Yvette Poirier v. the Estate of Paul Poirier: Court Determines Transfer of Property Invalid with Consideration of Retrospective Capacity Assessments
In Yvette Poirier v. the Estate of Paul Poirier,[1] the court found that a property transfer purportedly made by Yvette Poirier (“Ms. Poirier”) to her son, Paul Poirier (the “Deceased”), was invalid on the grounds that she lacked the requisite decisional capacity to do so. In reaching their conclusion, the court considered two competing retrospective capacity assessments.
Background
Ms. Poirer has three children, namely: the Deceased (who passed away in 2021), Lyse Scharfe (the “Applicant”) and Denise Champagne. Ms. Poirier is aged 106 and suffers from advanced dementia. The Applicant brought the application as Ms. Poirier’s Attorney for Property and Personal Care. The Respondents in Poirier were the Deceased’s Estate, his widow, Lynda Lortie and their daughter, Jenny Lortie, who held title to the property in dispute.[2]
Before his passing, the Deceased was Ms. Poirier’s Attorney for Property and Personal Care. In 2009, Ms. Poirier added the Deceased as a joint tenant to her home. In 2016, the Deceased allegedly had Ms. Poirier convey her joint interest in the property to him as her Attorney for Property (the “Impugned Transfer”). At the time of the Impugned Transfer, Ms. Poirier was not provided with independent legal advice or assessed for her capacity to transfer the property.[3] Prior to the Deceased’s passing, he transferred the property to his wife.
The Applicant sought an order declaring that the Impugned Transfer was invalid for want of capacity and that the Deceased’s estate held the property in trust for Ms. Poirier.
Legal Issues
The central issue in Poirier was whether Ms. Poirier possessed the requisite decisional capacity to make the Impugned Transfer.
In Ontario, the legal criteria for the capacity to manage property is found the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”). Section 2(1) of the SDA provides that all adults enjoy the presumption of capacity to manage their property:
Presumption of capacity
2 (1) A person who is eighteen years of age or more is presumed to be capable of entering into a contract.
Moreover, section 6 of the SDA provides the legal criteria to determine if an individual is incapable of managing their property:
Incapacity to manage property
6 A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
Capacity Assessments
To assist the court in determining the legal issue of capacity, both the Applicant and the Respondents obtained retrospective capacity assessments opining on Ms. Poirier’s capacity in 2016.
The Applicant obtained an expert opinion from Dr. Joel Sadavoy (“Dr. Sadavoy”), a specialist in geriatric psychiatry, who opined that Ms. Poirier did not have the requisite capacity to make the Impugned Transfer. Dr. Sadavoy’s report indicated that Ms. Poirier “did not have sufficient mental capacity to make competently reasoned decisions to transfer her home to Paul in that she would have been unable to appreciate the reasonably foreseeable consequences of the decision”.[4] The report further indicated that Ms. Poirier’s reasoning and judgment were impaired by the presence of paranoid delusional thinking typical of persons suffering from advanced dementia. Moreover, Dr. Sadavoy highlighted medical records from a geriatric psychiatrist Dr. Carriere, who confirmed that Ms. Poirier was diagnosed with dementia in 2006 and that by 2010 she suffered from symptoms of significant dementia.[5]
In contrast, the Respondents obtained an expert report from Dr. Alina Kaminska, a psychologist, who concluded that Ms. Poirier was capable of managing her property and understood the Impugned Transfer. Dr. Kaminska opined that there was no compelling evidence of cognitive limitations on the part of Ms. Poirier and enjoyed the presumption of her capacity to manage her property. Dr. Kaminska’s report found that Ms. Poirier’s cognitive status was likely comparable to her status in 2009 when she first transferred the property into joint tenancy with the Deceased.[6]
The court preferred the opinions of Dr. Sadavoy and Dr. Carriere over Dr. Kaminska’s. The court found that Dr. Sadovoy’s report persuasively described the factors which supported his opinion that Mrs. Poirier’s dementia, first diagnosed in 2006, had advanced by 2012, and clearly by 2016 to a level of severe dementia. Moreover, his analysis was made in close consideration with evidence provided by Ms. Poirier’s daughters and several physicians as to her behaviours and cognitive limitations.[7]
Decision
Considering the analysis of each of the retrospective capacity assessments, the court found that Ms. Poirier lacked the requisite capacity to manage her property and make the Impugned Transfer. Accordingly, the Impugned Transfer was set aside thereby restoring the property to joint ownership between Ms. Poirier and the Deceased’s estate.[8]
Concluding Comments
Poirer is example of how capacity assessments assist the court in making determinations regarding an individuals’ capacity. In these instances, is not uncommon for parties to each retain a capacity assessor with both potentially reaching different conclusions regarding a person’s capacity. As the Trier of Fact, the court’s role is to weigh the evidence before it to adjudicate on the issue of capacity, which is inherently complex.
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[1] Lyse Scharfe in her capacity as Attorney for Property and Attorney for Personal Care of Yvette Poirier v. Estate of Paul Poirier, 2025 ONSC 482 (“Poirier”)
[2] Poirier at paras 6-15.
[3] Poirier at paras 2-3.
[4] Poirier at para 17.
[5] Poirier at para 17 and 25.
[6] Poirier at paras 18-20.
[7] Poirier at paras 26-27.
[8] Poirier at para 28.
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Written by: Oliver O'Brien
Posted on: February 14, 2025
Categories: Capacity, Commentary, WEL Newsletter
In Yvette Poirier v. the Estate of Paul Poirier,[1] the court found that a property transfer purportedly made by Yvette Poirier (“Ms. Poirier”) to her son, Paul Poirier (the “Deceased”), was invalid on the grounds that she lacked the requisite decisional capacity to do so. In reaching their conclusion, the court considered two competing retrospective capacity assessments.
Background
Ms. Poirer has three children, namely: the Deceased (who passed away in 2021), Lyse Scharfe (the “Applicant”) and Denise Champagne. Ms. Poirier is aged 106 and suffers from advanced dementia. The Applicant brought the application as Ms. Poirier’s Attorney for Property and Personal Care. The Respondents in Poirier were the Deceased’s Estate, his widow, Lynda Lortie and their daughter, Jenny Lortie, who held title to the property in dispute.[2]
Before his passing, the Deceased was Ms. Poirier’s Attorney for Property and Personal Care. In 2009, Ms. Poirier added the Deceased as a joint tenant to her home. In 2016, the Deceased allegedly had Ms. Poirier convey her joint interest in the property to him as her Attorney for Property (the “Impugned Transfer”). At the time of the Impugned Transfer, Ms. Poirier was not provided with independent legal advice or assessed for her capacity to transfer the property.[3] Prior to the Deceased’s passing, he transferred the property to his wife.
The Applicant sought an order declaring that the Impugned Transfer was invalid for want of capacity and that the Deceased’s estate held the property in trust for Ms. Poirier.
Legal Issues
The central issue in Poirier was whether Ms. Poirier possessed the requisite decisional capacity to make the Impugned Transfer.
In Ontario, the legal criteria for the capacity to manage property is found the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the “SDA”). Section 2(1) of the SDA provides that all adults enjoy the presumption of capacity to manage their property:
Presumption of capacity
2 (1) A person who is eighteen years of age or more is presumed to be capable of entering into a contract.
Moreover, section 6 of the SDA provides the legal criteria to determine if an individual is incapable of managing their property:
Incapacity to manage property
6 A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
Capacity Assessments
To assist the court in determining the legal issue of capacity, both the Applicant and the Respondents obtained retrospective capacity assessments opining on Ms. Poirier’s capacity in 2016.
The Applicant obtained an expert opinion from Dr. Joel Sadavoy (“Dr. Sadavoy”), a specialist in geriatric psychiatry, who opined that Ms. Poirier did not have the requisite capacity to make the Impugned Transfer. Dr. Sadavoy’s report indicated that Ms. Poirier “did not have sufficient mental capacity to make competently reasoned decisions to transfer her home to Paul in that she would have been unable to appreciate the reasonably foreseeable consequences of the decision”.[4] The report further indicated that Ms. Poirier’s reasoning and judgment were impaired by the presence of paranoid delusional thinking typical of persons suffering from advanced dementia. Moreover, Dr. Sadavoy highlighted medical records from a geriatric psychiatrist Dr. Carriere, who confirmed that Ms. Poirier was diagnosed with dementia in 2006 and that by 2010 she suffered from symptoms of significant dementia.[5]
In contrast, the Respondents obtained an expert report from Dr. Alina Kaminska, a psychologist, who concluded that Ms. Poirier was capable of managing her property and understood the Impugned Transfer. Dr. Kaminska opined that there was no compelling evidence of cognitive limitations on the part of Ms. Poirier and enjoyed the presumption of her capacity to manage her property. Dr. Kaminska’s report found that Ms. Poirier’s cognitive status was likely comparable to her status in 2009 when she first transferred the property into joint tenancy with the Deceased.[6]
The court preferred the opinions of Dr. Sadavoy and Dr. Carriere over Dr. Kaminska’s. The court found that Dr. Sadovoy’s report persuasively described the factors which supported his opinion that Mrs. Poirier’s dementia, first diagnosed in 2006, had advanced by 2012, and clearly by 2016 to a level of severe dementia. Moreover, his analysis was made in close consideration with evidence provided by Ms. Poirier’s daughters and several physicians as to her behaviours and cognitive limitations.[7]
Decision
Considering the analysis of each of the retrospective capacity assessments, the court found that Ms. Poirier lacked the requisite capacity to manage her property and make the Impugned Transfer. Accordingly, the Impugned Transfer was set aside thereby restoring the property to joint ownership between Ms. Poirier and the Deceased’s estate.[8]
Concluding Comments
Poirer is example of how capacity assessments assist the court in making determinations regarding an individuals’ capacity. In these instances, is not uncommon for parties to each retain a capacity assessor with both potentially reaching different conclusions regarding a person’s capacity. As the Trier of Fact, the court’s role is to weigh the evidence before it to adjudicate on the issue of capacity, which is inherently complex.
—
[1] Lyse Scharfe in her capacity as Attorney for Property and Attorney for Personal Care of Yvette Poirier v. Estate of Paul Poirier, 2025 ONSC 482 (“Poirier”)
[2] Poirier at paras 6-15.
[3] Poirier at paras 2-3.
[4] Poirier at para 17.
[5] Poirier at para 17 and 25.
[6] Poirier at paras 18-20.
[7] Poirier at paras 26-27.
[8] Poirier at para 28.
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