[1] Alan Borovoy, “Guardianship and Civil Liberties” (1982) 3 Health L. Can. 51-57.
[2] ARCH has written several law reform and policy papers on the topic of legal capacity, including: “Addressing the Capacity of Parties before Ontario’s Administrative Tribunals: Promoting Autonomy and Preserving Fairness” (2009); “Addressing the Capacity of Parties before Ontario’s Administrative Tribunals: A Practical Guide for Ontario Lawyers” (2009); “Embracing Supported Decision-Making: Foundations for a New Beginning” (2009). These papers can be accessed on ARCH’s website: www.archdisabilitylaw.ca.
[3] UN enable, Convention on the Rights of Persons with Disabilities, online: http://www.un.org/disabilities/default.asp?navid=14&pid=150 (last accessed: 14 November 2013).
[4] CCD-CACL Working Paper, UN Convention on the Rights of Persons with Disabilities: Making Domestic Implementation Real and Meaningful (February 2011), online: http://www.ccdonline.ca/en/international/un/canada/making-domestic-implementation-real-and-meaningful-feb2011 (last accessed: 1 October 2013).
[5] Anna MacQuarrie, Making the Convention Real and Meaningful for people with intellectual disabilities and their families, online: http://www.ccdonline.ca/en/socialpolicy/poverty-citizenship/legal-protections/the-un-CRPD-making-the-convention-real (last accessed: 14 November 2013).
[6] Dulcie McCallum, “Up the Basics: the Right to Decide” in Council of Canadians with Disabilities, Celebrating our Accomplishments: A voice of our own, (Winnipeg, 2011) 145, 149.
[7] Convention on the Rights of Persons with Disabilities, 13 December 2006, 2515 UNTS 3 art 12.
[8] Amita Dhanda, “Legal Capacity in the Disability Rights Convention: Stranglehold of the Past or Lodestar for the Future” (2006-7) Syracuse Journal of International Law and Commerce 34.
[9] Robert D. Dinerstein, “Implementing Legal Capacity Under Article 12 of the UN Convention on the Rights of Persons with Disabilities: The Difficult Road From Guardianship to Supported Decision-Making” (2012) Human Rights Brief 19, No. 2, 8.
[10] Office of the United Nations High Commissioner for Human Rights, Background conference document: Legal Capacity, 20-21, online: http://www.un.org/esa/socdev/enable/rights/ahc6documents.htm (last accessed: 14 November 2013).
[11] People with Disability Australia, Accommodating Human Rights: A Human Perspective on Housing, and Housing and Support, For Persons with Disabilities, (2010), 21, online: http://www.pwd.org.au/documents/pubs/AccommodatingHumanRights2003.pdf (last accessed: 18 November 2013).
[12] Office of the United Nations High Commissioner for Human Rights, Monitoring the Convention on the Rights of Persons with Disabilities: Guidance for Human Rights Monitors, Professional training series No. 17, (New York and Geneva, 2010), online: http://www.ohchr.org/Documents/Publications/Disabilities_training_17EN.pdf (last accessed: 8 November 2013).
[13] Convention on the Rights of Persons with Disabilities, note 7, Preamble (n).
[14] Convention on the Rights of Persons with Disabilities, note 7, Article 3.
[15] Convention on the Rights of Persons with Disabilities, note 7, Article 16.
[16] Law Commission of Ontario, A Framework for the Law as It Affects Persons with Disabilities (Toronto: September 2012) 100.
[17] Law Commission of Ontario, note 16, 101.
[18] Law Commission of Ontario, note 16, 71.
[19] Law Commission of Ontario, note 16, 77.
[20] Law Commission of Ontario, note 16, 101.
[21] Law Commission of Ontario, note 16, 119-121.
[22] Substitute Decisions Act, 1992, S.O. 1992, c. 30 [SDA].
[23] O. Reg. 460/05.
[24] O. Reg. 100/96.
[25] O. Reg. 26/95.
[26] Law Commission of Ontario, Roles and Responsibilities of Adults, Legal Representatives and Third Parties (RDSP project), 2, (unpublished paper, 2013).
[27] Law Society of Upper Canada, Rules of Professional Conduct, Rule 2.02(6); Ed Montigny, Notes on Capacity to Instruct Counsel (15 February 2011) online: http://www.archdisabilitylaw.ca/?q=notes-capacity-instruct-counsel-0 (last accessed: 20 December 2013).
[28] See Banton v. Banton, [1998] O.J. 3528 (ON Gen Div.).
[29] D’Arcy Hiltz and Anita Szigeti, A Guide to Consent and Capacity Law in Ontario (LexisNexis, 2012) 24-25 (Hiltz and Szigeti).
[30] Hiltz and Szigeti, note 29, 25.
[31] SDA, note 22, s. 45.
[32] SDA, note 22, s. 15.
[33] SDA, note 22, s. 16(3) to 16(5).
[34] Also see related provisions in the Substitute Decisions Act: SDA, note 22, ss. 81 and 81.
[35] SDA, note 22, s. 16(2).
[36] If the PGT is of the opinion that the person is truly at risk of harm it can apply to the Superior Court, pursuant to s. 79(1) of the Substitute Decisions Act for an order compelling the person to submit to an assessment of his/her capacity; see SDA, note 22, s. 79(1); also see Regulation 460/05,Capacity Assessment, s. 3(1).
[37] SDA, note 22, s. 79(1).
[38] See SDA, note 22, ss. 79, 80, 81 and 82, 83 to 87.
[39] SDA, note 22, s. 79(1).
[40] SDA, note 22, s. 81(3).
[41] SDA, note 22, s. 83 (1).
[42] See Urbisci v. Urbisci, [2010] O.J. No. 4740; also Zheng v. Zheng, [2012] O.J. No 2957.
[43] Abrams v. Abrams, [2008] O.J. No. 5207 (Ont. S.C.J.).
[44] SDA, note 22, s. 16(5); it is worth noting that under the original version of the SDA, s. 16(1) to (7), upon an assessment being performed and a person being found incapable, an advocate was to meet with the person and explain that the person had the right to refuse the statutory guardianship of the PGT. Only once the person agreed to accept the guardianship of the PGT did the PGT become that person’s guardian of property.
[45] SDA, note 22, s. 16(6).
[46] SDA, note 22, s. 20.2(1)(a), 20.2(1)(b) and 20.2(3).
[47] SDA, note 22, s. 20.1(1).
[48] For example see SDA, note 22, ss. 24(2.1) & 57(2.2).
[49] E-mail interview (#1) of Dermot Moore (Litigation and Senior Client Counsel, Office of the Public Guardian and Trustee) (29 November 2013) (Moore Interview #1).
[50] O Reg. 99/96.
[51] SDA, note 22, s. 16.1(1).
[52] SDA, note 22, s. 17(1).
[53] SDA, note 22, s. 20.1.
[54] See Council of Canadians with Disabilities, “Federal Poverty Reduction Plan Must Address Disability Poverty”, Press Release, (18 November 2010), online: http://www.ccdonline.ca/en/socialpolicy/poverty/media-release-federal-poverty-reduction-plan-18nov2010 (last accessed: 23 December 2013).
[55] Moore Interview #1, note 49.
[56] Pursuant to the SDA, note 22, s. 18, the PGT must provide written reasons for a rejection of an application. If the applicant disputes the denial, the PGT must apply to the court to decide the matter.
[57] SDA, note 22, s. 19
[58] see Dermot Moore, “Recent Decisions in Guardianship Law” presented at Gr