Capacity Issues in Family Law
Lonny Rosen presented a paper entitled “A Blunt but Necessary Instrument: The Application of Consent and Capacity Law to Family Law Proceedings” at a Law Society Family Law Program.
Our paper provided a review of the legislative framework governing consent, capacity and mental health law, and examined the application of this legislative framework to family law proceedings. A summary of the paper and presentation is set out below:
This topic was included in the Family Law Program because of the myraid ways in which issues of consent, capacity, substitute decision-making and mental health come up in the context of family law proceedings.
Some examples of these types of issues include clients' concerns or allegations that:
“My ex-spouse needs treatment”
“He may be entitled to money, but he can’t be trusted with it!”
“My ex is not fit to take care of my kids”
“I may not have custody but I’m still a parent, my kid needs that attention from me and I have a say in my kid’s health care decisions!”
“The Hospital is asking our daughter’s estranged husband for consent to withdraw care!”
“My ex is only saying that I am crazy so that I won’t claim for support”
When these issues arise in the context of a separation, divorce, or custody battle, family law clients and their counsel often look to consent and capacity law to advance their cause or protect themselves or their children. However, when parties to family law proceedings seek recourse to consent and capacity law to gain a tactical advantage, they are often disappointed to find that the protective nature of this legislation is ill-suited to provide the gain they seek and expect. Conversely, there are occasions where recourse to the provisions of the Health Care Consent Act, 1996 (HCCA) and the Substitute Decisions Act, 1992 (SDA) are necessary for the protection of clients and even other parties (such as children) from other parties or even from themselves, to prevent them from suffering financial harm or other adverse effects, or to facilitate treatment or support. When the need exists for the protective mechanisms of consent and capacity law, these can be very effective and important.
Consent and capacity is a challenging area of the law. As there is increasing interplay between consent and capacity law and family law proceedings, counsel should be aware of the mechanisms and protections available in the HCCA and the SDA, and how these impact on decision-making by clients and other parties to family law proceedings. The case law in this area shows that context will often play a role in how courts interpret evidence and allegations. For example, in the case of a divorce proceeding, a spouse’s allegation that his or her spouse is incapable (particularly if this is raised only for the first time during family law proceedings) may be viewed as tactical rather than a legitimate expression of concern. Accordingly, in the context of family law proceedings, attempts to utilize the SDA or HCCA to pursue a remedy are often ineffective.
Nonetheless, the protections found in consent and capacity law may have to be utilized by vulnerable family law clients and their counsel to prevent abuse or adverse effects from the client’s spouse or the client him or herself. Additionally, the analysis of capacity found in SDA proceedings may be applicable in family law proceedings. Thus, the courses of action available to parties in consent and capacity law are better suited to the family law context when used as protective measures as opposed to being used as instruments to pursue gains in family law proceedings.
Please note:
Lonny J. Rosen, C.S. is a part-time Senior Lawyer Member of the Consent and Capacity Board of Ontario (the "CCB"), but presented this paper in his individual capacity. The views expressed in this paper are those of Mr. Rosen and are not to be attributed to the CCB nor do they represent the views of CCB members.
