WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
87.— (7) Order excluding media representatives or prohibiting publication.
Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order:
(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.
87.— (8) Prohibition re identifying child.
No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.
87.— (9) Prohibition re identifying person charged.
The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142.— (3) Offences re publication.
A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court Information
Date: August 8, 2019
Court File: 20083/18
Ontario Court of Justice
Applicant: Children's Aid Society of Peel
Counsel: Jenna Persaud
Respondent: S.C.
Respondent: C.A.
Before: Justice A.W.J. Sullivan
Endorsement
Introduction
[1] This is a decision on a motion commenced by the Children's Aid Society of Peel (CASP) to have Ms. C. found to be a special party, as defined by subrule 2(1) of the Family Law Rules, and requesting an Order appointing the Office of the Public Guardian and Trustee (PGT) to act as Ms. C.'s representative, pursuant to subrule 4(3) of the Family Law Rules.
[2] The evidence that I considered in this matter was the motion commenced by CASP and supporting affidavits located at Tab 9, 10, and 3, an earlier affidavit. As well Ms. C. filed an affidavit opposing this motion filed on the day of the motion.
[3] Ms. C. is representing herself at the present time in this child welfare matter. She is seeking to retain a lawyer. She is not eligible for Legal Aid Ontario assistance as she does not meet the financial eligibility cut-off.
[4] In addition to the above-noted parties, Mr. A. was served along with the Office of the Children's Lawyer (OCL) and the PGT attended the motion to observe. Mr. A. did not attend.
[5] The child in this matter is C. who is 13 years old and currently living with her father.
[6] The Office of the Children's Lawyer and Mr. A. did not take a position nor file any materials in this motion.
Evidence of CASP
[7] In support of this motion CASP argues that Ms. C., during her access visits with her daughter, continues to have conversations with the attending workers and her daughter that from the perspective of CASP is the very reason that caused them to become involved with this family in the first place. Essentially the Society suggests that Ms. C. has certain positions, viewpoints and beliefs that cause her daughter emotional harm.
[8] CASP apprehend the child C. from the mother's care in November 2018 during which time CASP was contacted by the maternal grandmother as well as Ms. C.'s psychiatrist.
[9] The psychiatrist indicated that in a meeting with Ms. C. on November 29, 2018 that she advised the psychiatrist that approximately a month ago she had become "psychotic" and was at the Trillium Health hospital for the two-week period. During this appointment that Ms. C. and her daughter attended, that the daughter informed the doctor that Ms. C. thinks that people want to take her (the daughter) away, that Ms. C. had contacted the police because the daughter's window was open and that somebody was trying to break in, and that Ms. C. did not want her daughter to attend school as Ms. C. believes the school is involved in keeping her daughter away from her.
[10] The doctor goes on to inform CASP that he believes Ms. C. is not taking her medication.
[11] From the evidence filed by the Society on December 7, 2018, there is no psychiatric evaluation evidence presented in that affidavit, nor is there any in this motion.
[12] The Society attempted to locate Ms. C. and her daughter throughout the day on November 29, 2018 and was eventually able to connect with the school on December 5, 2018, as both the child and Ms. C. were at the school.
[13] The workers from Peel CAS intervened at the school and spoke to Ms. C. and her daughter as well as staff at the school.
[14] In conversations with Ms. C. the workers reported that Ms. C. believed that her daughter is not safe at school as people were attempting to get her as Ms. C. is "the Queen." That Ms. C. is being forced to marry her daughter's biological father, that the school is part of this plan and that the school had asked her to sign a school trip form which is something to do with keeping her daughter and that the police and her family are in on this plan.
[15] On December 5, 2018 while at the school, C. was removed from her mother's car while in the parking lot and brought to the PCAS offices after which she was officially apprehended.
[16] In the December 5, 2018 affidavit, there is a conversation reporting what the child had told the workers about her concerns regarding her mother's mental health. The child was eventually placed in the care of her father after a temporary care and custody hearing on this issue was held on March 13, 2019 and a consent signed.
[17] On that date the respondent mother had counsel and a negotiated arrangement was made for C. to live with her father with terms of supervision and access to be supervised between Ms. C. and her daughter via the CASP.
[18] In the Society's current affidavit filed in relation to this motion, there are reports from the workers outlining concerning comments made by the mother to the Society as well as comments made by the mother to her daughter during supervised access visits. The Society has also reported conversations of what C. has informed the workers of while being transported to and from access visits.
[19] In terms of direct evidence from the worker overhearing conversations during supervised access the following is reported:
- That the mother's response to her daughter's request for her laptop was that Ms. C. reported that the laptop had been "seized" from her.
- That this computer has evidence that men were trying to lure her daughter from her.
- She does not understand why the CASP has her daughter living with the father.
[20] The worker in the May 17, 2019 affidavit indicates that an explanation was provided to Ms. C. as to why her daughter was with her father as the CASP had concerns about Ms. C.'s mental health and keeping her daughter away from school and isolated.
[21] Ms. C. explained to the worker that the biological father, Mr. A., was abusive towards their daughter and to her and that in the past she had contacted the police and fire department regarding this abuse but did not provide details.
[22] Ms. C. advised the worker there is a huge cover-up and that she would not bring her daughter's clothes as requested nor her daughter's winter clothes for an upcoming school trip and would not authorize a school ski trip as she was worried about her daughter's safety although her daughter wanted these items.
[23] The Society reports a January 25, 2019 conversation between Ms. C. to an after-hours worker where she again asks why her daughter is not with her and that she explained she has no trust in the Society and that there is a huge cover-up by the Society and that her daughter is not in a safe environment and that she, Ms. C., is uncomfortable in the presence of the current worker.
[24] The Society further reports that in February of 2019, Ms. C. indicated in a meeting that she has been cleared by medical professionals regarding her mental health but did not want to provide information or documentation regarding this.
[25] That when the worker attempted to discuss why CASP was involved, Ms. C. indicated that she did not let her daughter go to school for one week as it was her belief the police and others were following her daughter and wanted to harm her.
[26] The Society goes on to explain that there were no visits from approximately February 6, 2019 through to March 2019. CASP workers had no contact with Ms. C. and reconnected with her at court on March 13, 2019, at which time Ms. C. advised that she was prepared to resume visits with her daughter as well as the fact that she is not seeing a psychiatrist nor does she see any problems with her mental health.
[27] CASP goes on to report on the March 20, 2019 meeting between Ms. C. and her daughter and highlights the following:
[28] Ms. C. informed her daughter that her daughter has disabilities which caused her daughter to be uncomfortable that when the Society worker attempted to intervene Ms. C. told the worker not to be present and that the Society is conspiring against her and that everything with "this process" was wrong and that she as a mother wanted to have a frank conversation with her daughter.
[29] During an April 3, 2018 meeting with her daughter, the Society reports that Ms. C. seems to be laughing inappropriately and in particular points out that she laughed once when her daughter expressed being confused about statements made by her mother regarding growing up in the city like Drake but also living on a farm when she was younger and milking cows and cutting corn. During this visit Ms. C. also explained to her daughter about the police coming to their home in December 2018. At one point Ms. C. asked her daughter what was on her socks to which her daughter responded "little sharks" to which the mother responded that sharks are scary and stated that they are vacuum sharks in front of their house. Ms. C. was reported to then go on to sing, "Baby Beluga."
[30] In a May 5, 2019 visit with her daughter during which Ms. C. explained to her daughter that she was not safe at school and that the government and the school are conspiring against them. Ms. C. also goes on to tell her daughter that her daughter has lied and that she has 20 boyfriends and that she sent nude pictures to "William."
[31] The Society further recorded that Ms. C. believes her daughter is being groomed for human trafficking and that she brought a number of pamphlets dealing with sex-trafficking for her daughter all of which made her daughter feel very uncomfortable.
[32] The CASP further reported that on May 13, 2019 Ms. C attended their office and her daughter was dressed unusually, which the worker described was reminiscent of a clown and during the visit with her daughter Ms. C laughed to herself and "…appeared manic."
[33] Based on the above the Society indicates that the behaviour and the statements made by the mother are against her interest within this litigation and that if she was emotionally and mentally healthy she would not make such statements or act as she does as she should know this will be used against her in this litigation as they support the Society's earlier protection concerns of the mother's emotional mental health impacting negatively on her daughter, the very reason the CASP commenced this Protection Application.
[34] Ms. C. in her affidavit states the following:
- That she can understand and make decisions in this case and that she is capable of handling her own personal affairs and those of her child.
- She will be acting as her legal representative instead of the PGT.
- That she is able to make decisions based on her views and preferences regarding the case.
The Law Considered
[35] The law that I have considered in this matter is the following from the jurisprudence that is developed around capacity in family law matters dealing with individuals that are suffering from mental health issues. Rule 4 of the Family Law Rules speaks of "special parties" and provides for the appointment of a legal representative for these parties, as well as other procedural protections.
[36] In the recent Ontario Court of Appeal decision of Kowalsky 2018 ONCA 539, it is clear that failure to deal with this issue of a party's capacity in litigation is a reviewable error and it must be dealt with and recognized as the responsibility by all parties once this issue has been raised. This is the responsibility of the court, the parties' lawyer, the opposing party. Therefore in this matter the Society has recognized this and has rightfully brought this matter to court.
[37] This issue must be dealt with first before any other proceeding can go forward.
[38] Justice Backhouse in the case of Children's Aid Society of Toronto summarizes the applicable principles that were established in Re Koch (1997), 33 OR (3d) 485:
What is in one's best interest must not be confused with one's cognitive capacity. It is mental capacity and not wisdom that is the subject of the Substitute Decision Act, 1992 supra. It is immaterial whether one's words, deeds and choices appear reasonable to others. Reasonableness in the eyes of others is not the test. The test for incapacity is an objective one. 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. Notwithstanding the presence of some degree of impairment, the question to be asked is whether one has retained sufficient capacity to satisfy the Substitute Decision Act, 1992, supra.
[39] 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. Nezic v. Nezic 2013 Carswell Ont 4003 at paragraph 2.
[40] The main issue in these incapacity hearings is the difference between failing to understand versus being unable to understand. It is mental capacity and not wisdom that is at issue.
[41] What is in one's best interest must not be confused with cognitive capacity – capable people are permitted to make poor choices.
[42] The test for capacity is an objective one, and compelling evidence is required to override the presumption of capacity.
[43] Generally, in these matters evidence that is presented is from people who know the litigant over a period of time.
[44] The appearance, demeanour and conduct of a litigant before the court.
[45] Testimony of the litigant, their filed materials and transcripts.
[46] The opinion of the litigant's own counsel.
[47] Current, relevant medical evidence is the best evidence and should be produced where possible.
Discussion and Decision
[48] In my review of the evidence and argument of the Society there appears to be reliance on how it would be unreasonable to assume that Ms. C. is capable, given the statements that she has made to her daughter and to others during her access visits and meetings with CASP workers and to a lesser degree her appearance and actions.
[49] In this motion the Society did not file any credible and trustworthy medical evidence on Ms. C.'s mental health.
[50] There is an earlier mention of a telephone call between Ms. C.'s psychiatrist and the Society. There is no diagnosis provided and that conversation is hearsay secondhand.
[51] The worker's note that Ms. C appeared manic is not acceptable evidence nor would that necessarily mean she has no capacity regarding these proceedings to appreciate the consequences of her decisions and participate in these proceedings.
[52] I have reviewed the comments of Ms. C. regarding her beliefs surrounding her daughter. These comments if made individually can be considered unusual and strange.
[53] Ms. C. in her recent affidavit does not deny making these statements.
[54] Ms. C. in her appearance before the court and conversations with the court at all times have been appropriate and on point.
[55] She denies having any incapacity to the extent that she cannot represent herself.
[56] She denies not knowing the consequences of her decisions albeit some might be considered not helpful to her case.
[57] The CASP's main argument in this matter is that Ms. C. cannot be capable if she is aware that her statements are being recorded and support the CASP's initial protection concerns.
[58] In my conversations with counsel for CASP during this motion, I indicated that many people say and do things during observed visits that support the Society's initial protection concerns. Often they cannot help themselves and often families simply make poor choices. This has to do with one's wisdom which is not the test for incapacity.
[59] The test is not whether one's deeds and words are reasonable to others that, as noted above, is immaterial.
[60] The test is an objective one. Is Ms. C. unable to understand and appreciate risks and consequences of her decisions?
[61] She is presumed to be mentally capable.
[62] She presents herself both physically and in her comments to the court that do not show any overt reason for the court to question her capacity in this regard.
[63] She had worked with a lawyer to prepare, serve and file her Answer and Plan.
[64] There was no evidence from individuals that know Ms. C. well regarding her decision-making ability in the past nor was there any medical evidence of incapacity relating to mental illness, physical injury or dementia.
Order
Given the evidence filed, my findings and the law outlined above, the motion of the CASP located at Tab 9 of Volume 1 of the Continuing Record is dismissed.
The next date in this file to plan next steps shall be September 4, 2019 at 9:30 a.m. in courtroom 208.
August 8, 2019
Justice A.W.J. Sullivan