A lawyer must take reasonable steps to ensure that a client is competent throughout a matter to give instructions.1
Consideration of the client’s competence involves consideration of all factors known to the lawyer which may impair a client’s judgment. These include factors such as age, emotional state, the presence of threatened or actual physical or emotional abuse or coercion and other of the client’s personal circumstances and the impact that these circumstances may have on a client, his or her ability to instruct, negotiate freely and to communicate or make decisions.2
- Nova Scotia (Minister of Health) v. J.(J.), 2003 NSSF 42 (CanLII), 217 N.S.R. (2d) 264. – The test of capacity (under Adult Protection Act) must be related specifically to the task being performed; Finlayson Estate (Re) 2008 NSSC 58 (Probate Act) there can be capacity to act as Executor despite limited cognitive capacity if there is ability to communicate with/instruct counsel. Nova Scotia (Minister of Health) v. C.R. 2011 NSSC 299: Order requiring adult to accept services offered by Minister; McClenahan v. Clarke, 2004 CanLII 25843 (Ont. Sup. Ct.). – Competency may be impeded by emotional state, situational or environmental considerations, medication, psychological factors, addictions or other issues. Weldon McInnis v. John Doe, 2014 NSSM 13 (CanLII)
- K. (M.) v Nova Scotia (Minister of Community Services) (1996), 153 N.S.R. (2d) 20 (N.S. Fam. Ct.) – Inquiry into fitness and competency (application to set aside permanent care/custody order – alt cit. M.K. v. Nova Scotia (Minister of Community Services) – see especially paras. 64 – 86 review of differences in capacity in civil v. criminal matters); McClenahan v Clarke, 2004 CanLII 25843 (Ont. Sup. Ct.) – Circumstances that may impact on a client’s ability to receive information, make decisions and provide instructions in the normal course.
Adult Capacity and Decision-making Act, SNS 2017, c 4
Adult Protection Act, R.S.N.S. 1989, c. 2
Civil Procedure Rule 60 – Child and Adult Protection
Children and Family Services Act, S.N.S. 1990, c. 5, amended 1994-95, c. 7, ss. 11-15, 150; 1996, c. 10; 1996, c. 3, ss. 37, 38; 2001, c. 3, s. 4; 2002, c. 5, ss. 2, 3; 2005, c. 15; 2008, c. 12.
Domestic Violence Intervention Act, S.N.S. 2001, c. 29, amended 2002, c. 30, s. 2
Hospitals Act, R.S.N.S. 1989, c. 208
Involuntary Psychiatric Treatment Act, S.N.S. 2005, c. 42
Probate Act, S.N.S. 2000, c. 31, amended 2001, c. 5, ss. 12 – 33, 2002, c. 5, s. 47; 2004, c. 3, s.31; 2007, c.9, s. 35; 2007, c.50; 2009, c.5, s. 26; 2001, c. 8, s. 20; 2013, c. 3, s. 13
Public Trustee Act, R.S.N.S. 1989, c. 379
Trustee Act, R.S.N. S. 1989, c. 479
Law Reform Commission / “Discussion Paper” regarding the Powers of Attorney Act (March 2014).
Rick v Brandsema, 2009 SCC 10 (CanLII).,  1 S.C.R. 295. – Unconscionable agreement – Emotional environment – Mental state – Informational and psychological exploitation.
Miglin v Miglin, 2003 SCC 24 (CanLII).,  1 S.C.R. 303.- Emotional stress – Effect of professional assistance – Referring a client for advice or counselling before negotiating a final settlement or agreement.
D.(G.) v. Family & Children’s Services of Lunenburg (County), 1997 CanLII 14392,  160 N.S.R. (2d) 270. (NSCA) – CFSA statutory duties – failure to question appellant as to her understanding and voluntary consent to Order – Appellant suffering from chronic stress; history of mental illness; below average intelligence.
Stevens v. Stevens, 2012 ONSC 706 (CanLII): Marriage contract set aside on multiple grounds including wife’s active and unmedicated bipolar condition during negotiations. Affirmed  ONCA 267 (capacity finding not ground of appeal).
Children’s Aid Society of Halifax v. V. (C.) and F. (L.), 2005 NSSC 170 (CanLII),  235 N.S.R. (2d) 67. – Child in need of protective services – psychiatric assessment ordered of parent – Charter challenge; Appeal dismissed – 2006 NSCA 2; 2005 NSCS 49 – application to amend notice of appeal – appointment of counsel – appointment of amicus curiae.
Hemphill Estate v. Hemphill, 1998 CanLII 2284 (NSCA): Capacity to marry. Presumption of Competency until proven otherwise. Onus on applicant asserting incapacity.
Ocean v. Economical Mutual Insurance Co. 2009 NSCA 81: No inherent or Civil Procedure Rule jurisdiction to order a psychiatric assessment to determine competency to self-represent where competency not at issue in proceeding.
Nova Scotia (Public Trustee) v. I.W. 2014 NSCA 10: As neither trustee nor guardian of W’s property, Public Trustee had no recourse to Court’s inherent jurisdiction to authorize sale of W’s property.
Vernon v. Sutcliffe, 2014 NSSC 376 – Application to remove the lawful attorneys was dismissed. Conduct of attorney pre-dating incapacity of donor is reviewable under s.5 (c) of the Powers of Attorney Act. It is preferable but not always necessary for a court to have expert opinion evidence to establish a state of “legal incapacity”. To remove an attorney under the Powers of Attorney Act, the court must gauge the attorney’s duty towards the donor according to the attorney’s abilities and remove the attorney only upon a finding of misfeasance or compelling evidence of misconduct or neglect, as stated by LeBlanc, J. in Isnor Estate, Re, 2001 CanLII 25721 (NS SC).
McInnis v. McGuire, 2014 NSSC 437 – Appeal of taxation of legal accounts from Small Claims Court decision. Principle of reasonableness applies when reviewing the decision of a lawyer to retain an expert to assess her client’s capacity. Lawyers may differ in their approach to various legal problems. Sometimes, many different approaches are reasonable. All persons are presumed to be competent but the circumstances of the client created some doubt. Lawyer’s decision to seek an expert’s report was reasonable. The lawyer had determined that the client was capable of giving instructions; she was therefore entitled to act on those instructions to retain an expert. Onus was on the Appellant law firm to establish on a balance of probabilities that the account was reasonable. Adjudicator did not provide sufficient reasons for discounting the remaining legal bill.
Burke v Hillier, 2015 NSSC 144 – determined whether matriarch of family should be ordered to submit to a mental capacity assessment
Domestic Violence and Undue Influence
Geffen v. Goodman Estate, 1991 CanLII 69,  2 S.C.R. 353. – Estate Matter – Discussion of Undue Influence.
M.C.S. v. T.L.M., R.H.(R.M.) and W.G.R., 2005 NSSC 112 (CanLII). – Domestic violence is not limited to physical assault; it includes yelling and demeaning one another.
E.M.G. v. G.R.W. 2007 NSSC 356 (CanLII): Emergency Application Domestic Violence Intervention Act: Termination of Emergency Protection Order. No violence for almost two years and combined with other facts mother’s motivation found outside jurisdiction of Act.
E.A.W. v. M.J.M. 2012 CarswellNS 404 (NSSC): The fact that domestic violence has occurred is not sufficient reason in itself to grant order (paras. 23 et. seq.); D.B. v. H.M.,  N.J. 448 (Nfld. & Labrador Prov. Ct.) – extensive review of law in various jurisdictions re emergency protection orders.
Crouse v. Crouse (1988), 88 N.S.R. (2d) 199. – Family Law-Undue Influence – Wife emotionally distraught during negotiation and signing of agreement; Harrington v. Coombs, 2011 NSSC 34. Cohabitation Agreement upheld as fair and without undue influence on wife. Pressure wife felt to sign was self-created by imposing of ultimatums and time lines when aware husband about to be deployed.
Nova Scotia Barristers’ Society, Code of Professional Conduct, Halifax: Nova Scotia Barristers’ Society, 2012, rule 3.2-9 “Clients with Diminished Capacity”
Forms and Information
Domestic Violence – Victim Resources (Govt. of Canada)
Legal Information Society website
Law society of Upper Canada: Determining Competency – Mental Health
Legal Information Society website: Power of Attorney
- Directory of Nova Scotia Family Resource Centres
- L’Association des juristes d’expression française de la Nouvelle-Écosse can provide assistance to francophone Nova Scotians.
- NS Victim Services
- Halifax Regional Police: Victim Services Unit
- About Child Abuse-Nova Scotia Department of Community Services
- Dealing With Separation or Divorce
- Intimate Partner Violence
Vicarious Trauma (2008, Headington Institute)
Resources by Dr. Lori Haskell, Ph.D., Clinical Psychologist with the Centre for Research & Education on Violence Against Women & Children, Western University
“Assessing Capacity in Canada: Cross-Provincial Examination of Capacity Legislation“, Kimberly A. Whaley, Whaley Estate Litigation Partners (2019)
ARTICLES AND BOOKS
Daylen, Judith; Dennis O’Toole and Wendy van Tongeren Harvey, “Trauma, Trials, and Transformation: Guiding sexual assault victims through the legal system and beyond” (October 2006)
Haskell, Dr. Lori, “Women, Abuse and Trauma Therapy” (March 2006)
Chewter, Cynthia L. “Violence Against Women and Children: Some Legal Issues” (2003) 20 Can. J. Fam. L. 99.
Chewter, Cynthia L., “The Domestic Violence Intervention Act in a nutshell”, (May 2007), in Understanding the Domestic Violence Intervention Act.
Chewter, Cynthia L., “Statistics for the Domestic Violence Intervention Act”, (May 2007), in Understanding the Domestic Violence Intervention Act.
Nova Scotia Barristers’ Society. Continuing Professional Development / Understanding the Domestic Violence Intervention Act—Halifax, N.S. The Society, 2007. KB 139.C2 N935 2007
National Clearinghouse on Family Violence: a national resource centre for all Canadians seeking information about and solutions to violence with the family.
Schmitz, Cristin. “Bullying spouse gets harsh reprimand”. (July 2009) in The Lawyers’ Weekly.
Surtees, Doug. “The Evolution of Co-Decision-Making in Saskatchewan” (2010) 73 Sask. L. Rev. 75.
Vaccaro, Ivana and Medhekar, Archana. “Representing Victims of Domestic Violence”.
Mental Disability and Competence
Birnbaum, Rachel, Barbara Jo Fidler & Katherine Kavassalis / Child Custody Assessments: A Resource Guide for Legal and Mental Health Professionals. (Toronto: Thomson Carswell, 2008). KB 137 B617 2008
Moulton, Donalee. “Capacity to instruct a question with aged clients”. (February 13, 2015) in the Lawyers’ Weekly.
Montigny, Ed. “Notes on Capacity to Instruct Counsel”.
Robertson, Gerald B. Mental disability and the law. Scarborough, Ont.: Carswell, 2nd ed. KB 93 R649 1994
Approved by Council on March 25, 2011