Peter Neufeld

This costs endorsement followed a motion for directions under the Substitute Decisions Act, 1992 concerning powers of attorney, disclosure, protective relief, and a capacity assessment.

The court held that the respondent was overall successful because she successfully opposed nearly all of the relief sought, although the court had ordered appointment of s. 3 counsel and a capacity assessment.

Applying the Rule 57 costs factors, the court found the respondent's claimed partial indemnity costs were within the applicant's reasonable expectation and fixed costs at $8,000 inclusive.

The costs were ordered payable by the applicant within 30 days.

On a motion within a Substitute Decisions Act guardianship dispute between siblings, the court addressed interim directions concerning an elderly mother's capacity, legal representation, disclosure, and protective relief.

The court held that s. 3 counsel should be arranged and that a capacity assessment should be ordered under s. 79 because the evidentiary record, including geriatric psychiatric evidence, provided reasonable grounds to believe the person was incapable.

The court declined immediate production of medical and solicitor files, examinations of the lawyers, disclosure of the person's location, apprehension and relocation orders, and tracing or preservation relief, finding those measures premature and unduly invasive absent a capacity declaration.

The court instead ordered unfettered access for s. 3 counsel, limited production of records sought by the assessor, and facilitated telephone communication.

In a family guardianship dispute concerning an elderly parent with dementia, the applicants sought a court-ordered capacity assessment, broad production of medical, financial, and solicitors’ records, and historic asset information, while the respondent son sought to vary an interim shared-care order.

Applying the factors governing s. 79 of the Substitute Decisions Act, 1992, the court found reasonable grounds to believe the parent may be incapable of managing property and personal care and ordered a current capacity assessment limited to those issues.

The court refused broad documentary production as disproportionate and invasive of privacy, but permitted limited disclosure of medical and financial records if requested by the designated assessor, through s. 3 counsel only.

The court also declined to require a further historic statement of assets and liabilities, finding the existing informal accounting sufficient.

The cross-motion was granted to terminate the failed shared-care regime and designate the respondent son as primary caregiver pending determination of the guardianship application.