Mental Health Issues: Ordering a Parent to Undergo a Capacity Assessment


By Written on behalf of Campbell Bader LLP

An Ontario court recently grappled with a husband’s motion to have his wife ordered to undergo a capacity assessment to determine her ability to parent and make decisions for their five-year-old daughter.

What Happened?

The parties were married in 2011 and separated in 2017. They are the parents to a five-year-old daughter, who had been diagnosed with autism. They continued to live in the same home with their daughter and the husband’s parents. The parents and their daughter share a single bedroom.

The husband brought a motion to determine whether the wife should be ordered to undergo a capacity assessment.

He brought the motion out of concern for the wife’s mental well-being. Among other things, the wife had expressed a belief that the husband’s parents arranged to have a chip implanted in her body which allowed a live stream of her activities to be relayed to them. She had also indicated that the husband had hidden video cameras in the home which he used to monitor her. She also stated that he listened to the calls she made on her phone. The husband denied any attempts to monitor the wife.

In addition, the wife had stated that the husband had Asperger’s and that he gave their daughter autism “through his blood”. The husband denied that he has Asperger’s.

The wife had also stated that their daughter’s autism had been cured. As a result, the husband claimed that she had made inappropriate treatment decisions for their daughter. In response, the wife stated that while she and the husband disagreed about treatment, her decisions did not reflect a lack of capacity on her part.

The husband believed that the wife should undergo a capacity assessment under s. 105 of the Courts of Justice Act or s. 79 of the Substitute Decisions Act in order to assess whether she should be declared a “special party” under r. 2(1) of the Family Law Rules (the “Rules”). Under the Rules, a “special party” is defined as:

“[A] party who is a child or who is or appears to be mentally incapable for the purposes of the Substitute Decisions Act, 1992 in respect of an issue in the case and who, as a result, requires legal representation, but does not include a child in a custody, access, child protection, adoption or child support case.”

In response to the motion, the wife agreed that she had a delusional disorder but argued that it was limited to her ideas about being monitored and that it did not impair her judgment. She relied on a report of a medical assessment of her psychiatric condition undertaken by a psychiatrist on referral from her family doctor, and two letters from her family doctor. However, the husband maintained that the letters and the report were not capacity assessments and provided a report from a capacity assessor stating that the psychiatrist’s report did not amount to a capacity assessment.

The wife stated that she was undergoing treatment for her delusional disorder. She submitted that she no longer had ideas about being monitored. Therefore, she argued that there was no basis for an order requiring her to undergo a capacity assessment, and that such an order would be an unwarranted intrusion into her privacy and autonomy.


The main issue was whether the court should make an order directing the wife to undergo a capacity assessment.

The Decision

The court began by setting out the relevant provisions under s. 105 (2) and (3) of the Courts of Justice Act:

105 (2) 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.

(3) 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.

In making the request, the husband bore the burden of establishing that the order should be made.

Further, the court stated it must balance the interests of the affected parties. This included considering the fact that a capacity assessment was a significant intrusion on the wife’s autonomy and privacy interests. In addition, the court considered the interests of others, including those of the daughter.

Having reviewed the submission, the court was satisfied that husband’s allegation that the wife may not have capacity had merit. It based its decision on the wife’s admission that she has a delusional disorder and the various statements she had made regarding being under surveillance, that her husband had Asperger’s and gave their daughter autism “through his blood” and her contradictory statements about her daughter being cured of her condition. Additionally, the court found that the medical reports submitted by the wife were hearsay and therefore not admissible for the truth of their contents.

As a result, the court found that there was sufficient evidence that the wife’s capacity was relevant to the material parenting issues in the proceeding and that it was appropriate that the wife undergo a capacity assessment.

Get Advice

Separation and divorce are challenging for everyone involved.  When dealing with custody or access disputes, matters involving spousal and child support, the division of assets, and other family issues, emotions can be your worst enemy. Having an experienced family lawyer on your side can help you stay focused and resolve disputes as quickly and amicably as possible.

At Campbell Bader LLP our family team has collectively spent more than twenty years advising clients about family disputes, including those involving high net worth individuals or complex matters.

We value and incorporate collaborative family law principles into our practice, but we’re smart enough to recognize when that approach won’t work for you and we adapt our strategy accordingly. To learn more about how we can help you, contact us online or at 905-828-2247.



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