The concept of a “substitute decision-maker” is deceptively simple but legally complex. While the role is often conflated with informal caregiving or family decision-making, in law it carries significant fiduciary duties and procedural consequences. Matters are further complicated by inconsistent terminology: the Substitute Decisions Act, the Family Law Rules, and the Rules of Civil Procedure each frame incapacity and representation in slightly different ways. For practitioners, this patchwork can create pitfalls when advising clients, drafting materials, or litigating issues involving incapable parties.
What is a Substitute Decision-Maker?
In Ontario, the concept of a substitute decision-maker is primarily governed by the Substitute Decisions Act, 1992 (the “SDA”). The SDA establishes the legal framework for individuals to appoint others to make decisions on their behalf or for the court to appoint guardians when a person is found to be incapable.
The SDA defines “incapable” as “mentally incapable” (s. 1(1)). A person is presumed capable if they are 18 years of age or more for property decisions or 16 years of age or more for personal care decisions, unless there are reasonable grounds to believe otherwise (ss. 2(1), 2(2), 2(3)).
The primary types of substitute decision-makers under the SDA are:
- Continuing Power of Attorney for Property: Authorizes an attorney to manage the grantor's property, even during incapacity. A person is “incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision” (s. 6). To grant this, the person must understand their property, obligations, the attorney's powers, and associated risks (s. 8).
- Power of Attorney for Personal Care: Authorizes an attorney to make decisions concerning the grantor’s personal care (e.g., health care, nutrition, shelter). A person is “incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision” (s. 45). To grant this, the person must understand the attorney's genuine concern for their welfare and the potential need for the attorney to make decisions (s. 47).
- Guardians (Court-Appointed or Statutory): The Public Guardian and Trustee (“PGT”) may become the statutory guardian of property if a person is certified as incapable of managing property under the Mental Health Act or by an assessor (ss. 15, 16). The court may otherwise appoint a guardian of property (s. 22) or a guardian of the person (s. 55) for an incapable person if necessary.
Treatment of Incapable Parties Under the Family Law Rules
The Family Law Rules, O. Reg. 114/99 contain specific provisions for parties who are children or are mentally incapable (a “Special Party”) and their representation in family law matters. A few key aspects of their treatment under the Family Law Rules include:
- Representation (Rule 4): The court may authorize a person to represent a special party or a child party if they are appropriate and willing (Rule 4(2)). If no such person is available, the court may authorize the Public Guardian and Trustee for a special party, or the Children’s Lawyer for a child party, with their consent (Rule 4(3)). The court must consider what representation is required for a child party (Rule 4(3.1)). A lawyer may also be authorized to represent a child who is not a party, granting the child party rights (Rule 4(7)).
- Service of Documents (Rule 6): Special service on a person who is or appears to be mentally incapable requires leaving a copy with the person and with their guardian of property or, if none, with the Public Guardian and Trustee (Rule 6(3)(a)(ii)). For a child, service is with the child and their lawyer, if any (Rule 6(3)(a)(iii)).
- Offers to Settle (Rule 18): Offers made, withdrawn, or accepted by a special party or a child party are not binding until approved by the court (Rule 18(12)).
Treatment of Incapable Parties Under the Ontario Rules of Civil Procedure
The Rules of Civil Procedure (the “Rules”), specifically Rule 7, address the representation and protection of “persons under disability”. Per Rule 1.03 “disability”, where used in respect of a person, means that the person is a minor or mentally incapable (within the same meaning of the SDA above) in respect of an issue in the proceeding. It should be noted that changes to the Rules expected to come into effect October 6, 2025 will impact parties under disability and their representative litigation guardians.
- General Requirements of Litigation Guardian (Rule 7.01): A new subrule 7.01(5) mandates that a litigation guardian, other than the Children’s Lawyer or the PGT, must be represented by a lawyer.
- Litigation Guardian Without Court Order (Rules 7.02 and 7.03): Substituted rule 7.02 and 7.03 details who may act as a litigation guardian for a party without a court order, including guardians, attorneys under a power of attorney, committees for absentees, and the PGT in specific cases. Other persons may also act if they do so from the commencement of the proceeding and meet specific requirements. These requirements include filing an affidavit containing consent to act, confirmation of lawyer authority, evidence of disability, the minor's birth date (if applicable), residency, relationship to the person under disability, absence of adverse interest, and acknowledgment of potential cost liability.
Differences and Comparison
While both sets of rules aim to protect the interests of individuals who cannot make certain decisions for themselves, there are distinct differences in their application and terminology:
- Terminology: The Family Law Rules specifically use "special party" for mentally incapable adults and "child party" for children. The Rules of Civil Procedure generally refer to "persons under disability."
- Scope: The Family Law Rules are tailored to the unique context of family law proceedings, which often involve sensitive issues like decision-making responsibility, parenting time, and child support. The Rules of Civil Procedure apply to a broader range of civil litigation.
- Specific Protections: The Family Law Rules provide detailed and explicit requirements for court approval for actions involving special parties or child parties, such as withdrawing claims, approving conference agreements, accepting settlement offers, and ordering payment out of court. These provisions underscore a heightened level of judicial oversight in family matters involving vulnerable parties.
- Roles of Public Guardian and Trustee/Children's Lawyer: Both the PGT and the Children's Lawyer have explicit and significant roles under the Family Law Rules as potential representatives for special parties and child parties, respectively. While the Rules of Civil Procedure also involve these offices for persons under disability, the Family Law Rules integrate their roles more pervasively into various procedural steps.
In summary, while the Substitute Decisions Act provides the substantive law for substitute decision-makers, the Family Law Rules offer a specialized procedural framework with enhanced protections and specific roles for representatives when dealing with incapable adults and children in family law matters. The Rules of Civil Procedure serve as a general procedural framework, to be referenced when the Family Law Rules do not adequately cover a matter.
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