Court File and Parties

COURT FILE NO.: FL-978-2 DATE: 2017/07/17 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: David Bradley Evans, Applicant AND Debra Lynne Evans, Respondent

BEFORE: Justice A. Doyle

COUNSEL: Gary Blaney, Counsel for the Applicant Carol Craig, Counsel for the Respondent

HEARD: July 6, 2017

Endorsement

1The Respondent (Mrs. Evans) brings a motion for an order declaring her a “special party” as defined in Rule 2 of the Family Law Rules, O. Reg. 114/99 (the “FLRs”) and appointing Jacques Desjardins as her litigation guardian. She submits that the medical evidence demonstrates that due to her fragile state and mental health issues she cannot participate in the trial and she requires a litigation guardian.

2The Applicant (Mr. Evans) opposes the motion on the basis that Mrs. Evans has not met the onus of demonstrating that she is a “special party”. Furthermore, he will be deprived of a fair trial as he will not be able to complete questioning and cross-examine her at trial.

Issue

3Does Mrs. Evans have a mental incapacity such that she is not able to appreciate the reasonably foreseeable consequences of a decision or lack thereof as set out in the Substitute Decisions Act, S.O. 1992, c. 30 (“SDA)?

Background

4The parties were married on December 4, 1982 and they separated on November 14, 2000. They were divorced on August 13, 2003. They have two children are 29 and 27 years of age who are not children requiring child support.

5The consent order of Justice Sheffield dated May 19, 2009, 2012 (Final Order) provided that Mr. Evans pay $5,400 per month as spousal support.

6In June 2012, Mr. Evans brought a motion to change the Final Order to terminate spousal support payable to Mrs. Evans.

7After the separation, Mrs. Evans worked as a judicial assistant from 2010 until the fall of 2014 when she had surgery for melanoma. She briefly returned to work but left her employment in January 9, 2015 due to mental health issues resulting in a breakdown. She received Long Term Disability payments from March 2015 to the spring of 2016. She was denied further payments as the disability insurer alleged that she was not pursuing the recommended rehabilitation. In November 28, 2016, she issued a Statement of Claim against the disability insurer.

8Some questioning of Mrs. Evans in this matter took place for 3 hours on November 22, 2016.

9The trial was set to proceed in January 2017 but was adjourned by the Court on the basis that Mrs. Evans’ treating physician, Dr. Bujold, was of the opinion that she was in a fragile state and unfit to attend a trial. The trial was adjourned to the September 2017 trial sittings.

Mrs. Evans’ Position

10Mrs. Evans submits that she has met the onus under s. 6 of the SDA, i.e. she is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

11Mrs. Evans’ psychological diagnoses significantly impact her ability to work and to function on a daily basis as well as her ability to participate in pre-trial questioning and/or a trial.

12She has a Major Depression of moderate to severe level with additional anxious mood. She has symptoms of PTSD which stem from an accumulation of abusive relationships in her life at home and at work.

13She continues to be too emotionally fragile to participate in any questioning or trial. The medical reports state that questioning would increase her depressive symptoms and would worsen her overall general condition.

Mr. Evans’ Position

14Mr. Evans submits that Mrs. Evans is similar to many litigants who attend Family Court, in that she is experiencing stress and fatigue with respect to the process. Family Court litigation can be stressful for its participants and allowing someone to be shielded from the process by not fully participating in the trial would open the floodgates. In addition, by appointing a litigation guardian, Mr. Evans will be deprived of a fair trial as he will not be able to complete his questioning of her nor cross-examine her at trial. He will not be in a position to test her allegations, probe her credibility and the foundation for her allegations.

15He states that to date Mrs. Evans has demonstrated that she is capable of participating in litigation and in fact has been able to instruct counsel as follows:

• she has two counsel acting for her;
• she has instructed a senior practitioner to institute a proceeding against the disability insurer in November 2016;
• in the fall 2016, she dismissed her previous family counsel and hired a new lawyer;
• she attended questioning on November 22, 2016;
• she is not on medication;
• she was never hospitalized;
• she was able to participate in a 5 hour session with Dr. Ricci; and
• she has never attempted suicide.

Legal Principles

16The legal principles applicable in these types of these applications are found in various legislation and jurisprudence. Rule 2(1) of the FLRs states:

“special party” means a party who is a child or 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, but does not include a child in a custody, access, child protection, adoption or child support case;

17Rule 4(2) states:

(2) The court may authorize a person to represent a special party if the person is, (a) appropriate for the task; and (b) willing to act as representative. O. Reg. 114/99, r. 4 (2).

18Section 6 of the SDA, states:

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. 1992, c. 30, s. 6.

19As stated per Nezic v. Nezic, 2013 ONSC 2309 at para 2:

A person is assumed to be capable and there must be compelling evidence of incapacity for a court to find a person a special party.

20The Substitute Decisions Act protects the vulnerable, all parties and the process. Master Beaudoin (as he then was) in Cameron v. Louden stated that the purpose of Rule 7 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 is as follows:

The purpose of a rule requiring a litigation guardian for parties under disability is drawn for protection to the party, the other parties, and the Court itself. The rule offers protection to the party, ensuring that a competent person with a duty to act for the party’s benefit is there to instruct counsel and take steps in the litigation on the party’s behalf. To the other parties, the rule offers the protection of a competent person who instructs counsel on how the proceeding is to the conducted, is responsible for costs, and is responsible for seeing that the court’s eventual judgment is obeyed. A litigation guardian offers assurance to the court that its process is not abused by or against a person under disability and that its order will be obeyed.

21An example of how this section comes into play is found in Sennek v Carleton Condominium Corp. No. 116, 2016 ONSC 4818, where Justice Beaudoin dealt with a leave to appeal of Justice Kershman’s order who had ordered an assessment in accordance with s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”). That assessment was to be conducted by an assessor as defined by subsection 1(1) of the Substitute Decisions Act, 1992, S.O. 1992, c.30, (“SDA”) and as chosen by Ms. Sennek from the roster of capacity assessors maintained by the Office of the Public Guardian and Trustee, such assessor to assess Ms. Sennek’s mental condition and advise the court with respect to Ms. Sennek’s ability to understand information relevant to making decisions in the litigation and in a related Small Claims Court action. In addition, the report would deal with Ms. Sennek’s ability to appreciate the reasonably foreseeable consequences of a decision or lack thereof in the two actions.

22In Costantino v. Costantino, 2016 ONSC 6900 Justice Price ordered a litigation guardian for a schizophrenic litigant who was not taking his medication. He relied on the medical evidence and the lawyer’s evidence which questioned his client’s capacity to give him the instructions he required to conduct the action. The litigant’s mental incapacity prevented the proceeding from being settled or proceeding to trial.

23Justice Price provides an excellent summary of the law in this area as it pertains to family law proceedings.

24At para. 40ff, the court outlined the test for the appointment of a Litigation Guardian:

[40] The test, as set out in Rule 4 of the Family Law Rules, is the same, in this respect, as is set out in Rule 7 of the Rules of Civil Procedure. It is that: a) The person must appear to be mentally incapable with respect to an issue in the case and, b) As a result of being mentally incapable, the person requires legal representation to be appointed by the Court.

41For the appointment of a Litigation Guardian to be appropriate, the cause of incapacity must stem from a source of mental incapacity, such as mental illness, dementia, developmental delay, or physical injury, and not from a non-legal capacity-related reason, such as lack of sophistication, education, or cultural differences. Additionally, the incapacity, so caused, must affect the litigant’s decision-making in relation to the issues in the litigation.

25At para. 56, he stated:

In determining a litigant’s capacity to instruct counsel, the court is concerned with the person’s decision-making over the entire duration of the proceeding. While the specific issue of what period of time is relevant for purposes of determining capacity to instruct counsel has not, insofar as I am able to ascertain, been determined in a previous case, the conclusion that the relevant period is the entire duration of the litigation follows from the following considerations: a) As the Master noted in Cameron v. Loudon, above, the test of capacity is a functional one, particular to the task or activity at issue. In the case of capacity to instruct counsel, the activity consists of the full range of decisions that the litigant is required to make in the proceeding. b) The decisions that the litigant needs to make, and which are at issue in the determination as to capacity to instruct counsel, are not made in one single moment, as where a settlor executes a Power of Attorney or a testator executes a Will. The decisions in a family law proceeding are on-going throughout the proceeding.

26At para. 57, Justice Price provided a summary of factors to be considered:

The jurisprudence has identified the following factors that should be considered when applying the test for determining whether a party is under disability and requires a litigation guardian: a) A person’s ability to know or understand the minimum choices or decisions required and to make them; b) An appreciation of the consequences and effects of his or her choices or decisions; c) An appreciation of the nature of the proceedings; d) A person’s inability to choose and keep counsel; e) A person’s inability to represent him or herself; f) A person’s inability to distinguish between relevant and irrelevant issues; and, g) A person’s mistaken beliefs regarding the law or court procedures. Huang v Pan, 2016 ONSC 6306.

Decision

27For the reasons set out below, the Court finds that Mrs. Evans has not met the onus of establishing that she is a “special party”.

28Although the medical evidence indicates that Mrs. Evans suffers from numerous mental health issues, the evidence falls short of answering the ultimate question which must be determined, i.e. does she have a mental incapacity such that she is not able to appreciate the reasonably foreseeable consequences of a decision or lack thereof? The medical reports and the assessment by Dr. Ricci do not address this ultimate question.

29A summary of the medical evidence is set out below. The medical reports of Mrs. Evans’ family doctor and psychologist provide the foundation of Mrs. Evans’ medical history for the purposes of the psycho-legal assessment report. It is not a capacity report. Its purpose is to provide an opinion of Mrs. Evans’ psychological status and impact of any psychological condition on her ability to participate in person in pre-trial questioning and legal trial.

30On reviewing the evidence below, the Court cannot reach a conclusion that Mrs. Evans is not able to understand and appreciate the risks and consequences of decisions. Rather, the medical evidence indicates that she is feeling a great deal of stress and anxiety due to the litigation and the unknown and will be further mentally affected if she participates in these proceedings.

31Dr. Marie-Claire Bujold’s (family doctor) letter of December 13, 2016 stated that she was in absolute distress when she saw her on December 12, 2016.

I do believe that at this time her major depressive diagnosis is at a level that forcing her attendance and participation would likely cause irreparable damage to her mental health.

32Dr. Bujold stated in her letter of April 27, 2017 the following:

That she continues to be unable to participate in any additional questioning in regards to her upcoming trial in September 2017.

Currently her mental health is already affected severely and negatively by the stress of his process. The rigors of a questioning and trial would only lead to further negative and harmful symptoms.

Some of the symptoms she currently experiences include but are not limited to: insomnia and disturbing nightmares, hypervigilance, irritability, poor memory and concentration, avoltion, extreme anxiety and depressive symptoms. These will only worsen with further questioning and moving to trial. It would be highly damaging to her mental health to proceed through these next steps. I strongly support appointing a Litigation Guardian for Mrs. Evans.

33In her updated letter dated June 26, 2017, Dr. Bujold states that the diagnosis remains unchanged:

She has a Major Depression of moderate to severe level with additionally anxious mood. She has symptoms of PTSD without a true diagnosis as for this, there must be One True Event to ascribe the beginnings of symptoms to, where her symptoms come from an accumulation of abusive relationships in her life at home and at work, not a stated one event.

I continue to believe that she is far too emotionally fragile to participate in ANY questioning or trial event. Any such questioning would most certainly increase all of her depressive symptoms and indeed worsen her general condition overall.

This has been my Diagnosis for well over 2 years now. My opinion is unchanged, and unless there were some extraordinary improvement in her condition (which is highly unlikely due to all of her stressors and the fact that they are not going away), this will remain my opinion.

The examinations for discovery of Ms. Debra Evans scheduled for August 15, 2016 in my professional opinion will amount to a mentally and emotionally traumatic experience akin to a soldier going into battle. The consequences to her psychiatric health will be extremely negative and harmful.”

34Dr. Lazarovitz’ (psychologist) letter dated November 17, 2016 states:

Based on my clinical observations, Ms. Evans remains in a fragile state. In addition to her poor coping abilities, she has not made significant progress in her recovery over the past few months. Therefore, an exact return to work date is not predictable.

It is my professional opinion than any added stress Ms. Evans sustains (e.g., returning to work at this time) would do further harm to an already vulnerable person and would seve as a significant barrier to her long-term recovery.

35Dr. Lazarovitz’ letter of January 4, 2017,

…Ms. Evans remains in a highly vulnerable state and further exposure to high levels of stress (e.g. Litigation preparation and questioning by opposing counsel) will likely exacerbate her already poor condition.

Although it is impossible to predict Ms. Evans’ recovery timeline, I believe that an adjournment of her upcoming trial until the summer/fall 2017 would help afford Ms. Evans the opportunity to focus all of her energy on reducing and resolving her mental health issues and improve fitness for trial.”

Ms. Evans is suffering from moderate to severe symptoms of depression and anxiety that prevent her from returning to work. In addition, I have noted that her condition is exacerbated by the stress of litigation.

36Dr. Tammie Marie Ricci’s report dated May 30, 2017 was prepared after a 2-hour interview and 3-hour testing (with a half-hour break) on May 12, 2017.

37Dr. Ricci is a member of the College of Psychologists, and her licensure/registration including the Canadian Register of Health Service Providers in Psychology, Registered Agency Service Provider, Workplace Safety and Insurance Board of Ontario, Canadian Society of Medical Evaluators, and Canadian Academy of Psychologist in Disability Assessment.

38She is currently the owner and operator of a group private practice with a focus on rehabilitation and disability management and conducts assessments, consultation and psychotherapy with adults with a wide-range of issues. She has extensive experience in disability assessment and disability management. She has extensive training in the AMA Guides 4th Edition as well as the AMA Guides 6th Edition, specifically Mental and Behavioural Disorders.

39She reviewed the following documentation:

• Statement of Claim;
• Clinical notes and records of Dr. Lazarovitz;
• Clinical notes and records of Dr. Bujold;
• Various handouts on Cycle of Abuse provided to Mrs. Evans by a marriage counsellor; and
• Clinical notes and records of Faye Lavergne (counsellor) July – October 2001.

40Ms. Evans was referred by her lawyer for a psycho-legal assessment to provide an objective, non-partisan opinion regarding her psychological status. Further, she was to determine the impact of this status on her ability to participate in in-person questioning, a legal trial and work reintegration.

41Dr. Ricci’s mandate was solely to provide an impartial report based on her area of competence of clinical and rehabilitation psychology and not act in a therapeutic relationship.

42Ms. Evans was administered a number of tests including the BDI-II, a standardized measure of depressive symptomatology. Her score indicates a severe level of depression at this time. In particular she reported experiencing pervasive sadness, feelings of hopelessness, feeling like a failure, loss of pleasure, self-criticalness, suicidal ideation, frequent crying spells, agitation, loss of interest, indecisiveness, feelings of worthlessness, reduced energy, sleep disruption, irritability, reduced concentration, fatigue and reduced libido. These results are consistent with clinical interview data documentation reviewed as well as PAI and MCMI-IV (Millon Clinical Multiaxial Inventory-IV) results.

43During the observations by Dr. Ricci, she had no gross psychopathology evident in thought or behaviour (e.g. hallucinations, bizarre mannerisms, etc.). She did not present as symptom-focused. There was evidence of depressed mood. She cried throughout the assessment session. At times she sobbed and we had to stop the interview in order that she may “collect herself”. Concentration and attention appeared variable. Ms. Evans would often lose her train of thought. She had a tendency to engage in tangential speech. She appeared tense and anxious, often wringing her hands. She had some difficulty recalling dates and events. She maintained relatively good eye contact and demonstrated good interpersonal skills.

44Her findings found at page 10 are as follows:

Based on current assessment findings as well as review of documentation in Ms. Evans’ file, it is my opinion that she presents with the following DSM-5 Diagnoses: major depressive disorder with anxious distress, moderate to severe, and posttraumatic stress disorder, features. In my opinion, Ms. Evans’ diagnoses have evolved over time and are related to a combination of work, medical and litigation stressors. In my opinion, Ms. Evans’ PTSD features date back to early childhood experiences and have been fueled by her emotionally abusive marriage, ongoing litigation procedures and workplace stressors. In my opinion, the major depressive disorder developed likely in late 2014/early 2015 as a result of a combination of the above-noted stressors.

In my opinion, Mrs. Evans psychological diagnoses significantly impact her ability to work and to function on a daily basis as well as her ability to participate pre-trial questioning and/or a trial. She is extremely emotionally fragile at this time and this was noted throughout the assessment session. She has a difficult time attending and concentrating to questions posed of her. She is hypervigilant, anxious, and depressed and had difficulty completing the assessment session in a timely manner as a result. She has a tendency to engage in tangential speech. She tends to lose her train of thought. She is overcome with emotion and has difficulty calming herself down and redirecting herself to the question at hand. I see no evidence to support a return to work at this time given the current severity of her psychological conditions and their impact on her overall functioning levels. Even in her home where she feels safe, she has difficulty maintaining day-to-day tasks, such as personal hygiene and homemaking activities. She is unable to deal with stressors even within the calm space of her home. She avoids going out of her home because it increases her anxiety levels substantively. Even the mere sighting on an OC Transpo bus will bring on significant anxiety as it is a reminder of when she worked. She presents with suicidal ideation, feelings of hopelessness and helplessness, loss of motivation, loss of interest and lack of initiation. She is withdrawing socially, particularly in terms of getting out of her house to visit friends or family.

45Further at p. 11, she states:

Based on current assessment finds as well as review of documentation in her file, it is my opinion that Ms. Evans’ prognosis with respect to returning to her pre-disability workplace is considered very guarded at this time. She remains in an emotionally fragile state and will require ongoing psychological intervention for at least another six to eight months…

At this time, it is my opinion that Ms. Evans would not be able from a psychological perspective to participate in in-person pre-trial questioning an/or a trial. As indicated, she is extremely emotionally fragile at this time. She is having difficulty in composing herself emotionally concentrating and attending to information. She tends to engage in tangential speech and will often lose track of her thoughts. In my opinion, the added stress of attending pre-trial questioning and/or trial will likely act to exacerbate her depression and PTSD symptoms and could potential lead to deleterious effects in terms of further deterioration in psychological functioning and potential harm to self.

46There is no evidence regarding her ability to instruct counsel. In Costantino v. Costantino, 2016 ONSC 6900, the Court received medical evidence of the party’s incapacity to make decisions and evidence from the solicitor regarding the client’s inability to instruct him.

47Justice Backhouse, in C.C. v. Children’s Aid Society of Toronto, 2007 ONCJ 29, in 2007, stated, “There is a distinction to be drawn between failing to understand and appreciate risks and consequences, and being unable to understand and appreciate risks and consequences. It is only the latter that can lead to a finding of incapacity”.

48Mrs. Evans alleges that her current mental status, i.e. her depressive state and anxiety, is at a level that she is not in position to deal with the process. But it does not address the issue of whether she can make decisions regarding the process. A person can be very anxious and stressed but still be in a position to make decisions.

49Therefore, I make the following findings:

• Mrs. Evans currently experiences insomnia and disturbing nightmares, hypervigilance, irritability, poor memory and concentration, avoltion, extreme anxiety and depressive symptoms. These will only worsen with further questioning and moving to trial.
• The major depressive disorder developed likely in late 2014/early 2015 as a result of a combination of stressors.
• Dr. Ricci stated that the weight of the litigation has been very stressful on her and that this, in combination with work stressors and the recent melanoma diagnosis, led her to feel overwhelmed emotionally to a point where she has been unable to cope with even basic day-to-day demands.
• At page 5, Dr. Ricci states that “she is able, for the most part, to feel calm at home; however, when she has to leave the home or when she is exposed to a number of stressors at the same time she becomes overwhelmed and has significant difficulty coping”.

50Family law litigation can be an emotionally charged environment that can cause significant stress on litigants and those involved in the process. This litigation touches on intimate and personal issues that go to the fiber of individuals’ emotional and physical well-being. The results in a family law trial have serious impact on peoples’ lives including financial well-being and relationships with children. The impact of Family Court decisions on lives of litigants cannot be overstated and certainly since the stakes are high, it is not surprising that litigants can find the whole process daunting which can make them anxious, stressed, depressed and worried. Litigants can be immersed in fear and become very anxious as they await the final outcome.

51There is no question that Mrs. Evans is a stressed litigant. The medical evidence of her practitioner clearly sets out the mental health history. Most importantly, the independent medical report (the report) filed by an expert which has not been contradicted, demonstrate that Mrs. Evans is at a point that she is so stressed regarding the litigation that to proceed with the process could cause her emotional damage to her mental health. However, the report does not address the issue of whether she can make decisions regarding the issues and instruct counsel.

52The report does not specifically deal with the factors suggested by Justice Price in Costantino v. Costantino, 2016 ONSC 6900, ie:

(a) A person’s ability to know or understand the minimum choices or decisions required and to make them; (b) An appreciation of the consequences and effects of his or her choices or decisions; (c) An appreciation of the nature of the proceedings; (d) A person’s inability to choose and keep counsel; (e) A person’s inability to represent him or herself; (f) A person’s inability to distinguish between relevant and irrelevant issues; and, (g) A person’s mistaken beliefs regarding the law or court procedures.

53The report does not discuss the above nor provide any conclusion regarding the above factors. A litigant who has significant mental health issues that result in an overly distraught individual who is anxious about the trial process is indeed a troubling issue. However, at this point the Court is not satisfied that a litigation guardian should be pointed in this case.

54Rule 2 of the FLRs provides:

(2) The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2 (2). (3) Dealing with a case justly includes, (a) ensuring that the procedure is fair to all parties; (b) saving expense and time; (c) dealing with the case in ways that are appropriate to its importance and complexity; and (d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

55This litigation was commenced five years ago. There have been many delays in this matter. Therefore, the Court will adjourn this motion to the date scheduled for the motion for disclosure. Mrs. Evans may bring submit further evidence regarding her capacity to make decisions and/or instruct counsel at that time.

56As stated at para. 58 of Costantino v. Costantino, 2016 ONSC 6900:

Issues of mental capacity generally are to be decided on medical evidence. Courts have, in some circumstances, considered various types of evidence in determining whether a Litigation Guardian should be appointed: a) Medical or psychological evidence as to capacity; b) Evidence from persons who know the litigant well; c) The appearance and demeanour of the litigant; d) The testimony of the litigant; and, e) The opinion of the litigant’s own counsel.

57Costs of this motion are reserved to the Trial Judge.