CITATION: D.R. v. A.R., 2026 ONSC 796

COURT FILE NO.: CV-25-00734793-00ES

DATE: 20260220

(ESTATES LIST)

BETWEEN:

D.R. in his capacity as Attorney for Property for A.R., J.U. in his capacity as Attorney for Property for A.R., and R.C.R. in his capacity as Attorney for Property for A.R.

Applicants

– and –

A.R.

Respondent

Chris Paliare, Ren Bucholz, and Sean Laubman for the Applicants, as Attorneys for Property for A.R.

Mark Dunn, Melanie Ouanounou, and Kirby Cohen, for the Respondent

HEARD: December 11, 2025

b. dietrich j.

reasons for judgment

1On September 26, 2025, Akbarali J. granted an order directing that certain confidential information relating to this matter be sealed, be kept confidential, and not form part of the public record (the “Sealing Order”). The objectives of the Sealing Order were achieved largely through redaction of the confidential information. These Reasons for Judgment are not included in the scope of the Sealing Order. However, given the reasons for granting the Sealing Order, which included the safety and security of a vulnerable person, I find that it is appropriate that parts of these Reasons for Judgment be anonymized. This anonymization, done with the approval of the parties, is limited to the names of the parties and certain related persons, and the names of private corporations.

Overview

2A. R. (“Ms. A.R.”), the respondent in this application, is the 86-year-old matriarch of her family, and the widow of the late R.R. (“Mr. R.R.”). Mr. R.R. died in October 2024. During Mr. R.R.’s lifetime, he and Ms. A.R. accumulated substantial wealth through their import, wholesale, and retail business and through property development. On Mr. R.R.’s death, Ms. A.R. inherited his estate.

3This application raises questions regarding Ms. A.R.’s capacity to manage property¹. At issue is whether Ms. A.R. requires a guardian of property, and if she does, who the guardian or guardians of her property should be.

4The applicants are D.R. (“Mr. D.R.”), J.U. (“Mr. J.U.”), and R. (C.) R. (collectively, the “Applicants” or “Attorneys for Property”). Ms. A.R. appointed them as her alternative Attorneys for Property in a Continuing Power of Attorney for Property, made on April 11, 2014 (the “2014 Power of Attorney”). They were appointed to act if Mr. R.R. became unwilling or unable to do so.

5In the capacity of Attorneys for Property, they seek an order pursuant to the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”) declaring that Ms. A.R. is incapable of managing her property, and an order appointing Alana Geller (“Ms. Geller”), a Chartered Professional Accountant, as Ms. A.R.’s guardian of property. They acknowledge that A.R. no longer wishes to have them act as her Attorneys for Property.

6Ms. A.R. opposes the appointment of Ms. Geller as her guardian of property. Ms. A.R. contends that she is presumed to have capacity, that the Attorneys for Property cannot prove that she lacks capacity to manage her property, and that they cannot show that there is no less restrictive available alternative to appointing a guardian of her property.

7If Ms. A.R. is found to lack capacity and to require a guardian of property, Mr. D.R. seeks an adjournment of the application as it relates to the appointment of a guardian to permit him to apply for an order appointing him as Ms. A.R.’s guardian of property.

8For the reasons that follow, I find that it is not required that I appoint a guardian of Ms. A.R.’s property because there is an alternative course of action, which is available and less restrictive of her decision-making rights.

Background Facts

The R. Family and the Parties

9Ms. A.R. was married to Mr. R.R. for more than 60 years. Together they raised five children, two of whom predeceased them. The surviving children are A. (B.) R., R. (O.) R., and S.R.

10While Mr. R.R. was alive, Ms. A.R. had financial autonomy to run the household and make charitable donations. Mr. R.R. assisted Ms. A.R. in making decisions involving their business and personal finances until he suffered a debilitating stroke in November 2023.

11In 2020, S.R. moved into the family home in the City of Toronto, where his parents were residing. S.R. continues to reside there. He assists Ms. A.R. with daily tasks and paying household expenses.

12A. (B.) R. also lives in the City of Toronto. Between 2014 and 2022, he sued his parents and some of the family companies (the “A. (B.) R. Litigation”). The A. (B.) R. Litigation has been settled.

13R. (O.) R. lives in Israel. Her husband, Mr. D.R., is the head of a religious institution in Israel.

14Ms. A.R. provides generous gifts to R. (O.) R., Mr. D.R., and their children, and she has done so for years. These gifts include monthly gifts to R. (O.) R. of tens of thousands of dollars. One of their children, M.R., has been a sales representative for 13 years at OT New Jersey, a branch of the family company, OT International Inc. (“OT Inc.”). M.R. has become more involved in the operations of OT Inc. latterly, as described below.

15The Attorneys for Property, Mr. J.U. and Mr. R.M., are a senior tax lawyer, with Davies Ward Phillips & Vineberg LLP (“Davies”), and a senior accountant, respectively. Each was an advisor to Mr. R.R.

16Ms. A.R. has two younger brothers, D.H. and A.H. They live in the United Kingdom and Israel, respectively. D.H. works in a business similar to OT Inc., and A.H.’s work is real estate construction. Ms. A.R. has considered appointing one or both brothers as her attorney(s) for property.

The R. Family Businesses and Property

17Mr. R.R., and his family succeeding him, indirectly, own a significant interest in OT Inc., a lucrative import, wholesale, and retail business. Their interest is owned through a family holding company, RA Inc., of which Mr. R.R.’s estate and A.R. indirectly own 76 per cent of the shares, and some of their children and grandchildren own, directly or indirectly, 24 per cent of the shares.

18Mr. R.R. served as the president of OT Inc. prior to his stroke. Ms. A.R. was not actively involved in the family operating business, but she was an officer and director of several family companies, including OT Inc. In that role, she signed documents on behalf of the companies.

19In addition to the wealth that Ms. A.R. and Mr. R.R. amassed from the import, wholesale and retail business, they derived wealth from real property development ventures in which Mr. R.R. and his brothers, P.R. and A. (L.) R., participated in Toronto, New York, and London, England.

20Ms. A.R.’s current assets include two residences in the City of Toronto, and real properties in Florida and Israel, as well as valuable shares in the family companies.

21Ms. A.R.’s interest in OT Inc. (including the shares she inherited from Mr. R.R.) is believed to be worth tens of millions of dollars.

22Prior to Mr. R.R.’s death, he and Ms. A.R., indirectly, were the majority shareholders of OT Inc. and RA Inc.

23Ms. A.R. is also the sole shareholder and director of JD Inc. The primary asset of JD Inc. is a judgment issued by a New Jersey court for tens of millions of U.S. dollars. As part of the settlement of the A. (B.) R. Litigation, A. (B.) R. is entitled to receive information about the JD Inc. litigation and a specific percentage of the amounts ordered to be paid to JD Inc.

24Mr. R.R. entrusted Ms. A.R. to be a director of all the family companies, to be his sole primary attorney for property, to be the sole executor and trustee of his estate, and to be the sole beneficiary of his estate.

Ms. A.R.’s Property Management, Capacity, and Representation

25The parties do not dispute that Ms. A.R. had capacity to manage her property prior to August 2024.

26Following Mr. R.R.’s stroke in November 2023, Mr. R.R. was unable to manage his business and financial affairs, including the day-to-day operations of OT Inc. These responsibilities fell to Ms. A.R., who then had effective voting control over OT Inc. and other family companies.

27During that time, with the assistance of legal counsel, Ms. A.R. executed a series of corporate changes between November 2023 and August 2024. For example, in November 2023, shortly after Mr. R.R.’s stroke, Ms. A.R. approved the sale of real estate owned by OT Inc. to a third party. M.R. and the Attorneys for Property agreed with this decision.

28In December 2023, Ms. A.R. signed documents resulting in the promotion of M.R. and J.R., a son of P.R., to directors of OT Inc. The documents also precluded Ms. A.R. from unilaterally removing M.R., J.R., or any other director.

29Ms. A.R. remained a director and an officer of the family companies. She had sole signing authority for several corporate bank accounts, which at that time, held over $25 million.

30In early 2024, CIBC noticed large daily cash withdrawals were being made from Ms. A.R.’s personal CIBC bank account. When Ms. A.R. told the CIBC staff that the withdrawals were being made by S.R., CIBC reduced her daily withdrawals to $500. Ms. A.R.’s evidence is that S.R. told her that he was using the funds to pay for Mr. R.R.’s caregivers in cash.

31In May 2024, Ms. A.R. resigned as a director of the family companies, and the Applicants, as her Attorneys for Property, were appointed to replace her as directors.

32In July 2024, S.R. deposited a $150,000 cheque payable to Mr. R.R. into his own personal account at the Royal Bank of Canada. At that time, Ms. A.R. was acting as Mr. R.R.’s attorney for property.

33In late August 2024, following a meeting with Ms. A.R., Mr. J.U. became concerned about Ms. A.R.’s memory and her deteriorating health. He stated that A.R. could not recall resigning from the boards of directors of the family companies. Mr. D.R. and R. (O.) R. then travelled from Israel to Toronto to address estate planning issues related to the family companies, including a family company that R. (O.) R. owned. They too expressed concerns about Ms. A.R.’s memory and health.

34Considering these concerns, the Applicants began to act as Ms. A.R.’s Attorneys for Property to sign documents necessary to effect the estate planning transactions on Ms. A.R.’s behalf as a shareholder of the family companies (the “2024 Reorganization”).

35The 2024 Reorganization effectively combined the respective holding companies of each of Ms. A.R., Mr. R.R., and R. (O.) R. This reorganization resulted in combined voting control over the family companies in a new company, RA Investment. The Attorneys for Property were appointed as directors of RA Investment and executed a unanimous shareholders agreement, which effectively took control of RA Inc. away from Ms. A.R., by giving R. (O.) R. a veto over any changes to its directors.

36In time, when Ms. A.R.’s role as sole signing officer became burdensome for her, the Attorneys for Property arranged for her to sign a third series of documents in which she a) resigned as a director of OT Inc., leaving M.R. and J.R. as the directors of OT Inc.; and b) appointed the Attorneys for Property as directors of various A.R. family holding companies, including Ms. A.R.’s personal holding company.

37In August 2024, M.R. and J.R. decided to replace G.G., a lifetime OT Inc. employee. G.G. had worked for Mr. R.R. for decades, and he, together with J.R., had had overall management responsibility at OT Inc. Ms. A.R. opposed this decision and sought to have G.G. reinstated.

38Around this time, M.R. alleged that Ms. A.R. did not have capacity to make decisions.

39On or about September 5, 2024, M.R. advised the Attorneys for Property that cheques in large sums payable to S.R. were being withdrawn from Ms. A.R.’s personal account.

40At a meeting with CIBC on September 13, 2024, CIBC staff expressed to the Attorneys for Property their concerns about Ms. A.R.’s capacity to manage her property. They said that they would be referring the matter to the CIBC legal department.

41On October 16, 2024, the day before Mr. R.R.’s death, Ms. A.R. signed several corporate documents related to her company, JD Inc., which gave A. (B.) R. control over JD Inc., and the litigation related to that company (the “JD Inc. Documents”). The Attorneys for Property considered the execution of the JD Inc. Documents to be a breach of the settlement terms reached in the A. (B.) R. Litigation and not in Ms. A.R.’s best interests.

42After signing the documents, Ms. A.R. reported to Mr. J.U. that she signed the JD Inc. Documents without understanding them, and that she relied on A. (B.) R. and S.R. in doing so.

43In late October 2024, Ms. A.R. retained Milton Davis (“Mr. Davis”) of Fogler Rubinoff LLP (“Fogler”), which firm had represented A. (B.) R. in a matter related to the A. (B.) R. Litigation. Mr. Davis sent a letter to the Attorneys for Property, M.R., and R. (O.) R. directing that, going forward, all communications with Ms. A.R. be sent to him, and that they release all their files to his firm.

44A week later, Ms. A.R. sent Mr. Davis a letter directing him not to take any further action on her behalf and stating that she would be in touch through her brothers, D.H. and A.H.

45Around November 18, 2024, CIBC referred the matter of Ms. A.R.’s accounts to its legal department, following which her accounts were frozen.

46On November 21, 2024, Mark Dunn (“Mr. Dunn”) of Goodmans LLP (“Goodmans”) notified the Attorneys for Property that he had been retained by Ms. A.R. to act as her legal counsel.

47Also, in November 2024, the Attorneys for Property brought a proceeding on the Commercial List to obtain a declaration that the JD Inc. Documents were void and invalid.

48On December 9, 2024, Mr. Davis sent the Attorneys for Property a Notice of Revocation, ostensibly signed by Ms. A.R., which revoked the 2014 Power of Attorney.

49At a case conference on December 11, 2024, Steele J., sitting on the Commercial List, stated that the threshold issue regarding the JD Inc. Documents was Ms. A.R.’s capacity. Justice Steele referred the matter to the Estates List.

50In April 2025, Mr. Davis and Fogler withdrew as Ms. A.R.’s counsel, and Ms. A.R. was then represented only by Mr. Dunn and Goodmans.

51In the spring of 2025, M.R. began to pay Ms. A.R.’s bills, some of which had been overlooked. Ms. A.R.’s counsel asked that M.R. (as opposed to the Attorneys for Property) or the family companies continue to pay these expenses on Ms. A.R.’s behalf.

52On July 2, 2025, I made an order, on consent of the parties, regarding monthly funds to be paid to Ms. A.R. from her CIBC account for household expenses, while other expenses would continue to be paid by the family companies.

53Prior to the July 2, 2025 attendance, S.R. had written to the Attorneys demanding a payment of hundreds of thousands of dollars allegedly owing to him, stating that Ms. A.R. had given clear instructions to them to pay it to him. On cross-examination, Ms. A.R. could not recall having given any such instructions, and she could not explain why this amount would be payable to S.R., but she speculated that it could have been related to his daughter’s engagement, in respect of which Ms. A.R. stated that there were a lot of expenses.

Capacity Assessments

The First Assessment - by Dr. Kenneth Shulman, December 16, 2024

54Unbeknownst to the Attorneys for Property, Mr. Davis arranged for Ms. A.R. to undergo a capacity assessment by Dr. Kenneth Shulman (“Dr. K. Shulman”) on December 16, 2024. Her husband, Mr. R.R. had died less than two months earlier. Dr. K. Shulman was asked to assess Ms. A.R.’s capacity to manage her property and her capacity to revoke the 2014 Power of Attorney.

Capacity to Manage Property

55Dr. K. Shulman delivered his report on January 2, 2025 (“his First Report”). In that Report, Dr. K. Shulman concluded that Ms. A.R. was “clearly incapable of managing her own property” and that she was “extremely vulnerable to influence.

56In coming to that conclusion, Dr. K. Shulman recorded the following in his First Report:

Ms. A.R. could not provide any details on A. (B.) R.’s role in the JD Inc. Litigation, but she knew that A. (B.) R. had asked her to sign some documents, about which she expressed some regret.
Ms. A.R. had “no idea” about the general value of JD Inc.
Ms. A.R. was unsure about whether she had resigned as a director of OT Inc. but thought that maybe she had.
When asked about the value of OT Inc., Ms. A.R. said she had “no idea”.
Ms. A.R. had no recollection of the merging of companies involving R. (O.) R. and RA Investment.
Ms. A.R. could not say what her monthly expenses were and said that she could determine that by asking her children.
Ms. A.R. accepted that she was vulnerable to influence and had signed documents that she did not really understand.
Ms. A.R. had been represented by a succession of lawyers.
Ms. A.R. stated that her children had brought her so many lawyers that she did not know who was who.
Ms. A.R. could not identify Mr. Davis as her lawyer.

57Dr. K. Shulman also noted that Ms. A.R. had insight into her situation, and she recognized her need for independent advice, legally and financially. She stated that she did not want any of the Attorneys for Property or her children to manage her own property or make legal decisions on her behalf. Dr. K. Shulman recorded that Ms. A.R. told him that she had relied on Mr. R.R. to look after their business and financial interests, and that without him, she was vulnerable to signing documents that she did not understand and that she was not capable, on her own, to manage the businesses, her assets, or personal finances. Ms. A.R. accepted that she needed to have independent counsel to help her make legal decisions.

58Dr. K. Shulman stated that Ms. A.R. was able to provide a consistent wish for independent counsel.

59Dr. K. Shulman concluded that there was no evidence that Ms. A.R. suffered from a major neurocognitive disorder, such as Alzheimer’s disease or any mental disorder with delusions influencing her thinking about the issues discussed at the assessment.

60On the Mini-Mental State Examination (“MMSE”), Dr. K. Shulman reported that Ms. A.R. scored 22/30, which suggested mild cognitive impairment.

61Dr. K. Shulman opined that this assessment precluded Ms. A.R.’s ability to make significant and relevant legal and financial decisions in the context of the current complex and conflictual estate matters then at hand. However, he also opined that Ms. A.R.’s inability to function independently with respect to managing her property and finances had more to do with her lifelong lack of involvement in these affairs and her complete reliance on Mr. R.R. to manage their business, legal, and financial affairs, which were very substantial and complex. He concluded that there was no evidence of any other mental disorder or evidence of delusions that were influencing her thinking.

62Dr. K. Shulman also noted that Ms. A.R. remained “extremely vulnerable to influence as evidenced by the multiple documents that she had signed recently including change of lawyers without the requisite recall, understanding, and appreciation of the implications and consequences of executing specific legal documents and business decisions.”

Capacity regarding Powers of Attorney

63Dr. K. Shulman did not opine specifically on Ms. A.R.’s capacity to revoke the 2014 Power of Attorney.

64Dr. K. Shulman stated that Ms. A.R. knew that a power of attorney gives someone the right to make decisions.

65However, he also noted that Ms. A.R. had no specific recollection of the 2014 Power of Attorney. She could not recall any details of it, and she attributed her inability to remember to the recent loss of her husband. She had no recollection of the Notice of Revocation of the 2014 Power of Attorney. Dr. K. Shulman recorded that when he told Ms. A.R. who her Attorneys for Property were according to the 2014 Power of Attorney, she stated that they were Mr. R.R.’s appointees and not hers and that she was annoyed by their suggestion that she was not capable. Dr. K. Shulman noted that Ms. A.R. stated that she did not trust the Attorneys, and she was not interested in the person they were proposing to act as her guardian of property.

66Dr. K. Shulman noted that Ms. A.R. expressed dissatisfaction and distrust of the three named Attorneys and held that view throughout the assessment.

The Second Capacity Assessment - by Dr. Kenneth Shulman, April 9, 2025

67On April 9, 2025, Dr. K. Shulman conducted a second capacity assessment, arranged by counsel for the Attorneys for Property and counsel for Ms. A.R. Dr. K. Shulman was asked to assess a) Ms. A.R.’s capacity to understand and appreciate that she was retaining independent counsel; b) her capacity to understand and appreciate the nature of the within application; c) Ms. A.R.’s capacity to understand and process the information, advice, and options her lawyer presents both with respect to the application and with respect to her personal and financial affairs; and d) Ms. A.R.’s ability to appreciate the advantages, drawbacks and the potential consequences associated with the options she is presented with.

68In his report dated April 15, 2025 (the “Second Report”), Dr. K. Shulman concluded that Ms. A.R. was capable of expressing specific wishes clearly and consistently, and that she was able to make decisions about her financial affairs with the assistance of lawyers and financial advisors. Dr. K. Shulman found that Ms. A.R. was able to process and appreciate the advantages and drawbacks and the consequences associated with the options she is presented with by counsel and by potential financial managers.

69Dr. K. Shulman also found that Ms. A.R. was able to process the information, advice, and options that her lawyers presented both with respect to this application and with respect to her personal and financial affairs.

70Dr. K. Shulman found that Ms. A.R. remained vulnerable to influence and that she needed ongoing protection from such influence by an independent legal and financial team.

71Dr. K. Shulman found that her cognitive ability was similar to that found on his earlier assessment.

The Third Capacity Assessment - by Dr. Richard Shulman on August 13 and 15, 2025

72Independently of the Attorneys for Property, Ms. A.R.’s counsel arranged a further assessment of Ms. A.R.’s capacity by Dr. Richard Shulman (“Dr. R. Shulman”).²

73Ms. A.R.’s counsel asked Dr. R. Shulman to provide an assessment of Ms. A.R.’s capacity to a) manage personal property (as described in a two-page summary), and b) to revoke and give a continuing power of attorney for property. “Personal property” for this purpose included Ms. A.R.’s shareholding in OT Inc. and in JD Inc.

74Dr. R. Shulman conducted a MoCA (Montreal Cognitive Assessment) test during the first meeting and a MMSE assessment during the second meeting. Ms. A.R. scored 17/30 on the MoCA test, which Dr. R. Shulman confirmed is positive screening for mild cognitive impairment. On the MMSE, Ms. A.R. scored 22/30, which is consistent with her score on the MMSE conducted by Dr. K. Shulman.

75Dr. R. Shulman was provided with the summary of Ms. A.R.’s assets, as was Ms. A.R, prior to the second meeting. Dr. R. Shulman reviewed the summary with her and then reevaluated her understanding of it 15 minutes later. Dr. R. Shulman reported that Ms. A.R. could confirm her intact understanding of all the assets and their values, except for JD Inc. She knew that she was no longer a director of OT Inc., and with cueing, she agreed with the suggested value of her private company shares.

76Ms. A.R. correctly listed each of her real properties and their approximate values in keeping with the summary. Ms. A.R. admitted that she was not aware of her income, and that she relied on S.R. and a bookkeeper in that regard.

77Dr. R. Shulman noted that Ms. A.R. could not retain information regarding JD Inc. and the settlement, and that she did not understand the outcome of signing the JD Inc. Documents.

78Dr. R. Shulman also noted that Ms. A.R. accepted the allegation that A. (B.) R. had unduly influenced her for his benefit and not hers.

79In his report, Dr. R. Shulman stated that he considered Ms. A.R.’s ability to recognize her limitations and need for assistance in applying the relevant information to her circumstances given the value and complexity of her assets. He noted that Ms. A.R.’s cognitive impairment placed her at risk of not being able to apply the relevant information to complex financial decisions without assistance, and that she was, therefore, at risk of not appreciating the potential consequences of decisions, for example, signing the JD Inc. Documents.

80Dr. R. Shulman concluded that Ms. A.R. had the ability to understand the relevant information, particularly with cueing for improving her short-term memory, and she had the ability to express her wishes. Despite her mild cognitive impairment, he concluded that Ms. A.R. had the cognitive ability to process, retain, and articulate the relevant information for her to manage her personal property, but she required assistance to either plan decisions or carry out decisions.

81Dr. R. Shulman concurred with Dr. K. Shulman that Ms. A.R. was vulnerable to undue influence and elder abuse if she did not have assistance to plan and carry out complex financial decisions.

Issues

82The issues to be considered in this matter are as follows:

Should this court appoint a guardian of property for Ms. A.R.?
If a guardian of property should be appointed for Ms. A.R., who should that guardian be?

Positions of the Parties

The Attorneys for Property

83The Attorneys for Property submit that Ms. A.R. cannot manage her property owing to her age, lack of capacity, and susceptibility to undue influence, and that she has been unable to do so since at least October 15, 2024, being the day before she signed the JD Inc. Documents.

84They further submit that this court should find that Ms. A.R. is incapable of managing her property and should appoint Ms. Geller, who is highly qualified, as Ms. A.R.’s guardian of property. Ms. Geller is a Chartered Professional Accountant (CPA), a Chartered Business Valuator (CBV), a Certified in Financial Forensics (CFF), and a Family Enterprise Advisor (FEA).

Ms. A.R.

85Ms. A.R. submits that she is presumed to have capacity and that the Attorneys for Property can only succeed on their application if they prove, with clear evidence, that Ms. A.R. lacks capacity and that there is no less restrictive alternative to appointing a guardian. Ms. A.R. submits that the Attorneys for Property have not met their onus.

86Ms. A.R. further submits that, as found by Dr. R. Shulman, she has capacity to manage her property, with assistance, which is not the same as being unable to manage her property, and therefore she should not be deprived of her personal autonomy. Further, Ms. A.R. submits that a less restrictive option to guardianship exists in this case, which should be exploited

87Ms. A.R. asserts that she was found by Dr. R. Shulman to have capacity to appoint an attorney for property and that this finding has not been challenged. Ms. A.R. further submits that her autonomy to grant a power of attorney should be acknowledged as an available option that is less restrictive of her decision-making rights than the appointment of a guardian of property, and that the application should be dismissed.

Law

88A person who is eighteen years of age or more is presumed to be capable of entering into a contract: SDA, s. 2.

89The presumption of capacity is only rebuttable under precise conditions with clear evidence: J.F.R. v. K.L.L., 2024 ONCA 520, 173 O.R. (3d) 602, at para. 27, citing Re Ohenhen, 2018 ONCA 65, 140 O.R. (3d) 616, at para. 82.

90The court determines a person’s capacity to manage property on a balance of probabilities: Naccarato v. Naccarato, 2023 ONSC 3944, at para. 16.

91 Section 6 of the SDA establishes the test for determining incapacity and reads as follows:

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.

92 Section 22 of the SDA provides as follows regarding the court’s authority to appoint a guardian of property:

(1) The court may, on any person’s application, appoint a guardian of property for a person who is incapable of managing property if, as a result, it is necessary for decisions to be made on his or her behalf by a person who is authorized to do so.

(3) The court shall not appoint a guardian if it is satisfied that the need for decisions to be made will be met by an alternative course of action that,

(a) does not require the court to find the person to be incapable of managing property; and

(b) is less restrictive of the person’s decision-making rights than the appointment of a guardian.

93The test for capacity is an objective one: Re Koch (1997), 1997 12138 (ON CTGD), 33 O.R.(3d) 485 (S.C.), at p. 521.

94The test for determining capacity to instruct legal counsel is set out in Costantino v. Costantino, 2016 ONSC 7279, at para. 47, as follows. A person must 1) understand what they are asking the lawyer to do for them and why; 2) be able to understand and process the information, advice, and options the lawyer presents; and 3) appreciate the advantages and drawbacks and potential consequences associated with the options they are presented.

95 Section 8 of the SDA provides as follows regarding the capacity to give and revoke a power of attorney:

(1) A person is capable of giving a continuing power of attorney if he or she,

(a) knows what kind of property he or she has and its approximate value;

(b) is aware of obligations owed to his or her dependants;

(c) knows that the attorney will be able to do on the person’s behalf anything in respect of property that the person could do if capable, except make a will, subject to the conditions and restrictions set out in the power of attorney;

(d) knows that the attorney must account for his or her dealings with the person’s property;

(e) knows that he or she may, if capable, revoke the continuing power of attorney;

(f) appreciates that unless the attorney manages the property prudently its value may decline; and

(g) appreciates the possibility that the attorney could misuse the authority given to him or her.

(2) A person is capable of revoking a continuing power of attorney if he or she is capable of giving one.

Analysis

96For the reasons that follow, I find that it is not required that I appoint a guardian of property for Ms. A.R. I am satisfied that the need for decisions to be made by her can be met by an alternative course of action that does not require me to find that Ms. A.R. is incapable of managing her property. This alternative course is less restrictive of Ms. A.R.’s decision-making rights than the appointment of a guardian.

97In coming to this conclusion, I have had the benefit of the reports of Dr. K. Shulman and Dr. R. Shulman. Each of them has considerable expertise in conducting capacity assessments under the SDA. Their respective credentials were unchallenged.

98On the assessment process, in Overtveld v. Overtveld, 2023 ONSC 460, at para. 75, Labrosse J., citing Strathy J., as he then was, in Kischer v. Kischer,2009 495 (Ont. S.C.), at para. 10, stated as follows:

The assessment process is an important tool for the court in the discharge of its responsibility to protect the vulnerable. It enables the court to obtain an objective, independent and expert assessment of the individual’s capacity, free from the partisan and subjective perceptions of the parties.

99Both experts agree that Ms. A.R. is vulnerable.

100Dr. K. Shulman reported that Ms. A.R. was extremely vulnerable to undue influence and elder financial abuse, especially by S.R. and A. (B.) R.

101Dr. R. Shulman concurred with Dr. K. Shulman that Ms. A.R. was vulnerable to undue influence by either of S.R. and A. (B.) R. and would continue to be vulnerable to undue influence and elder abuse if she did not have assistance to plan and carry out complex financial decisions.

102Ms. A.R. herself acknowledged her vulnerability and admitted that she signed documents placed before her that she really did not understand. Ms. A.R. admitted to Dr. K Shulman that she was not capable, on her own, to manage the businesses, her assets, or personal finances, and she accepted that she needed to have independent counsel to help her make legal decisions.

103In Abrams v. Abrams, 2008 67884 (Ont. S.C.), at paras. 47 and 48, leave to appeal to Div. Ct. refused, 2009 12798 (ON SCDC), 247 O.A.C. 380, Strathy J., as he then was, observed that the purpose of the SDA is to protect the vulnerable. He also observed that proceedings under the SDA seek to balance the interests of litigants, and the person alleged to be incapable, with the interest and duty of the state to protect the vulnerable.

104Ms. A.R.’s vulnerability and the duty of the state to protect her are critical considerations in this case. But so, too, are Ms. A.R.’s right to self-determination and autonomy.

105In Elmi v. Hirsi. 2015 ONSC 6003, Fairburn J., as she then was, wrote, at para. 24:

Individual autonomy is to be respected, fostered and encouraged. Whether with respect to property or personal care, an adult individual is presumed to be in a position to make decisions about their own current and future circumstances. The dignity and integrity of the individual depends upon this presumption. It should not be lightly interfered with. Any usurping of an individual’s right to self-determination must be exercised sparingly and only on the basis of clear evidence.

106Each of Dr. K. Shulman and Dr. R. Shulman tested Ms. A.R.’s cognition using one or both of the MMSE and the MoCA. Both found that the testing showed mild cognitive impairment.

107In his First Report, Dr. K. Shulman concluded that Ms. A.R. was “clearly incapable of managing her own property … and recognize[d] this quite readily.” He opined that Ms. A.R. needed independent legal advice and financial advice.

108Dr. K. Shulman reported that he tested Ms. A.R.’s “understanding of relevant facts and her appreciation of the reasonably foreseeable consequences of recent actions and developments”. Based on his testing results and based on her spontaneous acknowledgement of her inability to manage her legal and financial affairs on her own, Dr. K. Shulman found Ms. A.R. incapable of managing her property.

109Under cross-examination, Ms. A.R. disputed Dr. K. Shulman’s findings. She did not agree that she lacked the capacity to manage her property. Rather, she stated that she needed assistance to do so.

110Under his own cross-examination, Dr. K. Shulman conceded that what Ms. A.R. had told him was that she needed assistance managing her property, but she did not say that she needed someone to make decisions for her.

111In the Second Report, following his assessment of Ms. A.R.’s capacity to retain counsel, Dr. K. Shulman found that Ms. A.R. was able to instruct counsel because she could process information, advice, and options that her lawyers presented to her regarding the within application and regarding her personal and financial affairs. In addition, Dr. K. Shulman confirmed that Ms. A.R. could process and appreciate the advantages and drawbacks and the consequences associated with the options presented to her by counsel and by potential financial managers.

112In that same report, Dr. K. Shulman found that Ms. A.R. “[was] able to articulate consistently and clearly her wish to regain control of her personal finances and affairs and to have independent counsel that would help her find appropriate financial oversight and management of a complex and substantial business enterprise that would result in her best interests being protected.”

113Dr. R. Shulman did not disagree with Dr. K. Shulman’s central conclusion that Ms. A.R. lacked capacity to manage her own property without assistance. Dr. R. Shulman’s opinion was focused on Ms. A.R.’s capacity to manage her property, as described in the two-page summary provided to each of Ms. A.R. and Dr. R. Shulman.

114Dr. R. Shulman reviewed the summary with her and later reevaluated her understanding of it. Dr. R. Shulman reported that Ms. A.R. could confirm her understanding of all the assets and their values except for JD Inc. With cueing, she knew the value of her shares. She knew that she was no longer a shareholder of OT Inc.

115In assessing Ms. A.R.’s ability to appreciate the consequences of a decision or lack of decision, Dr. R. Shulman considered Ms. A.R.’s ability to evaluate - not just understand -information, and to appreciate the relevant information as it related to her.

116Dr. R. Shulman acknowledged in his report that Ms. A.R. had mild cognitive impairment, which put her at risk of not being able to apply the relevant information to her circumstances without assistance. She was, thus, at risk of not appreciating the potential consequences of decisions. For example, Ms. A.R. did not recognize that she had forgetfulness and needed assistance to understand complex legal documents and to understand the circumstances regarding A. (B.) R.’s involvement in JD Inc., and she did not apply that information in order to evaluate the risks versus the benefits of signing the JD Inc. documents. Dr. R. Shulman also acknowledged that, based on his testing of Ms. A.R., she likely had declining executive and mental flexibility.

117Notwithstanding this deficit, Dr. R. Shulman concluded that Ms. A.R. had the ability to understand the relevant information, with cueing for improving her short-term memory, and that she had the ability to express her wishes. He further concluded that Ms. A.R. had the cognitive ability to process, retain, and articulate the relevant information required of her to manage her personal property, but only with assistance because of the limitation in new learning. He stated that Ms. A.R. may need assistance in planning decisions and in carrying out a decision, but she had the capacity to make the decision. He acknowledged that given Ms. A.R.’s cognitive impairment, together with her lack of experience and the social circumstances of the historical family conflict, it was not realistic to expect Ms. A.R. to independently manage property decisions of complexity.

118Considering the reports of Dr. K. Shulman and Dr. R. Shulman cumulatively, I find that both assessors agree that Ms. A.R. has moderate cognitive impairment. Despite this impairment, they agree that she has the cognitive ability to process, retain, and articulate the relevant information required to manage her property, but only with assistance. They also agree that Ms. A.R. did not understand the JD Inc. Documents or the consequences of signing them.

119Dr. K. Shulman and Dr. R. Shulman also agree that Ms. A.R. has the capacity to retain and instruct counsel.

120On the matter of whether Ms. A.R. has the capacity to make a power of attorney and revoke a power of attorney, Dr. K. Shulman did not opine directly. In his First Report, he stated that a) Ms. A.R. knew that a power of attorney gives someone the right to make decisions; b) once reminded of the persons she had appointed as her Attorneys for Property, Ms. A.R. clearly stated that they were Mr. R.R.’s appointees and not hers; c) Ms. A.R. held that view throughout the assessment; and d) Ms. A.R. expressed distrust towards these Attorneys for Property; she did not accept their opinion that she lacked capacity; and she did not accept their suggestion that they be replaced by Ms. Geller, who would serve as Ms. A.R.’s guardian of property.

121Dr. R. Shulman assessed Ms. A.R.’s capacity to make and revoke a power of attorney with reference to s. 8 of the SDA. In his report, he concluded that Ms. A.R. demonstrated a satisfactory understanding of what kind of property and assets she had, including a satisfactory understanding of their value. Ms. A.R. was aware that Mr. R.R. had been providing stipends to two of their children, and she expressed agreement to maintain whatever support Mr. R.R. had been providing. Ms. A.R. confirmed that she understood what an attorney for property could do on her behalf. Ms. A.R. confirmed her understanding that any attorney for property must account for their dealings, and she stated that she has not received an accounting from the Attorneys for Property, but she would like one. Ms. A.R. also confirmed her understanding that she could, if capable, revoke a power of attorney. She described her current discomfort with her current Attorneys for Property, as well as her desire to revoke their appointment and replace them. She discussed potential candidates who could replace them, including her younger brothers, her son-in-law, and a cousin. She expressed appreciation for the need to have an attorney for property who is local. Ms. A.R. also confirmed her appreciation of the risk that her property could decline in value if her Attorneys for Property did not manage it prudently, and that her Attorneys for Property would need to have business knowledge. Ms. A.R. confirmed her understanding that an attorney could misuse the authority given to them.

122Dr. R. Shulman noted in his report that Ms. A.R. was able to provide cogent reasons for why she would not appoint S.R. alone as her attorney and why she would not appoint A. (B.) R.

123Dr. R. Shulman stated that if Ms. A.R.’s autonomy to grant a power of attorney is recognized, Ms. A.R.’s justification of choice of attorney should remain consistent, and that this could be evaluated by her legal counsel.

124Based on the evidentiary record, including the reports of Dr. K. Shulman and Dr. R. Shulman, I find that Ms. A.R. has the capacity to make and revoke a power of attorney for property. I also find that she has the capacity to retain counsel to assist her with legal decisions, including the appointment of attorneys for property.

125If Ms. A.R., with the assistance of her counsel, exercises her option to revoke the 2014 Power of Attorney and to execute a new power of attorney, Ms. A.R. will have the assistance that both Dr. K. Shulman and Dr. R. Shulman have concluded she needs to make, plan, and carry out legal and financial decisions. At the same time, Ms. A.R.’s right to self-determination, her autonomy, and her decision-making rights will have been respected.

126In conclusion, the need for decisions to be made regarding Ms. A.R.’s property can be met by an alternative course of action to the appointment of a guardian. Accordingly, I do not need to find Ms. A.R. incapable of managing her property, and I do not need to appoint a guardian of property to act on her behalf. I decline to do so.

Disposition

127For the reasons given, the application is dismissed. The relief sought by Mr. D.R. is moot.

Costs

128The parties are strongly encouraged to agree on the matter of costs. If they are unable to do so, any party seeking costs shall deliver written costs submissions (not exceeding three pages, double spaced, excluding a bill of costs or costs outline and any offer to settle) within 14 days of these reasons. Any party seeking to respond to such written costs submissions shall deliver similar written costs submissions within 14 days thereafter.

B. Dietrich J.

Released: February 20, 2026

CITATION: D.R. v. A.R., 2026 ONSC 796

COURT FILE NO.: CV-25-00734793-00ES

DATE: 20260219

ONTARIO

SUPERIOR COURT OF JUSTICE