Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Konthear Saing
AND:
Sokly Saing, Phary Saing and the Public Guardian and Trustee
BEFORE: J.T. Akbarali J.
COUNSEL: Peter Askew, for the applicant Lisa Leinveer, for the respondent Phary Saing Harjot Dosanjh, for the respondent The Public Guardian and Trustee No one appearing, for the respondent Sokly Saing
HEARD: June 9, 2021
Endorsement
Overview
1On this motion, the applicant asks me to order that the respondent Phary Saing undergo a capacity assessment.
Brief Background
2This a family dispute. The applicant Konthear Saing is a sister of the respondents, Phary Saing and Sokly Saing. The parties have three other siblings, Vothy Saing, Pharin Saing and Sokhan Saing. For ease of reference, I will refer to the siblings by their first names.
3The dispute between Konthear and Sokly that underlies the application relates to the ownership of a residential property. It appears the property is legally owned by Konthear and Sokly, and each disputes the other’s right to ownership of it. Sokly claims to own 100% of the property. Konthear argues that she is the sole legal owner, and that she and Phary are the sole beneficial owners of the property.
4Konthear’s application also seeks relief related to Phary’s interests. The record before me indicates that Phary, who is 54 years old, has always had cognitive impairments, and has been cared for by family members throughout her life. Konthear fears that Phary is vulnerable to influence, and that Sokly, and perhaps Vothy, are aligned to try to gain control over Phary’s interest in the home. She fears they are not acting in Phary’s best interests. As a result, her application also seeks relief appointing her as Phary’s litigation guardian and guardian of property, among other things.
5On this motion, Konthear seeks an order that Phary undergo a capacity assessment to assess:
a. whether Phary is mentally incapable within the meaning of s. 6 of the Substitute Decisions Act, 1992, S.O. 1990, c. 30 (“SDA”) in respect of an issue in the proceeding such that she requires a litigation guardian;
b. whether Phary is incapable of managing property within the meaning of s. 6 of the SDA;
c. whether Phary is incapable of granting or revoking a power of attorney for property under s. 8 of the SDA;
d. whether and/or to what extent Phary is susceptible to undue influence.
6Phary was initially represented by Sokly’s counsel. At that time, she took the position through counsel that she was prepared to consent to a capacity assessment if she could choose the assessor. She also took the position that she had no interest in the property, and supported Sokly’s position that he owns 100% of the property.
7Phary now has her own counsel who was appointed under s. 3 of the SDA. On this motion, Phary takes the position that she does not want to undergo a capacity assessment which would be demeaning to her. She agrees that she requires a litigation guardian, and indicates she wants Vothy to be her litigation guardian, or alternatively, the Public Guardian and Trustee (“PGT”). She argues that the capacity assessment sought is either not necessary, or premature.
8Although there is no motion before me to appoint a litigation guardian, Phary asks that I appoint Vothy as her litigation guardian on this motion. Konthear argues that the motion is not properly brought, is premature, and should be brought if necessary with the benefit of the evidence a capacity assessment could provide. She also disputes the appropriateness of Vothy as a litigation guardian.
9The PGT attended the motion briefly to indicate that, if the court were to move to the stage of appointing a litigation guardian, the court should prefer to appoint an appropriate person known to Phary rather than the PGT, if there is an appropriate person available.
10I turn to an analysis of these issues, in the context of which I will explain the facts in greater detail.
Legal Principles Relevant to Ordering a Capacity Assessment
11The court has the authority to order a capacity assessment under s. 79(1) of the SDA which provides:
If a person’s capacity is in issue in a proceeding under this Act and the court is satisfied that there are reasonable grounds to believe that the person is incapable, the court may, on motion or its own initiative, order that the person be assessed by one or more assessors named in the order, for the purpose of giving an opinion as to the person’s capacity.
12In addition, the court has jurisdiction to require a party to undergo a mental examination under s. 105(2) of the Courts of Justice Act, R.S.O. 1990, c. C.48. However, under s. 105(3) of the Courts of Justice Act, where the question of a party’s mental condition is first raised by another party, an order under s. 105 shall not be made unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe that there is substance to the allegation.
13Under r. 1.03(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, a person is considered to be under a disability if they are mentally incapable within the meaning of ss. 6 or 45 of the SDA in respect of an issue in the proceeding. Under r. 7.01, a proceeding shall be commenced, continued or defended on behalf of a party under a disability by a litigation guardian.
14In 626381 Ontario Ltd. v. Kagan, Shastri, 2013 ONSC 4114, Stinson J. commented on the difference between the definition of disability in the Rules and in the SDA, noting, at para. 19, that r. 7 is designed to protect the integrity of the court’s process, while the focus of the SDA is solely on the protection of the individual. Proceedings under the SDA are not private litigation in the traditional sense. “The interests that these proceedings seek to balance are not the interest of litigants, but the interests of the person alleged to be incapable as against the interest and the duty of the state to protect the vulnerable”: see also Abrams v. Abrams, 2008 67884 (Ont. S.C.J.), at para. 48.
15Justice Stinson held that, in a non-SDA proceeding governed by the Rules, the definition of “disability” in r. 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 reasonably foreseeable consequences of a decision or lack of decision in respect of an issue in the proceeding: at para. 21.
16A person who is 18 years of age or more is presumed to be capable: s. 2(1) SDA. Where capacity is in doubt or challenged, the moving party bears the onus of establishing that a party is a person under a disability: Kagan, Shastri at para. 23.
17However, on either a motion to appoint or remove a litigation guardian, a mental examination is not the norm, and should not automatically be ordered under s. 105 of the Courts of Justice Act. As Stinson J. held in Kagan, Shastri at para. 40:
To the contrary: ordinarily the evidence on such a motion should be presented by way of affidavits from persons who already possess the relevant information, without need for a court-ordered mental examination. A s. 105 order to obtain the required evidence should be the rare exception and not the rule. Moreover, such an order is discretionary and should not be granted lightly or without good reason. Due consideration must be given to the autonomy of the individual, having regard to the intrusive nature of a mental examination.
18In Abrams, at para. 53, Strathy J., as he then was, considered whether to order a capacity assessment under s. 79 of the SDA, or alternatively, a mental examination under s. 105 of the Courts of Justice Act. He laid out a list of factors to consider and balance to determine whether, in all the circumstances, the public interests and the interests of the party in question require that an assessment take place and justify the intrusion into their privacy. These include:
a. The purpose of the SDA;
b. The terms of s. 79, that (i) the person’s capacity must be in issue; and (ii) there are reasonable grounds to believe that the person is incapable;
c. The nature and circumstances of the proceedings in which the issue is raised;
d. The nature and quality of the evidence before the court as to the person’s capacity and vulnerability to exploitation;
e. If there has been a previous assessment, the qualifications of the assessor, the comprehensiveness of the report and the conclusions reached;
f. Whether there are flaws in the previous report, evidence of bias or lack of objectivity, a failure to consider relevant evidence, the consideration of irrelevant evidence and the application of the proper criteria;
g. Whether the assessment will be necessary in order to decide the issue before the court;
h. Whether any harm will be done if an assessment does not take place;
i. Whether there is any urgency to the assessment; and
j. The wishes of the person sought to be examined, taking into account his or her capacity.
Should a capacity assessment be ordered?
19Below, I review the evidence on the motion, and how it relates to the factors identified by Strathy J. in Abrams, to the extent they are relevant in this case.
The Purpose of the SDA
20I have already noted that proceedings under the SDA balance the interests of the person alleged to be incapable as against the interest and the duty of the state to protect the vulnerable, and the importance of giving due consideration to the autonomy of the individual.
The Terms of s. 79 (i) – Is Phary’s capacity in issue?
21Phary’s capacity is directly in issue in the underlying application in several ways. The application seeks an order appointing Konthear as her guardian for property. This relief sought relates directly to Phary’s capacity to manage property, and her capacity to choose an attorney for property.
22Phary’s position in the litigation with respect to the ownership of the property in question also relates to her capacity, in several ways. First, there is some evidence to suggest that Sokly and Kothear purchased the property in part intending it to be Phary’s home, maintained in her interest, as part of a moral duty they had to look after her. It is uncontroverted that Phary contributed at least $130,000 to the down payment of the home but did not take legal title. The suggestion appears to be that, given her cognitive limitations, it was more appropriate for her to hold a beneficial interest in the home. In this sense, Phary’s capacity may be factually relevant to determining the issues in the litigation, because it forms part of the narrative.
23Moreover, if Phary does not have the capacity to understand information that is relevant to making a decision in the management of her property in respect of an issue in the proceeding, or if she is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision in respect of an issue in the proceeding, that incapacity may impact the substantive issues in the litigation. Here, I repeat that when Phary was represented by Sokly’s lawyer, she took the position that she had no interest in the home, and that it belonged entirely to Sokly, despite her $130,000 contribution to its purchase, and her apparent ongoing contributions to expenses related to the home. In this sense, the degree to which Phary is vulnerable to undue influence is important, as it may impact the nature of the evidence led and facts asserted on Phary’s behalf.
24At the hearing of the motion, despite the uncontroverted evidence that Phary contributed at least $130,000 to the property, Phary’s counsel was unable to say whether Phary would take the position that she has a beneficial interest in the property, because Phary requires a litigation guardian to assist her in formulating her position. The decisions taken by the litigation guardian may impact the determination of the substantive issues related to the property. Given the complicated web of family relations, it is important that Phary’s litigation guardian be committed to acting only in Phary’s best interest. To the extent she expresses her wishes as to who her litigation guardian should be, the degree to which she is vulnerable to undue influence is important.
25Phary’s capacity is thus in issue directly with respect to those issues in the application that relate to the orders sought under the SDA, and directly and indirectly with respect to the question of who has an interest in the property.
Are there reasonable grounds to believe Phary is incapable?
26I find that there are reasonable grounds to believe that Phary is incapable. By way of example only, I note the following:
a. The evidence is consistent that Phary has had observable, but undiagnosed, cognitive limitations throughout her entire life.
b. She attended a high school for special needs students.
c. She has always lived with a family member.
d. She has never arranged for utilities on her own.
e. She has never applied for a job on her own, but has only worked at positions family members have arranged for her.
f. A client gave evidence that when Phary worked with Konthear cleaning houses, Konthear had to provide “careful and consistent on-the-job support…that went well beyond typical supervision.”
g. Phary appears to have little understanding of the consequences of giving away money. For example, when asked if it would be fair for someone to borrow money against a property she owned without asking her, she said it would be fair. I note that, in the application, Konthear alleges Sokly did exactly this.
h. Phary was not able, on cross-examination, to explain what the underlying application is about, except to say it was a domestic dispute. She was not able to explain her role in it.
i. As I have noted, despite being aware that she contributed at least $130,000 to the property, Phary took the position that she has no interest in it, and it belongs entirely to Sokly. I am gravely concerned by Phary’s apparent willingness to abandon the interest she may have in the property to Sokly, whose position she stated on cross-examination was better for her because he helps her with food, took her to buy groceries and gave her some money. Several times on cross-examination she stated that she would take “whatever they give” her.
j. On cross-examination, Phary indicated she does not know what an attorney for property does. When asked what qualities she would look for in an attorney for property she said, “Is that the next lawyer will be the free lawyer? Because I cannot afford to pay the lawyer. So, the next lawyer, I understand that this one will look for a free lawyer for me.”
k. On cross-examination, she indicated she did not know what a capacity assessment is. Three times she described it as a test to determine if she was “insane.”
l. There is evidence that indicates Phary has been exploited in the past, and has not understood when she has been used to further other people’s interests. For example, she was twice married to men from Phary’s country of origin, and sponsored them to Canada, once in 1996 and once in 2005. The evidence indicates that the marriages were sham marriages, and that Phary did not participate in the decision to marry, nor did she resist it.
m. There is also evidence that Phary has difficulty understanding when people are acting in her best interest. For example, three or four years ago, Phary related to Konthear that she met friends at a Tim Horton’s. She said they had fun together while her “friends” threw condiment packages at her head.
27This evidence satisfies me that there are reasonable grounds to believe that Phary is incapable, vulnerable to manipulation, and unable to determine who is acting in her best interest.
The Nature and Circumstances of the Proceedings in which the Issue is Raised
28In the circumstances of the underlying application, I am very concerned about the possibility that Phary may be taken advantage of with respect to whatever interest she may have in the property. The tangled web of family dynamics, and the polarizing of the family into two camps, makes it difficult to know whether some, all, or none of the family members claiming to act in Phary’s best interest are in fact doing so.
29Phary argues that I should be suspicious of Konthear, because she seeks both to assert her and Phary’s interest in the property and act as Phary’s guardian for property. In contrast, Phary argues that Vothy has no interest in the litigation. However, Konthear’s affidavit provides some reason to wonder if Vothy is aligned with Sokly. And I have already repeatedly noted my grave concern that, when represented by Sokly’s lawyer, Phary’s position was that Sokly was the sole owner of the property. Phary has no other property of significance apart from whatever interest she may have in the property at issue.
30The only thing I can safely conclude about the nature and circumstances of the proceedings is that Phary’s interests are impacted and may well be at risk.
The Nature and Quality of the Evidence before the Court as to Phary’s Capacity and Vulnerability to Exploitation
31I have already addressed this factor in my review of the evidence relating to whether there are reasonable grounds to believe that Phary is incapable.
Is the assessment necessary to decide the issue before the court?
32In my view, the capacity assessment will be necessary to decide whether Phary has the capacity to appoint an attorney for property, whether she requires a guardian for property, and if so, who that guardian should be. Phary has never had a capacity assessment, or even a clinical diagnosis of her cognitive limitations. There are no medical records or historical information to provide the court with an independent, medical basis to consider these issues. Only anecdotal evidence is available. While the anecdotal evidence raises serious questions, an assessment is necessary to provide the quality of evidence the court should have when determining these very important issues. In my view, the request for an assessment as to Phary’s susceptibility to undue influence is related to the questions arising under the SDA also, in that Phary’s vulnerability to manipulation is relevant to her capacity to appoint an attorney for property.
33Given the importance of the role Phary plays in the underlying property dispute, I am also of the view that a capacity assessment related to Phary’s capacity to understand the issues in the litigation is required. Although Phary has indicated she agrees she requires a litigation guardian, a capacity assessment that also includes an assessment of her vulnerability to undue influence will assist in identifying the most appropriate litigation guardian. I agree with the PGT that it is preferable the litigation guardian be someone Phary knows. It would be easy to default to the PGT in these circumstances, but a capacity assessment is required to know if that arrangement is really in Phary’s best interest.
34I recognize that it is the rare case where an assessment is ordered in connection with the appointment of a litigation guardian. In many cases where capacity is at issue, there is no question as to who is looking out for the party’s best interest. In such cases, it is not necessary to have a capacity assessment to appoint a litigation guardian, because it will be clear that the proposed litigation guardian is part of the party’s support system, and is not aligned with the opposing party.
35Here, until recently, Phary was an applicant in the litigation, by her litigation guardian, who was Konthear. As family dynamics have shifted, Phary has now become a respondent. In this case, it is not possible on the record before me to determine who Phary’s true supporters are. That factor makes this case one of the rare cases where a capacity assessment is required to address the appointment of a litigation guardian.
Will any harm be done if an assessment does not take place?
36I am concerned that not undertaking an assessment may cause Phary harm.
37At this juncture, it is not my role to determine who the most appropriate litigation guardian is, nor is it my role to determine if Phary requires a guardian for property. Accordingly, I make no findings as to whether Konthear, Vothy, or Sokly are acting in Phary’s best interest. However, if Konthear’s suspicions are correct – and it is possible that they are – doing nothing has the potential to set Phary up for exploitation and loss.
38While Vothy is not directly involved in the litigation, Phary has been living with her since just before a consent capacity assessment was to take place (albeit without Phary having obtained legal advice). Konthear believes Vothy picked up Phary for what was ostensibly a short visit, but prevented her from returning in alliance with Sokly to prevent the assessment and take control of Phary’s assets. It was after Phary began living with Vothy that Phary ostensibly took the position, through her and Sokly’s lawyer, that Sokly is the sole owner of the property. Perhaps Vothy was unaware of that position being taken – she was not Phary’s litigation guardian after all – but I remain very concerned about what was going on behind the scenes to cause this to play out.
39Moreover, there are some inconsistencies in the evidence around why Phary stayed at Vothy’s house instead of returning to the property where she was living with Konthear and Konthear’s boyfriend. At one point during her cross-examination, Phary says she did not go back because no one drove her. At other times in her cross-examination, she testified that someone would take her back if she wanted to go. Her affidavit makes reference to being afraid living with Konthear and her boyfriend, but it appears from her cross-examination transcript that neither Konthear nor her boyfriend were abusive towards Phary, but sometimes shout at each other. Phary has lived with Konthear for lengthy stretches of time at least twice, and has worked with Konthear. It appears that Konthear has dedicated a great deal of time to looking after Phary. It is possible that their relationship has changed. But in my view, independent evidence in the form of a capacity assessment will place the court in a position to better understand the risks Phary may be facing, and perhaps from whom. In that sense, it may be an important step to take to prevent harm to Phary and her financial, and other, interests.
Is there urgency to the assessment?
40I agree with Pinto J’s observation, made in his endorsement dated October13, 2020, that Phary’s capacity is a threshold issue in this litigation. The court requires the capacity assessment to properly address the identity of the litigation guardian, and it requires the capacity assessment to eventually determine the SDA issues that arise in the application.
41Until these issues are determined, Phary remains vulnerable. There is thus urgency, both from the standpoint of protecting Phary’s interests, and from the standpoint of moving the litigation along.
What are Phary’s wishes?
42I have already indicated that Phary wishes not to undergo a capacity assessment. I understand that a capacity assessment is intrusive, and should only rarely be ordered. In this case, I must consider Phary’s expressed wish not to undergo a capacity assessment in the context of her evidence on cross-examination that indicates that she does not understand what a capacity assessment is. She believes a capacity assessment is a test to see if she is “insane.” I am not surprised she does not want to undergo one if that is what she thinks.
43Phary has expressed another wish: that Vothy should be her litigation guardian. A capacity assessment will help the court determine if that is appropriate, by assisting the court in understanding Phary’s susceptibility to undue influence. Thus, a capacity assessment may put the court in a position where it is able to assess if Phary’s interests will be protected if it gives effect to Phary’s wishes.
44I also note that a capacity assessment can be an alternative to the appointment of a guardian for property, because it can determine whether Phary is capable of making necessary decisions to manage her property without assistance: see Dimitrova v. Dimitrova, 2021 ONSC 3239, at para. 33.
45Accordingly, although she does not want a capacity assessment, ordering one will assist the court in ensuring that Phary’s other wishes are respected to the extent that is possible having regard to the policy objectives of the SDA.
Conclusion
46Having regard to the factors I discuss above, I find that this is one of the rare cases where a capacity assessment ought to be ordered, despite Phary’s wish to the contrary.
47I thus order that Phary submit to a capacity assessment to assess:
a. whether Phary is mentally incapable within the meaning of s. 6 of the SDA in respect of an issue in the proceeding such that she requires a litigation guardian;
b. whether Phary is incapable of managing property within the meaning of s. 6 of the SDA;
c. whether Phary is incapable of granting or revoking a power of attorney for property under s. 8 of the SDA;
d. whether and/or to what extent Phary is susceptible to undue influence.
48I make this order for a capacity assessment under s. 79 of the SDA, and not for a mental examination under s. 105(1) of the Courts of Justice Act. However, I note that my analysis above also supports an order for a mental examination. Moreover, it satisfies the requirement under s. 105(3) of the Courts of Justice Act, that, to order a mental examination when the party seeking it is a party opposite in the litigation, the allegation of incapacity must be relevant to a material issue in the proceeding and there must be good reason to believe that there is substance to the allegation.
49An order for a capacity assessment under s. 79 of the SDA requires some specificity. Konthear has proposed an assessor, to which no objection has been taken. I make the following specific orders regarding the capacity assessment:
a. The capacity assessment shall be conducted by Shauna MacEachern within thirty days of the release of these reasons;
b. The capacity assessment shall be conducted at Vothy’s home or at the property, whichever Phary elects. If Phary does not make an election by the day before the capacity assessment, the capacity assessment shall be conducted at the property;
c. If the capacity assessment is conducted at the property, Phary’s counsel shall make arrangements for Phary’s attendance for the assessment;
d. Shauna MacEachern shall be permitted entry either into Vothy’s home or the property for the purposes of conducting the assessment;
e. No person shall hinder the assessment;
f. No sibling of Phary’s shall be present during the capacity assessment.
Costs of the Assessment
50Konthear asks for an order that Phary bear the costs of the assessment. Konthear already paid for an assessment once, which was cancelled on short notice when Phary did not return home to attend it.
51Phary has apparently been in receipt of some government benefits and Konthear believes she ought to be able to afford an assessment. Phary’s evidence indicates that she is not paying rent to Vothy, so her expenses are limited to her phone and groceries. If indeed she has been in receipt of government benefits, she should have funds.
52On cross-examination, Phary declined to produce her bank records, except for a statement from the ATM showing her current balance, which is less than the cost of an assessment.
53I have concerns about Phary’s bank statement. I have concerns about her lack of disclosure with respect to the benefits she received, and how they have dwindled, especially when she has not been paying rent.
54Moreover, I am not sure how much the capacity assessment will be. The invoice for the capacity assessment that did not occur is for $800. I assume the assessment I have ordered will be for a similar amount.
55I agree it is appropriate for Phary to pay the costs of the assessment, but I am concerned about her funds. Accordingly, I make the following order:
a. Phary shall pay $100 initially towards the cost of the assessment. Konthear shall pay the balance upfront;
b. Thereafter, Phary shall pay Konthear $100 per month until the cost of the assessment Konthear has borne has been repaid;
c. The application judge shall have the discretion to reapportion the costs of the assessment.
Costs of the Motion
56The parties uploaded their costs outlines prior to the motion. I am advised that there are no offers to settle that may be relevant. The parties agreed that after determining the motion on its merits, I would be free to determine costs based upon the written materials only.
57The three main purposes of modern costs rules are to indemnify successful litigants for the costs of litigation, to encourage settlement, and to discourage and sanction inappropriate behaviour by litigants: Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330, at para. 22.
58Subject to the provisions of an Act or the rules of court, costs are in the discretion of the court, pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The court exercises its discretion taking into account the factors enumerated in r. 57.01 of the Rules of Civil Procedure, including the principle of indemnity, the reasonable expectations of the unsuccessful party, and the complexity and importance of the issues. Overall, costs must be fair and reasonable: Boucher v. Public Accountants’ Council for the Province of Ontario, 2004 14579 (Ont. C.A.), 71 O.R. (3d) 291, at paras. 4 and 38. A costs award should reflect what the court views as a fair and reasonable contribution by the unsuccessful party to the successful party rather than any exact measure of the actual costs to the successful litigant: Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), 2002 CarswellOnt 4020, 118 A.C.W.S. (3d) 341 (C.A.), at para. 4.
59With respect to the factors relevant to an award of costs, I note the following:
a. Konthear succeeded in obtaining the orders she sought on the motion;
b. The issues raised were very important, and impact Phary’s financial interests, as well as her dignity and autonomy. It was appropriate for counsel to treat these issues seriously and with sensitivity, as they did.
c. The parties prepared thoughtful material, appropriate to the importance of the issues;
d. No party took unreasonable positions on the motion;
e. Konthear’s partial indemnity costs, all inclusive, amount to $15,443.27. Phary’s partial indemnity costs, all inclusive, amount to $20,056.35.
60Ultimately, at the hearing of the application, the court will be able to assess the importance of the capacity assessments I have ordered in determining the issues in the application. The court may be in a position to make findings about which of the siblings, if any, are truly acting in Phary’s best interest, and how her interests are best protected.
61As a result, I conclude that it is most just to reserve the determination of who should pay the costs of this motion, if anyone, to the application judge. However, I fix the costs of this motion, all inclusive, at $15,000 which, in my view, represents a fair and reasonable sum on a partial indemnity scale.
J.T. Akbarali J.
Date: June 14, 2021