Background

In Melcher v. Melcher[1], Justice Somji considered whether to order a court directed capacity assessment under section 79 of the Substitute Decisions Act, 1992 for an 82 year old woman, Patricia Melcher (“Ms. Melcher”), in the context of competing estate plans and powers of attorney.

Ms. Melcher has three surviving children, Tony, Kelly, and Natalie, and a long term common law partner of 25 years, Ron Carty.[2] Her main asset is her home, which she owns in her sole name. In late 2023 and early 2024, after her children and Mr. Carty noticed memory issues, Ms. Melcher met with her long-standing lawyers at Howard, Kelford & Dubois LLP and executed[3]:

• Continuing Powers of Attorney for Property naming her three children jointly.
• Continuing Powers of Attorney for Personal Care naming Kelly, with the others as alternates.
• A will appointing Tony as estate trustee, leaving her estate to the three children, and permitting Mr. Carty to remain in the home for one year, with an informal understanding that he would receive $25,000 from her investments.

These are the “Original Testamentary Documents.” According to Kelly, previous wills had never provided for Mr. Carty.

By spring and summer 2024, the children observed further decline and arranged for memory testing. Around the same time, they discovered that Mr. Carty had quietly taken Ms. Melcher to a new lawyer, Jerry Hiscock, to redo her wills and powers of attorney. When questioned, she had no recall of these appointments.[4] An independent capacity assessment was scheduled for August 21, 2024, but on that date, Mr. Carty locked himself and Ms. Melcher in a bedroom so the assessor could not proceed.[5]

On October 10, 2024, Mr. Hiscock prepared new instruments (the “October 2024 Documents”) that[6]:

• Made Mr. Carty the primary attorney for property and personal care, with the children as backups; and
• Appointed him estate trustee and divided the estate equally between him and each of the three children.

These October documents surfaced during the litigation only through Mr. Carty’s affidavit, not through evidence sworn by Ms. Melcher.

The children commenced an application in November 2024, seeking, among other things: (1) a capacity assessment under s. 79 of the SDA; (2) possible appointment of the Public Guardian and Trustee as litigation guardian and guardian of property; and (3) personal costs against Ms. Melcher’s counsel under Rule 57.07.[7]

While that litigation was underway, new counsel for Ms. Melcher arranged a March 2025 capacity assessment by Dr. Jason Peebles, initially refusing to disclose the report on the basis of litigation privilege.[8] A case conference resulted in an order for disclosure and cross examination.

The central question before Justice Somji remained whether the court should order a capacity assessment under section 79 of the SDA, despite the existence of the Dr. Peebles report and Ms. Melcher’s stated wish not to be assessed.

Analysis

In deciding the issue before the Court, Justice Somji considered several sub issues:

A. Threshold Under s. 79

79 permits the court to order an assessment where capacity is in issue and there are reasonable grounds to believe the person is incapable. Applying Abrams v. Abrams[9] and Zheng v. Zheng[10], Justice Somji found the statutory threshold clearly met.

The lay evidence showed a progressive decline since mid 2023. Kelly and Natalie, who live next door and across the street, described worsening memory problems, confusion about familiar people and places, disorientation (including being found asleep outside in intense heat and wandering in a heavy coat believing she was in Ottawa), poor hygiene, and an inability to retain information or understand the legal proceedings.[11]

Medical evidence corroborated these observations. One of Ms. Melcher’s physician diagnosed her with dementia (likely Alzheimer’s), amnesia, aphasia, and executive dysfunction, noted risk of financial errors and fraud, and recommended loss of driving privileges.[12] Another confirmed significant memory loss and advised that her attorneys should step in to manage property and assist with care.[13]

Ms. Melcher’s own cross examination in April 2025 was deeply concerning. She could not reliably state her name without prompting, did not know her current physician, believed a deceased daughter was still alive, could not explain why she was being questioned, and showed no understanding of the proceedings.[14] Her counsel terminated the examination before her affidavit evidence could be tested.

B. Nature and Circumstances of the Proceedings and Evidence of Vulnerability

Beyond cognitive decline, the court found she was highly vulnerable to financial exploitation. Ms. Melcher did not appear to understand her own investments and assets.[15] Mr. Carty had used her funds to pay $9,000 in legal fees for the October 2024 Documents without her apparent awareness, attempted to sell a summer trailer she had purchased entirely with her funds without telling her, and refused to provide vehicle ownership documents when the family proposed selling her car. Although he was not on trial for financial abuse at this stage, his control over her assets and transactions reinforced concern about her vulnerability and supported the need for a neutral assessment.

Banking irregularities reinforced these concerns. While Ms. Melcher attested that she manages her own finances, the children discovered unexplained transactions, including cheques written by Mr. Carty to himself.[16] Although he offered explanations, the pattern suggested that he was controlling her finances, not acting at her direction.

Taken together, these factors favoured Justice Somji’s finding that Ms. Melcher is not acting independently and is susceptible to control and undue influence. At this stage, the court emphasized that it was not determining whether Mr. Carty has acted improperly, but simply whether Ms. Melcher’s capacity is sufficiently in doubt to justify an assessment.[17] On the record before it, the answer was yes.

 C. Impact of the Prior Assessment

Justice Somji then turned to whether Dr. Peebles’ earlier capacity assessment removed the need for a further s. 79 assessment. It concluded that it did not. The Applicants’ expert, geriatric psychiatrist Dr. Shulman, identified several serious methodological gaps in the Peebles report.[18] Dr. Peebles did not review the application materials, affidavits, or the Original Testamentary Documents, despite being asked to provide retrospective opinions spanning both sets of instruments. He also failed to meaningfully probe why Ms. Melcher changed her will and powers of attorney only six months after the originals were completed.

Critically, the report did not apply the legal tests for capacity to instruct counsel, for capacity to grant or revoke powers of attorney, or for testamentary capacity. For example, although Dr. Peebles concluded that she lacked capacity to grant a power of attorney but retained testamentary capacity, he did not explain how she could meet the legal criteria for will-making while failing those for a POA, particularly given evidence of executive dysfunction.[19] Dr. Peebles’ own observations, including her inability to recall legal advice or describe her finances, pointed toward incapacity and were difficult to reconcile with his conclusions.

In short, Justice Somji found the Peebles report unreliable and insufficient to resolve the capacity concerns at the heart of the litigation.

D. Whether a Timely Assessment Is Necessary

Justice Somji held that a fresh, independent assessment was necessary to determine Ms. Melcher’s capacity to manage property, make personal-care decisions, instruct counsel, and execute the October 2024 Documents. Her dementia is progressive, and both affidavit and cross-examination evidence showed significant decline since the children first sought an assessment in August 2024.[20] Delay increased the risk of harm, reduced the usefulness of any retrospective findings, and prolonged uncertainty about who should be managing her property and personal-care decisions.[21] Given the modest size of her estate and the competing interests of Mr. Carty and the children, the court found that a timely assessment was essential to protect her.

E. Weight to Be Given to Ms. Melcher’s Wishes

Although Ms. Melcher stated in her affidavit that she did not want an assessment, the court placed minimal weight on this preference.[22] Her affidavit showed little insight into her diagnoses, and she could not recall the medical findings that prompted concerns. More importantly, her cross-examination demonstrated that she did not understand the nature of the proceedings or the content of her affidavit, and the examination had to be stopped before her evidence could be tested.[23]

While the SDA respects autonomy and privacy, those values give way where capacity is seriously in doubt and the risk of harm is significant. Here, the protective purpose of the SDA required an assessment notwithstanding her stated wishes.

Conclusion

Justice Somji held that the Applicants had met their burden under s. 79 of the SDA. It ordered a capacity assessment to address:

• Capacity to manage property and personal care;
• Capacity to grant powers of attorney for property and personal care;
• Testamentary capacity;
• Capacity to instruct counsel; and
• Capacity at the time the October 2024 Documents were executed.

The court declined to order an assessment back to the date of the Original Testamentary Documents because their validity and the respondent’s capacity at that time were not squarely in issue on the pleadings.[24]

Final Thoughts

For estates and capacity practitioners, Melcher illustrates that:

• A well built evidentiary record of cognitive decline and vulnerability will support a s. 79 order even where an earlier “private” assessment exists.
• Litigation driven assessments will be scrutinized for independence, methodology, and adherence to the correct legal tests.
• A vulnerable person’s stated refusal to be assessed may be overridden where there is compelling evidence of incapacity and risk of harm.

[1] 2025 ONSC 6567 [Melcher].

[2] Ibid at para 4.

[3] Ibid at para 5.

[4] Ibid at para 8.

[5] Ibid at para 9.

[6] Ibid at para 10.

[7] Ibid at para 12.

[8] Ibid at para 14.

[9] 2008 ONSC 67884.

[10] 2012 ONSC 3045.

[11] Melcher, supra note 1 at para 24.

[12] Ibid at para 30.

[13] Ibid.

[14] Ibid at para 27.

[15] Ibid at para 37.

[16] Ibid at para 42.

[17] Ibid at para 49.

[18] Ibid at paras 53-63.

[19] Ibid at para 62.

[20] Ibid at para 74.

[21] Ibid at para 76.

[22] Ibid at para 82.

[23] Ibid at para 80.

[24] Ibid at para 85.