Ontario courts take issues of mental capacity seriously, particularly when it affects a person’s ability to manage property, make personal care decisions, or instruct legal counsel. Two distinct—but occasionally overlapping—legal tools are available to the court in these situations:

These assessments are not ordered lightly. But when there is credible evidence of diminished capacity and ongoing legal or financial risk, the courts may intervene to protect vulnerable individuals.

Section 105 CJA: Mental Health Examinations in Litigation

Under section 105 of the Courts of Justice Act, the court may order a mental examination of a party where:

  • The person’s mental condition is in issue, and

  • There are reasonable grounds to believe the allegation of incapacity has substance.

This process is most commonly invoked to determine whether a party is a “person under disability” under Rule 7.01 of the Rules of Civil Procedure—i.e., someone who lacks the capacity to instruct counsel or participate in legal proceedings without a litigation guardian.

Example: 626381 Ontario Ltd. v. Kagan, Shastri, 2013 ONSC 4114

In Kagan, Shastri, the court considered whether a party to litigation required a litigation guardian due to apparent cognitive decline. The party opposed any assessment, arguing it violated his Charter rights. The court rejected this, finding that section 105 was a narrow, proportionate, and judicially supervised mechanism that permitted a mental health examination in the interest of justice.  The individual had also consented to the mental health examination.

The court emphasized that such examinations are rare and exceptional but permissible where necessary to determine legal capacity.

Section 79 SDA: Capacity Assessments for Property and Personal Care

Section 79 of the Substitute Decisions Act allows the court to order a capacity assessment of a person if it is satisfied there are reasonable grounds to believe the person is incapable of managing property or personal care. This provision is most often used in:

  • Guardianship applications,

  • Disputes over Powers of Attorney, or

  • Situations involving alleged financial abuse.

The leading case on the proper exercise of discretion under s. 79 is Abrams v. Abrams, 2008 CanLII 67884 (ONSC), which sets out eight factors the court must consider before compelling an assessment.

Example: Zagorac v. Zagorac, 2021 ONSC 4448

In Zagorac, the court dealt with a dispute between siblings over their 68-year-old mother’s capacity. She had Alzheimer’s, but conflicting evidence was presented about whether she could manage her affairs. Justice Dietrich applied the Abrams factors in detail and found:

  • There were reasonable grounds to believe she was incapable,

  • The existing assessments were outdated and methodologically flawed, and

  • A current, comprehensive assessment was necessary to resolve issues of undue influence, property management, and long-term planning.

The court ultimately ordered a capacity assessment under s. 79 SDA, despite the mother’s objections, to protect her estate and ensure proper care.

At Bobila Walker Law LLP, we are dedicated to providing compassionate and strategic legal counsel in guardianship matters throughout Toronto and the Greater Toronto Area. Our experienced team assists families in navigating complex capacity and substitute decision-making issues, including applications under the Substitute Decisions Act, disputes over Powers of Attorney, and court-ordered capacity assessments.

If you require guidance on guardianship or capacity-related legal matters, please contact us at info@bobilawalkerlaw.com or call 416-847-1859 to schedule a consultation