Capacity To Separate: Babiuk v Babiuk
Babiuk v Babiuk http://canlii.ca/t/gf0p6
Recently the Saskatchewan Court of Queen’s Bench reviewed the requisite decisional capacity to separate, among other issues, in the case of Babiuk v. Babiuk. In this case, an older adult (after being admitted to the hospital for injuries to her body) was certified incompetent to manage her estate pursuant to The Mentally Disordered Person’s Act, RSS 1978, c M-14 (since repealed by SS 2014, c 24). The PGT became her statutory guardian for property. After being discharged from the hospital the older adult resided in a care home and refused any contact from her husband. During a review hearing for her Certificate of Incompetence the wife stated that she had been physically assaulted and intimidated by her husband during her life and that she was afraid of him. She wanted to remain in her care home, separate and apart from her husband. She said she was happy and safe, although she could not name the care home or its address. She also could not file a tax return on her own and, while she had some knowledge of her financial situation, it was limited.
The PGT brought a petition seeking a division of family property pursuant to The Family Property Act and maintenance pursuant to The Family Maintenance Act. The husband brought a motion seeking an Order prohibiting the PGT from pursuing a property claim on behalf of his wife. The husband argued that his wife would not want the family property to be divided. The wife however testified in an affidavit that while she forgets most things, she does not forget her life with her husband. She also stated that she would like to have half of her family property and have it managed by the PGT.
The Court noted that the wife may not be capable to manage her financial affairs but that does not mean she is not capable of making personal decisions. The Court cited Calvert (Litigation Guardian of) v. Calvert (1997), 32 O.R. (3d) 281 (Div. Ct), at 294, aff’d (1998), 37 O.R. (3d) 221 (CA), leave to appeal ef’d [1998] SCCA No. 161: “Separation is the simplest act, requiring the lowest level of understanding. A person has to know with whom he or she does nor does not want to live.”
The Court concluded that “In deciding issues of capacity, insofar as the law is able to, the appropriate approach is to respect the personal autonomy of the individual in making decisions about his or her life. . . There is evidence that [the wife] wants to live in the care home and not with [her husband], and that she wants her half of the family property. . .” The Court dismissed the husband’s motion.
Written by: Kimberly A. Whaley
Posted on: February 16, 2015
Categories: Commentary
Babiuk v Babiuk http://canlii.ca/t/gf0p6
Recently the Saskatchewan Court of Queen’s Bench reviewed the requisite decisional capacity to separate, among other issues, in the case of Babiuk v. Babiuk. In this case, an older adult (after being admitted to the hospital for injuries to her body) was certified incompetent to manage her estate pursuant to The Mentally Disordered Person’s Act, RSS 1978, c M-14 (since repealed by SS 2014, c 24). The PGT became her statutory guardian for property. After being discharged from the hospital the older adult resided in a care home and refused any contact from her husband. During a review hearing for her Certificate of Incompetence the wife stated that she had been physically assaulted and intimidated by her husband during her life and that she was afraid of him. She wanted to remain in her care home, separate and apart from her husband. She said she was happy and safe, although she could not name the care home or its address. She also could not file a tax return on her own and, while she had some knowledge of her financial situation, it was limited.
The PGT brought a petition seeking a division of family property pursuant to The Family Property Act and maintenance pursuant to The Family Maintenance Act. The husband brought a motion seeking an Order prohibiting the PGT from pursuing a property claim on behalf of his wife. The husband argued that his wife would not want the family property to be divided. The wife however testified in an affidavit that while she forgets most things, she does not forget her life with her husband. She also stated that she would like to have half of her family property and have it managed by the PGT.
The Court noted that the wife may not be capable to manage her financial affairs but that does not mean she is not capable of making personal decisions. The Court cited Calvert (Litigation Guardian of) v. Calvert (1997), 32 O.R. (3d) 281 (Div. Ct), at 294, aff’d (1998), 37 O.R. (3d) 221 (CA), leave to appeal ef’d [1998] SCCA No. 161: “Separation is the simplest act, requiring the lowest level of understanding. A person has to know with whom he or she does nor does not want to live.”
The Court concluded that “In deciding issues of capacity, insofar as the law is able to, the appropriate approach is to respect the personal autonomy of the individual in making decisions about his or her life. . . There is evidence that [the wife] wants to live in the care home and not with [her husband], and that she wants her half of the family property. . .” The Court dismissed the husband’s motion.
Author
View all posts