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Diminished Ability to Communicate? Or, Diminished Decisional Capacity? – Mills v Radons

Mills v Radons, 2018 SKQB 237 (CanLII), http://canlii.ca/t/httr8

This recent case from Saskatchewan looks at whether a husband had the requisite decisional capacity to instruct his counsel in divorce proceedings and whether his intention was to seek a divorce and spousal support.


The husband suffered a stroke that dramatically affected his mobility and his ability to communicate. Around the same time, after fifteen years of marriage the husband and wife agreed that their marriage was at an end. The husband’s sister started assisting her brother and became his attorney for property under an enduring power of attorney. While the husband was unable to communicate through conventional methods (speaking or writing) he maintained an ability to communicate through alternative means.[1]

After attempting for five years to negotiate a family property settlement, the matter was not resolved, and litigation commenced, with the husband seeking a divorce, interim spousal support and an interim distribution of family property.

The wife raised the issue that the husband did not have capacity to instruct counsel to bring the divorce application and generally conduct the litigation, nor that the husband had the intention to be divorced, seek a division of property or to seek spousal support.

Court’s Analysis

The Court relied on the recent reported decision of Chuvalo v Chuvalo, 2018 ONSC 311 to find that an adult party to an action is “presumed to have capacity to instruct counsel and conduct litigation” and further that “the onus is on the party challenging that capacity to prove an absence of capacity”.[2]

After referring to Babiuk v Babiuk, 2014 SKQB 320 and Calvert (Litigation Guardian of) v Calvert (1997) 32 OR (3d) 281 (Div Ct), aff’d (1998), 37 OR (3d) 221 (CA), the Court noted that:

the capacity to instruct counsel and conduct litigation requires a higher level of competency as compared to the decisions to separate or seek a divorce. The person must be able to understand financial and legal issues with the assistance of counsel and understand the consequences of their decisions regarding the litigation. [emphasis added][3]

The Court also focused on an individual’s autonomy to make such decisions and noted:

The ability to make decisions about what occurs upon the dissolution of a marriage is an important aspect of each person’s right to self-determination. The court must not lightly interfere with this right.[4]

The husband’s capacity was never questioned during the five years of settlement negotiations and he had capacity to sign the POA with his lawyer in July 2013 and capacity to execute a Will in August 2013.

For the purposes of this litigation, the husband was evaluated by a Capacity Assessor in Ontario (the husband now resides in Ontario to be closer to his sister) under the Substitute Decisions Act, 1992, SO 1992, c 30. The Capacity Assessor opined that the husband understood a legal proceeding had been commenced where he was seeking a divorce, division of property and spousal support; he had clear comprehension and the ability to understand others; and he was not suffering from dementia. The Court found that the report left no doubt that the husband had the requisite capacity to understand the matters at stake in the litigation and consequences of his decision.

The Court also found that the husband intended to have the divorce petition issued and the application brought. While the Capacity Assessor noted that the husband had stated that he did not want to be divorced, the husband also replied “No, absolutely no” when asked if he wished to stay married to his wife. He did not want to be divorced but he did want to remain living separate and apart from his wife. The Court opined that his ambiguous statements regarding divorce may be based “on his beliefs and feelings regarding divorce in general” as he was “very clear and unambiguous that he did not want to reconcile with” his wife.

The Court concluded that the husband understood the litigation and intended the litigation to take the course it was taking and that he could make his own decisions and communicate those decisions.

The wife also raised the issue that the husband needs a litigation guardian. The Court disagreed. The husband had a diminished ability to communicate not a lack of capacity to make his decisions.[5]

Finally, the wife raised the concern that the lawyer signed the petition and not the husband as is required by The Queen’s Bench Rules. The Court confirmed that the Rules are designed to facilitate the fair, effective and efficient conduct of litigation, not construct technical barriers to litigation. The wife suffered no prejudice or harm by having counsel sign the petition. This was an appropriate case to relieve the husband from personally signing the petition and the Court granted leave to the husband, nunc pro tunc (deemed retroactive) to have his counsel sign the petition on his behalf.

Concluding Comments

This case is an example where physical disabilities prompted an inquiry into whether mental capacity issues existed, despite there being no evidence of diminished mental capacity. After setting out the factors to determine if the husband had the requisite capacity to instruct counsel (ability to understand the financial and legal issues with assistance of counsel and understand the consequences of his decisions) with the assistance of a capacity assessor, the Court concluded that the husband had a diminished ability to communicate his decisions but not a lack of capacity to make those decisions.

[1] The case did not specify what those means were.

[2]Chuvalo v. Chuvalo, 2018 ONSC 311 (CanLII), http://canlii.ca/t/hpqpg, at para. 6

[3] At para. 7

[4] At para. 8

[5] At para. 20

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