CITATION: Costantino v. Costantino, 2016 ONSC 7279
COURT FILE NO.: FS-14-79708-00
DATE: 2016-11-22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SONIA COSTANTINO
Jennifer A. Treloar, for the Applicant
Applicant
- and -
DAVIDE COSTANTINO
Fernando Pietramala, for the Respondent
Respondent
HEARD: July 6, 2016, at Brampton, Ontario
Price J.
Reasons for Order
NATURE OF MOTION
[1] Davide Costantino is a diagnosed paranoid schizophrenic whose repeated refusal to take medication for his condition led first to his wife separating from him after 7 ½ years of marriage and later, after she commenced the present family law proceeding, led to his lawyer applying to be removed as his solicitor in the proceeding. Although the doctor where Mr. Costantino was recently hospitalized was able to stabilize his condition sufficiently as to be of the opinion that Mr. Costantino is, at the moment, capable of making decisions regarding his property, Mr. Costantino’s lawyer is still unwilling to represent him, and none of his family members is willing to act as his “Litigation Guardian”. The court must decide whether Mr. Costantino is incapable of making the decisions that the present proceeding will entail, so as to justify appointing the Public Guardian and Trustee to act as his Litigation Guardian.
BACKGROUND FACTS
History of the parties’ marriage
[2] Ms. Costantino is 41 years of age. Mr. Costantino is 43. They were married on May 28, 2006, and separated after 7 ½ years, on December 31, 2013. There are no children of the marriage.
History of the judicial proceeding
(a) The pleadings
[3] Ms. Costantino began the present proceeding by an Application issued January 20, 2014. She claims a divorce, a restraining order, equalization of net family property, exclusive possession of the matrimonial home and its contents, partition and sale of the home, and an order dispensing with Mr. Costantino’s participation in the sale of the home.
[4] Ms. Costantino states, in her affidavit sworn January 20, 2014:
[Mr. Costantino] has been diagnosed as a paranoid schizophrenic. He suffers from delusions and is not in touch with reality.
In 2002, [he] was admitted to the psychiatric unit of Etobicoke General Hospital. He had been suffering from delusions for approximately two weeks prior to being admitted. He attempted suicide on two occasions during those two weeks and put my life in danger on at least two occasions during that time. He told the examining physician at the emergency department that he was hearing voices. He was admitted but released after three weeks, having been prescribed medication.
Subsequently, while on antipsychotic medication, he got into a confrontation with a woman in the parking lot at Wal-Mart and was charged with, and convicted of, assault with respect to this incident. [He] has ceased to be compliant with his medication.
[Mr. Costantino’s] behaviour and delusions have escalated over the years since he ceased taking medication. After he stopped taking his medication, he began talking to himself and then conducting both sides of an imaginary conversation. [Emphasis added]
[5] Ms. Costantino states that on December 31, 2013, Mr. Costantino verbally harassed her, telling her she needed to quit her job as she needed twenty four hour monitoring by him and that he would get a confession out of her eventually, even if he had to torture her to do so. At that point, Ms. Costantino called the police, who took Mr. Costantino to Credit Valley Hospital where he was involuntarily admitted. Ms. Costantino states, “Because [Mr. Costantino] refuses to sign a consent allowing the staff to give me information about his situation, I do not know when he may be released or if, in fact, he has been released. I am terrified of him.”
[6] Mr. Costantino delivered an Answer on March 17, 2014. In it he agrees with Ms. Costantino’s claims for divorce, equalization of net family property, and sale of family property, but opposes her claim for exclusive possession of the home and an order dispensing with his participation in the sale of the home. He also disputes the need for a restraining order against him.
[7] Mr. Costantino states, in part, in his Answer:
I have been diagnosed with a mental illness, in specific with Schizoaffective Disorder, by a psychiatrist, since before the applicant and I married, and even prior to the time we commenced cohabitation.
For most of the period throughout our cohabitation and marriage, I was prescribed the appropriate medication, and notwithstanding the mental illness, the applicant and I made all family, household and decisions affecting our economic situation jointly.
With the proper therapy, the mental illness I suffer does not affect my cognitive abilities, and I am able both to make rational decisions and fully cooperate with the applicant in listing and selling the matrimonial home. [Emphasis added]
(b) Motion for restraining order
[8] On January 23, 2014, Ms. Costantino made a motion for a restraining order, for hearing, on grounds of urgency, before a case conference. On January 31, 2014, Trimble J. granted the restraining order, and the parties consented to a mutual order for financial disclosure.
(c) The Conferences
[9] A Case Conference was held on June 25, 2014, and a Settlement Conference was held on January 26, 2015. Ms. Costantino and her lawyer were present at the Settlement Conference. Mr. Pietramala attended as Mr. Costantino’s lawyer; Mr. Costantino did not attend. Counsel consented to an order for further financial disclosure, and the proceeding was adjourned to May 22, 2015, for a Trial Management Conference.
[10] On May 22, 2015, the Trial Management Conference was further adjourned to August 28, 2015, at Mr. Pietramala’s request, and with the consent of Ms. Costantino, because Mr. Costantino was hospitalized due to mental illness.
[11] On August 28, 2015, Ms. Costantino and her lawyer, and Mr. Pietramala, on behalf of Mr. Costantino, were present. Both counsel estimated that the trial would require 5 days if Mr. Costantino testified. Mr. Pietramala requested that his client be granted leave to give his evidence by affidavit owing to his “medical incapacity.” Ms. Costantino opposed this request.
[12] The court declined to dispense with Mr. Costantino’s testimony at trial in the absence of evidence that such an order was medically necessary. In my endorsement on that date, I wrote:
Mr. Pietramala has some concerns about his client’s capacity to give instructions, but has been hampered from making that determination and, if necessary, bringing an application for appointment of a Litigation Guardian, by his client’s lack of cooperation in giving him the direction he requires to obtain a report and clinical notes and records from his treating psychiatrist, Dr. Mallia.
It would be unfair to Ms. Costantino to delay her any further in proceeding to trial, but the court will make procedural orders necessary to permit Mr. Pietramala to make his determination as to the appropriateness of a motion for appointment of a Litigation Guardian, and will then resume the Trial Management Conference so that a decision can be made as to whether Mr. Costantino should be permitted to give his evidence by affidavit, and a determination can be made as to whether an interim motion must be entertained on the issue of temporary release of funds from the sale of the matrimonial home ($250,000 which Ms. Costantino says she requires) and on the issue of spousal support, which Mr. Costantino says he requires. It may be that with the appointment of a Litigation Guardian, those issues could be resolved by agreement. [Emphasis added]
[13] The court directed that the proceeding be tried at the blitz trial sittings beginning January 4, 2016, and set a timetable for the delivery of up-dated financial statements and a Trial Record. The Trial Management Conference was adjourned to October 20, 2015, to await evidence regarding Mr. Costantino’s capacity to instruct counsel.
(d) Motion for appointment of Public Guardian and Trustee
[14] Mr. Pietramala moved for the appointment of the Public Guardian and Trustee to act as Mr. Costantino’s Litigation Guardian. On September 25, 2015, Bloom J. ordered that the motion, which Mr. Pietramala had served on Mr. and Ms. Costantino, also be served on the Public Guardian and Trustee. Justice Bloom adjourned the motion to October 8, 2015, so that a further report could be obtained from Dr. Mallia as to Mr. Costantino’s ability to instruct counsel. The order was without prejudice to Mr. Pietramala’s right to move for an order removing himself as Mr. Costantino’s solicitor of record.
[15] Mr. Pietramala moved to be removed from the record as Mr. Costantino’s solicitor, and on October 9, 2015, Tzimas J. adjourned that motion to a date following the Trial Management Conference that was to take place on October 20, 2015, at which time that motion, as well as a motion for possible involvement of the Public Guardian and Trustee, was to be discussed.
(e) Further Trial Management Conference
[16] The Trial Management Conference resumed on October 20, 2015. Ms. Costantino and her lawyer were present, and Mr. Pietramala attended on behalf of Mr. Costantino. Mr. Pietramela tendered a letter from Mr. Costantino’s physician, Dr. Belluzo, in which Dr. Belluzo stated that he was not qualified to provide a capacity assessment, and that doing so would damage his therapeutic relationship with his client. Mr. Pietramala stated that he was still uncertain as to his client’s capacity to give instructions.
[17] By that time, the matrimonial home had been sold, and at the Trial Management Conference, the parties consented to a without prejudice order for the release of $5,000 to each of the parties from the net proceeds of sale, with the payment of Mr. Costantino’s share to be made to Mr. Pietramala in trust, to be used primarily to cover the costs of a qualified assessor, to be selected by both parties, to conduct a capacity assessment of Mr. Costantino, and the remainder of the $5,000 to be disbursed only with Mr. Costantino’s prior consent.
[18] Mr. Pietramala was granted leave to return his motion to be removed from the record, upon completion of the capacity assessment, and to make a motion to have Mr. Costantino declared a “special party” and for appointment of the Public Guardian and Trustee to be his Litigation Guardian.
(f) Pre-Trial Conference
[19] At a pre-trial conference on January 5, 2016, Justice Van Melle made an order directing the solicitor holding the net proceeds of sale of the matrimonial home to release one half of the net proceeds to Ms. Costantino forthwith. Justice Van Melle held that Mr. Costantino could direct the real estate lawyer to release the balance of the net proceeds to him, provided that his release and acceptance of the funds would be deemed an acceptance by him of Ms. Costantino’s settlement proposal, and the matter would then be deemed to be resolved on a final basis. Mr. Costantino was given leave, if he did not accept the settlement, to move within 90 days to have the proceeding restored to the trial list, but, in that event, he was to abide by the orders made on August 28, requiring him to deliver up-dated financial statements and a Supplementary Trial Record, and a Document Brief for trial, and comply with all past orders for disclosure, and on October 20, 2015, requiring him to choose and hire a qualified capacity assessor.
[20] On May 13, 2016, Mr. Pietramala delivered an affidavit sworn the previous day, in which he states the following:
a) Mr. Costantino terminated his retainer on September 16, 2015, and Mr. Pietramala was now moving for an Order removing him as Mr. Costantino’s solicitor of record.
b) When Mr. Pietramala’s motion was adjourned to October 29, 2015, at the resumption of the Trial Management Conference, he asked Mr. Costantino to attend that day, but Mr. Costantino refused. Mr. Pietramela states, “I had, as usual, asked Mr. Costantino to attend, but he refused to do so, always saying he is not up to it, or is not feeling well.”
c) On October 21, 2015, Mr. Costantino left an envelope in Mr. Pietramala’s mailbox. The envelope contained a letter of that date from Dr. Belluzzo, of whom Mr. Pietramala had no prior knowledge. Dr. Belluzzo stated that he has been Mr. Costantino’s primary caregiver since 2002, that he had assessed Mr. Costantino on October 21, 2015, and, at Mr. Costantino’s request, had made a “referral for competency assessment”. He did not anticipate that the assessment would occur before November 9, 2015.
d) Prior to that, Mr. Pietramala had been led to believe that Dr. Mallia was Mr. Costantino’s primary doctor and psychiatrist. However, Dr. Mallia and his staff informed him that Mr. Costantino had instructed them not to release any information to any member of his family or to any other person.
e) Mr. Pietramala further states:
I could not govern Mr. Costantino. He did things his own way. I waited for the competency assessment to be completed. I did not hear from my client for months….On March 23, 2016, in another one of my attempts to reach Mr. Costantino, I spoke with Mr. Costantino’s mother, who informed me that her son was not doing well, that family members cannot communicate with him, that he is really depressed, that no one can talk to him. Mr. Costantino would not return my calls. In the meantime, Mr. Costantino finally reached out to me by e-mail on April 16, 2016. Mr. Costantino stated that he was hospitalized again, and that he was unable to function and live on his own, that his health had declined further. [Emphasis added]
f) In anticipation of the resumption of the Trial Management Conference on May 10, 2016, Mr. Pietramala called Dr. Belluzzo, but was unable to obtain any information from him. He sent e-mails to Dr. Belluzzo, asking what the status of the competency assessment was, but received no reply. He spoke with Dr. Belluzzo’s staff, and left a message asking Dr. Belluzzo to call, but received no call from Dr. Belluzzo. He sent e-mails to Dr. Belluzzo on March 28 and 31, and faxed a letter to him on April 1, 2016.
g) Mr. Pietramala finally received an e-mail from “Jennifer”, at Dr. Belluzzo’s office, on April 5, 2016, stating “Mr. Costantino was referred back to his psychiatrist for a competency assessment and was going to let Dr. Belluzzo know the outcome. He has 4 psychiatrists.”
h) On May 6, 2016, Mr. Costantino, in a telephone conversation with Mr. Pietramala, advised that he was “assessed by a medical doctor who specializes in mental health issues” and that a final assessment would be done the next week [in other words, by May 13, 2016]. He further stated that he had been admitted to the new Humber River Regional Hospital, where he was being monitored by Dr. Sameer Kumar, and had been there for about a month.
i) Mr. Pietramala states, “In a further telephone conversation with Mr. Costantino, my client became very defensive and belligerent over the phone when I [said] that I would be needing a copy of the assessment now being completed at the Humber River Regional Hospital. He now appeared reluctant to give it, insinuating that I should merely rely on his verbal statement that he was competent.” [Emphasis added]
j) At the resumption of the Trial Management Conference on May 10, 2016, Dr. Belluzzo stated, in a telephone conference initiated by the Court, that on October 21, 2015, he had forwarded a letter to Dr. Kumar, a medical practitioner competent to conduct a competency assessment. He had received no response from the medical practitioner, so in January 2016, he had forwarded two e-mails to him.
k) On May 12, 2016, Mr. Pietramala sent a letter to Dr. Kumar, advising him that the Court had made an Order on May 10, 2016, directing Mr. Costantino and Dr. Kumar to deliver the capacity assessment to Mr. Pietramala, and adjourning motions for the removal of Mr. Pietramala as Mr. Costantino’s solicitor of record and for the appointment of the Public Guardian and Trustee, to May 18, 2016.
[21] In a further affidavit sworn May 18, 2016, Mr. Pietramala states that he received Dr. Kumar’s report on Saturday, May 14, 2016. The report stated, in part:
a) Mr. Costantino was admitted to hospital on April 7, 2016, with a planned discharge date of May 16, 2016.
b) Mr. Costantino suffers from paranoid schizophrenia and that “When he comes off his medication he can become severely psychotic.”
c) “At this point it is my clinical opinion that Mr. Costantino is fully capable to make his own treatment decisions, personal care decisions and financial decisions.”
d) When Mr. Costantino takes his medicine, “he gets a good response” and “is almost completely symptom free.” Since his current admission to hospital, Mr. Costantino had re-started his medication and was again “near complete remission of symptoms.”
e) Mr. Costantino had agreed to a Community Treatment Order to ensure he remains compliant on his mediation once he leaves hospital, and would be followed as an outpatient by a psychiatrist at Humber River Hospital. [Emphasis added]
[22] Dr. Kumar is a Staff Psychiatrist at Humber River Hospital. His report dated May 13, 2016, is not a formal capacity assessment. It does not contain the words, referred to in such cases as Marek v. McKinnon, in 2014, that: “I performed the assessment in accordance with the procedures for assessing capacity for managing property established by the Attorney General.”[^1] It is a four paragraph letter that contains solely the statements that Mr. Pietramala refers to in his affidavit.
[23] Mr. Pietramala states, in his affidavit, that he infers from Dr. Kumar’s report that, prior to being admitted to hospital, Mr. Costantino was not taking his prescribed medicine, and was showing symptoms of being severely psychotic. He states, “I do not know, and am not capable of knowing, whether or not Mr. Costantino is taking his prescribed medicine.” [Emphasis added]
[24] Mr. Pietramala notes that, following his attendance at court on May 10, but prior to Dr. Kumar’s assessment, Mr. Costantino responded to an e-mail in which Mr. Pietramala had told him that, based on Mr. Costantino’s statement that he was now fine, Mr. Pietramala expected him to attend court on May 18, 2016. Mr. Costantino, in response, stated that, notwithstanding his anticipated discharge from hospital on Tuesday, May 16, 2016, he would be unable to attend court on May 18. He stated, “…please understand that this disease can be intermittent…with long and short periods of scrambled thinking.” [Emphasis added]
[25] Mr. Pietramala reports that Mr. Costantino followed up with a further e-mail at 8:21 p.m. the same evening in which he stated, “I have been in hospital for a month. I was not well when I came. I relapsed. This has been the case for the last 4 years. This divorce and all its elements has worn me down and triggers these relapses.” [Emphasis added]
[26] Mr. Pietramala states that, notwithstanding Dr. Kumar’s assessment, his position remains the same with regard to Mr. Costantino’s capacity to represent himself at court or participate in the trial. He notes that, throughout the entire proceeding, which began on January 20, 2014, Mr. Costantino has never entered the courtroom, and has advised Mr. Pietramala that he was unable to do so. He was not at court in response to Mr. Pietramala’s motion to remove himself as his solicitor of record on September 25 or October 9, 2015, and had refused to attend court for the resumption of the Trial Management Conference on October 20, 2015.
[27] Mr. Pietramala states that Mr. Costantino, before terminating Mr. Pietramala’s retainer on September 16, 2015, had instructed him not to discuss any issues in the case with members of his family, and had instructed Dr. Mallia and Dr. Belluzzo not to release any information to Mr. Pietramala. Mr. Pietramala concludes, “I believe [Mr. Costantino] has used his privileges under the Privacy Act to shut out all 3rd party professionals or family members from communicating with my office. I believe Mr. Costantino’s mistrust of third party adults in his family are a symptom of his paranoid schizophrenia.” [Emphasis added]
ISSUES
[28] The court must determine whether, in these circumstances, Mr. Costantino is capable of instructing counsel, or whether the Public Guardian and Trustee should be appointed as his Litigation Guardian, to protect his interests in this proceeding.
PARTIES’ POSITIONS
[29] The parties agree that Mr. Costantino suffers from schizophrenia. Mr. Costantino asserted in his Answer to Ms. Costantino’s Application, that he should be permitted to participate in the sale of the matrimonial home, which has now been sold. Mr. Costantino refused to agree to an equal division of the net proceeds of sale, and additionally opposed a restraining order, arguing that it was unnecessary.
[30] Ms. Costantino does not oppose an Order removing Mr. Pietramala as Mr. Costantino’s solicitor of record, or the appointment of the Public Guardian and Trustee as his Litigation Guardian. If the action does not settle, however, and must proceed to trial, she opposes an Order dispensing Mr. Costantino’s attendance or testimony at the trial.
ANALYSIS AND EVIDENCE
The Legislative Framework
[31] The Substitute Decisions Act, 1992, provides that a person over the age of eighteen is presumed to be mentally capable of entering into a contract. It follows from this that such a person is presumed to be capable of executing a Power of Attorney or a Will.[^2]
[32] The Family Law Rules authorize the court to appoint legal representation for a person who appears to be mentally incapable. Rule 2(1) provides:
2(1) ‘special party’ means a party who is a child or who is or appears to be mentally incapable for the purposes of the Substitute Decisions Act, 1992, in respect of an issue in the case and who, as a result, requires legal representation, but does not include a child in a custody, access, child protection or child support case.[^3] [Emphasis added]
[33] Family Rule 4(2) provides that the court may authorize “a person to represent the special party if the person is, (a) appropriate for the task; and (b) willing to act as representative”. Family Law Rule 4(3) provides:
4(3) If there is no appropriate person willing to act as a special party’s representative, the court may authorize the Children’s Lawyer or the Public Guardian and Trustee to act as representative, but only with that official’s consent. [Emphasis added]
[34] The finding of an adult litigant to be mentally incapable is a prerequisite for finding that the litigant is a “special party” who requires the appointment of a litigation guardian to act as his or her representative.[^4] Section 6 of the Substitute Decisions Act, 1992, (“SDA”), defines incapacity to manage property in the following terms:
- A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.[^5]
[35] Pursuant to the Family Law Rules, if a litigant lacks mental capacity, the court may designate him a “special party”, and appoint the Public Guardian and Trustee to act as his or her representative, if that official consents to take on the retainer. In C.M.M. v. D.G.C., in 2015, the Court of Appeal held that the Family Law Rules provide a detailed enough framework for the conduct of litigation by minors and mentally incapable persons so as not to require recourse to the Rules of Civil Procedure, pursuant to Family Law Rule 1(7), which permits the court to apply the civil rules where a matter is not adequately covered by the Family Law Rules.[^6]
Purpose of appointing a litigation guardian
[36] The purpose of appointing a litigation guardian is to protect both the litigant who is incapable of making the necessary decisions in a proceeding, and the other litigants. Justice Coo, in Bilek v. Constitution Insurance, in 1990, noted, “One must be very cautious in coming to a conclusion which would bar the plaintiff from having the final say in how his litigation is to be conducted or resolved.”[^7] However Master Beaudoin, as he then was, in Cameron v. Louden, in 1998, noted that Rule 7 of the Rules of Civil Procedure, providing for the appointment of a litigation guardian in a civil action, is designed for the protection of not only the disabled litigant, but also the other party to the litigation, and the court. He stated:
The purpose of a rule requiring a litigation guardian for parties under disability is drawn for protection to the party, the other parties, and the Court itself. The rule offers protection to the party, ensuring that a competent person with a duty to act for the party’s benefit is there to instruct counsel and take steps in the litigation on the party’s behalf. To the other parties, the rule offers the protection of a competent person who instructs counsel on how the proceeding is to the conducted, is responsible for costs, and is responsible for seeing that the court’s eventual judgment is obeyed. A litigation guardian offers assurance to the court that its process is not abused by or against a party under disability and that its order will be obeyed.[^8] [Emphasis added]
[37] Justice Stinson, in 626381 Ontario Ltd. v. Kagan, Shastri, Barristers & Solicitors, in 2013, adopted Master Beaudoin’s characterization of the rationale of Rule 7. He stated:
These procedural safeguards set out in Rule 7 are designed to protect not only the person under a disability, but also “to protect the integrity of the judicial process for all participants in the litigation, including the Court.” (Murphy v. Carmelite Order of Nuns, 2004 CarswellOnt 9965.) As noted by Lofchik J. in Lico v. Griffiths, 2008 11047 (ON SC), [2008] O.J. No. 1018 (S.C.), at para. 24, because the rules protect the person under a disability, they consequently protect the entire court procedure.[^9] [Emphasis added]
The Onus of Proof
[38] Where mental capacity is in doubt or challenged in a legal proceeding, the moving party bears the onus of establishing that the party is incapable, and must provide evidence regarding the “nature and extent” of the incapacity.[^10]
The standard of proof
[39] The test of incapacity must be satisfied on a balance of probabilities.[^11]
The Test for Appointment of a Litigation Guardian
[40] The test for appointment of a litigation guardian is a functional one.[^12] It relates the incapacity of the litigant, generally, to manage his property, as defined in the Substitute Decisions Act, 1992, to the issues that must be decided in the particular litigation. The test, as set out in Rule 4 of the Family Law Rules, is the same, in this respect, as is set out in Rule 7 of the Rules of Civil Procedure. It is that:
a) The person must appear to be mentally incapable with respect to an issue in the case and,
b) As a result of being mentally incapable, the person requires legal representation to be appointed by the Court.
[41] For the appointment of a Litigation Guardian to be appropriate, the cause of incapacity must stem from a source of mental incapacity, such as mental illness, dementia, developmental delay, or physical injury, and not from a non-legal capacity-related reason, such as lack of sophistication, education, or cultural differences.[^13] Additionally, the incapacity, so caused, must affect the litigant’s decision-making in relation to the issues in the litigation.
[42] Where the appointment of a Litigation Guardian is sought, it is not enough to establish that the individual's words, deeds, or choices seem unreasonable to others.[^14] Rather, the evidence must establish, in respect of the issue(s) in the proceeding, that the party is unable to understand and appreciate relevant information or the reasonably foreseeable consequences of a decision, not simply that they fail to do so. Justice Backhouse, in C.C. v. Children’s Aid Society of Toronto, in 2007, stated, “There is a distinction to be drawn between failing to understand and appreciate risks and consequences, and being unable to understand and appreciate risks and consequences. It is only the latter that can lead to a finding of incapacity.”[^15]
[43] The issue, then, is whether the litigant is capable of understanding information that is relevant to making a decision in respect of the issue(s) in the proceeding, or is able to appreciate the reasonably foreseeable consequences of a decision, or lack of decision, in respect of the issue(s). Master Graham, in Torok v. Toronto Transit Commission, in 2007, stated:
The ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision in the litigation includes the ability to consider a reasonable range of possible outcomes, including those that are unfavourable. This ability is essentially the capacity to assess risk, which requires consideration of a variety of results, both positive and negative.[^16] [Emphasis added]
[44] Justice Stinson, in 62381 Ontario Ltd. v. Kagan, Shastri, above, noted, in relation to a civil action:
It is important to highlight that, while the definition of disability in the Rules borrows from the SDA, the latter is a different legislative regime with a different purpose than Rule 7. Unlike Rule 7, which is designed to protect the integrity of the court process, the focus of the SDA is solely on the protection of the individual, and rightly so. There is much more at stake, in regards to an individual’s dignity, privacy, and legal rights, when, following a court-ordered capacity assessment under s. 79 of the SDA, he or she is deemed incapable of managing his or her personal care or property. As Strathy J. stated in Abrams v. Abrams, [2008] O.J. No. 5207 (S.C.), at para. 48, SDA proceedings “are not a lis or private litigation in the traditional sense. The interests that these proceedings seek to balance are not the interest of litigants, but the interest of the person alleged to be incapable as against the interest and the duty of the state to protect the vulnerable.” [Emphasis added]
In non-SDA matters, when the nature of the proceedings before the court has nothing to do with the type of substitute decision-making governed by the SDA, different considerations apply. Indeed, when a matter simply involves a litigant who is a person under a disability, the procedures outlined in Rule 7, including the mandatory appointment of a Litigation Guardian (Rule 7.01(1) and the mandatory court approval of any settlement (Rule 7.08(1)), are designed and intended to provide adequate safeguards not just for the litigant under a disability, but also for the other litigants, and the entire court process.
Taken together, then, in a non-SDA proceeding governed by the Rules, the definition of “disability” in rule 1.03(1)(b) should be read along with s. 6 of the SDA to mean that someone will be considered a person under a disability if he or she is not able to understand information that is relevant to making a decision in the management of his or her property in respect of an issue in the proceeding, or if the person is not able to appreciate the reasonable foreseeable consequences of a decision or lack of decision in respect of an issue in the proceeding. This definition imports the language of s. 6 of the SDA within the confines of rule 1.03(1)(b) and reflects the overall purpose of Rule 7 and rule 7.04(1)(b) in particular.[^17] [Emphasis added]
[45] Courts have recognized that a person can be capable of making a basic decision while being incapable of making a complex decision. They have recognized varying levels of capacity required for different decisions, and varying degrees of incapacity to make decisions.[^18] For example, a person can be capable of entering into a marriage but not capable of making a will.[^19]
[46] In determining whether a person was, at the time he or she executed a Will or Power of Attorney, capable of doing so, the court seeks to determine whether the testator or settlor intended to dispose of his or her property,[^20] and to appoint someone as his attorney to do so, and whether his decision-making was compromised by delusions (or undue influence or fraud), which interfered with his true testamentary intentions. Courts recognize the interests of those closest to the testator, particularly his or her immediate family, as the “natural objects” of a testator’s bounty, and therefore require evidence that the testator knew who such family members were, and the fact that they would normally be considered objects of the Will.[^21]
[47] To meet the test for capacity to instruct legal counsel, a person must:
a) Understand what they have asked the lawyer to do for them and why;
b) Be able to understand and process the information, advice, and options the lawyer presents; and
c) Appreciate the advantages and drawbacks and the potential consequences associated with the options they are presented with.[^22]
[48] In Calvert (Litigation Guardian of) v. Calvert, in 1997, Benotto J. compared the test for determining testamentary capacity with the test for determining capacity to instruct counsel. Justice Benotto stated:
There is a distinction between the decisions a person makes regarding personal matters, such as where or with whom to live, and decisions regarding financial matters. Financial matters require a higher level of understanding. The capacity to instruct counsel involves the ability to understand financial and legal issues. This puts it significantly higher on the competency hierarchy.[^23] [Emphasis added]
[49] In determining whether a person is capable of instructing counsel, courts have recognized that the issue relates principally to decisions as to whether to settle a proceeding and, if so, on what terms.[^24] Mental capacity is required in order for a settlement to be valid and binding.[^25] Rule 18(12) of the Family Law Rules requires Court approval of a special party’s acceptance of another party’s offer. A similar provision is found in Rule 7.08(1) of the Rules of Civil Procedure.
[50] Mental incapacity is frequently a basis upon which litigants oppose motions to enforce settlements. In Marek v. McKinnon, in 2014, Morgan J. allowed a motion by the defendants to enforce a settlement entered into nine years earlier, in 2005.[^26] The plaintiff opposed the motion on the ground that he was mentally incapable of entering into the settlement. The plaintiff relied on a capacity assessment conducted in 2012, which resulted in the appointment of a Litigation Guardian in 2013, but produced no cogent evidence that he had been incapable in 2005.
[51] Justice Morgan held that the assessment of disability in 2012, which was worded in the present tense, was not determinative of the plaintiff’s disability in 2005, and “the only reason that the court might invoke its Rule 7.08 jurisdiction to scrutinize a settlement agreement entered into by a party with no Litigation Guardian would be if there were cogent evidence that a guardian ought to have been appointed at the time of the settlement.” Justice Morgan stated that he had been unable to find any cases in which court approval of a settlement under Rule 7.08 was deemed necessary where the party who entered into the settlement was not under a disability at the time of the settlement.[^27]
[52] The Court of Appeal dismissed the plaintiff’s appeal from Morgan J.’s order enforcing a settlement. It referred to the presumption of capacity in s. 2(1) of the Substitute Decisions Act, 1992, and the well-established law that “a solicitor of record has the ostensible authority to bind his or her clients and that opposing counsel are entitled to rely upon that authority in the absence of some indication to the contrary.”[^28]
The relevant time frame
[53] When determining a person’s testamentary capacity, the court is considering capacity at a moment in time when a Will or Power of Attorney was signed, and not capacity over an extended period of time, such as over the duration of a court proceeding. Courts have recognized that a person’s level of capacity can fluctuate from time to time.[^29] In the context of a Will or Power of Attorney, the court seeks to determine whether the document was the free act of the testator or settlor, based on a finding as to whether it was made at a time when the testator or settlor was in possession of a disposing mind and memory and was free of undue influence.[^30] This goal informs the legal test for testamentary capacity, the evidence the court examines, and the presumptions and burden of proof that it applies, as well as the time frame of the capacity that is being determined.
[54] In Palahnuk v. Palahnuk Estate, in 2006, Stach J., when dealing with an issue of testamentary capacity, stated:
It does not necessarily follow that a person found to be incapable of managing her property is incapable for all time thereafter of possessing the ability to have disposing capacity in relation to her assets for the purposes of a will.[^31] [Emphasis added]
Abela and Collins question whether a person, having lost testamentary capacity, ever really regains it. They note that brief moments of lucidity may reflect only heightened attention and alertness, and not the higher level of functioning required for executing a valid will.[^32] However, it is still the moment when the Will was executed that is the relevant time.
[55] When deciding whether to appoint a Legal Guardian for personal care or property, it is the time of the hearing that is relevant. It is assumed, in such a case, that if a person is incapable at the time of the hearing, his or her incapacity will likely continue indefinitely. In a hearing under the Substitute Decisions Act, 1992, the Ontario Consent and Capacity Board in M.B. (Re), in 2006, stated:
Though not specifically in The Substitute Decisions Act, and with respect to capacity to make treatment or admission decisions rather than capacity to manage property, the law recognizes that capacity is time-specific. A person may be incapable at one time and capable at another. The Board’s role is therefore to review the finding of incapacity as at the time of the Hearing.[^33] [Emphasis added]
[56] In determining a litigant’s capacity to instruct counsel, the court is concerned with the person’s decision-making over the entire duration of the proceeding. While the specific issue of what period of time is relevant for purposes of determining capacity to instruct counsel has not, insofar as I am able to ascertain, been determined in a previous case, the conclusion that the relevant period is the entire duration of the litigation follows from the following considerations:
a) As the Master noted in Cameron v. Loudon, above, the test of capacity is a functional one, particular to the task or activity at issue. In the case of capacity to instruct counsel, the activity consists of the full range of decisions that the litigant is required to make in the proceeding.
b) The decisions that the litigant needs to make, and which are at issue in the determination as to capacity to instruct counsel, are not made in one single moment, as where a settlor executes a Power of Attorney or a testator executes a Will. The decisions in a family law proceeding are on-going throughout the proceeding.
c) As Justice Coo correctly observed in Bilek v. Constitution Insurance, above, and as Lofchik J. noted in Lico v. Canadian General Insurance Group et al, above, the fundamental decision to be made in any proceeding, and the one on which the determination as to capacity turns, is the decision regarding settlement, or “resolution without trial”.
d) The litigant must decide, at every point in the proceeding, whether to continue the proceeding or to offer to settle it. In making this decision, the litigant must consider the costs and benefits of settlement and of continuing to litigate. If at any time an offer to settle is received, the recipient must decide whether or not to accept it, and the longer a decision is deferred, the greater the potential costs consequences.
e) As Master Graham noted in Torok v. Toronto Transit Commission, above, the litigant’s capacity to instruct counsel entails his ability to appreciate the reasonable foreseeable consequences of a decision or lack of decision in the litigation, which is essentially the capacity to assess the comparative risk of alternatives, and a reasonable range of possible outcomes, both positive and negative.
f) As Ed Montigny notes in his article, “Notes on Capacity to Instruct Counsel”, above, a litigant, to be capable of instructing counsel, must understand the nature of the litigation he or she has asked the lawyer to prosecute or defend, and the objectives of doing so, to understand and process the information, advice, and options the lawyer presents in relation to continuing or settling the litigation, and to appreciate the advantages and drawbacks and the potential consequences associated with the options the lawyer presents. This must be done, at least implicitly, at every point at which the client interacts with the lawyer.
g) The procedural rules governing representation of a mentally incapable litigant by a Litigation Guardian exist for the protection of the mentally incapable litigant and the other parties to the proceeding, as well as to protect the integrity of the court. Mental incapacity vitiates a settlement, and a settlement involving a mentally incapable litigant requires the approval of the court. In order to achieve the objectives of the procedural rules regarding mentally incapable litigants, having regard to the fact that evidence of incapacity may not be available long after a settlement is entered into, it is necessary that determinations as to mental capacity be made with reference to the entire duration of the proceeding.
The factors to be considered
[57] The jurisprudence has identified the following factors that should be considered when applying the test for determining whether a party is under disability and requires a litigation guardian:
a) A person’s ability to know or understand the minimum choices or decisions required and to make them;
b) An appreciation of the consequences and effects of his or her choices or decisions;
c) An appreciation of the nature of the proceedings;
d) A person’s inability to choose and keep counsel;
e) A person’s inability to represent him or herself;
f) A person’s inability to distinguish between relevant and irrelevant issues; and,
g) A person’s mistaken beliefs regarding the law or court procedures.[^34]
[58] Issues of mental capacity generally are to be decided on medical evidence.[^35] Courts have, in some circumstances, considered various types of evidence in determining whether a Litigation Guardian should be appointed:
a) Medical or psychological evidence as to capacity;
b) Evidence from persons who know the litigant well;
c) The appearance and demeanour of the litigant;
d) The testimony of the litigant; and,
e) The opinion of the litigant’s own counsel.
Applying the legal principles to the present case
[59] I have considered the evidence from Mr. Costantino himself, from Ms. Costantino, who knows him well, the opinion of Mr. Costantino’s lawyer, Mr. Pietramala, and the opinion of his psychiatrist, Dr. Sameer Kumar. Based on all of this evidence, I find that Mr. Costantino suffers from paranoid schizophrenia and that, as a result of his mental illness, he is incapable of instructing counsel or making the decisions that the present proceeding requires of him.
[60] Mr. Costantino has demonstrated a pattern of conduct, over the past five years, characterized by the following:
a) He demonstrated an inability to know or understand the minimum choices or decisions required, and to make them. For example, he submitted, in the face of overwhelming evidence to the contrary, that Ms. Costantino had no need for a restraining order against him, and resisted providing his capacity assessment to his lawyer, in the face of a court order that he do so.
b) He demonstrated a lack of appreciation of the consequences and effects of his choices or decisions, including his prolonged refusal to communicate with his lawyer, or to respond to Ms. Costantino’s Offer to Settle, or to permit his medical treatment providers or family members to give necessary information to his lawyer.
c) He demonstrated a lack of appreciation of the nature of the proceedings and its requirements, by failing repeatedly to attend court, even after his discharge from hospital, and by expressing anger toward his lawyer for requesting his capacity assessment and not accepting Mr. Costantino’s oral representation that he was mentally capable of instructing him.
d) In an e-mail dated April 16, 2016, Mr. Costantino stated, “I am unable to function and live on my own.” In a further e-mail, on May 12, 2016, he stated, “…please understand that this disease can be intermittent… with long and short periods of scrambled thinking.”
e) He was unable to retain Mr. Pietramala as his lawyer, in spite of the prolonged patience and forbearance shown by the lawyer.
f) His ability to distinguish between relevant and irrelevant issues is unknown.
g) He frequently ceased taking the medications prescribed for him by his physicians to treat the symptoms of his mental illness.
h) He has suffered from periodic psychotic delusions that have affected his decision-making and conduct toward others.
i) He has periodically required hospitalization for his mental illness;
j) He refused or was unable to provide necessary instructions to his lawyer, including instructions regarding offers to settle provided to him by Ms. Costantino and referred to by Justice Van Melle at the pre-trial conference on January 5, 2016.
[61] I find that the letter from Dr. Sameer Kumar dated May 13, 2016, and its statement that Mr. Costantino has agreed to enter a Community Treatment Order, without more, is insufficient evidence that the pattern of conduct Mr. Costantino has shown in the past has ended. Community Treatment Orders are governed by s. 33.1 of the Mental Health Act.[^36] That section provides, in part:
33.1(1) A physician may issue or renew a community treatment order with respect to a person for a purpose described in subsection (3) if the criteria set out in subsection (4) are met.
(3) The purpose of a community treatment order is to provide a person who suffers from a serious mental disorder with a comprehensive plan of community-based treatment or care and supervision that is less restrictive than being detained in a psychiatric facility. Without limiting the generality of the foregoing, a purpose is to provide such a plan for a person who, as a result of his or her serious mental disorder, experiences this pattern: The person is admitted to a psychiatric facility where his or her condition is usually stabilized; after being released from the facility, the person often stops the treatment or care and supervision; the person’s condition changes and, as a result, the person must be re-admitted to a psychiatric facility.
(6) A community treatment order shall indicate,
(a) the date of the examination referred to in clause (4)(c);
(b) the facts on which the physician formed the opinion referred to in clause (4)(c);
(c) a description of the community treatment plan referred to in clause (4)(b); and
(d) an undertaking by the person to comply with his or her obligations as set out in subsection (9) or an undertaking by the person’s substitute decision-maker to use his or her best efforts to ensure that the person complies with those obligations.
(11) A community treatment order expires six months after the day it is made unless it is renewed in accordance with subsection (12).
(12) A community treatment order may be renewed for a period of six months at any time before its expiry and within one month after its expiry.
33.7 Community treatment plans. – A community treatment plan shall contain at least the following:
A plan of treatment for the person subject to the community treatment order.
Any conditions relating to the treatment or care and supervision of the person.
The obligations of the person subject to the community treatment order.
The obligations of the substitute decision-maker, if any.
The name of the physician, if any, who has agreed to accept responsibility for the general supervision and management of the community treatment order under subsection 33.5(2).
The names of all persons or organizations who have agreed to provide treatment or care and supervision under the community treatment plan and their obligations under the plan. [Emphasis added]
[62] There is no evidence that:
a) Mr. Costantino has entered into a Community Treatment Order or renewed such an Order, as required.
b) Mr. Costantino has designated a substitute decision maker.
c) Any person or organization has agreed to provide supervision of Mr. Costantino under a Community Treatment Order. On the contrary, Mr. Pietramala advised the court that no one in Mr. Costantino’s family was prepared to act as his Litigation Guardian. Mr. Pietramala states in his affidavit that Mr. Costantino had instructed all members of his family not to disclose information to him. Mr. Pietramala believes this pattern of conduct to be a symptom of Mr. Costantino’s mental illness.
d) Mr. Costantino has not remained compliant with his treatment and medication for any substantial period, if at all, with the exception of when he is hospitalized.
CONCLUSION AND ORDER
[63] It is a serious step for the court to declare a litigant a special party, incapable of making his own decisions in the action, and appointing a litigation guardian to act on his behalf. The court must proceed with great caution, especially when, on the day of the hearing, the litigant possesses the capacity to make such decisions himself.
[64] The evidence in this motion satisfies me that Mr. Costantino suffers from paranoid schizophrenia which has, over the past course of the present proceeding, interfered significantly with his ability to make the necessary decisions in the proceeding. I find that he has failed to take the medication that is necessary to restore his mental function, and that his condition has consequently deprived him, from time to time, of his capacity to understand information relevant to making decisions in the management of his property, and in respect of the issues in the proceeding. He is unable to appreciate the reasonably foreseeable consequences of decisions or a lack of decisions in respect of those issues.
[65] Mr. Pietramala has stated that he does not know, and is unable to ascertain, whether Mr. Costantino is taking his medication, or is capable of understanding the information Mr. Pietramala gives him or of making the decisions required of him. If Mr. Costantino were to enter into a settlement in his condition, it is likely that it would be vitiated by his mental incapacity.
[66] Mr. Pietramala has expressed concerns, throughout the past year and a half, as to his client’s capacity to give him the instructions he required to conduct the action on Mr. Costantino’s behalf. This effectively has prevented the proceeding from being settled or proceeding to trial. When the court took every step available to it to have the issue of Mr. Costantino’s mental capacity resolved, Mr. Costantino impeded those efforts and withheld his authority from others, including his treating physicians, to speak to his lawyer, which further delayed the resolution of the issues and imposed unnecessary expense on Ms. Costantino.
[67] Mr. Costantino’s treating psychiatrist finally provided a report confirming that his patient suffers from paranoid schizophrenia and that he was recently hospitalized for two months due to that condition. Although Mr. Costantino was discharged in May 2016, he continued, as of July, to be an outpatient. Although his doctor attested to the fact that, while on medication, he possesses the capacity to make decisions regarding his property, there is insufficient evidence that the community treatment order that Dr. Kumar says Mr. Costantino agreed to enter into was, in fact, entered into, or that there was any person or organization available to supervise Mr. Costantino’s compliance with it.
[68] Mr. Costantino suffers from a major mental illness. That illness has, during the course of the proceeding, deprived him of the capacity to understand information relevant to decisions required in the management of his property and in respect of the issues in the proceeding, and of the capacity to appreciate the reasonably foreseeable consequences of decisions or lack of decisions in respect of such issues. In particular, it has deprived him of the capacity to appreciate the consequences of disputing Ms. Costantino’s need for a restraining order, refusing her settlement offer, delaying his own mental capacity assessment, and preventing his doctors and family members from disclosing to Mr. Pietramala the information he required in order to represent him properly. I find that Mr. Costantino’s illness is likely, during the course of the proceeding, to render him incapable again, and that the court must therefore find him to be a special party.
[69] I find that there is no other person willing and able to act as Mr. Costantino’s Litigation Guardian. I am therefore appointing the Public Guardian and Trustee, who is willing to undertake his representation, to act on his behalf.
[70] For the reasons stated above it is ordered that:
The Public Guardian and Trustee shall be appointed legal representative for the Respondent, Davide Costantino, pursuant to Rule 4(3) of the Family Law Rules and shall have all the powers of a litigation guardian pursuant to Rule 7 of the Rules of Civil Procedure.
The Public Guardian and Trustee, and its counsel or agent, shall be entitled, upon request, to the production and delivery of any information, including medical, financial, or other types of information, in any form, including documents, records, charts, or tests, relating to Davide Costantino, from any doctor, psychiatrist, medical facility, or any person, firm, corporation, institution, or governmental authority, whether federal, municipal, or provincial, to which Mr. Costantino himself would be entitled, without requiring Mr. Costantino’s authorization or consent.
Fernando Pietramala shall deliver the whole of Mr. Costantino’s file to the Public Guardian and Trustee within seven days of the date of this Order, with no costs payable.
The Public Guardian and Trustee shall not be personally liable for the costs of any party to the proceeding.
The court staff shall issue and enter this Order immediately and provide the Public Guardian and Trustee, his counsel, or his agent with three (3) certified true copies of this Order forthwith.
If no agreement as to costs is reached, the parties, including the Litigation Guardian, on behalf of Mr. Costantino, shall submit written arguments, not to exceed four pages, and a Costs Outline, by December 15, 2016.
Price J.
Released: November 22, 2016
CITATION: Costantino v. Costantino, 2016 ONSC 7279
COURT FILE NO.: FS-14-79708-00
DATE: 2016-11-22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SONIA COSTANTINO
Applicant
– and –
DAVIDE COSTANTINO
Respondent
REASONS FOR ORDER
Price J.
Released: November 22, 2016
[^1]: Marek v. McKinnon, 2014 ONSC 342, at para. 8 [^2]: Substitute Decisions Act, 1992, SO 1992, as amended, s. 2 [^3]: Family Law Rules, O. Reg. 114/99, as am. [^4]: Soriano v. Laberakis, [2003] O.J. No. 5489 (Div. Ct.) [^5]: Substitute Decisions Act, 1992, S.O. 1992, c. 30, s. 6 [^6]: C.M.M. v. D.G.C., 2015 ONSC 39, [^7]: Bilek v. Constitution Insurance [1990] O.J. No. 3117, para. 2. See also: Direk v. Ontario (Attorney General), [2010] ONSC 3428, at para. 17 [^8]: Cameron v. Louden, [1998] OJ No 2791 (Gen Div), at para. 4 [^9]: 626381 Ontario Ltd. v. Kagan, Shastri, Barristers & Solicitors, 2013 ONSC 4114, pat paras. 17 and 18. [^10]: Rules of Civil Procedure, rule 7.03(10)(d). Sosnowski et al v. Sosnowski et al, 2006 ONCA 32309. See also the cases collected at Torok v. Toronto Transit Commission, [2007] O.J. No. 1773 (S.C.), at para. 24. [^11]: Cameron v. Louden, [1998] O.J. No. 2791(Master) [^12]: Cameron v. Loudon (1998), 65 OTC 161, [1998] OJ No. 2791 (Ont. Ct. Gen. Div.) (Master), at para. 34 [^13]: C.C. v. Children’s Aid Society of Toronto, [2007] OJ No. 5613 (SCJ), at para. 25 [^14]: C.C. v. Children’s Aid Society of Toronto, above, at para. 39 [^15]: C.C. v. Children’s Aid Society of Toronto, above, at para. 39 [^16]: Torok v. Toronto Transit Commission, [2007] O.J. No. 1773 (S.C.), at para. 40 [^17]: 62381 Ontario Ltd. v. Kagan, Shastri, above, paras. 19 to 21 [^18]: Calvert, supra [^19]: Banton v. Banton, (1998), 1998 14926 (ON SC), OJ No 3528 (Ont. Gen. Div.), at para. 7 [^20]: George v. Daily (1997), 1997 17825 (MB CA), 115 Man R (2d) 27 (Man CA), at paras. 61-4; Re Gray Estate, 1958 49 (SCC), [1958] SCR 392. Molinary v. Winfrey, 1960 81 (SCC), [1961] SCR 91; and Canada Permanent trust Co. v. Bowman, 1962 81 (SCC), [1962] S.C.R. 711. [^21]: Milton D. Green, “Public Policies Underlying the Law of Mental Incompetency” (1940) 38 Mich L Rev 1189, at 1212. [^22]: Ed Montigny, “Notes on Capacity to Instruct Counsel” (Paper presented at the Continuing Legal Education Program, “A Disability Law Primer”), Nov. 27, 2003, at 2-3, cited in Caroline E. Abela and Kristi Collins, “Litigating Through the Grey Zone: The Law of Testamentary Capacity”, Annual Review of Civil Litigation (Carswell, 2014), p. 134 [^23]: Calvert (Litigation Guardian of) v. Calvert, (1997) 1997 12096 (ON SC), 32 OR (3d) 281 (Gen. Div.) aff’d (1998), 1998 3001 (ON CA), 37 OR (3d) 221, 106 OAC 299 (Ont. C.A.) [^24]: Lico v. Canadian General Insurance Group et al, 2008 11047 (ON SC), at para. 30, citing Coo J. in Bilek v. Constitution Insurance [1990] O.J. No. 3117, at para. 2 [^25]: Banton v. Banton, 1998 14926 (ON SC), para. 140 [^26]: Marek v. McKinnon, 2014 ONSC 342 [^27]: Marek v. McKinnon, above, at para. 5 [^28]: Dick v. McKinnon, 2014 ONCA 784, paras. 3 and 4, citing Oliveira v. Tarjay Investments Inc., 2006 8870 (ON CA), [2006] O.J. No. 1109, at para. 2 (C.A.), Scherer v. Paletta, 1966 286 (ON CA),[1966] 2 O.R. 524 (C.A.) and Mohammed v. York Fire and Casualty Insurance Co., 2006 3954 (ON CA), [2006] O.J. No. 547, at para. 20 (C.A.). [^29]: Palahnuk v. Palahnuk Estate, 2006 CarswellOnt 2639 (SCJ), at para. 4, citing Knox v. Burton (1004), 6 ETR (3d) 285 (Ont SCJ); aff’d (2005(, 14 ETR (3d) 27 (Ont CA). [^30]: Spence v. Price, 1945 339 (ON CA), [1946] OWN 80, at 81-2, cited in Re Schwartz, 1970 32 (ON CA), [1970] 2 OR 61-84 (CA); aff’d 1971 17 (SCC), [1972] SCR 150 [^31]: Palahnuk v. Palahnuk Estate, [2006] OJ No. 5304 (SCJ), at para. 75 [^32]: Caroline E. Abela and Kristi Collins, “Litigating Through the Grey Zone: The Law of Testamentary Capacity”, Annual Review of Civil Litigation (Carswell, 2014), p. 105, citing Jenkins v. Morris (1880), 14 Ch D 674, Estate of Bohrmann, [1938] 1 All ER 271, and Ian Hull and Dr. Nathan Herrman, “Testamentary Capacity and Lucid Intervals: Good Days and Bad Days”, (Paper presented at the Law Society of Upper Canada 16th Annual Estates and Trusts Summit, November 11, 2013), at 3-6, 3-9, and 3-10 [^33]: M.B. (Re), [2006] O.C.C.B.D. No. 82, at para. 28 [^34]: Huang v. Braga, 2016 ONSC 6306, at para. 19, citing C.A.S. Toronto, above, at para. 29-32; Calvert (Litigation Guardian of) v. Calvert, (1997) 1997 12096 (ON SC), 32 OR (3d) 281 at p. 298; Kirby v. Leather, [1965] 2 All ER (CA) 441, at p. 444; and Bilek v. Constitution Insurance, 49 CPC (2d) 304. [^35]: Lico v. Griffiths, 2008 11047 (ON SC), [2008] O.J. No. 1018 (S.C.J.) at para. 30, citing Barnes v. Kirk, 1968 389 (ON CA), [1968] 2 O.R. 213 (C.A.) [^36]: Mental Health Act, RSO 1990, c M.7