Overview

This case, Orr v. Orr, 2025 ONSC 4986 (CanLII), decided by Justice M.A. Cook of the Ontario Superior Court of Justice, addresses the authority of an attorney for personal care under the Substitute Decisions Act, 1992 (SDA) to restrict family visits to an incapacitated person in a long-term care home. The applicant, Gwen Ruby Orr, sought a declaration of her husband William George Orr’s (Bill) incapacity for personal care and court directions to bar their adult children, Alison and Nathan, from visiting him, citing his alleged prior wishes. The court declined the incapacity declaration as unnecessary and granted limited directions to ensure Alison’s access to Bill, emphasizing the presumption of capacity, Bill’s statutory rights as a long-term care resident, and the attorney’s duty to foster family contact. The decision balances autonomy, best interests, and family reconciliation in the context of advanced dementia and familial conflict. Nathan did not participate, and the long-term care home (McCormick Home) took no position.

The Facts

• Family Background: Bill (82) and Gwen (his wife of nearly 60 years) have two children: Alison (daughter) and Nathan (son), plus three grandchildren. Bill founded Canlon Limited in the 1980s, which Nathan joined in 2008 with plans to take over via an estate freeze agreement in 2019.
• Health Decline: Bill was diagnosed with dementia (likely Alzheimer’s) in 2018. His condition worsened, leading to significant memory issues. In May 2023, Bill assaulted Gwen (stabbing and strangling her) due to dementia-related paranoia; charges were dropped. He was hospitalized and moved to McCormick Home (a secure long-term care facility) in July 2023.
• Family Conflict: Tensions arose over Canlon’s succession, with Nathan allegedly becoming aggressive toward Bill. Alison sided with Nathan. In February 2021, Nathan confronted Bill and Gwen, taking business files and locking them out. A joint letter from Alison and Nathan accused Gwen of manipulation. This led to estrangement.
• Estate and Powers of Attorney: In August 2021, Bill told a friend he never wanted to see his children again. In December 2021, Bill executed new wills and powers of attorney, appointing Gwen as attorney for property and personal care. He told his solicitor he wanted “nothing to do with his children” and excluded them from his estate, leaving it to the grandchildren. A capacity assessor confirmed Bill’s testamentary capacity at the time.
• Post-Estrangement Interactions: In February 2022, Bill, Gwen, and Alison had a phone call attempting reconciliation, but it failed. In May 2022, Bill went missing briefly; Alison helped search but did not see him afterward. Alison and Nathan visited Bill in hospital (May 2023) and at McCormick Home (August 2023), where staff noted Bill recognized them, was engaged, and smiled.
• Gwen’s Actions: Gwen requested McCormick Home bar Alison and Nathan, but it refused, citing Bill’s “deemed capacity” for visits. Gwen applied to court in May 2024, supported by Dr. Michael Borrie’s expert opinion (Bill’s geriatrician) that Bill has advanced dementia, cannot communicate verbally effectively, and is dependent on others. Section 3 counsel (appointed for Bill) could not obtain his instructions.
• Evidence: Affidavits from Gwen, Alison, friends, and family; cross-examinations; McCormick Home records showing Bill’s severe impairments but non-verbal communication (e.g., calming with Gwen’s presence). No harm from children’s visits was observed.

The Law

• Substitute Decisions Act, 1992 (SDA):
  • Presumption of capacity (s. 2(2)).
  • Definition of incapacity for personal care (s. 45): Inability to understand relevant information or appreciate foreseeable consequences.
  • Capacity assessments must follow regulations (O. Reg. 460/05); none was conducted here.
  • Attorney duties (s. 66): Act diligently, in good faith; foster independence; choose least restrictive actions; encourage participation; foster family/friend contact; consult family/caregivers; follow capable wishes (s. 66(3)), with later wishes prevailing; if no wishes, act in best interests (s. 66(4)).
  • Court directions under power of attorney (s. 68(4)): For the person’s benefit and consistent with SDA.
  • Appointment of counsel for the person (s. 3).
• Fixing Long-Term Care Act, 2021 (FLTCA): Residents’ Bill of Rights (s. 3), including rights to respect, decision-making participation, visitors of choice without interference, quality of life support, and no restraints except in limited cases.
• Health Care Consent Act, 1996: Referenced but not directly applicable to non-health decisions like visitation.
• Case Law:
  • Ontario (Attorney General) v. Restoule, 2024 SCC 27: Declaratory relief is discretionary; requires jurisdiction, real dispute, genuine interest, and practical effect.
  • Abrams v. Abrams, 2009 CanLII 12798 (ON SCDC): Incapacity finding abrogates personal sovereignty.
  • Johnson v. Johnson, 2022 ONCA 682: Dementia diagnosis alone does not prove incapacity.
  • Souter et al. v. Poitras, 2023 ONSC 6983: Attorneys must uphold capable wishes.
  • Bentley v. Maplewood Seniors Care Society, 2014 BCSC 165: Presumption of capacity for specific decisions (e.g., accepting food) despite advanced dementia; behavior can indicate consent.
  • Sly v. Curran, 2008 CanLII 36518 (ON SC): Courts avoid micro-managing attorneys except in extraordinary cases.

Analysis The court dismissed Gwen’s request for a declaration of Bill’s incapacity, finding no practical purpose (as Gwen already acts under the power of attorney) and insufficient evidence to rebut the presumption of capacity, absent a formal SDA-compliant assessment. Dr. Borrie’s opinion was accepted as medical evidence but not a substitute for a capacity assessment. The court noted capacity is task-specific and can fluctuate in dementia cases.

On visitation, the court rejected Gwen’s claim of Bill’s binding 2021 wish to cut off contact, finding no explicit instruction in the power of attorney and evidence of openness to reconciliation (e.g., 2022 call). Crucially, Bill was presumed capable on August 28, 2023, when he consented to visiting Alison and Nathan (corroborated by staff observations of recognition and engagement). This later wish prevailed under s. 66(3) of the SDA.

Gwen’s best-interests argument failed: Dr. Borrie’s speculation about potential distress from past trauma was unproven, with no observed harm from visits. The court prioritized Bill’s FLTCA rights to visitors without interference, autonomy, and family contact, outweighing prophylactic restrictions. Gwen’s animosity toward the children impaired her objectivity, warranting court directions (extraordinary under Sly) to ensure Alison’s private visits on a schedule, preventing interference while allowing future adjustments.

Lessons Learned

• Presumption of Capacity is Strong: Courts protect autonomy; a dementia diagnosis or medical opinion alone does not suffice for incapacity declarations without formal assessments. Capacity is decision-specific and can persist for simple choices like accepting visitors.
• Attorneys Must Prioritize the Person’s Wishes and Best Interests Objectively: Follow later capable wishes; foster family contact unless proven harmful. Personal biases (e.g., family conflict) can lead to court intervention if they override the SDA’s emphasis on independence and relationships.
• Long-Term Care Rights Matter: Residents have statutory protections under FLTCA against visit restrictions without evidence of harm; facilities must balance safety with rights.
• Declaratory Relief is Limited: Not granted if unnecessary or without practical effect; focus on real disputes.
• Family Conflicts in Elder Care: Reconciliation opportunities should be preserved; courts may impose schedules to minimize disputes while supporting relationships. Early estate planning and clear instructions in powers of attorney can prevent litigation.

In the realm of elder care and substitute decision-making, fiduciaries such as attorneys for personal care bear significant responsibilities to uphold the autonomy, well-being, and statutory rights of incapacitated individuals. The case of Orr v. Orr, 2025 ONSC 4986 (CanLII), underscores a critical aspect of this duty: facilitating access to supportive family members and friends, even amidst personal conflicts. When Gwen Ruby Orr, acting as attorney for her husband William George Orr, sought to restrict their children’s visits to him in a long-term care home, the Ontario Superior Court of Justice emphasized the legal and ethical obligation to foster such connections. Grounded in the Substitute Decisions Act, 1992 and the Fixing Long-Term Care Act, 2021, the decision highlights that fiduciaries must prioritize the incapacitated person’s wishes, best interests, and right to relationships, ensuring family access unless clear evidence of harm exists. This ruling serves as a reminder that personal animosities must not override the fiduciary’s role in promoting the emotional and social well-being of those in their care.

At Bobila Walker Law, our experienced guardianship lawyers are dedicated to guiding families through complex legal matters involving substitute decision-making. We ensure that your loved one’s rights, autonomy, and relationships are protected in accordance with Ontario’s legal framework. Contact us today to navigate these challenges with compassion and expertise.