could be justified as costs payable from the incapable’s assets.
In this case, the competing applications of the siblings were found to contain a number of ancillary issues beyond that of the appointment of a substitute decision maker for Elizabeth. The Court was ultimately unable to see how Elizabeth would have derived any benefit from her children’s disputes. Therefore, the children were all ordered to bear their own costs. There was also no clear benefit to Elizabeth from the invoice that was issued to her prior to the appointment of section 3 counsel and Jon was ultimately left to pay that balance.
At the end of the day, the only costs borne by Elizabeth, as the incapable person subject to two competing guardianship applications, were the costs of section 3 counsel pursuant to the section 3(2) of the SDA.
Here is a Bon Appetit recipe for a frozen margarita pie that we could all benefit from.
The Ontario Superior Court of Justice recently made an important ruling on a voir dire in respect of Dr. Kenneth Shulman’s proposed expert testimony.
This ruling will be of particular interest to estate litigators as it addresses the inherent admissibility of retrospective capacity assessments, amongst other things.
The Court in this instance implemented a form of blended voir dire, wherein Dr. Shulman’s evidence would be received in its entirety and submissions would be made on the issue of admissibility of the expert testimony. In the event that the Court ruled that Dr. Shulman’s evidence was admissible, the evidence obtained during the voir dire would be incorporated as part of the trial record.
The Defendant, amongst other objections, took issue with Dr. Shulman’s testimony on the basis that his testimony was based on a retrospective capacity assessment which was problematic for the following reasons:
- The proposed opinion was based on hearsay evidence and must therefore be excluded; and
- Expert opinion evidence on retrospective testamentary capacity assessments constitutes novel or contested science and is therefore not reliable.
The Court did not accept that Dr. Shulman’s use of certain evidence that has not been proven, and has not been relied upon him for the truth of its contents, prevents the Court from admitting his expert opinion evidence at the threshold admissibility stage. In other words, any such issues could be addressed in reference to the weight of the proposed evidence.
Most interestingly, however, the Court noted that many of the types of medical and psychiatric opinions offered at trial are retrospective in nature and did not agree that retrospective capacity assessments are novel in Ontario courts. The Court specifically noted that the Defendant was unable to identify a single case, since retrospective testamentary capacity assessments were first considered by the courts, in which psychiatric expert opinion of retrospective testamentary capacity assessment has been ruled inadmissible.
In applying the admissibility test established in R v Abbey 2017 ONCA 640, the Court held that Dr. Shulman’s expert opinion satisfied the threshold requirement in the first step. In weighing the cost versus benefit of admitting Dr. Shulman’s report, the Court found that the evidence favoured the admission of Dr. Shulman’s evidence.
The Court made a ruling admitting Dr. Shulman as an expert geriatric psychiatrist to provide expert opinion evidence in the areas of geriatric psychiatry and retrospective testamentary capacity assessment.
This is an important ruling in the context of estate litigation given that in most instances, the capacity assessments that are usually relied on in the course of litigation are of a retrospective nature, since the subject of the assessment is most often deceased.
Thanks for reading!
Find this blog interesting? Please consider these other related posts:
My colleague, Sayuri Kagami, blogged Tuesday on efforts to use artificial intelligence in scanning for risk factors that have historically contributed to premature death. Such efforts constitute a significant development in policy pertaining to preventive models of health care.
Broadly speaking, delivery of health care services can generally be categorized into one of two models. The reactive model of health care is one based on acute care, and focuses on the treatment of illness as it arises and on an ongoing basis. Your typical visit to the emergency room would generally fall within the scope of reactive health care.
The preventive model of health care, in contrast, is a proactive treatment model emphasizing, as one might expect, the prevention of illness and the mitigation of key risk factors contributing to chronic disease. This model emerged largely as a result of the significant financial strain placed on public health care models in Ontario and abroad by the reactive model.
Treatment of acute and chronic illness on an ongoing and extended basis is, by most accounts, exceedingly expensive and inefficient. In the context of estate planning, we are frequently exposed to the considerable financial and emotional tolls of treating Alzheimer’s disease and other illnesses impacting cognition.
Since the 1970s, policy makers have made significant strides in advocating for a treatment model that sets out the benefits of preventive health care in an attempt to reduce the burden of reactive treatment models. In particular, this model focuses on steps that may be taken by individuals to reduce the risk of chronic illness in order to alleviate the strain placed on the public health care system.
A recent study performed by Cancer Care Ontario identified four main risk factors common to more than 90% of instances of chronic disease:
- Tobacco consumption;
- Alcohol consumption;
- Lack of physical activity; and
- Unhealthy eating habits.
Proponents of the preventive have therefore advocated for increased funding devoted to mitigating each of these factors in order to reduce reactive spending down the road.
If you didn’t pay attention to your grandmother while growing up, take it from the experts: an ounce of prevention is worth a pound of cure.
Thanks for reading.
A recent decision of the Ontario Superior Court of Justice considered an interesting question of fact and law. Will challenges in Ontario are ordinarily grounded on the basis that a testator lacked testamentary capacity, did not know and approve of the contents, or that the Will was procured by undue influence. In Cavanagh et al v Sutherland et al, however, the applicant sought to challenge the validity of her mother’s will on novel grounds; namely, that it was procured as a result of a mistake of fact.
The testator died in July 2016, leaving a Will benefiting 5 of her 6 daughters. The Will expressly excluded her sixth daughter, Carolynn, from sharing in the Estate. Carolynn objected to the issuance of a certificate of appointment on the basis that her mother lacked capacity or that the Will was procured by undue influence.
The estate trustees brought a motion for summary judgment seeking an order dismissing Carolynn’s objection and a declaration that the Will was their mother’s valid Last Will and Testament. At the hearing of the motion, Carolynn changed her position and chose instead to focus primarily on her belief that her mother had been operating on a set of mistaken facts.
Carolynn referred to a payment of $65,000 made to her by her parents in or about 2011, prior to the execution of an earlier will that also excluded Carolynn. She took the position that this payment was made in satisfaction of a loan to her father years earlier that her mother knew nothing about. Carolynn argued that her mother likely believed this payment was a gift to Carolynn in lieu of her inheritance and, accordingly, left her no benefit under the Will.
The court found that the evidence held otherwise. Notably, the evidence showed that the payment was not made in satisfaction of a loan, but rather as a result of a demand by Carolynn. In 1996, her parents had agreed to place her on title to a property to assist them in obtaining a mortgage. The mortgage was subsequently paid off in 2011, at which point Carolynn’s parents asked that she transfer her interest in the property back to them.
The evidence showed that Carolynn refused, instead asserting that there was always an intention that she remain on title to the property as legal owner. Carolynn’s parents ultimately offered to buy out her interest in the property in exchange for a payment of $65,000. Her mother later advised the lawyer who prepared the Will that this was to constitute Carolynn’s inheritance. It was clear to the court that the testator had considered this payment when the Will was drafted.
In the end, the evidence was such the court did not have to consider the effect of a true mistake of fact on the validity of a Will. However, the question of a mistake of fact would ordinarily tie into knowledge and approval and, specifically, whether the mistake was sufficient to negate the validity of the Will. In this case, it was apparent that the testator had turned her mind to the payment to Carolynn, and there was no question of a lack of knowledge and approval.
Thanks for reading.
Medical records are frequently key evidence in estate disputes. Often, a testamentary document or inter vivos transaction is challenged on the basis that the deceased lacked testamentary capacity or the mental capacity to make a valid gift.
The British Columbia Supreme Court recently reviewed the issue of admissibility of medical records within the context of a will challenge. The parties propounding the last will asserted that the deceased’s medical records were inadmissible on the basis that (1) the parties challenging the will were attempting to admit the records for the truth of their contents, (2) the records included third party statements from family members, which was suggested to constitute double hearsay evidence, and (3) the records were entirely inadmissible because they were not relevant, none of them being within weeks of the date of execution of the challenged will.
In Re Singh Estate, 2019 BCSC 272, the estate trustees named in the deceased’s will executed in 2013 only learned of the existence of a subsequent will executed in 2016 after they provided notice to the beneficiaries of the estate that they intended to apply for probate in respect of the 2013 will. The 2016 will disinherited two of the deceased’s eight children (including one of the two adult children named as estate trustee in the 2013 will) on the basis that they had received “their share” in their mother’s estate from the predeceasing husband’s estate. Between the dates of execution of the 2013 and 2016 wills, the deceased had suffered a bad fall and allegedly experienced delusions and had otherwise become forgetful and confused.
At trial, medical records are typically admitted under the business records exemption of the Evidence Act (in Ontario, section 35). Justice MacDonald acknowledged this general treatment of medical evidence, citing the Supreme Court of Canada (at para 48):
While clinical records are hearsay, they are admissible under the business records exception both at common law and under s. 42 of the Evidence Act. The requirements for the admission of medical records as business records are set out in Ares[ v Venner,  SCR 608]. The Supreme Court of Canada held at 626:
Hospital records, including nurses’ notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein.
Subsequent case law cited by the Court addressed the second objection of the parties propounding the will, which provided that the observations that a medical practitioner has a duty to record in the ordinary course of business (including those involving third parties) are generally admissible (Cambie Surgeries Corporation v British Columbia (Attorney General), 2016 BCSC 1896). Lastly, the Court considered the issue of relevance of the medical records and found that evidence relating to the mental health before and after the making of a will can be relevant in supporting an inference of capacity at the actual time of execution of the will (Laszlo v Lawton, 2013 BCSC 305).
After finding the medical records to be admissible as evidence of the deceased’s mental capacity (and in consideration of all of the available evidence), the Court declared the 2016 will to be invalid on the basis of lack of testamentary capacity.
Thank you for reading.