In Licursi v. Bank of Montreal, 2026 ONSC 944[1], the Ontario Superior Court of Justice was confronted with what it described, candidly, as “a bitter contest between two sisters over the care of their elderly father and control over his life’s savings.”[2]
At issue was whether a 92-year-old man living on a secure memory care floor of his retirement home should be compelled to undergo a capacity assessment.
The Court’s answer was yes. And, in the words of the motion judge, it was “not a close call.”[3]
Facts
Donald McKay (the alleged incapable person, or “AIP”) is 92 years old.[4] His health challenges are significant: stage-5 kidney disease, colon cancer, bladder cancer, diabetes, hypertension, and moderate dementia.[5] He is frail and cognitively impaired. The seriousness of those impairments became the focal point of the litigation.
The AIP’s daughters, Peggi Licursi (the “Plaintiff”) and Shirlene McKay (the “Defendant”), are embroiled in two related proceedings.
In the first, an action commenced by the Plaintiff and the AIP, damages of $500,000 are claimed. The pleading alleges that the Defendant fraudulently obtained and used a 2019 power of attorney for property to misappropriate more than $400,000.[6] The Bank of Montreal and a lawyer are also named as defendants.
At a case conference, the parties agreed that the only live issue remaining in that action was a defamation claim.[7] However, the Defendant took the position that the AIP lacked the capacity to instruct counsel and required a litigation guardian.[8]
The second proceeding is an application commenced by the Defendant in her capacity as litigation guardian and attorney for property for her father.[9] The Plaintiff and other parties including a late family member, a law firm and its principal were named as Respondents. The Defendant seeks sweeping relief: setting aside property transfers, imposing non-dissipation orders, declaring fiduciary breaches, challenging subsequent powers of attorney, confirming the validity of the 2019 power of attorney in her favour, and an order compelling a passing of accounts.[10]
Central to both proceedings was the AIP’s capacity.
The Defendant brought the motion at issue, seeking an order under s. 105 of the Courts of Justice Act requiring her father to undergo an assessment of his capacity to instruct counsel, manage property, commence litigation, settle proceedings, grant or revoke powers of attorney, and make a will.[11] The AIP opposed the motion and filed an affidavit asserting that he had full capacity and did not require an assessment.
Analysis
The Governing Principles
Section 105(2) of the Courts of Justice Act permits the Court to order a mental examination where a party’s mental condition is in question.[12] However, s. 105(3) requires more than mere allegation: the incapacity must be relevant, and there must be good reason to believe the allegation has substance.[13]
The Court relied on the framework articulated in Abrams v. Abrams[14], where Strathy J. emphasized that ordering a psychological assessment is a significant intrusion on dignity, privacy, and autonomy.[15] Courts must balance an individual’s fundamental rights against the obligation to protect vulnerable persons.
Relevant considerations include the nature of the proceedings, the quality of the evidence regarding capacity, whether the assessment is necessary to determine the issues, the potential harm of not ordering an assessment, urgency, and the wishes of the person sought to be examined.[16]
Is Capacity in Issue?
The Court had little difficulty concluding that capacity was squarely in issue.
In the action, the AIP was a named plaintiff. His ability to instruct counsel, to commence litigation, and to enter into a binding settlement agreement were directly engaged.
In the application, even more was at stake. His capacity to manage property, to grant or revoke powers of attorney, and to make a will were all central to the relief sought. His ongoing ability to determine who should control his finances and personal care was also implicated.
Without resolving the question of capacity, the proceedings could not meaningfully advance.
Is There Substance to the Allegation of Incapacity?
The evidentiary record was extensive.
Medical records documented moderate-stage dementia, confusion, delirium, and memory deficits.[17] The AIP had failed a financial capacity assessment through Community Care.[18] Hospital discharge summaries referenced incapacity, though not always specifying the precise domain.[19] He resided on a secure memory care floor and was dependent on others for care and safety.[20]
Against this record stood the AIP’s affidavit asserting that he understood the litigation and possessed full capacity.[21]
The Court acknowledged that the AIP did not prepare the affidavit himself and that it could not determine how accurately it reflected his true cognitive status.[22] The objective medical evidence raised serious concerns that were not displaced by his sworn statements.
The Court concluded that there was ample evidence of significant cognitive deficits and that the threshold under s. 105(3) was met.
The Scope of the Order
The Court ordered a comprehensive assessment by Dr. Fiona Menzies, to be conducted at the AIP’s residence.[23] The assessment was to address contemporaneous capacity and, to the extent possible, retrospective capacity to August 1, 2023.[24]
It was to cover multiple domains: capacity to instruct counsel, manage property, commence litigation, enter into settlement, grant or revoke powers of attorney, and make a will.[25]
The cost was to be borne by the AIP, who was found to have sufficient assets to fund the assessment without jeopardizing his care.[26]
Importantly, the Court lifted the deemed undertaking rule with respect to the assessment evidence, permitting its use in the related application and thereby reducing the likelihood of duplicative assessments.[27]
Finally, the Court stayed a pending motion seeking to remove the Defendant as litigation guardian until the assessment was completed.[28] The results of the assessment would inform whether a litigation guardian was required at all, and whether any alleged conflict was genuine.
Concluding Thoughts
Licursi underscores that where documentary medical evidence points to significant cognitive decline, courts will not hesitate to order an assessment if the statutory threshold is met, even in the face of sworn assertions of capacity. The intrusion on autonomy is real, but so too is the Court’s obligation to protect vulnerable individuals and to ensure that litigation proceeds on a legitimate footing.
Before determining who controls property, who acts as litigation guardian, or whether prior transactions are valid, the Court insisted on answering the foundational question: does the individual have the capacity to decide for himself?
—
[1] 2026 ONSC 944 [Licursi].
[2] Ibid at para 1.
[3] Ibid at para 45.
[4] Ibid at para 2.
[5] Ibid.
[6] Ibid at para 9.
[7] Ibid at para 13.
[8] Ibid at para 14.
[9] Ibid at para 15.
[10] Ibid at para 17.
[11] Ibid at para 4.
[12] Ibid at para 39.
[13] Ibid at para 40.
[14] [2008] O.J. No. 5207 (S.C.J.).
[15] Licursi, supra note 1 at para 41.
[16] Ibid at para 44.
[17] Ibid at para 27.
[18] Ibid.
[19] Ibid.
[20] Ibid.
[21] Ibid at para 29.
[22] Ibid at para 53.
[23] Ibid at para 55.
[24] Ibid.
[25] Ibid.
[26] Ibid at para 54.
[27] Ibid at para 55.
[28] Ibid at para 63.
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Written by: Emily Caza
Posted on: March 3, 2026
Categories: Commentary
In Licursi v. Bank of Montreal, 2026 ONSC 944[1], the Ontario Superior Court of Justice was confronted with what it described, candidly, as “a bitter contest between two sisters over the care of their elderly father and control over his life’s savings.”[2]
At issue was whether a 92-year-old man living on a secure memory care floor of his retirement home should be compelled to undergo a capacity assessment.
The Court’s answer was yes. And, in the words of the motion judge, it was “not a close call.”[3]
Facts
Donald McKay (the alleged incapable person, or “AIP”) is 92 years old.[4] His health challenges are significant: stage-5 kidney disease, colon cancer, bladder cancer, diabetes, hypertension, and moderate dementia.[5] He is frail and cognitively impaired. The seriousness of those impairments became the focal point of the litigation.
The AIP’s daughters, Peggi Licursi (the “Plaintiff”) and Shirlene McKay (the “Defendant”), are embroiled in two related proceedings.
In the first, an action commenced by the Plaintiff and the AIP, damages of $500,000 are claimed. The pleading alleges that the Defendant fraudulently obtained and used a 2019 power of attorney for property to misappropriate more than $400,000.[6] The Bank of Montreal and a lawyer are also named as defendants.
At a case conference, the parties agreed that the only live issue remaining in that action was a defamation claim.[7] However, the Defendant took the position that the AIP lacked the capacity to instruct counsel and required a litigation guardian.[8]
The second proceeding is an application commenced by the Defendant in her capacity as litigation guardian and attorney for property for her father.[9] The Plaintiff and other parties including a late family member, a law firm and its principal were named as Respondents. The Defendant seeks sweeping relief: setting aside property transfers, imposing non-dissipation orders, declaring fiduciary breaches, challenging subsequent powers of attorney, confirming the validity of the 2019 power of attorney in her favour, and an order compelling a passing of accounts.[10]
Central to both proceedings was the AIP’s capacity.
The Defendant brought the motion at issue, seeking an order under s. 105 of the Courts of Justice Act requiring her father to undergo an assessment of his capacity to instruct counsel, manage property, commence litigation, settle proceedings, grant or revoke powers of attorney, and make a will.[11] The AIP opposed the motion and filed an affidavit asserting that he had full capacity and did not require an assessment.
Analysis
The Governing Principles
Section 105(2) of the Courts of Justice Act permits the Court to order a mental examination where a party’s mental condition is in question.[12] However, s. 105(3) requires more than mere allegation: the incapacity must be relevant, and there must be good reason to believe the allegation has substance.[13]
The Court relied on the framework articulated in Abrams v. Abrams[14], where Strathy J. emphasized that ordering a psychological assessment is a significant intrusion on dignity, privacy, and autonomy.[15] Courts must balance an individual’s fundamental rights against the obligation to protect vulnerable persons.
Relevant considerations include the nature of the proceedings, the quality of the evidence regarding capacity, whether the assessment is necessary to determine the issues, the potential harm of not ordering an assessment, urgency, and the wishes of the person sought to be examined.[16]
Is Capacity in Issue?
The Court had little difficulty concluding that capacity was squarely in issue.
In the action, the AIP was a named plaintiff. His ability to instruct counsel, to commence litigation, and to enter into a binding settlement agreement were directly engaged.
In the application, even more was at stake. His capacity to manage property, to grant or revoke powers of attorney, and to make a will were all central to the relief sought. His ongoing ability to determine who should control his finances and personal care was also implicated.
Without resolving the question of capacity, the proceedings could not meaningfully advance.
Is There Substance to the Allegation of Incapacity?
The evidentiary record was extensive.
Medical records documented moderate-stage dementia, confusion, delirium, and memory deficits.[17] The AIP had failed a financial capacity assessment through Community Care.[18] Hospital discharge summaries referenced incapacity, though not always specifying the precise domain.[19] He resided on a secure memory care floor and was dependent on others for care and safety.[20]
Against this record stood the AIP’s affidavit asserting that he understood the litigation and possessed full capacity.[21]
The Court acknowledged that the AIP did not prepare the affidavit himself and that it could not determine how accurately it reflected his true cognitive status.[22] The objective medical evidence raised serious concerns that were not displaced by his sworn statements.
The Court concluded that there was ample evidence of significant cognitive deficits and that the threshold under s. 105(3) was met.
The Scope of the Order
The Court ordered a comprehensive assessment by Dr. Fiona Menzies, to be conducted at the AIP’s residence.[23] The assessment was to address contemporaneous capacity and, to the extent possible, retrospective capacity to August 1, 2023.[24]
It was to cover multiple domains: capacity to instruct counsel, manage property, commence litigation, enter into settlement, grant or revoke powers of attorney, and make a will.[25]
The cost was to be borne by the AIP, who was found to have sufficient assets to fund the assessment without jeopardizing his care.[26]
Importantly, the Court lifted the deemed undertaking rule with respect to the assessment evidence, permitting its use in the related application and thereby reducing the likelihood of duplicative assessments.[27]
Finally, the Court stayed a pending motion seeking to remove the Defendant as litigation guardian until the assessment was completed.[28] The results of the assessment would inform whether a litigation guardian was required at all, and whether any alleged conflict was genuine.
Concluding Thoughts
Licursi underscores that where documentary medical evidence points to significant cognitive decline, courts will not hesitate to order an assessment if the statutory threshold is met, even in the face of sworn assertions of capacity. The intrusion on autonomy is real, but so too is the Court’s obligation to protect vulnerable individuals and to ensure that litigation proceeds on a legitimate footing.
Before determining who controls property, who acts as litigation guardian, or whether prior transactions are valid, the Court insisted on answering the foundational question: does the individual have the capacity to decide for himself?
—
[1] 2026 ONSC 944 [Licursi].
[2] Ibid at para 1.
[3] Ibid at para 45.
[4] Ibid at para 2.
[5] Ibid.
[6] Ibid at para 9.
[7] Ibid at para 13.
[8] Ibid at para 14.
[9] Ibid at para 15.
[10] Ibid at para 17.
[11] Ibid at para 4.
[12] Ibid at para 39.
[13] Ibid at para 40.
[14] [2008] O.J. No. 5207 (S.C.J.).
[15] Licursi, supra note 1 at para 41.
[16] Ibid at para 44.
[17] Ibid at para 27.
[18] Ibid.
[19] Ibid.
[20] Ibid.
[21] Ibid at para 29.
[22] Ibid at para 53.
[23] Ibid at para 55.
[24] Ibid.
[25] Ibid.
[26] Ibid at para 54.
[27] Ibid at para 55.
[28] Ibid at para 63.
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