COURT FILE NO.: FS-15-406705

DATE: 20180112

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: George Chuvalo, Applicant

AND:

Joanne Chuvalo and Janet O’Hara,[^1] Respondents

BEFORE: Kiteley J.

COUNSEL: January 8, 2018: Tanya Road and Rahul Shastri, former counsel for the Applicant

Heather Hogan, counsel for the Public Guardian and Trustee as Litigation Guardian for the Applicant

Rick Bickhram and Sean Graham, counsel for the Respondent Joanne Chuvalo

HEARD: January 8, 9 and 10, 2018

reasons for decision

[1] This decision follows the hearing of evidence and submissions on January 8, 9 and 10, 2018 on the issue as to whether George Chuvalo has the capacity to decide whether to divorce or reconcile. For the reasons that follow, I find and declare that at this time he does not have the capacity to decide whether to reconcile. I need not decide whether he has capacity to divorce.

[2] In paragraphs 1 – 18 of the endorsement dated November 8, 2017[^2] (“the Endorsement”) I summarized the circumstances presented at the case conference held on November 6, 2017. At paragraphs 36 – 48, I made orders designed to ensure that the Applicant and Respondent would be ready and prepared for the trial. Since that endorsement the following occurred:

(a) pursuant to paragraph 38(a), Mr. Chuvalo signed a copy of the Application in FS-15-406705 in which the content of the document was unchanged from the version that had been signed by Mitchell Chuvalo dated November 20, 2015 except that the reference to Guardians ad Litem had been removed;

(b) Ms. Chuvalo served and filed an Answer;

(c) Ms. Chuvalo served and filed a motion for leave to appeal from the Endorsement;

(d) Ms. Chuvalo served and filed a motion for a stay pending the hearing of the motion for leave to appeal. That motion for stay was heard by Pattillo J. in the Divisional Court on December 15, 2017. Notwithstanding that counsel for Mr. Chuvalo had consented to the stay, Pattillo J. dismissed the motion for stay;

(e) as indicated in the endorsement of Pattillo J., Ms. Road had obtained a follow up capacity assessment from Dr. Richard W. Shulman that indicated that Mr. Chuvalo did not have capacity to instruct counsel;

(f) counsel attended on December 21, 2017 for the Trial Management Conference referred to in paragraph 38(e) in the Endorsement. Counsel did not comply with paragraph 38(f). Indeed, counsel attended at the TMC asking that the trial not proceed as directed in paragraph 34. I declined their request to postpone the trial;

(g) at that TMC I made orders including the following:

(i) by December 22, 2017, Ms. Road was ordered to serve the Public Guardian and Trustee with a copy of the Endorsement, the endorsement dated December 15, 2017 by Pattillo J. dismissing the motion for stay, the endorsement dated December 21, 2017 and the application amended November 9, 2017 and the Answer;

(ii) by December 27, 2017, Ms. Road was ordered to serve the report of Dr. Shulman dated December 20, 2017 on counsel for Ms. Chuvalo and on the PGT;

(iii) by December 29, 2017, Ms. Road was ordered to serve the motion pursuant to Family Law Rule 4, if so advised, which motion was to be served on counsel for Ms. Chuvalo and on the PGT;

(iv) the PGT was directed to attend on January 8, 2018 to advise whether the PGT would consent to appointment pursuant to rule 7.04;

(h) on December 22, 2017, Ms. Road served and filed a Trial Record that consisted of the Application amended pursuant to the Endorsement; the Answer and the Endorsement;

(i) on January 3, 2018, counsel for Ms. Chuvalo delivered 2 volumes of affidavits previously served and a third volume of authorities on which he intended to rely;

(j) on December 29, 2017, counsel for Mr. Chuvalo brought a motion for an order for the following relief:

(i) an order pursuant to rule 2(1) of the Family Law Rules finding that the Applicant is a special party;

(ii) an order pursuant to rule 4(3) of the Family Law Rules and rule 7 of the Rules of Civil Procedure to appoint the Office of the Public Guardian and Trustee to act as Litigation Guardian in the within proceedings for the Applicant;

(iii) an order dispensing with service of the evidence on this motion on the Respondent and her counsel pursuant to rule 4 of the Family Law Rules;

(iv) an order to seal the evidence on the motion pursuant to s. 137(2) of the Courts of Justice Act and rule 2(3) of the Family Law Rules.

Motion to appoint the Office of the Public Guardian and Trustee and consequential orders:

[3] At the outset of the trial on January 8, 2018, Ms. Road and Mr. Shastri attended on behalf of the Applicant and made submissions on that motion, which Ms. Road and Mr. Shastri candidly noted was not brought on the client’s instructions.

[4] In view of the report of Dr. Shulman dated December 20, 2017 and the report of Dr. Heather Gilley dated October 8, 2017, counsel for Ms. Chuvalo conceded that Mr. Chuvalo did not have the capacity to instruct counsel. I heard submissions with respect to some of the contents of the draft order, most of which were on consent including the finding that Mr. Chuvalo is a Special Party as defined in rule 2(1) of the Family Law Rules and the finding that there is no appropriate person willing to act as his representative. As indicated below, I started the trial by directing counsel for Mr. Shastri to call Dr. Shulman as a witness and have him identify his reports dated June 5, 2017 and December 20, 2017.

[5] At the end of that day, I made the following order:

(a) appointing the Public Guardian and Trustee as representative of George Chuvalo pursuant to rule 4(3) of the Family Law Rules who as all the powers of a Litigation Guardian under rule 7 of the Rules of Civil Procedure;

(b) dispensing with service of the 31 paragraph affidavit of Tanya Road sworn December 28, 2017 (but not the 13 exhibits attached, all of which were already in the possession of counsel for the Respondent) and the factum filed in support of the motion;

(c) directing that the affidavit (but not the 13 exhibits) and the factum in support of the motion be sealed and not form part of the public record, subject to further order to the contrary;

(d) authorizing the Public Guardian and Trustee to obtain production and delivery of medical, financial and other information, including from counsel for Mr. Chuvalo;

(e) providing for payment of reasonable legal fees and expenses from assets of Mr. Chuvalo and assets jointly owned by Mr. Chuvalo and Ms. Chuvalo subject to the court’s jurisdiction to make any other order;

(f) directing the continuation of the trial on January 9, 2018 on condition that no evidence would be led on behalf of Ms. Chuvalo with respect to events prior to March 9, 2017 (which was the first date that Dr. Shulman had interviewed Mr. Chuvalo in relation to Dr. Shulman’s first report dated June 5, 2017) and on condition that the time allocated for evidence in examination-in-chief and submission would not exceed 11 hours (namely 12 hours as directed in paragraph 38(3) of the Endorsement less one hour spent on January 8 in cross-examination of Dr. Shulman).

Issues for the Trial

[6] As indicated at paragraph 1 of the Endorsement, Justice Stevenson had scheduled the October 20, 2017 case conference to determine “next steps”. As indicated at paragraph 14 of the Endorsement, counsel for Ms. Chuvalo repeated the submission that he had asserted on prior attendances namely that, pursuant to s. 10(2) of the Divorce Act, the court was required to adjourn the proceedings to give the parties an opportunity to explore reconciliation. He was opposed to a trial. Indeed, he argued that the court had no jurisdiction to order a trial.

[7] As indicated at paragraph 18 of the Endorsement, I did not accept that submission because, while there appeared to be evidence that both Mr. Chuvalo and Ms. Chuvalo expressed an interest in reconciliation, Ms. Chuvalo also took the position that Mr. Chuvalo lacked capacity to instruct counsel and to seek a divorce. In my view, as a preliminary step, there had to be a trial to determine his capacity to make those decisions.

[8] At paragraph 28 of the endorsement, I listed the issues for trial of which subparagraphs (a) to (d) were those on which counsel agreed while (e) to (g) were those that I considered consequential to subparagraphs (a) to (d). As indicated in paragraph 36 I made an order listing the 7 issues for this trial.

[9] On January 8, 2018, as indicated above, counsel for Ms. Chuvalo agreed that the evidence demonstrated that Mr. Chuvalo lacked the capacity to instruct counsel. Counsel for the PGT consented to the order appointing the PGT to act as Litigation Guardian. Once I made that order, Ms. Road and Mr. Shastri would cease to act for Mr. Chuvalo.

[10] Not surprisingly, counsel for the PGT asked for an adjournment of the trial. Having been served on December 22, 2017 with the endorsements referred to above and served on December 27 with the report of Dr. Shulman and served on December 29, 2017 with the motion pursuant to Family Law Rule 4, that was a reasonable request. Ms. Hogan asked that the trial be adjourned for 4 months to allow the PGT time to appoint counsel, to investigate and to be sufficiently informed to decide on a course of action. She did not commit to being ready within 4 months but said counsel would be in a position to advise the court at that point as to the state of readiness.

[11] Counsel for Ms. Chuvalo reiterated his earlier submission that pursuant to s. 10(2) of the Divorce Act the court was compelled to adjourn the trial and stay or suspend the proceedings pending efforts at reconciliation. However, if the trial did proceed, he strenuously resisted any adjournment of this trial let alone for 4 months.

[12] I concluded that the trial must proceed for these reasons. First, as indicated in the Endorsement, the issues between the parties had been before the court for 2 years without any substantive outcome. Second, both parties relied on expert evidence as to capacity: Dr. Shulman’s updated report was dated December 20, 2017 and Dr. Gilley’s report was dated October 8, 2017. It is essential that the court hear evidence and decide capacity while that evidence is current.

[13] I did however understand Ms. Hogan’s submission that the PGT could not be expected to be ready for any trial on less than 14 days notice.

[14] In her submissions, Ms. Hogan advised that the PGT would not take a position on the issue of Mr. Chuvalo’s capacity to decide whether to reconcile or to divorce because the PGT does not make substitute decisions of that nature. She pointed out that the PGT does not make capacity decisions; the role of the PGT in capacity issues is to gather evidence.

[15] On behalf of Ms. Chuvalo, counsel had been taking the position for many months that, pursuant to s. 10(2) of the Divorce Act, the court was mandated to stay or suspend the proceedings to create an opportunity for reconciliation. Whether Mr. Chuvalo had the capacity to decide to reconcile or divorce was a critical issue in the case. I established that as a priority in the Endorsement. The fact that the PGT became Litigation Guardian did not alter that priority. The fact that PGT would not take a position on that issue of capacity to divorce or to reconcile meant that the trial could proceed on that issue, bearing in mind that no other issues would be decided that might impact the role of PGT as Litigation Guardian and options that might ultimately be available.

[16] I decided that I would narrow the issues from those 7 listed at paragraph 28 and 36 of the Endorsement and proceed. To accomplish that, in paragraph 8 of the order dated January 8, 2018, the issue for this trial was specified as to whether Mr. Chuvalo has the capacity to decide whether to divorce or to reconcile with Ms. Chuvalo.

[17] However, having heard the evidence and the submissions, I have concluded that at this time I need not decide the issue as to whether Mr. Chuvalo has capacity to divorce.

[18] Mr. Graham made submissions during the evidence and in closing, in which he asked that I make further findings or make further orders. He pointed out that for the court to make a decision as to Mr. Chuvalo’s capacity to reconcile presumed that Mr. Chuvalo and Ms. Chuvalo had separated within the meaning of the Divorce Act. He took the position that without a finding that the parties had separated, the court could not make a finding with respect to capacity to decide whether to reconcile. I understand that point. However, to consider that issue would open up evidence relating back to April 7, 2014 which is the date of separation in the Application issued November 20, 2015. That was not included in the list of issues identified at paragraphs 28 and 36 of the Endorsement and hearing evidence and making a decision on that issue would prejudice the PGT. As I indicated to counsel, I will only deal with the issue identified in paragraph 8 of the order dated January 8, 2018 as described above in paragraph 16, as modified in paragraph 17.

[19] In the oral ruling I made on Monday January 8, I indicated that I would proceed with the trial on that narrow issue but that I was conscious of the fact that with the withdrawal of Ms. Road as his counsel and with the appointment of the PGT as Litigation Guardian who would not take a position on the issue of capacity to decide whether to reconcile or to divorce, Mr. Chuvalo did not have a lawyer representing him. As I indicated in the oral endorsement, my responsibility was to ensure that the trial of this threshold issue, which was critical to the position taken on behalf of Ms. Chuvalo that pursuant to s. 10(2) of the Divorce Act, the court was compelled to stay or suspend the proceedings, the court had to be fastidious to be fair to both spouses and also to safeguard the interests of Mr. Chuvalo who is a vulnerable person.

Onus of Proof

[20] Everyone is presumed to have capacity and, for that reason, the onus is on the person that challenges capacity to prove a lack of capacity on a balance of probabilities.

[21] For reasons explained in paragraph 24 of the Endorsement, I reserved the onus and directed Mr. Chuvalo to prove that he had capacity.

[22] In his submissions, counsel for Ms. Chuvalo invited me to reverse the reversal on the basis that he was confident that the evidence established that Mr. Chuvalo had capacity to decide to reconcile.

[23] The burden of proof is relevant to whether the court is satisfied with respect to the evidence on a particular point. If the court concludes that the evidence is ambivalent or equivocal or does not reach the standard of proof of balance of probabilities, then the court makes a finding against the party with the burden of proof.

[24] In this case, as indicated below, I am satisfied as to the evidence and therefor the question of which party has the burden of proof on the narrow issue before me does not have to be addressed.

The Trial

[25] After hearing from counsel that the order appointing the PGT as Litigation Guardian was on consent, I indicated to counsel that I would make that order and the consequential orders. Dr. Shulman had attended in the expectation that he would be required to give evidence. If I had released Ms. Road and Mr. Shastri in the morning after being advised that counsel consented to the appointment of the PGT, it would have left a hiatus in that Dr. Shulman would be in the position of not having counsel who had retained him.

[26] Given the position taken by counsel that the PGT would not participate in the trial of the narrow issue and given the availability of Dr. Shulman, before I released counsel for Mr. Chuvalo, I directed Mr. Shastri to call Dr. Shulman as a witness and have him identify his two reports. Mr. Graham agreed that Dr. Shulman is an expert qualified to give opinions on the issue of capacity.

[27] Mr. Graham called Janet O’Hara (sister of Ms. Chuvalo) and Ms. Chuvalo as witnesses. Both described events that occurred on the evening of September 5, 2017 when, after learning where Mr. Chuvalo was living, Ms. O’Hara visited Mr. Chuvalo and, with his permission, she left the nursing home he was temporarily residing in and took him to her place. Her sister arrived shortly after and then her sister and Mr. Chuvalo went out to Ms. Chuvalo’s car in order to return to the place in which Ms. Chuvalo resided. The police and Mr. Chuvalo’s son, daughter-in-law and grandson arrived. At the direction of the police, Mr. Chuvalo left with his son.

[28] Ms. Chuvalo also described events that occurred on Monday January 8, 2018 during a recess when Mr. Chuvalo approached Ms. Chuvalo and sat beside her in the courtroom and what then occurred.

[29] After laying the evidentiary groundwork, I ruled that[^3], based on Ms. O’Hara’s special skill and experience and based on Ms. Chuvalo’s knowledge and experience, each of them could form an opinion as to whether Mr. Chuvalo had the ability to decide where he wants to live. Each witness said he had that ability and that he expressed his desire to live with Ms. Chuvalo.

[30] The report of Dr. Gilley dated October 8, 2017 was admitted into evidence. I accepted that she is qualified as an expert and was entitled to give opinion evidence as to capacity. Dr. Gilley was not called as a witness.

[31] On January 9, Ms. Hogan introduced Mr. Herschel Fogelman, the counsel whom the PGT would retain. Mr. Fogelman attended to observe all the proceedings on January 9 and most of January 10.

Expert Evidence

[32] In a letter dated March 2, 2017, Ms. Road retained Dr. Shulman to evaluate Mr. Chuvalo’s capacity to separate; to divorce; and to instruct counsel with respect to the divorce. In his report dated June 5, 2017, he referred to the decision of Calvert v Calvert (referred to below), and confirmed his understanding from her instructions that in assessing those questions of capacity, a person is competent if s/he understands the context of the decision; is aware of the specific choices; and appreciates the consequences of those choices.

[33] At page 4 of his first report, Dr. Shulman provided this description of capacity and capacity assessment:

The ability to assess and/or determine capacity will vary both on a situational basis and a case by case basis. Capacity is complex and involves an intermingling of both legal tests and medical assessments. Two equally essential cognitive tasks apply to capacity evaluation in respect to the decision making process for the required legal test:

1. The ability to understand information relevant to making the decision.

2. The ability to appreciate the consequences of making the decision or not.

Cognitive domains required for understanding include: language comprehension, new learning and short term memory. To understand one must have a factual knowledge base and an understanding of options. A person who lacks the ability to understand is one who:

1. lacks the factual knowledge base and skills needed to manage the decision making demands of his or her circumstances and cannot be educated in that regard, or

2. lacks the ability to intellectually understand the options for meeting his or her personal care needs or cannot communicate his or her choice/decisions.

Cognitive tasks required for appreciation include:

1. realistic appraisal of outcome

2. justification of choice.

Assessment of a realistic appraisal of outcome is an attempt to evaluate the nature of the decision-making, and reflects the attachment of personal meaning to the facts of a given situation. It is an examination of the line of reasoning employed by the person in making decisions. Are those decisions consistent with a personal belief system, known values and reality? Justification of choice describes a capable individual as one who can show evidence of the rational manipulation of information, where decisions are free from delusional beliefs and flows logically and clearly indicates preferred options. A person who lacks the ability to appreciate is one who:

1. lacks the ability to realistically appraise the risk and likely outcome of a decision or lack of decision or lacks the ability to plan and to take action to implement the plan, or

2. lacks the ability to rationally manipulate information to reach a reasoned decision consistent with personal values and free from delusional beliefs.

Ultimately, capacity evaluation is an assessment of “decisional” capacity, in that it is the decision-making process that is at issue, not the actual final decision. Evaluation of capacity is more challenging in those with cognitive impairment. Decision-making capacity is fundamentally a matter of functional ability and is thus largely independent of diagnosis and cognitive tests that do not shed light on the capacity criteria.

[34] In the report dated June 5, 2017, Dr. Shulman indicated that he had met with Mr. Chuvalo on March 9, April 6 and May 4, 2017. He reported his clinical opinion that Mr. Chuvalo was able to understand and appreciate what he was doing, why he was doing it, and whether he wanted to do it in regards to the divorce proceedings; that Mr. Chuvalo had an adequate understanding that he was then separated and pursuing a divorce and demonstrated the ability to appreciate his option to seek reconciliation. Dr. Shulman reported that Mr. Chuvalo demonstrated an ability to appraise the risk and benefits and likely outcome of a decision to reconcile or not. He also reported his clinical opinion that Mr. Chuvalo demonstrated intact appreciation for the consequences of divorce and that Mr. Chuvalo clearly and consistently indicated divorce rather than reconciliation was his preferred option. He said the Mr. Chuvalo demonstrated a line of reasoning in making that decision that reflected an ability to appreciate the consequences of his choices. Lastly, he reported his clinical opinion that Mr. Chuvalo had the capacity to instruct counsel.

[35] In his report dated December 20, 2017 Dr. Shulman indicated that he had met Mr. Chuvalo on November 13 and 20, 2017. He confirmed that he had been asked to provide a repeat contemporaneous assessment of Mr. Chuvalo regarding whether or not he had the capacity to seek marital reconciliation or divorce; capacity to instruct counsel; and whether Mr. Chuvalo is vulnerable to undue influence regarding those decisions. He concluded that Mr. Chuvalo did not have capacity to seek marital reconciliation and did not have capacity to instruct counsel. Although not an issue in this trial, he also concluded that Mr. Chuvalo may be vulnerable to undue influence for the reasons indicated.

[36] In cross-examination, Mr. Graham reviewed aspects of both reports and Dr. Shulman did not depart from his reports. He provided further explanation for the importance of Mr. Chuvalo understanding risks and benefits i.e. consequences, of making relevant decisions.

[37] Dr. Gilley’s report is dated October 8, 2017. She had met Mr. Chuvalo on August 14, 2017 and September 12, 2017. I do not have a copy of her retainer letter. However, her report indicates that she was asked to address these questions in her assessment: whether Mr. Chuvalo had an interest in reconciling with Ms. Chuvalo; whether Mr. Chuvalo had the capacity to divorce; whether Mr. Chuvalo had the capacity to instruct a lawyer; and whether his physical or mental condition makes him more susceptible to undue influence or duress.

[38] In her report, she listed the documentation to which she had been referred including historical medical information as well as a review of 5 affidavits in the guardianship application that Ms. Chuvalo had launched and 4 affidavits in the divorce application.

[39] Dr. Gilley’s report includes references to and excerpts from Calvert. At page 10, Dr. Gilley summarized the current decisional test for capacity to make a decision, namely that the person must demonstrate:

• The “ability to understand information relevant for making decisions” and

• The “ability to appreciate the consequences of a decision or lack of a decision”.

To demonstrate the “ability to understand”, the person must show that they:

• understand the factual knowledge base;

• understanding their options.

To demonstrate the ability to appreciate the consequences of a decision, the person must demonstrate:

• realistic appraisal of the outcome

• justification of choice.

[40] In answer to the four questions, Dr. Gilley reported that while Mr. Chuvalo has significant cognitive impairment, he is still able to express wishes and preferences and he expressed a desire and willingness to attempt to reconcile with Ms. Chuvalo. She reported her opinion that Mr. Chuvalo was capable of making the decision to proceed with the divorce or to remain married. She opined that Mr. Chuvalo did not have the capacity to instruct a lawyer. And she observed that Mr. Chuvalo is vulnerable to undue influence.

[41] The question of the extent of her expertise was not addressed during the trial. I have read her summary of her education and experience and, as indicated above, I am satisfied that she is an expert on capacity assessments. Without the benefit of cross-examinations of each of them on the details of their education and experience, I am not in a position of deciding whether the expert evidence of one or the other is qualitatively superior. But I need not make that decision given the basis set out below for preferring the opinion of Dr. Shulman.

[42] Both agreed that as of September and October 2017 (Dr. Gilley) and November 2017, (Dr. Shulman) Mr. Chuvalo did not have capacity to instruct counsel. They disagreed on the issue of whether he had capacity to decide to reconcile or divorce.

[43] Mr. Graham urged that I disregard Dr. Shulman’s opinion because (a) he created a “new and elevated test”, and a “higher and impossible test” to decide whether a person has capacity to reconcile or divorce, namely whether Mr. Chuvalo understood the risks and benefits, i.e. consequences of the decision and (b) he conducted an assessment without regard to the context which he would have gained by interviewing collaterals involved with Mr. Chuvalo and reviewing parts of the court record. Unlike Dr. Gilley, he did not read and analyze external information such as the several affidavits that Ms. Chuvalo and others have filed in these and related proceedings and he did not interview collaterals to find out contextual information such as whether, in the spring of 2017 Ms. Chuvalo wanted to reconcile.

[44] I accept and rely on the report, the evidence and the expert opinion of Dr. Shulman for these reasons. First, he was challenged on his approach to limit his investigation and analysis to the patient in the interests of providing an opinion from the perspective of the patient’s circumstances alone. He explained that when he is retained for a medical legal assessment he focuses on the patient and historic medical information but he does not seek out information from family members or others in order to avoid bias. If he is asked to conduct a clinical assessment, he does invite family members or others to participate.

[45] Dr. Gilley’s report was admitted into evidence but I did not have the benefit of her evidence as to why she took the approach she did which included a review of many affidavits. Indeed at page 8 of her report she indicated that she had met with Mitchell Chuvalo to “gather corroborating information to check the veracity of what George had told” her which suggests that she was engaged in a truth seeking function which Dr. Shulman did not do. I accept Dr. Shulman’s evidence to rely solely on medical records and reports he reviewed including the testing done by other doctors, and on what he heard and observed.

[46] Second, I do not accept the submission that he created his own “new and elevated test for capacity” or a “higher and impossible test” by introducing the element of understanding of consequences. As indicated above, Dr. Shulman and Dr. Gilley similarly describe the elements of capacity and an understanding of the consequences is key. As Dr. Shulman said, capacity involves the decision-making process, not the decision itself.

[47] Third, I see no basis for rejecting his evidence on the issue of capacity to decide whether to reconcile or divorce but accept his opinion that Mr. Chuvalo does not have capacity to instruct counsel.

[48] Fourth, as I indicated during submissions, the court has had an important advantage in receiving Dr. Shulman’s evidence because he was able to provide his opinion on a “before and after” analysis. His evidence is valuable and assists the court in arriving at the decision.

Analysis

[49] Counsel referred to several cases in Ontario and elsewhere on the subject of capacity to marry and capacity to instruct counsel. None of them address capacity to decide to reconcile.

[50] In Calvert v. Calvert[^4] the issue in the trial before Benotto J. (as she then was) was whether the applicant wife had the capacity to form the intention to separate from her husband which she alleged in her application seeking a divorce and an equalization payment. Benotto J. made a finding that she did have capacity to form the intention to separate. In the course of arriving at that conclusion, she noted the following:

Capacity

A person’s right of self-determination is an important philosophical and legal principle. A person can be capable of making a basic decision and not capable of making a complex decision. Dr. Molloy, the director of the Geriatric Research Group and Memory Centre and associate professor of geriatrics at McMaster University, said:

Different aspects of daily living and decision-making are now viewed separately. The ability to manage finances, consent to treatment, stand trial, manage personal care, make personal care or health decisions, all require separate decision-making capabilities and assessments.

The courts have recognized these varying levels of capacity. Birkert L.J. said there “can be no doubt there are degrees of capacity”: Park v. Park [citation omitted]

There are three levels of capacity that are relevant to this action: capacity to separate, capacity to divorce and capacity to instruct counsel in connection with the divorce.

Separation is the simplest act, requiring the lowest level of understanding. A person has to know with whom he or she does or does not want to live. Divorce, while still simple, requires a bit more understanding. It requires the desire to remain separate and to be no longer married to one’s spouse. It is the undoing of the contract of marriage.

The contract of marriage has been described as the essence of simplicity, not requiring a high degree of intelligence to comprehend: Park, supra, at p. 1427. If marriage is simple, divorce must be equally simple. The American courts have recognized that the mental capacity required for divorce is the same as required for entering into marriage: Re Kutchins [citation omitted].

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. It has been said that the highest level of capacity is that required to make a will: Park, supra, at p. 1426. . . .

[51] Benotto J. identified a hierarchy of capacity that referred to separation but not to reconciliation.

[52] Benotto J. reviewed the extensive objective evidence and concluded that notwithstanding that she was suffering from early stages of Alzheimer’s disease, the evidence was overwhelming that Mrs. Calvert had capacity to separate from her husband. As indicated in her analysis, she found the evidence of Dr. Molloy very helpful based on his opinion that to be competent to make a decision, a person must: understand the context of the decision; know his or her specific choices; and appreciate the consequences of the choices.

[53] On February 11, 1998 the Court of Appeal[^5] dismissed the appeal without addressing whether it agreed with the hierarchy of capacity or the analysis.

[54] In Banton v. Banton[^6] Cullity J. released a judgment dated August 25, 1998 in which he dealt with the capacity to marry and testamentary capacity. He did not refer to Calvert although it had been released 7 months earlier. At paragraph 27, Cullity J. identified the principles for determining testamentary capacity as summarized in Banks v. Goodfellow[^7] as follows:

It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effect; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect. . .

[55] At paragraph 111 he held as follows:

It is well established that an individual will not have the capacity to marry unless he or she is capable of understanding the nature of the relationship and the obligations and responsibilities it involves.

[56] In Re Sung Estate[^8] Greer J. released a judgment where the issues in the trial had been whether the deceased husband had had capacity to marry and whether the surviving wife had used duress and undue influence to force him into marrying her. Greer J. pointed out that the wife had relied on Calvert (at trial, not the Court of Appeal) and to Re Park Estate. Greer J. did not apply either of them but referred extensively to Banton on the issue of capacity to marry. She also referred to Barrett Estate v. Dexter[^9] and quoted from the evidence of Dr. Malloy, an expert in the field of geriatric medicine in which the witness said:

. . . a person must understand the nature of the marriage contract, the state of previous marriages, one’s children and how they may be affected.

[57] The Court of Appeal[^10] dismissed the appeal on the basis that it was open to the trial judge to make the finding of incapacity that she did. The Court of Appeal did not refer to Calvert.

[58] In Hunt v Worrod[^11] Koke J. released a judgment on the issue of capacity to marry. He referred to Re Sung Estate (both trial and Court of Appeal) on the issue as to whether the marriage was void ab initio. He also referred to Banton on the issue of the difference between consent and capacity to marry. Koke J.[^12] relied on the decision of the British Columbia Court of Appeal in Ross-Scott v. Potvin for the test for determining whether a person has the capacity to enter a marriage. At paragraph 91, he held as follows:

The consensus of opinion from the medical experts and witnesses, evidence which I note was uncontradicted by other medical experts, is that Mr. Hunt lacked the ability to understand the responsibilities or consequences arising from a marriage, and that he lacked the ability to manage his own property and personal affairs as a result of the injuries he sustained on June 18, 2011.

[59] As indicated above, I do not agree that Dr. Shulman developed and relied on a “new and elevated test” or introduced “a higher and impossible test” for the determination of capacity to decide whether to reconcile. Dr. Shulman’s analysis is consistent with the medical parameters he outlined in his report and consistent with the jurisprudence that includes consideration of an understanding of the consequences.

[60] There is evidence that Mr. Chuvalo says he wants to live with his wife: from Ms. Chuvalo in the context of a recent attendance before Justice Stevenson when she and Mr. Chuvalo spent a few minutes together; from Ms. Chuvalo and her sister Janet O’Hara arising out of the events on September 5, 2017; from Ms. Chuvalo with respect to the events that occurred in the afternoon of Monday, January 8, 2018 during a recess from which one could draw the inference that he wants to live with her although he did not directly say that; from Dr. Shulman in his interviews on March 9, 2017, April 6, 2017 and May 4, 2017 and then on November 13 and November 20, 2017; and from Dr. Gilley on August 14, 2017 and September 12, 2017. On September 5, 2017 when Ms. O’Hara visited Mr. Chuvalo she asked his permission to record the conversation on her cell phone and he readily agreed. During her evidence the recording was played and, in his voice, he said he wanted to be with his wife.

[61] However, expressing a desire to live with his wife is just that. There is no evidence that he understood whether there would be consequences to a decision to “live with” his wife. Indeed, there are consequences such as changing the financial status quo between them; such as changing the date of separation and “valuation date” for purposes of Part 1 of the Family Law Act; such as changing the date of separation for purposes of s.8(2) of the Divorce Act. There are other consequences such as the emotional impact if the attempted reconciliation fails.

[62] Furthermore, just because he says he wants to live with his wife does not mean that that is a reliable and durable statement. As Dr. Gilley noted, when she interviewed him on September 12, Mr. Chuvalo had no memory of having seen his wife 7 days earlier. Both Dr. Shulman and Dr. Gilley report that Mr. Chuvalo demonstrates significant cognitive challenges. And Dr. Shulman’s observations are particularly informative because he had assessed him within 6 months and described his decline as significant in the interval between the assessments. This court cannot rely on Mr. Chuvalo’s assertions that he wants to live with his wife as a basis on which to find that he is capable of making the decision to reconcile.

[63] In submissions, Mr. Graham repeated his earlier submission that there was no evidence that Mr. Chuvalo had ever decided to separate and therefore there was no basis for the application for spousal support, no basis for a claim for an equalization of net family property because there was no valuation date, no basis for seeking a divorce, and no basis to consider reconciliation. I did not hear evidence as to the separation and I will not decide that issue because it was not one of the issues identified in the Endorsement and it would have impacted the ability of the PGT to take a position in the future.

[64] I acknowledge that by finding that George Chuvalo does not have the capacity to decide whether to reconcile, it appears to be implicit that there was a separation. I am not deciding whether Mr. Chuvalo did separate from Ms. Chuvalo and did have an intention to live separate and apart from her in the context of the Family Law Act and or the Divorce Act. If that is an issue, it will be addressed in a future trial.

[65] I acknowledge Ms. Road and Mr. Shastri for fulfilling their dual responsibilities as advocate for George Chuvalo and as officers of the court to ensure that the court was made aware that Mr. Chuvalo is a vulnerable person. As Ms. Road observed, she did not have instructions to bring the motion to appoint the PGT. And as Mr. Shastri pointed out, he did not have a client to instruct him to call Dr. Shulman as a witness.

[66] I acknowledge the Public Guardian and Trustee and his counsel for responding and attending on January 8. Ms. Hogan made a reasonable request to adjourn which I did not grant. I appreciate that the PGT has already retained counsel and that Mr. Fogelman was able to attend to observe on the second and third days of the trial. I also thank Ms. Hogan for making valuable contributions including: as Mr. Graham sought to expand the issues in this trial to include whether Mr. Chuvalo intended to separate, to remind the court of the prejudice to the PGT if such an issue was addressed without giving PGT more than 2 weeks to prepare; to provide an update on Calvert; and to make submissions on the sufficiency of evidence on the issue of capacity without taking a position one way or the other as to whether the court should find capacity to decide whether to reconcile or to divorce.

Next Steps

[67] Ms. Hogan has asked that all matters be adjourned for four months to give recently retained counsel the opportunity to investigate and take instructions as to how to proceed. I am not prepared to leave matters in limbo for that period of time. I will remain as the trial judge for whatever trial is required. I will schedule a case conference in about 6 weeks for a status report as to readiness to decide on a course of action and to consider options to continue with this proceeding or pursue other alternatives.

[68] For at least 18 months this case has been preoccupied by the submission advanced on behalf of Ms. Chuvalo that, pursuant to s. 10(2) of the Divorce Act, the court was compelled to stay or suspend the proceedings to afford the parties an opportunity to attempt reconciliation. Mr. Chuvalo does not have legal capacity to do so and therefore s. 10(2) has no application. While I need not make a decision on the point, I do not agree with Mr. Graham’s submission that s. 10(2) is so rigid and inflexible that the court has no alternative.

[69] The fundamental issue here is the conflict between Joanne Chuvalo on the one hand and George Chuvalo’s children Mitchell and Vanessa on the other hand. I have not heard evidence but I have formed an understanding that each is convinced that the other is out to manipulate and control George for personal financial gain. I make no findings. I do observe that it is time for those who are or have been close to George and important to his welfare to find a way to collaborate in his best interests. In her evidence, Ms. Chuvalo observed that she has been devastated over the last few months when she has seen him at court attendances at the extent to which George has deteriorated. Mr. Fogelman’s retainer is to address litigation issues. However, once he gets up to speed, I would ask him to consider how the PGT might encourage the family members to find a way to bury the hatchet and co-operate to develop a plan that will work in the best interests of George in his remaining years while he continues to experience inevitable decline.

ORDER TO GO AS FOLLOWS:

[70] I order and declare that George Chuvalo does not have capacity to decide whether to reconcile with Joanne Chuvalo.

[71] Counsel (with or without parties in their discretion) shall attend a case conference before me on a date to be scheduled for the following purposes:

(a) status report by PGT as to its readiness to decide on a course of action;

(b) consider options to continue with these proceedings or other alternatives;

(c) identify the outstanding issues;

(d) make orders with respect to disclosure if necessary;

(e) make financial arrangements with respect to Joanne Chuvalo and George Chuvalo pending next steps;

(f) make arrangements to ensure stability of the financial status quo.

[72] I remain seized as the trial judge with respect to further triable issues. At the appropriate time I will arrange a settlement conference with another judge.

[73] Neither party shall bring any motion without leave from me.

[74] The Respondent has not been successful and is not entitled to costs. No lawyer is present to make submissions as to whether Mr. Chuvalo is entitled to costs. I reserve that issue to me to be addressed at a future case conference.

Kiteley J.

Date: January 12, 2018

[^1]: As indicated at paragraph 8 of the Endorsement, Perkins J. made an order dated February 5, 2016 that Joanne Chuvalo and her sister Janet O’Hara need not file an Answer in FS-15-406705. Pursuant to paragraph 38(c) of the Endorsement, Joanne Chuvalo filed an Answer. Janet O’Hara attended this trial as a witness but did not participate as a party.

[^2]: 2017 ONSC 6687

[^3]: Westerhof v. The Estate of William Gee and Kingsway General Insurance 2015 ONCA 206

[^4]: 1997 12096 (Ont. Gen. Div.)

[^5]: 1998 3001 (ON CA), [1998] O.J. No. 505

[^6]: 1998 14926 (ON SC), [1998] O.J. No. 3528

[^7]: (1870) L.R. 5 Q.B. 549

[^8]: 2003 CarswellOnt 1461

[^9]: (2000) 34 E.T.R. (2d) 1 (Alta Q.B.)

[^10]: 2004 CarswellOnt 4512 OCA

[^11]: 2017 ONSC 7397

[^12]: 2014 BCSC 435