DATE: 20050311

DOCKET: C41895

COURT OF APPEAL FOR ONTARIO

RE:

CHRISTOPHER JOHN KNOX (Applicant/Appellant) v. RICHARD A. BURTON and PETRONELLA KNOX (Respondents)

BEFORE:

DOHERTY, LASKIN and MACFARLAND JJ.A.

COUNSEL:

Sean Cumming

for the appellant

Paul A. Dancause

for the respondents

HEARD & ENDORSED:

March 9, 2005

On appeal from the judgment of Justice L. Ratushny of the Superior Court of Justice dated March 26, 2004.

A P P E A L B O O K E N D O R S E M E N T

[1] The trial judge relied on the evidence of the two experts who testified that Ms. Knox had the necessary capacity. Those experts tested capacity against the criteria set out in s. 8 of the Act. We do not agree that the experts erred in quantifying the needed capacity. We see no value in describing the level of capacity as high or low, or in comparing the requisite degree of capacity required by s. 8 with capacity as required in other contexts. The experts were properly guided by the express language of the statute.

[2] We also do not agree that the evidence that Ms. Knox’s capacity could fluctuate necessitated any shifting of the onus of proof. The appellant had the legal onus. The potential variability of Ms. Knox’s condition was one feature of the evidence. It was specifically addressed by Dr. Munson in his evidence. The trial judge accepted Dr. Munson’s evidence as she was entitled to do.

[3] In fairness to the trial judge, we should say that the case was presented to her as one to be resolved primarily by an assessment of the evidence of the competing experts. Her reasons reflect that position.

[4] The appeal is dismissed with costs to the respondents in the amount of $7,500.00, inclusive of GST and disbursements.