12/04/2025
Court Orders Independent Capacity Assessment Despite Existing Report (Melcher v. Melcher, 2025 ONSC 6567 (CanLII), ,)
Our firm achieved an important result in a complex capacity and elder-law matter.
We brought a motion under section 79 of the Substitute Decisions Act for a court-ordered capacity assessment. While the motion was pending, opposing counsel obtained a private assessment and argued that no further assessment was necessary.
The Court disagreed.
Justice Somji found there were clear grounds to question capacity and concluded that the existing report was not reliable. The Court ordered a full, independent assessment, including capacity to manage property, personal care, instruct counsel, and execute the October 2024 documents.
Key takeaway: A previous assessment does not bar an independent one. What matters is the reliability and quality of the report, especially where evidence of cognitive decline or vulnerability exists.
Proud of our team for this important win.