Court File and Parties

COURT FILE NO.: FC-17-1323 DATE: 2023/03/03 SUPERIOR COURT OF JUSTICE – FAMILY COURT

RE: Barbara Cohen, Applicant AND Steven Cohen, in his capacity as Trustee of the Estate of Sidney Cohen and Susan Charendoff, Respondents

BEFORE: Justice A. Doyle

COUNSEL: Stephen Victor, William C. McDowell, Anne E. Posno and Melanie Battaglia, Counsel for Barbara Cohen Daniel Schwartz and Marta Siemiarczuk, Counsel for the Steven Cohen, in his capacity as Trustee of the Estate of Sidney Cohen Jonathan Richardson, Counsel for Susan Charendoff

HEARD: October 14 and December 1, 2022 via Zoom and January 17, 2023 in person at Ottawa.

Endorsement on a Voir Dire on the Applicant’s Capacity to Testify

OVERVIEW

[1] This court is presiding over a trial to determine whether the marriage contracts signed by the Applicant (Barbara) should be set aside (Phase 1). If the marriage contracts are set aside, then the parties will move to another hearing to determine Barbara’s equalization payment.

[2] On October 14, 2022, the parties agreed to an Order that Barbara is a “special party” within the meaning of Rule 2 of the Family Law Rules, O.Reg. 114/99 as am., and that Leonard Shore, a lawyer, would be her litigation guardian.

[3] This consent order is grounded on reports from two geriatric specialists: Dr. Joel Sadavoy’s original capacity assessment dated June 18, 2022, Dr. Richard Shulman’s report dated September 16, 2022, and Dr. Sadavoy’s reply report dated September 18, 2022.

[4] Both experts agree that Barbara suffers from a major neurocognitive disorder – mild dementia and that she is unable to instruct counsel.

[5] The parties were not able to agree on whether Barbara is capable of testifying at the trial.

[6] The respondent, Steven Cohen, in his capacity as trustee of the Estate of Sidney Cohen (“Estate”) and the respondent, Susan Charendoff, submit that Barbara has testimonial competence as she has the capacity to observe, recollect and communicate. In that alternative, the respondents are requesting an order permitting the filing of the transcripts of Barbara’s three days of questioning on certain terms and conditions.

[7] Barbara’s counsel argues that she lacks testimonial capacity. She is consenting that the transcripts from her three days of questioning be filed with the court.

[8] On December 1, 2022, the parties provided legal argument on the applicability of the Ontario Evidence Act, R.S.O. 1990, c. E.23. My endorsement released December 12, 2022 (Cohen v. Cohen, 2022 ONSC 6810), directed that Barbara be made available to the court for questioning to determine her understanding of the purpose of this litigation and of the issues at play.

[9] Prior to Barbara’s attendance before me, the parties were permitted to suggest key points that could be covered in her questioning in this process.

[10] On January 17, 2023, Barbara was affirmed in court as she understood the nature of the oath. The court asked her a number of questions and the transcript was ordered.

[11] After the hearing, the parties were directed to provide submissions regarding Barbara’s capacity to testify.

[12] I have now had an opportunity to review the transcript from the questioning of Barbara and the parties’ submissions regarding Barbara’s capacity to testify.

[13] For the reasons that follow, the court finds that Barbara lacks the capacity to testify.

Legal Framework

[14] The leading case dealing with testimonial competence is R. v. Marquard, where the Supreme Court stated:

Testimonial competence comprehends: (1) the capacity to observe (including interpretation); (2) the capacity to recollect; and (3) the capacity to communicate: McCormick on Evidence (4th ed. 1992), vol. 1, at pp. 242‑48; Wigmore on Evidence (Chadbourn revision 1979), vol. 2, at pp. 636‑38. The judge must satisfy him- or herself that the witness possesses these capacities. Is the witness capable of observing what was happening? Is he or she capable of remembering what he or she observes? Can he or she communicate what he or she remembers? The goal is not to ensure that the evidence is credible, but only to assure that it meets the minimum threshold of being receivable. The enquiry is into capacity to perceive, recollect and communicate, not whether the witness actually perceived, recollects and can communicate about the events in question. Generally speaking, the best gauge of capacity is the witness's performance at the time of trial. The procedure at common law has generally been to allow a witness who demonstrates capacity to testify at trial to testify. Defects in ability to perceive or recollect the particular events at issue are left to be explored in the course of giving the evidence, notably by cross‑examination.

I see no indication in the wording of s. 16 that Parliament intended to revise this time‑honoured process. The phrase "communicate the evidence" indicates more than mere verbal ability. The reference to "the evidence" indicates the ability to testify about the matters before the court. It is necessary to explore in a general way whether the witness is capable of perceiving events, remembering events and communicating events to the court be received.

[15] In R. v. D.A.I., 2012 SCC 5, [2012] 1 S.C.R. 149, the Supreme Court discussed the process:

[76] First, the voir dire on the competence of a proposed witness is an independent inquiry: it may not be combined with a voir dire on other issues, such as the admissibility of the proposed witness’s out-of-court statements.

[77] Second, although the voir dire should be brief, it is preferable to hear all available relevant evidence that can be reasonably considered before preventing a witness to testify. A witness should not be found incompetent too hastily.

[78] Third, the primary source of evidence for a witness’s competence is the witness herself. Her examination should be permitted. Questioning an adult with mental disabilities requires consideration and accommodation for her particular needs; questions should be phrased patiently in a clear, simple manner.

[79] Fourth, the members of the proposed witness’s surrounding who are personally familiar with her are those who best understand her everyday situation. They may be called as fact witnesses to provide evidence on her development.

[80] Fifth, expert evidence may be adduced if it meets the criteria for admissibility, but preference should always be given to expert witnesses who have had personal and regular contact with the proposed witness.

[81] Sixth, the trial judge must make two inquiries during the voir dire on competence: (a) does the proposed witness understand the nature of an oath or affirmation, and (b) can she communicate the evidence?

[82] Seventh, the second inquiry into the witness’s ability to communicate the evidence requires the trial judge to explore in a general way whether she can relate concrete events by understanding and responding to questions. It may be useful to ask if she can differentiate between true and false everyday factual statements.

[83] Finally, the witness testifies under oath or affirmation if she passes both parts of the test, and on promising to tell the truth if she passes the second part only.

[16] In Vokes Estate v. Palmer at 49, the court confirmed that:

[14] Where a party submits that he is not competent to give evidence at an examination for discovery, he bears the onus of establishing the requisite degree of unsoundness of mind. In the leading case of McGowan et al v. Haslehurst et al., Steele J. stated that parties should be permitted to avoid attendance at examinations for discovery on the basis of unsoundness of mind “in only … the clearest of cases.” [footnotes removed]

[17] The court in that case did not examine the witness because the court was able, based on the evidence and the transcript from his examination, to answer the questions required of it.

[18] The court provides an excellent review of the law in this area. It bears repeating here:

[40] Similarly, in Emberton v. Wittick, a witness whose stroke had impaired his ability to relate his state of mind in the past was nonetheless ordered to testify at his examination for discovery. In R. v. Harper, also, the Court found that a proposed witness could communicate her evidence in spite of the fact that her medical condition made her “child-like in her behaviour” and affected her memory. Thus, the mere fact that Mr. Palmer has an acquired brain injury that impairs his cognitive abilities does not automatically render him incapable of taking an oath or making a solemn affirmation.

[41] The fact of an appointment of a litigation guardian for the party alleging mental incompetence also is not determinative since, as Master Hawkins remarked in Bakr. v. Sooriabalan et al: “there are degrees of mental disability.”

[44] Generally speaking, incapacity to testify is established by medical testimony. In Barnes v. Kirk, a party sought to avoid being examined for discovery based on mental incompetence. In setting out the onus of the party seeking to establish such incompetence, Aylesworth J. stated: “The question is essentially one to be decided upon medical evidence; without direct cogent evidence from a person duly qualified to speak with authority upon the subject, it is difficult to perceive how the Court could pass upon the question judicially.”

[45] In McGowan et al. v. Haslehurst et al., Steele J. referred to the high standard of proof required even where medical evidence of incapacity is given. After quoting the medical evidence tendered in support of the application before him to set aside an appointment to attend at an examination for discovery of a party alleged to be mentally incompetent, he stated: From these comments there is no doubt that the evidence that may be given by the plaintiff may be unreliable and, in the opinion of the doctor, he is as disabled socially, academically and vocationally as a mentally retarded person. Nowhere does the doctor state that he is of the opinion that he is of unsound mind and should not give evidence. The evidence of Dr. Stokes clearly shows that the plaintiff may give evidence which is unreliable and which may have little weight, but it does not in my opinion go so far as to say that it should not be admitted on the grounds that he is of unsound mind. In other words, it deals only with the credibility and not the competence of the witness.

[19] Ultimately, the court found that although Mr. Palmer suffers from cognitive impairments derived from his acquired brain injury, it did not render him incompetent to testify under oath or solemn affirmation.

[20] In R. v. Harper, 2002 YKSC 11, the Crown challenged the capacity of the complainant to testify. The court proceeded with an inquiry under the Canada Evidence Act, R.S.C., 1985, c. C-5, referred to R. v. Marquard and educated itself at para. 2 that “It is not an inquiry into credibility, but rather capacity to perceive, recollect and communicate. The threshold is low and I must be satisfied that the witness has a basic ability to perceive, remember and communicate.”

[21] Expert evidence indicated that the complainant suffered from multiple sclerosis, was blind, paralyzed and in a wheelchair. When responding to the court’s questions she was attentive and cooperative.

[22] The expert testified that the complainant was child-like in her behaviour and her memory had been affected by the disease. The court acknowledged the same observations.

[23] However, the court noted that she was able to remember the names of her parents, her children, where she lived, the name of her local doctor and the year but not the day or month. She was unable to recount what she did on the weekend, but when prompted she recalled that she had had her hair done. She also remembered going to the police station.

[24] The court concluded that even though she had memory deficits, it was satisfied that she had the capacity to give evidence and stated at para. 5:

The issue of accuracy and credibility is not at issue for this inquiry under s. 16 of the Canada Evidence Act.

[25] In Zabawskyj v. Zabawskyj, after the applicant, who had suffered strokes in 1998 and whose mother tongue was Ukrainian, gave evidence for 10 minutes in chief, the court articulated concerns as to whether she understood the questions being asked of her. Despite the use of the interpreter, the court continued to have concerns as to whether she understood questions posed and whether her ability to recall events was impaired.

[26] In cross-examination the next day, she gave different answers for the age of the parties, ages that drastically differed from reality.

[27] The Public Guardian and Trustee was contacted as urged by the court and the parties attended again before the court.

[28] The court held a voir dire under the Ontario Evidence Act. The court stated:

[11] A person of any age is presumed to be competent to give evidence: Evidence Act, R.S.O. 1990, c. E.23, s. 18(1). If, however, a person is rendered incapable of interpreting observed events, or of communicating them, then that person is incompetent to testify: Sopinka, Lederman, and Bryant, The Law of Evidence in Canada, at §13.8; R. v. Hawke (1975), 7 O.R. (2d) 145 (C.A.). Issues of testimonial competence relate to a witness’ capacity to observe, record, recall and communicate: Sopinka, Lederman, Bryant, supra., §13.13.

[12] When a person’s competence is challenged, a judge should examine the person to determine her competency: Evidence Act, s. 18(2). As pointed out by Sopinka, Lederman, and Bryant at §13.10, generally the mental competency of a witness is tested on a voir dire at the time the witness is called. Those learned authors go on to say: If the mental deficiency appears during the course of the witness’ examination, it is generally a matter of credibility and not competency. However, the judge does have the discretion to stop the giving of testimony and order that the evidence be ignored. In certain circumstances it may be appropriate to declare a mistrial: §13.11.

[29] Also relevant to my analysis with respect to the filing of transcripts in lieu of viva voce evidence, I note that Family Law Rule 23(17) states:

Using answers of witness not available for trial

(17) The trial judge may give a party permission to read into evidence all or part of the answers or information given under rule 20 (questioning) by a person who is unable or unwilling to testify at the trial, but before doing so the judge shall consider,

(a) the importance of the evidence; (b) the general principle that trial evidence should be given orally in court; (c) the extent to which the person was cross-examined; and (d) any other relevant factor. O. Reg. 114/99, r. 23 (17)

Estate’s Position

[30] Testimonial capacity is a low threshold. The appointment of a litigation guardian is not determinative as there are degrees of mental capacity. Barbara has proven that she has the ability to communicate.

[31] Dr. Shulman was denied the opportunity to examine her and therefore relied on the observations made by Dr. Sadavoy. Barbara did well in a few of the tests administered by Dr. Sadavoy; she was able to participate and answer questions during a 3.5 hour assessment with him.

[32] The dementia is in a mild state and Dr. Sadavoy confirms in his report that she functions independently - she lives alone and is able to self-care and drive, she manage her own medication and complete day-to-day banking.

[33] She was able to answer questions about her history. She was able to communicate and answer questions about the litigation and the cognitive testing received. Therefore, she has the ability to communicate and articulate her thoughts.

[34] Dr. Sadavoy answered the wrong question. It is not for him to determine if she can reliably answer questions. That is for the court to determine. The issue is whether she is capable of testifying.

[35] Under cross-examination, Dr. Sadavoy admitted that she had no illusions, no history of visual or auditory issues, no problem in recognizing faces/identities. She is able to follow plot lines on TV shows and she can recollect facts.

[36] Next, the Estate argues vigorously that since this case involves credibility issues, her evidence is crucial to this trial. Her evidence would not be worthless and hence, relieving her from testifying would cause serious prejudice to the Estate.

[37] She has not been cross-examined on many important areas including the Gowlings file (from Barbara’s first divorce). The Gowlings’ file contradicts her testimony at questioning that her first divorce was not acrimonious.

[38] She has not been questioned on Mr. Radnoff’s evidence at his questioning. Her evidence of the meeting with Mr. Radnoff is quite different from the way Mr. Radnoff portrays it unfolding.

[39] In her amended reply, Barbara says they had a happy marriage but this is in contrast to the audiotapes that were provided by Brian Cohen, the deceased’s son, where Mr. Cohen discusses his unhappy marriage.

[40] She alleges that the mortgage with Susan Charendoff (Mr. Cohen’s daughter) is a sham and that Mr. Gary Steinberg (her lawyer at the time of the amending contract and who is now deceased) failed to provide her with independent legal advice. There is no documentation or third party evidence. All is that is available is Barbara’s testimony from her questioning if she did not testify.

[41] Since it was anticipated to only deal with the validity of the marriage contract at phase 1, she was not extensively questioned on the mortgage.

[42] Court must ensure that there is no uncompensable prejudice.

[43] The filing of transcripts will not remedy the prejudice to the Estate.

[44] The refusals ruling of this court was dismissed on the basis of proportionality. Reference was made in this ruling that the Estate would have the opportunity to cross-examine Barbara at trial.

Charendoff’s Position

[45] If Barbara is found unable to give evidence, the prejudice to Ms. Charendoff is non compensable.

[46] The importance of questioning when positions are diametrically opposed is highlighted by Justice Blishen in Lewis v. Orji.

[47] There have been cursory questions on the issue of the mortgage in the context of the amending agreement as the questioning of Barbara concentrated on the validity of the marriage contracts.

[48] Barbara admitted that she did not have notes regarding the mortgage.

[49] Here, the only documents are Gary Steinberg’s reporting letter and the mortgage itself.

Barbara’s Position

[50] Barbara’s counsel admits that the test for testimonial competence is a low threshold but Barbara has a disease of the mind and she not able to answer hard questions.

[51] She is also in a prejudicial position as she will have challenges proving her case. The court has three days of transcripts of questioning from her. The court will have the evidence that she gave when she answered questions at a time when she did not have disease of the mind.

[52] Dr. Sadavoy observed the following:

• Barbara could not articulate the reason for the assessment;
• She was unable to describe the nature of the issues surrounding the marriage contract;
• Her narrative was disjointed;
• She repeated herself and needed to be prompted;
• She did not know what outcome she wanted;
• She did not know that the marriage contract was an issue; and
• She was responding with vagueness and uncertainty.

[53] Barbara submitted that the Estate should not focus on the results of two tests in the capacity assessment but rather, all test results must be considered. Their own expert, Dr. Shulman disputes the diagnosis of major neuro-cognitive disorder.

[54] This disease affects both short-term and long-term memory. She has limited executive function impairments beyond the memory issues.

[55] Under cross-examination, Dr. Sadavoy opined that there was a breakdown of insight and ability to fully and accurately self-reflect on capacity, ability and function and that she has considerable difficulty when dealing with complex ideas or in providing a narrative.

[56] In Dr. Shulman’s four factors referred to in his report, which included whether the person can give a clear consistent accounting of any evidence, he admitted that she was able to communicate but would not say she could communicate consistently.

Analysis

The experts’ reports

[57] The court concludes that it should receive and consider the experts’ reports as opinion evidence. Their evidence is both relevant and material to the issue I must determine. The admission of these reports does not offend any evidentiary exclusionary rule. Both doctors are experts are in geriatric psychiatry and the court finds that they are neutral, impartial and independent.

Dr. Joel Sadavoy’s reports

[58] To prepare his report, Dr. Sadavoy had a face-to-face meeting with Barbara on June 13, 2022, and then had a meeting with her daughter, Rosanne, for 30 minutes to obtain collateral information.

[59] He also reviewed Barbara’s medical records from Dr. Elizabeth Edwards from 2006 to June 1, 2022, as well as some of the legal documents.

[60] Her daughter, Roseanne, stated that her mother has worsened in the last months. She has become agitated, unable to understand what is happening, repeatedly wants explanations and is confused about court orders and decisions. Her driving ability has deteriorated and she gets lost.

[61] Dr. Sadavoy’s general observations are:

• Pleasant, appropriate, good-humoured, generally relaxed and recognizing the need to mask;
• Used a cane due to pain in her foot; and
• Able to sit calmly throughout the assessment with no behavioural disturbances evident.

[62] At page 10, Dr. Sadavoy makes the following specific observation which is important to my analysis:

While her thoughts were linear, her ability to express her narrative was impaired by lack of organization, discursive focus on less relevant elements when responding to questions, difficulty in integrating multiple components of information and relating them to each other. For example, she had difficulty answering the question of why she was coming to the assessment. In response to less structured, open-ended questioning, she could not organize her thoughts to succinctly describe issues and moved off-topic although she was easily brought back to the focus of the question. Hence, she needed to be guided by detailed step-by-step questions and sometimes prompted with reminders to obtain information from her. She focused on the emotional elements of the current conflicts and litigation, unable to articulate and integrate her thinking about the essential factual details of the process, relationship of one piece of information to another and accurate spontaneous recall of events.

[63] Dr. Sadavoy observed that she was repetitive throughout the assessment and did not recall that she had told him the same thing just a short time earlier (see page 10 of report). Her recall of some of the more remote life events were more specific. Her capacity for self-reflective insight and her limitations were “somewhat impaired” (page 10).

[64] He also stated that: “On history, it appears that her level of agitation easily escalates and during these times her ability to exercise effective problem solving and judgement is disrupted” (page 10).

[65] Dr. Sadavoy administered a number of cognitive tests which included the Montreal cognitive assessment, Wechsler memory scale story subtest and the pattern recognition test of visual memory.

[66] In his review of Dr. Edwards’ medical records, he noted that she was diagnosed with anti-depressants and prescribed other medications.

[67] Dr. Edwards was first notified of cognitive decline in January 2022 when Barbara’s daughter Roseanne called to tell her. Barbara’s friends had also noticed it. On May 9, 2022, Dr. Edwards had noted a call from Mr. Steve Victor who indicated that he had noticed her short-term memory worsening one year before.

[68] In his conclusions, Dr. Sadavoy confirms that the results are consistent with major neurocognitive disorder, mild state (also knows as dementia) (page 12). He also stated that situational anxiety is present which is common with dementia and emerges when she is overwhelmed by cognitively demanding stressful situations. “Confrontational questioning during litigation is the kind of cognitively demanding stress which is likely to exacerbate her anxiety. Anxiety further disrupts cognitive abilities and will further limit her ability to accurately and effectively participate in the litigation examination as well as causing her significant emotional distress” (page 12).

[69] Dr. Sadavoy responded in the negative to the question as to whether she can reliably participate in examinations because:

She demonstrated inconsistent and markedly incomplete knowledge and understanding of the specifics of the litigation sufficient to impair her ability to know the specifics of the proceedings and understand the choices and decisions she may need to make. She may be able to respond to very specific concrete questions, although, based on this assessment, such responses are often inaccurate and incomplete. Her memory is inconsistent and if asked to respond to questions requiring information or to provide explanations for events and outcomes, she is likely to be both inaccurate and easily confused. Based on the clinical history, this process likely will induce intense emotional agitation and anxiety which is neither good for her nor in keeping with providing reliable testimony. Whether questioned in person or online likely to makes little difference although she may have greater difficulty with online.

Dr. Shulman’s report

[70] In Dr. Richard Shulman’s report dated September 16, 2022, he was asked to answer the following questions:

• Are Dr. Sadavoy’s conclusions consistent with the observations contained in the report?
• In your opinion, based on Dr. Sadavoy’s observations and other additional information provided, does Barbara have the requisite capacity to testify in court?

[71] Firstly, as stated above, Dr. Shulman agreed that based on Dr. Sadavoy’s observations of Barbara, he had arrived at the correct conclusion that she had a major neurocognitive disorder, and she lacked the capacity to instruct counsel.

[72] Dr. Shulman’s report is a critique of Dr. Sadavoy’s report, and he did not have the opportunity to interview Barbara.

[73] Dr. Shulman’s critiqued Dr. Sadavoy’s report that he relied on her daughter’s information which is not impartial, his conclusions that the process would cause emotional agitation was not supported by the evidence and he noted that she was able to participate in a 3.5 hour interview;

• In his opinion, the reliability of potential testimony is not determined by a capacity evaluation and it is unclear how Dr. Sadavoy defines reliability.

[74] Dr. Shulman refers to the Evidence Act and an article by Jones, R. & Elliott, T. (2005) Capacity to give evidence in court: issues that may arise when a client with dementia is a victim of crime. Psychiatric Bulletin, 29(9), p. 324-326, which discusses considerations in determining whether a person is fit to give evidence:

1. The person’s ability to give a clear, consistent accounting of any evidence.
2. Whether the evidence given has any delusional quality, making it more probable that the evidence would be affected by mental illness.
3. Whether the client appears to understand the role and nature of the court proceedings and their obligations.
4. The witness’ vulnerability to pressure of cross-examination and the possibility of the court proceedings affecting their mental health.

[75] Dr. Shulman concluded that the issue of the reliability of Barbara’s answers is for the court to determine. She was able to communicate clearly and there was no abnormality of language.

[76] Since Barbara’s potential questioning relates to long-term memory rather than short-term memory this would be less impacted by her mild dementia. Based on Dr. Sadavoy’s observations, Barbara can understand and respond to questions of long-term memory.

[77] Regarding Barbara’s vulnerability, he agreed that persons with dementia may be more prone to exacerbation of anxiety but since she did not experience any catastrophic reactions during the capacity evaluation of more than 3 hours, Barbara would be able to testify with mitigation strategies to reduce her anxiety.

Dr. Sadavoy’s reply report

[78] In his reply report dated September 18, 2022, Dr. Joe Sadavoy responded to the issues raised by Dr. Shulman:

• Dr. Sadavoy’s use of the word “reliability was in reference to Barbara’s demonstrated cognitive function and limitations during the clinical assessment.”
• He stated that “Barbara’s cognitive impairment impairs the degree to which her responses can be relied upon for accuracy, completeness, and understanding. If she is pressed beyond her cognitive abilities in these areas, she probably will develop escalating anxiety at the time which will further diminish her cognitive function and increase the probability that cannot be relied on for accuracy, completeness and understanding.”

[79] Regarding short term vs long term memory, Dr. Sadavoy disagrees that preservation of long-term memory will allow Barbara to respond to cross-examination. He emphasizes that Barbara’s limiting deficits in her ability to function cognitively are not only her memory but her impulse and emotional control, flexible thinking, working memory, self-monitoring, planning and prioritizing, task initiation and organization.

[80] Regarding observations by her daughter, he confirmed that he placed no weight on her opinion. Her observation is only used to complete the outcome of the clinical assessment. Roseanne’s observations are consistent with the doctor’s conclusions and Barbara’s own self reflections (page 2).

[81] He noted she does have pre-existing vulnerability to anxiety or depressive symptoms but no prior psychiatric diagnoses. Her current diagnosis does lead to a vulnerability to adverse mental health consequences to health proceedings.

[82] He is not confident that the mitigating measures suggested by Dr. Shulman will be effective.

[83] His final comments emphasize that agitation and intense anxiety are among the most common forms of termed behavioural and psychological symptoms of dementia (BPSD). These emotional reactions can have significant secondary effects on overall life function and can emerge at any stage of dementia (mild, moderate and severe). Even though Barbara is in the mild stage, she has functional limitations and associated cognitive impairments in executive functions such as comprehension, integration of information, problem solving, initiative and emotional reactivity.

[84] A clinical assessment by a geriatric psychiatrist of 3.5 hours in length is not the same as a court setting. He indicates that the clinical interaction is modulated to ensure that the individual does not pass his level of comfort. Finally, he indicates that he considered the four possible clinical criteria in completing his capacity assessment.

Evidence from the cross-examination of Dr. Shulman

[85] In his cross-examination of September 29, 2022, Dr. Shulman agreed that Barbara was unable to instruct counsel. This would mean that the nature and extent of her cognitive impairment are sufficient to significantly limit her understanding of what she might ask her lawyer to do. (Q 80). This includes her ability to appreciate the pros, the cons and potential results of the various options are limited.

[86] He did not challenge Dr. Sadavoy’s observations and confirms that he is an expert in the field.

[87] The following are Dr. Shulman’s comments:

• He agreed that it is possible that confrontational questioning during litigation is the kind of cognitively demanding stress that is likely to exacerbate anxiety (Q 51);
• He does not agree with the conclusion by Dr. Sadavoy that her answers were inaccurate and incomplete although he does not dispute that it was an observation (Q 56);
• He agreed that people like Barbara who are pressed beyond that person’s cognitive abilities will possibly develop escalating anxiety (Q 92);
• He acknowledges that Dr. Sadavoy would be aware of the potential bias of collateral information in medical/legal proceedings (Q 109);
• He admitted in his cross-examination that Dr. Sadavoy’s observations that in answering her questions, Barbara was inaccurate and incomplete. (Q 58);
• He also admitted that Dr. Sadavoy observed that Barbara was inaccurate when she was responding to questions requiring information or to provide explanations for events and outcomes (Q 67) and there was a degree of confusion (Q 69);
• He agreed that Barbara had an impairment in recall which is to be expected in her illness (Q 183) and that this represents difficulty in cognitive issues (Q 185);
• He agreed that situational anxiety secondary to cognitive impairment is a concurrent aspect of dementia and it emerges in reaction to being overwhelmed by cognitively stressful situations. (Q206 and Q 208);
• He explained that Barbara is able to communicate clearly and she does not have aphasia. A capacity evaluator like Dr. Sadavoy is not in a position to determine the consistency and the nature of the accounting of the evidence and that in his opinion she has the ability to expressively use language satisfactory to allow her to give evidence (Q 160);
• He believes she could communicate clearly and for Dr. Sadavoy to comment on consistency is “very objective and judgmental” and from his observations, she can communicate clearly. (Q 161);
• He does not agree with Dr. Sadavoy’s conclusion regarding her ability to communicate, as Dr. Shulman opines that she can communicate (Q 167);
• He believes that she can understand and express herself (Q 169) and he does not agree with Dr. Sadavoy’s conclusions but rather believes that Barbara is communicating clearly although he takes issue with the details and the accuracy of recall. She is able to understand the question and reply to it (Q 171);
• He agreed that details, accuracy of recall, understanding and expression are factors to consider when determining the ability to communicate and the capacity to communicate (Q 172-173);
• Dr. Shulman agreed that there was a distinction between a capacity assessment which is intrusive but not adversarial (Q144); and
• There is difficulty in recall and there is an impairment in recall which is expected in this illness (Q 183).

Cross-examinations of Dr. Sadavoy

[88] In Dr. Sadavoy’s cross-examination of September 18, 2022, he stated that Barbara was able to articulate but when it came to communicating more complex ideas or to provide a narrative, she had considerable difficulty not due to trouble articulating (Q 81-84).

[89] In Dr. Sadavoy’s cross-examination of September 29, 2022, he testified that even though she functions independently, one of the elements of dementia is the breakdown in insight and ability to self-reflect on capacity, ability, and function fully and accurately. He further advanced that it is not uncommon for an individual to present themselves with a greater degree of ability to recount that they have the capacity to do things, when they in fact are not able to do those things (Q 51).

[90] In the assessment interview, she was able to function in a non-confrontational environment with a low level of anxiety but her responses were incomplete and discursive (Q 247).

[91] Dr. Sadavoy’s observations are that there is vagueness and disorganization in Barbara’s responses.

[92] She has difficulty in recall which is expected in this illness and according to the Supreme Court is required.

[93] In his cross-examination, he observed that her memory was inconsistent and that she was inaccurate and confused when responding to questions regarding information or providing explanations of events and outcomes.

[94] Dr. Shulman did not take issue with Dr. Sadavoy’s observation of inaccuracies, inconsistencies, and confusion in Barbara’s answers – they were not challenged. Dr. Shulman did not consider context. The court must consider the nature of the evidence that Barbara would provide.

[95] There is also a potential of emotional harm but not a catastrophic event. The form of anxiety experienced by Barbara was not normal anxiety but the form of anxiety common in Alzheimer patients as they become overwhelmed with cognitively demanding situations. This anxiety disrupts cognitive abilities and her ability to testify and harms her.

Discussion

[96] The mere fact that Barbara has a major neurocognitive disorder does not mean that she is not required to testify.

[97] The trial process is grounded in an adversarial system where each party has the opportunity to present their case and cross-examine the other party in a truth-seeking process that has existed for time immemorial.

[98] It is in that manner that the trier of fact is able to render a reasoned decision based on findings of credibility and reliability and apply the findings of facts to the law.

[99] The obligation to testify and make oneself available for cross-examination is vital to our justice system and should not be lightly interfered with and only in the clearest of cases.

[100] Hence, there is a low threshold that one has to establish in order to demonstrate testimonial competence. Otherwise, young children, people with disabilities, plaintiffs who have head injuries in motor vehicle accidents or work-related accidents, individuals with PTSD and countless others would not be able to tell their story and the other party would not be given the opportunity to test that evidence.

[101] The issues before the court are complex, serious and important to all the parties and there is a lot at stake for all involved, i.e. millions of dollars.

[102] There are three transcripts from Barbara's questioning. The evidence therein provides some information including her denial of the contentious issues in her first marriage, the different version of the meeting with Mr. Radnoff the night before the wedding as stated by him during his questioning. There is also her allegation that she had a happy marriage which it is alleged is contrary to the statements in the audiotapes.

[103] In determining whether Barbara has the testimonial competence, the court is reminded as set out above, that this is an inherent right for the party to have the opportunity to cross-examine her. However, as will be explained below, Barbara does not have the capacity to testify.

[104] In accordance with R. v. D.A.I. the court has completed the process set out therein, even though it was a criminal matter:

• The court held a voir dire and heard all relevant evidence, including the experts’ reports;
• Dr. Sadavoy interviewed Barbara’s daughter who provided some information and insight into her mother’s mental health;
• The court inquired with Barbara as to whether where she understood the nature of an oath or affirmation;
• The court examined Barbara; and
• The court explored in a general way whether Barbara could relate concrete events and her understanding of them and she was asked general questions about the issues in the litigation.

[105] It was clear that Barbara understood the need to speak the truth and understood the nature of the affirmation. She asked to be affirmed rather than being sworn on a religious document.

[106] However, when asked questions about the issues in this litigation, she was not able to recollect. She attempted to answer the court’s questions and appeared confused as to do so. The questions were posed in a non-confrontational manner.

[107] She was not able to articulate the details of her claim but she understood that she was the claimant and that she had to deal with matters after Sidney’s passing.

[108] She understood that Susan Charendoff is Sidney’s daughter and recalled her lawyer’s name.

[109] She repeatedly stated that she was seeking to move to a smaller more affordable home. She did recall the address of the former matrimonial home and why she believed they moved to a new condo.

[110] The court raised the issue of the marriage contract and she did recall signing the marriage contract the night before her wedding at Mr. Radnoff’s house in the presence of Sidney.

[111] She had no absolute recall of a second marriage contract, despite some prompting by the court.

[112] She had some limited understanding of the mortgages on her Boteler home and on the Florida property.

[113] She had few details to share regarding her first divorce but admitted that she had read that the case went to court.

[114] She could not recall speaking to Sidney regarding estate matters.

[115] The Estate argues that some of the recalls and answers were similar to those at questioning.

[116] Having reviewed the transcripts, the court does not agree that her ability to recall and relate her evidence was similar at the discoveries.

[117] As stated in Marquard: “The phrase "communicate the evidence" indicates more than mere verbal ability. The reference to "the evidence" indicates the ability to testify about the matters before the court. It is necessary to explore in a general way whether the witness is capable of perceiving events, remembering events and communicating events to the court.”

[118] Dr. Joel Sadavoy in his report dated June 18, 2022, found that Barbara faces challenges:

[Barbara] demonstrated inconsistent and markedly incomplete knowledge and understanding of the specifics of the litigation sufficient to impair her ability to know the specifics of the proceedings. Her responses are often inaccurate and incomplete. Her memory is inconsistent and if asked to respond to questions requiring information or to provide explanations of events and outcomes, she is likely to be both inaccurate and easily confused.

[119] It became evident during the court’s brief non-confrontational questioning of Barbara that she will not be able to tell her story, even with supports such as a support dog or family member or friend. Her evidence would not be helpful to the court in determining the issues for determination of phase 1. Her ability to recall vital information is minimal. She is unable to communicate her evidence.

[120] The court accepts Dr. Sadavoy’s opinion regarding Barbara’s lack of capacity ability. Unlike Dr. Shulman, he actually interviewed her and heard her response to questions.

[121] I also rely on the capacity assessment where Dr. Sadavoy described the following:

• Barbara was unable to clearly articulate the reasons for the assessment;
• At the outset of the interview, she was unable to describe any knowledge and understanding of the issue of the marriage contract and the estate;
• Her knowledge of the litigation was disjointed and omitted important specific information;
• She was unable to tell Dr. Sadavoy when the meeting with the lawyer to sign the first marriage contract (whose name she could not remember without prompting) took place nor how the marriage contract related to the litigation;
• She was unable to state what was her desired outcome and she did not know the provisions in the marriage contract;
• She could not understand the implication for her of dissolving the marriage contract and how it would affect her;
• She knew the parties to the litigation and the names of her lawyers;
• Barbara was able to articulate her age, address and does not require personal assistance with dressing, eating and hygiene, she lives alone and knows the location of her bank;
• She was unable to estimate her own financial worth or that of the estate;
• She has no history of neurological symptoms or incidents;
• She completes some bank deposits but her son handles her finances;
• She is unable to provide a medication list;
• She has poor memory; and
• Needs to reread things to absorb them.

[131] Dr. Sadavoy concluded that Barbara does not have the capacity to instruct counsel in acrimonious family/estate litigation. The parties have agreed that she is a “special party” and requires a litigation guardian, but this observation is helpful:

She demonstrated marked difficulty in knowing, understanding and appreciating the specific elements of the litigation or the information, advice and options her lawyer provided. She could not articulate her own wishes beyond very narrow concrete items and was unable to state her options and choices or who she would instruct counsel. The nature and extent of her cognitive impairment is sufficient to significantly limit her understanding of what she might ask her lawyer to do and her ability to appreciate the pros, cons, and potential results of the various options. The history of cognitive decompensation and strong agitation when under pressure adds further weight to a conclusion that she does not have the capacity to either instruct counsel or participate effectively in acrimonious family/estate litigation. This form of participation is particularly difficult for her given the emotional upset she currently feels about the disruption in family relationships. Her level of anxiety, by description, indicates that under the pressures for this type of litigation, she will be both emotionally and cognitively unable to engage capably in the process.

[122] Dr. Sadavoy agreed that short questioning periods with breaks would be helpful but not necessarily a support person unless that person was able to keep her organized and reorient her to questions. (Q 249-250)

[123] The court agrees with Dr. Shulman that it is not for Dr. Sadavoy to determine the reliability of her answers. That is not a question that he was required to answer.

[124] I note that Dr. Shulman acknowledged that Barbara answered questions inaccurately and incompletely. He agreed with Dr. Sadavoy that Barbara had an impairment in recall which is to be expected in her illness and that this represents difficulty in cognitive ability.

[125] Accordingly, after extensively reviewing the thorough reports of the experts and having conducted my own examination of Barbara, the court finds that Barbara lacks the capacity to testify and will not be compelled to give evidence at the trial. She is not able to remember events nor communicate events to the court.

[126] Transcripts from her questionings held on November 25, 2019, January 15, 2020, and March 19, 2021, will be filed at the trial. The parties are directed to discuss the mechanics of the filing of the aforementioned transcripts and if necessary, the issue of the transcripts can be addressed at the trial management conference scheduled for April 4, 2023, at 9 a.m.

[127] The issue of costs will be determined at the end of the trial.

Justice A. Doyle Date: March 3, 2023

COURT FILE NO.: FC-17-1323 DATE: 2023/03/03 ONTARIO SUPERIOR COURT OF JUSTICE RE: Barbara Cohen, Barbara AND Steven Cohen, in his capacity as Trustee of the Estate of Sidney Cohen and Susan Charendoff, Respondents BEFORE: Justice A. Doyle COUNSEL: Stephen Victor, William C. McDowell, Anne E. Posno and Melanie Battaglia, Counsel for Barbara Daniel Schwartz and Marta Siemiarczuk Counsel for the Steven Cohen Jonathan Richardson, Counsel for Susan Charendoff ENDORSEMENT ON VOIR DIRE Justice A. Doyle Released: March 3, 2023