Posts tagged ‘capacity’

February 4, 2016

Physician Assisted Death – Ontario Superior Court Issues Practice Advisory

As discussed in an earlier post, in February 2015 the Supreme Court of Canada declared that portions of the Criminal Code that make it an offence to aid or abet a person to commit suicide are of no force or effect to the extent that they prohibit physician‑assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.  The declaration of invalidity was suspended for 12 months, until February 6, 2016, to allow time for the government to determine what, if any, legislative approach was appropriate to deal with the Court’s decision – in other words, what guidelines should be put in place to allow for physician-assisted death.

In January of this year, the Federal government requested a six-month extension of the suspension.  With the exception of Quebec, the Court granted a four-month extension but directed that during that time period, applications may be brought to provincial superior courts for exemptions to permit individual cases of physician-assisted death to proceed so as not to “unfairly prolong the suffering of those who meet the clear criteria we set out in Carter“.

On February 2, the Ontario Superior Court of Justice issued a practice advisory dealing with the procedure and evidentiary requirements for exemption applications in Ontario.  Of note is the direction concerning evidence to be included, stating that the application “should” (read – “had better”) include affidavit evidence from (1) the applicant; (2) the attending physician; (3) a consulting psychiatrist; and (4) the physician proposed to assist death.  The evidence to be provided must lead the Court to conclude that the applicant:

  • has a grievous irremediable medical condition (illness, disease, or disability) that causes suffering
  • as a result of his or her medical condition, the applicant is suffering enduring intolerable pain or distress that cannot be alleviated by any treatment acceptable to the applicant
  • has the mental capacity to make a clear, free, and informed decision about a physician assisted death
  • will be physically incapable of ending his or her life without a physician assisted death
  • consents without coercion, undue influence, or ambivalence to a physician assisted death
  • makes the request for authorization for a physician assisted death freely and voluntarily

Given the relatively short extension (by which time guidelines should be in place) and the evidence necessary to obtain the exemption, I would not expect there to be more than a handful of exemption applications.



July 14, 2015

Penny Wise or Pound Foolish?

As a litigator, I see a lot of the downside to do-it-yourself estate planning.  The recent Ontario Court of Appeal decision in Foley v. McIntyre is a good example.  At issue were certain inter vivos (ie. before death) gifts of proceeds of savings bonds by a father to one of his two children.  While there may have been other reasons for the gifts, the decision appears to indicate that the primary reason for passing on funds before death was to avoid probate and any applicable estate taxes.  Avoiding probate may have valid estate planning objectives.  However, as in this case, consideration should be given to the potential for such gifts to be attacked.  Here, the gifts were left open to a claim by the non-recipient child under the doctrine of resulting trust.  Under this doctrine, the law presumes that on a transfer of money from a parent to a child, the child holds the funds in trust for the parent.  To rebut the presumption, the donee child is required to lead evidence that indeed the parent intended to bestow a gift.  If the gifting parent is now dead, that may not be so easy.

While the trial judge and the Court of Appeal found that there was sufficient evidence to rebut the presumption of resulting trust, I suggest that there were danger signs.  For example, the donee child also held power of attorney.  As well, two of the gifts were made after the parent had suffered a second stroke and was hospitalized.  Fortunately for the donee child, the parent had provided written instructions to his financial advisor regarding the gifts and the trial judge accepted the evidence of a geriatric psychiatrist who found the parent to be competent with respect to his finances (although not with respect to personal care) and rejected the evidence of an expert saying the opposite.

What is also interesting about this case is that the parent’s will left the savings bonds to the donnee child in any event.  Had he left the bonds in his estate, the resulting trust claim could not have been raised.  I suggest that the savings in probate fees and estate taxes were more than offset by the litigation costs incurred in fighting over the gifts made to avoid probate.

Now there may have been other very good reasons for the father in this case to make the gifts that he did.  Perhaps he wanted to see the good that the money could do before he died.  If that was the case – more power to him.  If however, avoiding probate is the only reason for gifting before death, a little professional advice will go a long way.

April 26, 2013

Summary Judgment and Testamentary Capacity – The Ontario Court of Appeal Speaks

The use of summary judgment motions to dismiss will challenges appears to have been given a boost by the Ontario Court of Appeal. In Orfus Estate v. Bessie Orfus Family Foundation, the Court heard an appeal from the Superior Court, which granted summary judgment dismissing a challenge by the daughter of the deceased to the validity of two wills and a codicil. The challenge was grounded in an allegation of a lack of testamentary capacity and of undue influence. The motion judge held that the testator had capacity, knew of and approved the contents of the documents and that their execution was not procured by undue influence. The Court of Appeal upheld that decision. The case is interesting for a few reasons.

The decision under appeal was decided before the Court of Appeal decision in Combined Air, which established or clarified (depending on your viewpoint) the test for summary judgment in Ontario. On appeal, the Court applied the Combined Air “full appreciation” test to ask – “can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial”.

A voluminous record often bodes ill for meeting the full appreciation test, usually because “more paper” is often equated with “more complicated” and therefore deserving of a full trial. However, in the circumstances of this case, the fullness of the record (20 witnesses, 5000 pages of evidence, including exhibits) may have had the opposite effect.

The Court found that the evidence, while voluminous, was not particularly contradictory and did not raise issues of credibility. Much of the evidence was from the deceased’s physicians and lawyers who, unless there is evidence otherwise, are generally considered by courts to be disinterested, reliable witnesses and therefore not usually prone to credibility problems. Here, the physician / lawyer evidence was found to either support the position that the deceased had capacity and was not unduly influenced, or to be inconclusive either way. Rather than add to the complexity of the case, it appears that the Court saw the volume of evidence as bolstering the case for capacity.

Granted, this was not a case involving significant conflicting evidence of capacity or undue influence from family members, which is often the case. Credibility issues tend to arise more often where the evidence of interested family members is important to the court’s findings. However, reading into the comments of the Court, the message appears to be that testamentary cases generally are good candidates for summary judgment, at least in the cause of dismissing them. The Court noted that the evidence of the main party, the deceased, cannot be subject to credibility (at least none that can be tested at trial, for obvious reasons). As well, as stated, courts will generally prefer available medical evidence and the evidence of the drafting lawyer and witnesses to the execution of a will or codicil over that of self-interested offspring. Therefore, with this case, the Court of Appeal may be signaling that the availability of sound evidence of reliable professionals to support a finding of capacity should encourage the use of summary judgment in dismissing will challenges.

As a postscript, the Court of Appeal has released its decision on costs of the motion. The successful respondents asked for substantial indemnity costs of approximately $85,000 or in the alternative, partial indemnity costs of approximately $58,000. The Court granted costs of $30,000, stating that the party alleging incapacity “argued reasonable questions of law and process, and her challenge to the codicil raised a difficult issue”.

Comments of the Superior Court of Justice in the first three paragraphs of Baywood Homes v. Alex Haditaghi are also interesting. While not a will challenge case, the comments of Justice Belobaba support the notion that “more paper” does not equate with “more complicated”.

See also Blanchard v. Bober.

November 14, 2012

What might “brain viewing” technology mean for the law concerning consent and capacity

The article below shows how advances in medicine have permitted doctors to communicate with a man in what was believed to be a persistent vegetative state.  By looking at brain activity through MRI, doctors were able to ask the patient questions and interpret the brain activity as yes or no responses.  Most importantly, they were able to determine that the patient was not in pain, allowing him a direct say in his care. 

While good news in and of itself, this advance, and those that are certain to follow, will undoubtedly impact on how some personal care decisions will be made in future.  In circumstances where medical professionals and a substitute decision-maker at are odds regarding the care of a loved one, in particular in dealing with end of life issues, wouldn’t it be wonderful if we could ask the patient.  While the circumstances of this gentleman’s state of health appear to be quite different from those that the Supreme Court of Canada will be dealing with in the Rasouli case or Desmond Watson’s situation, perhaps one day the role of the courts in these matters will be but a memory.–vegetative-ontario-man-scott-routley-talks-to-researchers-through-brain-scans