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Copperlaw
Copperlaw, Lawyer
Category: Canada Law
Satisfied Customers: 2012
Experience:  Lawyer and Retired cop. Drug expert, breath tech, negotiator, traffic specialist. Criminal, Family, Civil and others.
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I have an civil action in Superior Court of justice of Ontario.

Customer Question

I have an civil action in Superior Court of justice of Ontario. A mental capacity issue is arisen. How can I make an application for applying Substitute Decisions Act for avoiding an capacity assessment performing by a psychiatrist? The capacity assessment performing by a psychiatrist will be cost a lot so I'm seeking a capacity assessment performing by a Designated Capacity Assessor which will be cost much less.
Submitted: 1 year ago.
Category: Canada Law
Expert:  Copperlaw replied 1 year ago.
Good evening.
Can you please let me know how it is that this issue has arisen. Is the judge ordering an assessment. Typically, mental health and capacity assessments are completed by psychiatrists and are covered by OHIP. Have you been told that this is an expense that you must cover.
Is it possible for you to obtain a referral to your family doctor to a psychiatrist for an assessment. Is this for the purpose of determining whether you require appointment of a litigation guardian. The Ontario Rules of Civil Procedure forbid an individual who is mentally unfit or suffering from a disability from representing themselves in a civil action.
Please let me know more details about what the circumstances are and I will be glad to chat with you further and get you more information.
Jim
Customer: replied 1 year ago.
Hi ! Jim,I have another four civil actions which were combined together. The defendants arose a mental capacity issue on me and a psychiatrist performed a capacity assessment in defendants' expense on the order of the court. The psychiatrist reported to the court wrong. I have appealed it to the College of Physician and Surgeon of Ontario and am now waiting for the decision of Health Professions Appeal and Review Board. I filed a motion for a leave to appeal to an appellate court to the Divisional Court but the Court dismissed my motion. However the Court expressed "Finally, as Hainey J. pointed out, if Mr. Kim has a problem with the Public Guardian and Trustee as his litigation guardian, he has the right to propose a different litigation guardian if he can find someone who is appropriate for that role and is willing to undertake it. Further, if the situation has or does change regarding Mr. Kim’s disability, he has the right to seek a change in that order if he can produce proper and cogent medical evidence to that effect."On another action which I mentioned on this my litigation guardian, a counsel of OPGT, let the counsel of the defendant(s) of the action so the capacity issue arose and the court ordered the defendant to bring a motion for appointing a litigation guardian. But the defendant has not yet brought the motion. I'm going to ask the court another assessment on the motion. In the meanwhile I'm considering to file an application which I mentioned previously for the purpose of "he has the right to seek a change in that order if he can produce proper and cogent medical evidence to that effect". I know I have to file a 'Notice of Application' for the application but don't know the details of the application and the availability for my case.It is possible for me to obtain a referral from my family physician to a psychiatrist for an assessment. I didn't know that OHIP will cover the assessment. Though if it is so it will take significant time to get the assessment due to the psychiatrists' availabilities to take it.I don't want the counsel of the OPGT takes control of my cases as my litigation guardian.Best regards,Ki
Expert:  Copperlaw replied 1 year ago.
If you've had a psychiatrist who is not your own or chosen by you or your physician conduct an assessment of you, making a determination regarding your mental health, you are entitled to have your doctor refer you to a psychiatrist, covered by OHIP, to make a proper diagnosis as to your capacity and whether any mental illness exists.
And you are right, it may take some time to get the referral to a psychiatrist, however as you surely know, the civil court system works slowly itself.
Once you have an alternative assessment showing competency, you can then file a Notice of Application to have the previous Order set aside and you will provide the records of your new assessment to support your application.
Jim
Customer: replied 1 year ago.
Hello, Jim,The problem is the counsel of the PGT wrote me "At the moment, we are finalizing the Minutes of Settlement for each action" and I wrote her that give me three months for getting another assessment. Their assessment amount is significantly low and the time has already been passed a month. They can proceed the actions without my will.so I need to get another assessment ASAP. I'm trying to find a way to get an assessment from a designated capacity assessor (http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/capacity.asp) by filing a 'Notice of Application' but I'm not sure whether it is right way or how to proceed the application process. I had tried to get an assessment from the designated capacity assessor contacting directly with them for a while but I couldn't find anyone at that time. It is the reason why I'm trying to find it through an application process.I think you are confused the 'Notice of Motion' with the 'Notice of Application'. I think, for setting aside the previous order it is needed to bring a motion, which is seeking a court order, but not an application. Actually I don't know well about the application itself and the process. So I have seeking the answer from this site.Best regards,Ki
Expert:  Copperlaw replied 1 year ago.
Hi Ki, I apologize for the delay, but I was away for the father's day weekend.
The term Application has multiple uses. An Application is the originating document in any proceeding. Any matter dealing with a smaller component or issue within the main matter is referred to as a Motion, which is proceeded with by way of an application for the thing you are seeking. This comes from the party bringing the application being referred to as the "moving" party, seeking adjudication on an issue within the main matter.
For instance, if counsel on the other side of a matter were in a conflict of interest, such as if they acted for the opposing party previously, the party would bring an application to have the solicitor removed as counsel of record. This would be a motion within the matter, seeking to have the court determine an issue and make a ruling and Order.
Just as in your case, you would be making application, seeking an Order that the PGT not enter into the signing of any Minutes of Settlement, pending a further assessment and that the Court Order the appointment of a designated capacity assessor for this purpose.
You will serve and file your Application along with your accompanying sworn affidavit, along with any supporting materials and relevant case law if appropriate.
Jim
Expert:  Copperlaw replied 1 year ago.
Please let me know if you require anything further at all as I am happy to continue chatting. Also, please take a moment to leave me a positive rating as this helps me in building my reputation here on the site.
Jim
Customer: replied 1 year ago.
Hello ! Jim,“applicant” means a person who makes an application; (“requérant”)
“application” means a proceeding commenced by notice of application; (“requête”)
“motion” means a motion in a proceeding or an intended proceeding; (“motion”)
“moving party” means a person who makes a motion; (“auteur de la motion”)
“originating process” means a document whose issuing commences a proceeding under these rules, and includes,
(a) a statement of claim,
(b) a notice of action,
(c) a notice of application,
(d) an application for a certificate of appointment of an estate trustee,
(e) a counterclaim against a person who is not already a party to the main action, and
(f) a third or subsequent party claim,
but does not include a counterclaim that is only against persons who are parties to the main action, a crossclaim or a notice of motion; (“acte introductif d’instance”)
“proceeding” means an action or application; (“instance”)A “motion” is a request to the court for an order in some preliminary issue of the action, often in a procedural matter.I think you searched the internet and packed your knowledge you got. But it is incorrect. I think you don't have correct basic knowledge. I don't want to chat further with you. I don't want waist my time further.Best regards,Ki

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