Burke v. Hillier, 2015 NSSC 144

• Judge: Gogan, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: March 03, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSSC 144;(2015), 359 N.S.R.(2d) 192 (SC)

Burke v. Hillier (2015), 359 N.S.R.(2d) 192 (SC);

    1133 A.P.R. 192

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. MY.021

Laurea Maria Burke (applicant) v. Karen Hillier (respondent)

(Syd. No. 434044; 2015 NSSC 144)

Indexed As: Burke v. Hillier

Nova Scotia Supreme Court

Gogan, J.

May 12, 2015.

Summary:

A mother and her daughter had a joint bank account. The mother brought an Application in Court against the daughter, seeking the return of over $40,000 that the daughter allegedly removed from the account without the mother's consent. The daughter denied acting improperly and moved to have the mother submit to a mental capacity assessment.

The Nova Scotia Supreme Court dismissed the motion.

Persons of Unsound Mind - Topic 706

Committees (incl. substitute decision maker) - General - Order for assessment - [See second Practice - Topic 4779 ].

Practice - Topic 4779

Discovery - Physical or psychological examination - Circumstances justifying refusal - A mother and her daughter had a joint bank account - The mother brought an Application in Court against the daughter, seeking the return of over $40,000 that the daughter allegedly removed from the account without the mother's consent - The daughter denied acting improperly and moved to have the mother submit to a mental capacity assessment - She stated that she would return the money if the mother was found competent to manage her affairs - The Nova Scotia Supreme Court dismissed the motion - The daughter failed to establish that her claim respecting the mother's total incompetency was supported by the evidence (Civil Procedure Rule 21.02(3)(b)) - Although there was evidence of memory loss, the medical information suggested that the mother was suffering from extreme stress and depression rather than incompetency - The mother continued to live independently, and clearly understood the nature of the proceedings during her various court appearances - See paragraphs 33 to 37.

Practice - Topic 4779

Discovery - Physical or psychological examination - Circumstances justifying refusal - A mother and her daughter had a joint bank account - The mother brought an Application in Court against the daughter, seeking the return of over $40,000 that the daughter allegedly removed from the account without the mother's consent - The daughter denied acting improperly and moved to have the mother submit to a mental capacity assessment - She stated that she would return the money if the mother was found competent to manage her affairs - The Nova Scotia Supreme Court dismissed the motion because the daughter failed to satisfy all the requirements of Civil Procedure Rule 21.02(3) - Even if she had met all the requirements, the court would have exercised its discretion not to order the assessment - The daughter had raised not only the issue of a mental condition, but the mother's competency - The court stated that "In Nova Scotia, the procedure for declaring incompetency is found in the Incompetent Person's Act. In my view, if competency is the issue, then the established procedure should be followed. This procedure does not provide for the Court to compel a mental capacity assessment. If such an assessment cannot be compelled in a proceeding focused solely on the competency of a party, then it cannot be appropriate to compel it in collateral circumstances." - See paragraphs 38 and 39.

Cases Noticed:

MacIntyre v. RBC Life Insurance Co. (2010), 290 N.S.R.(2d) 281; 920 A.P.R. 281; 2010 NSSC 152, refd to. [para. 25].

Noseworthy and Jones v. Murphy (1999), 174 N.S.R.(2d) 367; 532 A.P.R. 367 (S.C.), refd to. [para. 25].

Doncaster v. Field, [2014] N.S.R.(2d) Uned. 121; 2014 NSSC 234, refd to. [para. 27].

Farmakoulas v. McInnis (1996), 152 N.S.R.(2d) 52; 442 A.P.R. 52 (S.C.), refd to. [para. 27].

Jarvis v. Landry, [2011] N.S.R.(2d) Uned. 60; 2011 NSSC 116, refd to. [para. 27].

Lewis v. Lewis (2005), 236 N.S.R.(2d) 245; 749 A.P.R. 245; 2005 NSSC 256, refd to. [para. 27].

Ocean v. Economical Mutual (2009), 281 N.S.R.(2d) 201; 893 A.P.R. 201; 2009 NSCA 81, appld. [para. 28].

Counsel:

Laurea Maria Burke, applicant, in person;

Elizabeth Cusack, Q.C., for the respondent.

This motion was heard in Sydney, N.S., on March 3, 2015, before Gogan, J., of the Nova Scotia Supreme Court, who delivered the following decision on May 12, 2015.