What is the relevant period for determining capacity to instruct counsel in a family law proceeding?

Ontario, Canada


The following excerpt is from Evans v Evans, 2017 ONSC 4345 (CanLII):

At para. 56, he stated: In determining a litigant’s capacity to instruct counsel, the court is concerned with the person’s decision-making over the entire duration of the proceeding. While the specific issue of what period of time is relevant for purposes of determining capacity to instruct counsel has not, insofar as I am able to ascertain, been determined in a previous case, the conclusion that the relevant period is the entire duration of the litigation follows from the following considerations: a) As the Master noted in Cameron v. Loudon, above, the test of capacity is a functional one, particular to the task or activity at issue. In the case of capacity to instruct counsel, the activity consists of the full range of decisions that the litigant is required to make in the proceeding. b) The decisions that the litigant needs to make, and which are at issue in the determination as to capacity to instruct counsel, are not made in one single moment, as where a settlor executes a Power of Attorney or a testator executes a Will. The decisions in a family law proceeding are on-going throughout the proceeding.

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