Scott v. Wilson, 2025 ONSC 2981: Court Orders Capacity Assessment Over Objections Amid Power Struggles Guardianship Dispute

Justice C. Gilmore of the Ontario Superior Court (Estates List) ordered a capacity assessment under section 79 of the Substitute Decisions Act, 1992 despite opposition from the allegedly incapable adult and her common-law spouse. The case illustrates how courts protect vulnerable adults from undue influence, manage conflicting power of attorney claims, and prioritize objective capacity determinations when family dynamics compromise independent decision-making.

Carol, 74, had been diagnosed with Alzheimer’s dementia as well as several other chronic medical conditions. For over two decades, she lived with her common-law partner, Robert (“Bob”) Scott. In March 2024, after a temporary stay with a friend, Carol executed new Powers of Attorney for Property and Personal Care in favour of her siblings, Mark and Denise Wilson. Bob objected, claiming the new documents were obtained under suspicious circumstances and maintained that earlier 2007 POAs naming him should prevail.

Following escalating disputes over Carol’s care and access, the parties reached a mediated Agreement in Principle in June 2024, which suspended both the 2007 and 2024 POAs, appointed a neutral Guardian of Property, and provided for comprehensive care planning through Silver Sherpa. However, Bob later resiled from the agreement, refused to consent to the proposed Management Plan, and sought to assert a beneficial interest in Carol’s properties.

The litigation was further complicated by repeated interference with Section 3 counsel, Clare Burns. Ms. Burns reported that Carol was unable to provide independent instructions, sometimes repeating notes prepared by Bob or expressing confusion about who she was “supposed to fire.” Carol’s care residence even refused to allow Ms. Burns to meet privately with her, citing Bob’s objections—actions which the Court viewed as serious impediments to Carol’s access to justice.

A Silver Sherpa report delivered in January 2025 identified significant concerns about Carol’s cognitive decline, lack of coordinated medical care, inadequate medication supervision, social isolation, and the absence of an emergency contact beyond Bob, who frequently travels for work. Despite these warnings, Bob rejected further involvement from Silver Sherpa and insisted Carol retained capacity to manage her affairs.

At a case conference on April 25, 2025, the Court determined that no party intended to bring a motion for a capacity assessment. Justice Gilmore therefore initiated a motion under section 79 of the SDA, citing ongoing concerns about Carol’s ability to understand the proceedings, provide instructions, and resist influence from Bob.

In applying the balancing test from Abrams v. Abrams, 2008 CanLII 67884 (ONSC), the Court concluded that the public interest in protecting Carol outweighed her privacy interest and opposition to the assessment. The Court emphasized that Carol’s wishes may not be her own, that her understanding of the litigation was tenuous, and that continued deference to her stated position would risk further harm.

Ultimately, the Court ordered a capacity assessment to be performed by one of three designated assessors (Dr. Kenneth or Richard Shulman, or Alannah Kaye), with Ms. Burns authorized to arrange the assessment and provide relevant medical and litigation history. The Court also ordered Carol’s medical records and cognitive testing (including MMSE scores) to be shared with all parties, and directed Bob to repay $35,000 improperly drawn from Carol’s accounts to pay his legal fees—despite the clear prohibition in prior court orders against using Carol’s assets for personal expenses.

This case is a cautionary tale for parties seeking to assert control over an incapable person’s affairs while holding out that they are acting in accordance with that person’s wishes. The Court was not persuaded that Carol’s stated opposition to the assessment reflected true autonomy. Instead, it concluded that Bob’s conduct—including impeding access to counsel, managing Carol’s interactions, and undermining neutral care recommendations—raised serious doubts about his influence and Carol’s ability to meaningfully participate in litigation.

The ruling reinforces the principle that where capacity is in genuine doubt, and the allegedly incapable person is under significant influence, a court may—and often should—act proactively to ensure that decisions are made on a reliable and independent evidentiary basis. For litigants and counsel alike, Scott v. Wilson is a stark reminder of the importance of transparency, neutrality, and procedural fairness in elder law and guardianship proceedings.

If you require legal advice on a guardianship or capacity matter, please contact our guardianship lawyers at 416-847-1859 or email info@bobilawalkerlaw.com