‘reasonable grounds to believe the person is incapable’ if they have presented
the court with recent assessments asserting their capacity. If there is persuasive
evidence of incapacity from after the date of the most recent assessments, or
there is evidence of obvious weaknesses or omissions in the assessments, then
there may be reason to further explore the issue of capacity. Otherwise, it is not
appropriate to assert that there is good reason to believe a person is incapable,
based on the older assessments used to create the guardianship when there is
more recent evidence before the court that states they are capable.
The SDA is intended to ensure a person can re-assert their autonomy at the
earliest possible moment. Any decision or order that ignores new positive
assessments of capacity and relies instead on much older negative assessments
would be subjecting the individual to a higher standard of evidence than required
and would also be contrary to the stated objectives and intent of the SDA.
d. Standard of Proof Required when Confirming CapacitySection 79(1) assessments are often justified on the basis that further information
is necessary to confirm the person’s capacity because the existing information
does not provide certainty about the person’s capacity The SDA does not require
certainty or demand that the evidence of capacity meet the higher “beyond a
reasonable doubt” standard of proof.
The legal standard to be applied in capacity matters is the civil standard of proof,
on a “balance of probabilities.”^41 This means that as long as a qualified capacity
assessor has determined that it is more likely than not that the person is capable
- they are capable. This should be sufficient to convince the Court. As noted by
(^41) See F.K. (Re), 2010 CanLII 55557 (ON CCB) p 4.