NEWMARKET COURT FILE NO.: FC-20066/16 DATE: 20160916 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

York Region Children’s Aid Society Applicant – and – J.H.V. Respondent – and – N.B. Respondent

Counsel for the Applicant, A. Moonsie-Mohan Both Respondents – Self-represented Public Guardian and Trustee – O. Holzapfel and A. Schnider

HEARD: July 21, 2016

JARVIS J.:

Ruling on Motion

Publication Restriction Notice

Pursuant to subsection 45(8) of the Child and Family Services Act, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. This Ruling complies with this restriction so that it can be published.

[1] On May 12, 2016 the respondent parents’ two children, J.B. #1 born […], 2013 and J.B. #2 born […], 2014 were apprehended by the Children's Aid Society of the Region of Peel (“the Peel Society”). As will be detailed below, those proceedings were transferred to this court. The York Region Children’s Aid Society (“the Society”) had earlier started this proceeding alleging that the children were in need of protection pursuant to section 37 (2) (b) (i) in that their parents were unable to care for, provide for, supervise or protect the children adequately.

[2] The parents have brought a motion, supported by two affidavits sworn by the father, requesting a broad range of relief. The Society has also brought a motion to have the parents designated as special parties and, on July 21, 2016, all parties, including counsel for the Offices of the Public Guardian and Trustee appeared.

Background

[3] The Society became involved on or shortly after April 8, 2016 when it was contacted by a social assistance case coordinator for Ontario Works. Concern was expressed about the parents’ mental health after an appointment earlier that day. The parents were also reported to appear caring and loving; the children happy, clean and tidy.

[4] Efforts several days afterward by a Society child protection worker to see the children at their home were obstructed by the parents, in particular the father, and resulted in the police becoming involved. Only after the police attended the home did the father produce the children – they were observed to be healthy and clean. The father even contacted the police about the police. A sergeant attended. The police, but not the Society's worker, were permitted to enter the home. The police reported that the premises were clean, there was heat and no hazardous objects were observed.

[5] Throughout the Society’s attendance, the father was described as confrontational, argumentative and uncooperative. He alleged that the police had raped his wife on an earlier occasion. So did she. The mother remained in the home and, despite efforts by the Society worker to engage her from the doorway, the mother remained silent and refused to acknowledge the worker.

[6] The Society started these proceedings on May 11, 2016. An affidavit from the Society worker who had attended the family’s residence in mid-April detailed a history that included extensive Peel Society involvement with the family and the mother's possible mental illness, which included her involuntary Mental Health Act admission to a local hospital in 2014.

[7] On May 12, 2016 the parents appeared in this court. Rogers J. declined to remove the children from their parents care but noted that there were “serious concerns” for the children, that the Society “must be able to conduct their [sic] investigations and to respond to the concerning allegations.” The Order made required the parents’ cooperation with the Society, and adjourned proceedings to June 9, 2016.

[8] The parents were represented by duty counsel. They, through duty counsel, told the Society outside of court that they would not obey the Order just made. Paragraphs 22-30 of the child protection worker’s affidavit sworn June 13, 2016 described what happened outside of the courtroom. In summary, this is what transpired:

• The worker approached the parents outside of the courtroom and the mother shrieked, hastily moving away from the worker and shouting at her to stop speaking with her.
• Court support police were summoned.
• The mother moved along the corridor, speaking to herself in an elevated tone. There were lawyers along the corridor to whom the mother was shouting that the Society had to stay 100 metres away from her.
• The father's presentation was described as threatening. He refused to speak to the worker, only to counsel for the Society.
• The father alleged that the police had raped his wife, that he had outstanding complaints against the Brampton Chief of Police (whom he, the father, claimed he had succeeded in having fired from his position). The father’s presentation and the content of what he was saying were described as ranting and rambling.
• The mother kept asking the father, from a distance, to leave the court premises.
• The father then reported that he was leaving. The mother, who had apparently approached, was observed as pacing back and forth and highly agitated.
• The parents made it clear to the Society that they would not allow the Society workers to see the children.

[9] Despite the father delivering two voluminous affidavits in support of the parents’ position, and in response to the Society's allegations, none of the allegations made by the Society worker as summarized above has been challenged by the parents.

[10] Later on May 12, 2016, and based on information provided by the Society (as above), the Peel Society apprehended the children. On May 17, 2016 Parent J. ordered that the children be placed in the temporary care of the Peel Society, that all proceedings involving the children be consolidated with, and transferred to, this court returnable June 9, 2016.

[11] On June 9, 2016 the matter came before this court. An adjournment was granted to allow the Society to respond to the parents’ motion: the Society advised that it intended to bring a motion to appoint the Public Guardian and Trustee of Ontario to represent the parents as special parties. As already noted, the father brought a motion returnable that day too. He was told by the court that it did not have jurisdiction to deal with most of the relief requested.

[12] The Society served its motion material on the Public Guardian and Trustee and on July 21, 2016 all parties, as well as counsel from the Public Guardian and Trustee’s offices, appeared before me. The father had delivered beforehand a voluminous affidavit sworn June 27, 2016. No affidavit was delivered by the mother. The father told the court that he was speaking for her. Submissions were made by the Society and the father. Counsel from the Public Guardian’s offices took no position on the merits but provided to the court the form of acceptable Order to be issued should a special party designation be made.

The Law

[13] What is a “special party” is defined by Rule 2 (1) of the Family Law Rules:

[A] party…who is or appears to be mentally incapable for the purposes of the Substitute Decisions Act, 1992 in respect of an issue in the case and who, as a result, requires legal representation…

[14] In Children's Aid Society of the Niagara Region v. D (W) (2003), 43 RFL (5th) 286, [2003] O.J. No. 3244 (paragraph 11) the court framed that the test under the Family Law Rules as describing,

[O]ne is mentally incapable in respect of an issue in a case where one is not able to understand information that is relevant to making a decision regarding the issue or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision regarding the issue.

[15] There are a number of components to the test to determine mental capacity. These are outlined in a 2016 paper “Procedural Rights of Incapable Parties in Family Law Proceedings” [1], and they include the following:

(a) the onus is on the party alleging mental incapacity; (b) the test is functional ability, particular to the task or activity at issue; (c) the ability to appreciate reasonably foreseeable consequences includes the ability to consider a reasonable range of possible outcomes, positive and negative; and (d) caution must be exercised before removing a party's right to self-determination.

[16] Lack of sophistication, education or cultural differences is not sufficient to ground a finding of mental incapacity - that must stem from sources such as mental illness, dementia, development delay or physical injury. As noted by Backhouse J. in C.C. and Children's Aid Society of Toronto, [2007] O.J. No. 5613,

[33] Appointing a legal representative ultimately means the Court is making a finding that the person does not understand the issues in the proceeding and does not appreciate the consequences of making or not making decisions in the case. Such an appointment is highly prejudicial to the incapable person, particularly where the primary issue in dispute is custody, access or child protection.

[34] Courts have considered the following types of evidence in determining the appropriateness of the appointment of a representative or litigation guardian: (a) Medical or psychological evidence as to capacity; (b) Evidence from persons who know the litigant well; (c) The appearance, demeanour and conduct of the litigant before the Court; (d) The testimony of the litigant; and, (e) The opinion of the litigant’s own counsel.

Analysis

[17] The Society relies on the evidence of its workers and, to a lesser extent, the contents of the affidavits filed by the father. He claims that the Society must prove its case. The mother relies on the father to represent her because he was “the one who has gotten me through to today.” Both parents were informed that the father cannot represent the mother in these proceedings: Windsor-Essex Children's Aid Society v. D (B), 2013 Carswell Ont. 1207, 2013 ONCJ 43, 2013 O.J. No. 481, 226 ACWS (3d) 443, 48 CPC (7th) 406.

[18] The evidence is clear that the husband has been argumentative and confrontational. His affidavit is virtually incomprehensible, rambling and filled with irrelevant information, little of which deals with any of the issues raised in the motions now before the court. What is contained in that material does reveal, however, a mother whose conduct is, whether intentionally or submissively, managed by the father.

[19] There is no medical evidence that the father is mentally ill. He has been respectful of this court (at least in its presence) and appreciated the purpose of these proceedings, although he displayed a lack of focus in his exchanges with the court. His behaviour is troubling, it is argumentative, but I cannot conclude that he lacks the mental capacity to represent himself or to choose his own counsel.

[20] The mother’s situation is a different matter altogether. The evidence from the Society and the father (in his affidavit) reveal a person with a history of mental illness. A former co-worker described her emotional instability and suggested that she seek medical attention (this was contained in the father's affidavit). There is evidence of extensive involvement of the Peel Society with the mother dealing with her two older children from a prior relationship, now in the custody of their father.

[21] The mother has declined to represent herself. Nowhere does she respond to the allegations made by the Society. The father's conduct in obstructing the Society, and even police, from fulfilling their statutory duties by his objecting to their contact with the mother, and her unchallenged behaviour after court on May 12, 2016, raise serious, unanswered, concerns about her mental capacity. In the times she was present in court she appeared disengaged. The limited exchange with her initiated by the court was not reassuring.

[22] In CC and Children's Aid Society of Toronto, Backhouse J. observed,

The test for incapacity is an objective one. There is a distinction to be drawn between failing to understand and appreciate the risks and consequences and being unable to understand and appreciate the risks and consequences. It is only the latter that can lead to a finding of incapacity.

[23] I do not believe that the mother is able to understand and appreciate the risks and consequences of her behaviour and the issues now before the court involving the children. Nothing in the evidence about her conduct demonstrates that she understands the seriousness of these proceedings. Her conduct at the family home in mid-April and at court on May 12 are inexplicable and troubling.

[24] Accordingly,

1. The Society's motion to have the father deemed to be a special party is dismissed.
2. The Society's motion to have the mother deemed a special party is granted and an Order will issue in the form approved by the Office of the Public Guardian and Trustee of Ontario.

[25] As for the father's motion, the only relief requested that is relevant to the issues at hand, or over which the court has any jurisdiction is that extending time for filing his Answer and Plan of Care. That relief will be granted to both parents. They shall each have 30 days to deliver their Answer and Plan of Care.

[26] A Case Conference in this matter will proceed on October 25, 2016.

[27] Approval of this Order by the father is dispensed with.

[28] The father is encouraged to retain counsel.

Justice D.A. Jarvis

Date: September 16, 2016

[1] “Procedural Rights of Incapable Parties in Family Law Proceedings: The Representation of Mentally Incapable Parties and the Role of the Public Guardian and Trustee”: Glick et al, Ontario Bar Association Family Law Institute February 4, 2008, (updated to January 2016).