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In some situations, one party in a proceeding may ask the court for an order directing the other party to undergo to a capacity assessment. An Ontario court recently considered this interesting question and explained when it might be appropriate to impinge upon a party’s autonomy and privacy interests by making such an order.


The Parties’ Story

The parties were married in February 2011 and separated in September 2017. They had one child, who was five years old. The child had been diagnosed with autism.

The husband had concerns about the wife’s mental well-being. For example, the husband was concerned that the wife had expressed a belief that his parents arranged for a chip to be implanted in her body so that they could monitor her activities. The wife also thought that the husband had hidden video cameras in her home so that he could monitor her.

The husband also expressed concern that the wife had made inappropriate treatment decisions about the child’s autism.

The wife agreed that she had a delusional disorder, but maintained that it was limited to her ideas about being monitored. She stated that it did not negatively affect her judgment. The wife also indicated that she was currently undergoing treatment and that she no longer had ideas about being monitored.

The husband believed that it might be necessary to have the wife declared a “special party” under rule 2(1) of the Family Law Rules. Before seeking such an order, however, the husband brought a motion for an order requiring the wife to undergo a capacity assessment.


The court began by explaining that it had jurisdiction under s. 105 of the Courts of Justice Act (CJA) to make an order for a capacity assessment. Specifically, s. 105(2) of the CJA provides:

Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.

Furthermore, s. 105(3) of the CJA states:

Where the question of a party’s physical or mental condition is first raised by another party, an order under this section shall not be made unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe that there is substance to the allegation.

The court also indicated that it had to balance the affected party’s fundamental rights against:

  • its duty to protect the vulnerable;
  • its interests and the interests of the other parties; and
  • the societal interests.


The Court’s Decision

In granting the husband’s motion, the court found that while ordering a capacity assessment would be a significant intrusion on the wife’s autonomy and privacy interests, it was very important that the child’s interests were protected. The court noted that the child was young and had special needs, and that the wife’s capacity might relate to her ability to parent, as well as her ability to conduct the proceeding and perhaps settle some or all of the issues between the parties.

The court concluded that there was good reason to believe the husband’s allegation that the wife may not have capacity, including that:

  • The wife agreed she had a delusional disorder and had made statements before various courts about the delusions she had.
  • The wife had not specifically retracted all of her delusional statements (for example, that the husband gave the child autism “through his blood”).
  • The wife’s beliefs that the child’s autism was cured could negatively affect her parental decision-making.
  • The mother had made statements in the past that demonstrated a lack of judgment, which raised a question about her capacity to make decisions for the child.
  • The evidence of the parties conflicted on a number of points, and these conflicts raised the question of the wife’s current beliefs and how they might impact her care of the child.

The court explained that, in this case, the wife’s capacity was relevant to a material issue in the proceeding in that her capacity could impact her ability to care for and make decisions for the child.

As a result, the court ordered the wife to undergo a capacity assessment.


Lessons Learned

The court will perform a contextual analysis in determining whether or not it is appropriate to direct a party to undergo a capacity assessment, including considering what kind of potential impact the party’s capacity might have on their ability to parent.

Separation and divorce is best handled with the assistance of a knowledgeable family law lawyer. At Gelman & Associates, our lawyers – who are knowledgeable and compassionate, but also tough when necessary – provide exceptional legal representation in all family law matters. Our goal is to always empower clients to make informed decisions about their future. We give all prospective clients a comprehensive family law kit during their initial consultation, as well as a copy of our firm’s handbook on separation and divorce. This information is full of resources that will help you understand and navigate the difficult and often complicated separation and divorce process.

With six offices throughout Aurora, Barrie, Downtown Toronto, Mississauga, North York and Scarborough, we are easily accessible by transit and off-highway. Our phone lines are open Monday to Friday from 8:00 a.m. to 8:00 p.m. Call us at (844) 769-0737 or 1-844-769-0737, or contact us online for an initial consultation.

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