Respecting Autonomy and Family Contact
Orr v Orr, 2025 ONSC 4986
Mr. William “Bill” Orr, age 82, is a man living in a secure ward of a long-term care home. He has advanced Alzheimer’s Disease, first diagnosed in 2018.
Bill’s wife, Gwen, held his power of attorney for property and personal care.
Before Bill’s illness had progressed, a significant rift developed between Bill and his children, Nathan and Alison, primarily over succession planning for a business Bill had established. In association with this conflict, Bill changed his estate documents in 2021, excluding his children as heirs, and leaving a gift over residue to his grandchildren. He declared to his lawyer that he wanted nothing to do with his children.
In 2023, as a result of the worsening manifestations of his illness, Bill had a severe confrontation with his wife. He was placed in a Geriatric Mental Health Unit in a hospital and then moved into the care home. Alison and Nathan visited Bill in the hospital and later in the care home. After Bill was admitted to the care home, Gwen sought to exclude the children from seeing their father. The home administration did not agree to the request, but asked that Alison call ahead before visiting, and advised that her visits would be on notice to Gwen.
In 2024, Gwen filed an application seeking a declaration that Bill was incapable of personal care and seeking directions under her power of attorney. The matter was heard in December 2024.
The core of the Court’s analysis at the hearing is the value of upholding a person’s autonomy and respecting their ability to be self-directed where possible. The Court also emphasizes the legal presumption of capacity. A person seeking a declaration of someone else’s incapacity has the burden to prove it. Under the Substitute Decisions Act (“SDA“) of Ontario, a person is incapable if they are “not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision” (s.45).
While Gwen filed medical evidence in support of her Application from Bill’s treating geriatrician, the doctor was not a professional who was qualified to do assessment of capacity under the legislation’s regulations, which requires completion of education requirements and regular engagement in conducting assessments over 2-year intervals.
The Court makes a compelling statement about the nuanced nature of capacity and that it is not an “all-or-nothing question”: it requires an individualized inquiry. Incapacity does not arise merely from a diagnosis, and capacity varies depending on the activity in question and will change over time (at para. 54). While Bill was not able, for instance, to communicate effectively verbally, he continued to communicate non-verbally in the form of enjoying music, recognizing his wife, or adjusting his behaviours, depending on who was in his presence (at para. 52).
The Court declined to grant the declaration of incapacity as sought by Gwen. It stated that a “formal finding of incapacity” was not needed, and such a finding would have “profound implications on Bill’s individual rights and autonomy.” (at para. 59).
This did not end the analysis, however, as the Court went on to consider whether to make directives to Gwen in terms of exercising her authority as Bill’s power of attorney. Under her statutory duties (s.66 of the SDA), Gwen is directed to foster regular personal contact between Bill and supportive family members and friends, as well as make decisions in accordance with wishes expressed by Bill when he was capable. Under the statute, in the case of expressions of wishes or instructions, the most recent expression is to prevail.
The nature of Bill’s wishes was at the heart of the matter. While Bill had expressed a wish years earlier that he wanted nothing to do with his children (a wish Gwen said she was respecting), the Court found that there was evidence Bill remained open to reconciliation with his children and had re-established communication. The Court did not find that Bill ever expressed a wish that his children be denied visitation with him. In 2023, he was found to be capable of deciding to visit with his children, and staff at the home who observed the visit said he recognized his children and was “engaged, talkative and smiling” when he was with them (at para. 80). While Gwen disputed this evidence, she did not file any evidence to rebut a presumption that Bill could decide to engage in the visits.
The Court then had to determine if it should deny Bill’s visits with his children if the interaction was not in his best interests. Gwen’s doctor indicated that it could be stressful for Bill to be in the presence of his children, as it could conjure up memories of their conflict, but the Court also noted Bill had a history of conflict with Gwen (as a result of his illness), which her presence could remind him about. The care home did its statutory duty to monitor Bill’s well-being during any visits, and there was no evidence of harm or distress to him (at para. 91).
Alison also sought directions from the Court in terms of maintaining her ability to see her father, without interference from Gwen. The Court concluded the matter by establishing a visitation schedule for Alison, who could visit along with family and friends (the son, Nathan, did not respond to Gwen’s Application). While the Court noted Gwen was a loving and attentive spouse and caregiver, it stated that Gwen’s own history of conflict with her children was interfering with her decision-making for Bill in Bill’s best interests.
Orr v Orr provides excellent direction to counsel advising people acting under a power of attorney in terms of their statutory duties which may sometimes conflict with their personal preferences and provides a helpful reminder about the legislated requirements for capacity assessments and capacity-related evidence.
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