WARNING

The court hearing this matter directs that the following notice should 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.

(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.

(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.

ONTARIO COURT OF JUSTICE

CITATION: Native Child and Family Services of Toronto v. A.I., 2022 ONCJ 353

DATE: August 2, 2022

COURT FILE No.: CFO-21-16246-00 – Toronto, Ontario

BETWEEN:

Native Child and Family Services of Toronto Applicant,

— AND —

A.I., C.B., L.B., J.S, WFN Respondents

Before Justice W. Kapurura

Heard on July 14th, 2022

Reasons for Judgment released on August 2nd, 2022

Lisa Hayes........................................................................ counsel for the applicant society

Robert Shawyer............................................................... counsel for the respondent, C.B.

Jean Hyndman................................................................ counsel for the Respondent, J.S.

No appearance by or on behalf of A.I and WFN, even though served with notice.

REASONS FOR DECISION

KAPURURA J.:

Part 1 – Overview

[1] The following are the court’s reasons concerning an order that was made on a motion brought by Native Child and Family Services of Toronto [“the Society”]. The Society’s motion was heard on July 14th, 2022.

[2] The motion was filed on April 28th, 2022, with an initial hearing date of June 1st, 2022. The June 1st, 2022 court date was vacated by the court on May 12th, 2022 due to the unavailability of the court. A new court date of July 14th, 2022 was scheduled for the matter.

[3] The Society’s motion sought a finding that the Respondent mother, A.I., is a special party and that the Office of the Public Guardian and Trustee (“PGT”) should be appointed as her representative in this proceeding.

[4] The request was granted by the court on July 14th, 2022. The parties were advised that reasons were to follow.

[5] The Society’s motion required consideration of the following issues.

a. Whether the Respondent mother, A.I., is a special party pursuant to Rule 2(1) of the Family Law Rules (O.Reg. 114/99 as am.)

b. If a finding of special party is made, whether an appropriate person is available and willing to act as A.I.’s representative in this proceeding.

c. Whether the PGT should be appointed as A.I.’s representative.

d. What terms, if any, should accompany the court order?

Part 2 – The Society’s involvement and litigation history

[6] This proceeding involves one child, J.I., born […], 2020. J.I. is one and a half years old.

[7] J.I.’s mother A.I., is a member of Wasagamack First Nation.

[8] J.I.’s father, C.B., does not have indigenous heritage.

[9] At the time of the initial protection application, the Society was seeking protection orders for two children, namely, J.I. and his half-sibling who is 8 years old. The application pertaining to the half-sibling was withdrawn by the Society on April 20th, 2022.

[10] Both J.I. and his 8-year-old half-sibling are currently in the care of the maternal grandmother, J.S.

[11] Before the child J.I.’s birth, the Society had been involved with the mother, A.I., due to the following concerns;

i. Domestic violence (between the Respondent mother, A.I., and the father of the 8-year-old half-sibling)

ii. Misuse of prescription medication by the Respondent mother, A.I.

iii. Mental health.

[12] Following the involvement of the Society, J.I.’s 8-year-old half-brother was placed with the maternal grandmother, J.S.

[13] On November 6th, 2019, the maternal grandmother, J.S, was granted full decision-making responsibility with respect to J.I.’s half-brother in a domestic proceeding that had been initiated by the maternal grandmother.

[14] Since his birth in […] 2020, J.I. has been primarily cared for by his maternal grandmother. In the weeks following his birth, the maternal grandmother lived with the mother, A.I., and closely supervised the Respondent’s mother’s care of J.I.

[15] It then became clear that the mother, A.I., could not be left alone with J.I. due to concerns relating to the mother’s mental health.

[16] On January 22nd, 2021, a voluntary service agreement was executed placing J.I. into the primary care of the maternal grandmother. The voluntary service agreement was not extended after its expiry on July 22, 2021. The Society decided not to extend the voluntary service agreement due to concerns around A.I.’s capacity to understand or consent to a further agreement. However, J.I. remained in the care of the maternal grandmother.

[17] J.I.’s father, C.B. has been in and out of jail since J.I’s birth. The full details of the father’s criminal charges and convictions are unknown to the Society. However, around June 2021, the father assaulted the mother, A.I., in her apartment. The father was convicted of the related criminal charges and served jail time.

[18] The Society filed a child protection application on October 21, 2021, seeking a supervision order for 6 months, in favour of the maternal grandmother, J.S.

[19] On November 22nd, 2021, a temporary care and custody motion was heard. The child, J.I., and his half-sibling were placed into the temporary care and custody of the maternal grandmother, on a without prejudice basis.

[20] On November 30th, 2021, the maternal grandmother filed an Answer and Plan of Care in this proceeding, seeking placement of both children in her care pursuant to section 102 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 [“CYFSA”].

[21] On April 20th, 2022, the Society filed an amended child protection application seeking an order that the child, J.I., be placed with the maternal grandmother pursuant to s.102 of the Child, Youth and Family Services Act.

[22] On April 20th, 2022, the Society withdrew its application regarding J.I’.s half-sibling.

[23] J.I.’s protection application remains before the court.

Part 3 – Evidence in support of the Society’s request

[24] In support of its motion, the Society relied on the following materials;

i. The affidavit of Fiona Wilkes, child and family well-being worker, dated April 28th, 2022.

ii. The affidavit of Fiona Wilkes, child and family well-being worker, dated July 7th, 2022 (providing updates).

[25] The other parties in this matter did not file materials in response to the Society’s motion.

[26] None of the respondents took a position with respect to the Society’s motion. However, the maternal grandmother’s legal counsel advised the court that the grandmother was taking a position based on what the mother, A.I., says.

[27] The Respondent mother, A.I., was not in court and does not have counsel. No position was provided to the court on behalf of the Respondent mother, A.I.

[28] In her April 28th, 2022, affidavit, the Society’s child and family well-being worker, Fiona Wilkes (“Ms. Wilkes”), provides the following evidence.

[29] The Respondent, A.I., has not retained a lawyer in this proceeding.

[30] As of the date of Ms. Wilkes’ first Affidavit (April 28, 2022), A.I.’s mental health had deteriorated to a significant degree in the three months prior.

[31] On February 8th, 2022, Toronto Community Housing Support Worker, Melissa Rodrigues, told the Society that on February 7th, 2022, the Respondent mother, A.I., set fire to her apartment unit and was displaced from her home. The housing support worker also indicated that a few days after the incident, A.I. had been caught on camera attempting to set fire in other parts of the building.

[32] On March 7th, 2022, the maternal grandmother advised the Society that A.I. had been arrested for shoplifting, had been detained briefly, and was transferred to Ontario Shores in Whitby, Ontario, for mental health treatment and support.

[33] On April 11th, 2022, the Respondent mother, A.I., spoke with Ms. Wilkes. A.I. told Ms. Wilkes that she was in the hospital to get a job and to clean floors. A.I. did not appear to understand that she was in the hospital for treatment and mental health support.

[34] On April 12th, 2022, A.I.’s treating psychiatrist provided the following information to the Society.

i. The working diagnosis for A.I. is schizophrenia and A.I. was presenting as psychotic.

ii. A.I. was receiving a monthly injection of her medication and had shown some modest improvement.

iii. If improvement was not noted in two to three weeks, they would modify her medication and reassess.

[35] In the affidavit of July 7th, 2022, Ms. Wilkes, provides the following updates.

[36] On May 3, 2022, Ms. Wilkes contacted Ontario Shores social worker, Katelyn Hemming, who provided the following information to the Society.

a. A.I.’s medications had been changed.

b. A.I. was not able to consent to treatment and her mother (the maternal grandmother in this matter), was A.I.’s substitute decision maker.

c. A.I. was not considered to be lucid at that time.

[37] On May 4th, 2022, Ms. Wilkes met with the Respondent mother, A.I., at Ontario Shores Women’s Acute Stabilization Unit. Ms. Wilkes observed the following.

a. A.I. did not make eye contact with Ms. Wilkes

b. A.I. provided only thumbs up to indicate that she remembered who Ms. Wilkes was.

[38] On the same day (May 4th, 2022), Ms. Wilkes was told by Ontario Shores staff that A.I. had been mute for the past few weeks and had been gesturing to communicate her needs. Ms. Wilkes was also told that A.I had been defecating on the floor about five times per week.

[39] On June 9th, 2022, Ontario Shores advised Ms. Wilkes that A.I. was now compliant with her medications but she was still engaging in defecating behaviours.

[40] On June 30th, 2022, A.I. called Ms. Wilkes and A.I. provided the following information.

a. she was now out of the hospital

b. she would not be taking her medication.

c. She had seen her children since being released but did not want “to get caught up in their lives”

d. She was residing in a shelter but did not share further details with Ms. Wilkes when asked about the shelter.

e. She became irritated during the call and asked why Ms. Wilkes was asking so many questions. A.I. stated that she did not want to answer questions and ended the call.

[41] On May 4th, 2022, Ms. Wilkes inquired with the maternal grandmother whether any family members could act as A.I.’s legal representative. The maternal grandmother advised that she would speak with her brothers about the issue. On June 23, 2022, the maternal grandmother advised that she had canvassed with her family members, and no one was willing to act in that role.

[42] A.I. has no treating psychiatrist currently and there is no community treatment order in place to ensure that she takes her prescribed mediations.

[43] This matter was in court on July 14th, 2022, and A.I. was not in attendance.

[44] The following table shows the history of court attendance by A.I.

Date	Attendance by Respondent, A.I.	Orders made/comments
November 22, 2021	A.I. in attendance	Temporary order placing J.I. and his half-sibling into the temporary care of the maternal grandmother, subject to supervision by the Society.
January 20th, 2022	A.I. not present	The Society advised of an intention to amend the application to seek a section 102 CYFSA order in favour of the maternal grandmother.
April 21, 2022	A.I. not present	The court was advised that A.I.’s mental health had deteriorated, and she was in the hospital with a diagnosis of schizophrenia. A.I. was undergoing treatment. The maternal grandmother advised that she would file an answer and plan of care as she had concerns about access to the parents.
May 12, 2022	N/A	Due to the unavailability of the court, the June 1st, 2022, court date was adjourned to July 14th, 2022.
July 14, 2022	A.I not present	The Society’s motion was heard (seeking orders for A.I. to be declared a special party and for the appointment of the PGT). The orders were granted, with reasons to follow. Note: Just before the motion was heard, the court inquired whether A.I. was aware of the motion date and the orders being sought by the Society. Counsel for the maternal grandmother advised the court that A.I. was aware of both the court date and the orders being sought.

[45] From the information provided above, A.I. has missed the three most recent court dates.

[46] A.I. only attended the first court date of November 22nd, 2021.

Part 4 – Legal considerations

[47] Rule 2(1) of the Family Law Rules defines a special party as;

“special party” means a party, other than a child 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

[48] The appointment of a legal representative for a special party has been considered to be a procedural safeguard meant to protect the litigant and “to protect the integrity of the judicial process for all participants in the litigation, including the Court” [[Murphy v. Carmelite Order of Nuns][^1]]

[49] In [Cameron v Louden][^2], Master Beaudoin made the following comment;

4 In deciding this issue, the Court notes the following excerpt from Holmested and Watson, Ontario Civil Procedure, Volume 2, page 7-13:

The purpose of a rule requiring a litigation for parties under the disability is drawn for protection to the party, the other parties and the Court itself. The Rule offers protection to the party by 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 be conducted, is responsible for costs and is responsible for seeing that the court's eventual judgment is obeyed. The litigation guardian offers assurance to the court that its process is not abused by or against a party under disability and that its order will be obeyed.

[50] The Substitute Decisions Act, 1992, SO 1992, c 30, has the following provisions;

Interpretation

s.1(1): “capable” means mentally capable, and “capacity” has a corresponding meaning

Presumption of capacity

s.2 (1) A person who is eighteen years of age or more is presumed to be capable of entering into a contract.

Incapacity to manage property

s.6: 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.

Incapacity for personal care

s.45 :A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[51] One 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 [(Children's Aid Society of Niagara Region v. D. (W.)][^3]

[52] In [York Region Children's Aid Society v. J.H.V.][^4], the court identified the following components as relevant to the test to determine mental incapacity;

(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.

[53] Courts have also considered the following types of evidence in determining the appropriateness of the appointment of a representative or litigation guardian[^5]:

(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.

(e) The opinion of the litigant's own counsel

[54] 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 some other (non legal capacity related) reason such as a lack of sophistication, education or cultural differences ([C. (C.) v. Children's Aid Society of Toronto])([^6])

[55] The best evidence is medical and the best evidence is up-to-date. 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][^7]

Part 5 – Analysis

[56] The Respondent mother, A.I., has indigenous heritage.

[57] In [R. v. Ipeelee][^8], a court decision on the sentencing of Aboriginal offenders in criminal proceedings, the Supreme Court of Canada stated the following;

[60] Courts have, at times, been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society (see, e.g., R. v. Laliberte, 2000 SKCA 27, 189 Sask. R. 190). To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples.

[58] Even though the Society’s request is being made in the context of a child welfare proceeding, given A.I.’s indigenous heritage and given the nature of the order being sought by the Society, caution must be exercised before removing A.I.’s right to control and manage her own affairs regarding this legal proceeding.

[59] In a presentation titled “Family Litigation: working with the Office of the Public Guardian and Trustee[^9], Harjot Dosanjh and Heather Hogan state that “the appointment of a legal representative is highly prejudicial to the incapable person, particularly where the primary issue in dispute is custody, access or child protection”

[60] In [Bilek v. Constitution Insurance][^10], the court made the following caution;

One must be very cautious in coming to a conclusion which would bar the plaintiff from having the final say in how his litigation is to be conducted or resolved.

[61] It is clear from the Society’s evidence that the cause of A.I.’s incapacity stems from mental illness. A.I. has been diagnosed with schizophrenia and has presented as psychotic.

[62] The court takes note of the following factors as particularly relevant to the Society’s request.

a. A.I. has missed the three most recent court appearances.

b. A.I. has not filed an Answer and Plan of Care.

c. A.I. has not retained legal counsel in this proceeding.

d. A.I.’s concerning behaviours at her previous residence.

e. The medical information and diagnosis provided by the psychiatrist who treated A.I.

f. A.I.’s decision not to take her prescribed medications.

g. The absence of a community treatment order in place to ensure that A.I. takes her medications.

h. The absence of a current treating psychiatrist for A.I.

i. The maternal grandmother has acted as A.I.’s substitute decision maker.

j. The child, J.I’s age. He is one and a half years old.

k. The risks associated with proceeding with this matter without the active and meaningful participation of A.I. and A.I.’s case being put before the court.

[63] A.I.’s decision not to take prescribed medications to address her mental health is concerning. The court finds that A.I. is not able to appreciate the reasonably foreseeable consequences of the decision she has made about her treatment.

[64] Further, A.I. appears not to appreciate the reasonably foreseeable consequences of her failure to attend court in this proceeding and her failure to put her case before the court by way of an Answer and Plan of Care. It is to be noted that given A.I.’s circumstances as described in the Society’s materials, A.I. would likely qualify for a Legal Aid certificate if she decided to retain counsel on her own.

[65] A.I. has not retained counsel to assist her and there is no evidence to confirm that A.I. has applied for a Legal Aid certificate.

[66] According to Ms. Wilkes’ affidavit, A.I. previously indicated that she wanted to plan for her son, J.I. However, according to Ms. Wilkes, A.I.’s recent statements that she does not want to get “caught up” in the children’s lives is a significant departure from her previous position regarding her wish to plan for her son.

[67] In [Children's Aid Society of Niagara Region v. D. (W.)][^11] Quinn J makes the following comments;

• 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.

• It is immaterial whether one's words, deeds and choices appear reasonable to others. Reasonableness in the eyes of others is not the test.

• What is in one's best interests must not be confused with one's cognitive capacity. The former is not relevant to a determination of capacity.

• The test for incapacity is an objective one.

• It is mental capacity and not wisdom that is the subject of the Substitute Decisions Act, 1992.

• Compelling evidence is required to override the presumption of capacity found in subsection 2(2) of the Substitute Decisions Act, 1992. Notwithstanding the presence of some degree of impairment, the question to be asked is whether one has retained sufficient capacity to satisfy the Substitute Decisions Act, 1992.

[68] The court finds that A.I. appears to be unable to understand or appreciate the risks and consequences associated with the decisions she has made about her treatment, the risks associated with her failure to participate in this proceeding and her failure to present a plan for her son.

[69] Accordingly, the court finds that A.I. is mentally incapable and therefore is a special party pursuant to Rule 2(1) of the Family Law Rules.

[70] Once a finding is made that one is a special party, the court may authorize a person to represent a special party if the person is “appropriate for the task” and “is willing to act as a representative”, in accordance with Rule 4(2) of the Family Law Rules.

[71] In [Granasiuk v. Granasiuk (Litigation guardian of)][^12], the court addressed the term “appropriate” as follows;

32 While the FLR does not define the term "appropriate", an instructive if non-binding description of the appropriate role of the representative of a special party can be found at R. 7.05(2) of the Rules of Civil Proceeding ("RCP"). Referring to the role of a litigation guardian, the rule states:

o A litigation guardian shall diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests, including the commencement and conduct of a counterclaim, crossclaim or third party claim.

[72] Ms. Wilkes’ evidence on behalf of the Society is that the Society tried to inquire with A.I.’s family to see if any family member could act as A.I.’s legal representative. Ms. Wilkes’ evidence is that no family member is willing to act in that capacity.

[73] Pursuant to Rule 4(3) of the Family Law Rules, if there is no appropriate person willing to act as representative for a special party, the court may, on the consent of the official, authorize the representation of the special party by the Public Guardian and Trustee (“PGT”).

[74] Counsel for the PGT attended this motion and advised the court that once an order is made, the PGT would consent to act as A.I.’s legal representative.

[75] Accordingly, this Court finds that the requirements under Rule 4(3) of the Family Law Rules are met. No appropriate person is willing to act as A.I.’s representative. The PGT is willing to act as A.I.’s representative once an order is made.

[76] The Society is planning to place the child, J.I. into the care and custody of the maternal grandmother. The maternal grandmother is already providing care to J.I. and his 8-year-old half sibling. The maternal grandmother has been in J.I’s life since birth. Therefore, any potential prejudice to A.I. due to the appointment of the PGT is mitigated by the fact that the Society’s plan is to keep J.I. with family. Given J.I.’s indigenous heritage, the Society’s panning is consistent with the scheme of the Child, Youth and Family Services Act as provided under the preamble to the Act which provides that;

Further, the Government of Ontario believes the following:

First Nations, Inuit and Métis children should be happy, healthy, resilient, grounded in their cultures and languages and thriving as individuals and as members of their families, communities and nations.

Honouring the connection between First Nations, Inuit and Métis children and their distinct political and cultural communities is essential to helping them thrive and fostering their well-being.

Part 6 – Orders

[77] For the reasons above, this court made a temporary order on July 14th, 2022 as follows;

i. The Respondent, A.I., is declared to be a “special party” as defined in Rule 2(1) of the Family Law Rules, and there is no other person appropriate and willing to act as representative for the Respondent, A.I.

ii. The Public Guardian and Trustee is hereby appointed representative for A.I. in this proceeding pursuant to Rule 4(3) of the Family Law Rules.

iii. The title of the proceedings is amended to show the name of the Respondent as “A.I., by her representative, the Public Guardian and Trustee”.

iv. The Public Guardian and Trustee shall be entitled upon request by the Public Guardian and Trustee, his counsel or his agent herein to the production and delivery of any medical, financial or other personal information, including but not limited to documents, records, correspondence, clinical notes, reports, charts, assessments, or tests in relation to A.I., from any doctor, medical facility, service provider or from any person, firm, corporation, institution or governmental authority whether federal, provincial or municipal, to which the Respondent, A.I., would be entitled without requiring the consent of A.I.

v. The Public Guardian and Trustee, as legal representative, shall be authorized to apply for Legal Aid Services on behalf of A.I. and is hereby authorized to execute any documents required by Legal Aid Ontario to secure Legal Aid Services for A.I., including directions with respect to property.

vi. The Public Guardian and Trustee shall be supplied forthwith with all materials filed to date in this proceeding.

Released: August 2nd, 2022

Signed: Justice W. Kapurura

[^1]: 2004 CarswellOnt 9965 para 6 [^2]: [1998] O.J. No. 2791 para 4 [^3]: Quinn J in Children's Aid Society of Niagara Region v. D. (W.) – para 11 [^4]: 2016 ONSC 4996 para 15 [^5]: Backhouse J in C. (C.) v. Children's Aid Society of Toronto 2007 CarswellOnt 9879, para 34 [^6]: [2007] O.J. No 5613 at para 25 [^7]: 2013 ONSC 1899 para 2 [^8]: R. v. Ipeelee 2012 SCC 13 [^9]: 2021 Durham Best Practices Committee [^10]: [1990] O.J. No. 3117, paragraph 2 [^11]: 2003 CarswellOnt 3140 para 12 [^12]: [2018] O.J. No. 2512