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.
DATE: April 5, 2023 COURT FILE NO. C43066/22 ONTARIO COURT OF JUSTICE
B E T W E E N:
JEWISH FAMILY & CHILD SERVICES OF GREATER TORONTO
APPLICANT
- and -
Z.Y. and S.B. RESPONDENTS
COUNSEL: Arthika Srivarapathy, for the Applicant The Respondent, Z.Y., acting in person The Respondent, S.B., not appearing and in default Lorne Glass, on behalf of the Office of the Children’s Lawyer, for the subject child Melanie Neill, from the Office of the Public Guardian and Trustee
HEARD: APRIL 4, 2023
JUSTICE S.B. SHERR
Endorsement
Part One – Introduction
[1] Jewish Family and Child Services of Greater Toronto (the society) has brought a motion to find the respondent Z.Y. to be a special party as defined in subrule 2 (1) of the Family Law Rules and to appoint the Public Guardian and Trustee (the PGT) to act as her representative in this proceeding.
[2] Counsel for the child, from the Office of the Children’s Lawyer, endorsed the society’s submissions.
[3] Counsel for the PGT consented to the relief sought, if the court found that the order requested by the society was appropriate. It provided the court with a draft order of terms it sought if appointed by the court.
[4] The respondent Z.Y. is the mother of the subject 9-year-old child in this case (the child). The child is in the temporary care and custody of the society. Z.Y. opposes the society’s motion.
[5] The respondent B.S., the biological father of the child, is in default and has not participated in this case.
[6] The court relied on the affidavit of society worker Z.Y.S, sworn on March 27, 2023. Z.Y. filed no material but was permitted to make lengthy submissions on this motion.
[7] The court also relied on how Z.Y. presented herself at this court appearance and at the court appearance on March 15, 2023.
Part Two – Legal considerations
[8] The legal considerations on this motion were reviewed by Justice Wiri Kapurura in paragraphs 47-53 of Native Child and Family Services of Toronto v. A.I., 2022 ONCJ 353, reproduced below.
[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
[9] In Costantino v. Costantino, 2016 ONSC 6900, at par. 57, the court set out 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.
[10] 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, developmental delay or physical injury. See: C.C. and Children's Aid Society of Toronto, 2007 ONCJ 563.
[11] This court adds to this discussion that:
a) Mere anger at the society is not a reason by itself to find someone to be a special party.
b) There is a wide spectrum of mental illness. Most people with a mental illness will not be special parties.
Part Three – Review of the evidence and findings
[12] The child was brought to a place of safety on September 9, 2022. The mother had been apprehended that day and hospitalized pursuant to the Mental Health Act.
[13] On September 14, 2022, Justice Debra Paulseth placed the child in the temporary care and custody of the society on a without prejudice basis.
[14] A temporary care and custody hearing was held on January 12, 2023. The court ordered that the child remain in the temporary care of the society and that the mother have access to the child in the society’s discretion. This court released written reasons outlining that Z.Y. has severe mental health issues that she is not addressing and that she lacks insight into them. The court relies on its findings made in that decision for this motion. See: Jewish Family and Child Services of Greater Toronto v. Z.Y., 2023 ONCJ 13.
[15] Z.Y. was represented by counsel until March 15, 2023, when the court, at her counsel’s request, removed him from the record.
[16] Z.Y. declined the assistance of duty counsel on this motion.
[17] The evidence overwhelmingly supported the relief sought by the society.
[18] The society worker’s affidavit sets out how Z.Y.’s mental health has seriously declined since the temporary care motion was heard. The court has observed this during the past two court attendances.
[19] Examples of Z.Y.’s mental health decline, as set out by the society worker, are as follows:
a) She continues to insist that her licence notes her to be an organ donor without her knowledge, and this is evidence that she is a target, with people entering her home, stealing her phone and passport and hacking her identity.
b) She continues to believe that S.B. is affiliated with the cab company used by the society to assist in transporting her to visits and this is why the cab driver drove past a police station and cemetery en route to the society office.
c) The society has had difficulty redirecting Z.Y.’s conduct at visits and on one occasion she had to be escorted out of the society’s office by security.
d) She has made allegations that her counsel and the society were sabotaging her case. She kept insisting that her counsel was refusing to provide her with documents despite emails sent by her counsel trying to arrange a time for her to pick them up.
e) She became convinced that her counsel was transferring the case to another lawyer in his firm. This was not the case.
f) She did not appear to understand her counsel’s removal motion and became agitated and could not be redirected by the court on March 15, 2023. She suggested that there was collusion between the society and her counsel.
g) She was sent the March 15, 2023 court endorsement by the court clerk. She became agitated and wrote the clerk questioning his involvement in the case and asking why he was sending a link to hack her phone and conspiring with the child’s father.
[20] The court explained the purpose of the society’s motion to the mother. Society counsel also explained the purpose of the motion in her submissions. The court observed that Z.Y. could not grasp what the motion was about. When she was subsequently asked if she understood what the court appearance was for, she could not answer the question and went off on tangents about the behaviour of the society and her former counsel. The court tried to redirect her to address the issue on this motion without success.
[21] The evidence filed by the society worker about her interactions with Z.Y. are consistent with her presentation at court. Z.Y. presented in a respectful manner. However, she jumped from topic to topic and quickly became agitated. Her thinking was disorganized and unfocused. At times, her presentation was nonsensical. She did not appear to process information given to her.
[22] It is evident to the court that Z.Y. is not well. In submissions she claimed that:
a) The society wanted to lock her in the hospital with a false identity.
b) The society wants to infect her with HIV to be an organ donor with HIV. She feels this was behind the society’s request to have her attend at CAMH for a mental health assessment – to stick her with needles.
c) The society has snuck into her home and tainted her food and the police have helped the society do this.
d) The society takes her documents and manipulates them.
e) The society is making the child wear eyeglasses when he doesn’t need them.
f) The society intends to sell her son.
e) She has no mental health problems.
[23] The court understands that Z.Y. is angry at the society. This is not why she will be found to be a special party. The court recognizes how much Z.Y. loves the child and that she is confused as to why the child is still in society care. She wanted the court at this motion to address perceived injustices. However, this motion was only about whether she should be found to be a special party.
[24] The court finds that:
a) The society met its onus to prove that Z.Y. should be found to be a special party.
b) Z.Y. is not able to understand information that is relevant to making decisions in this case.
c) Z.Y. is not able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision regarding the issues in this case.
d) Z.Y. does not have the ability to consider a reasonable range of possible outcomes, both positive and negative.
e) Z.Y. has an extremely limited appreciation of the nature of the proceedings.
f) Z.Y. now has no counsel.
g) Z.Y. is unable to distinguish between relevant and irrelevant issues.
h) Z.Y. has mistaken beliefs regarding the law and court procedure.
i) This is all likely a consequence of Z.Y.’s mental illness.
[25] The court finds that no other person is appropriate and willing to act as representative for Z.Y. and the PGT should be appointed in this proceeding as her representative pursuant to subrule 4 (3) of the Family Law Rules.
[26] Finding that Z.Y. is a special party is important to protect Z.Y.’s interests. She may have strengths as a parent, evidence about the child and other relevant information that she has been incapable of properly presenting to date. The court should have this information to make the most informed decision for the child.
Part Three – Conclusion
[27] Orders shall go as follows:
a) Z.Y. is a “special party” as defined in subrule 2 (1) of the Family Law Rules and there is no other person appropriate and willing to act as representative for the Z.Y.
b) The PGT is appointed in this proceeding as representative for Z.Y. pursuant to subrule 4 (3) of the Family Law Rules.
c) The title of the proceedings is amended to show the name of the respondent as “Z.Y., by her representative, the PGT”.
d) The PGT shall be entitled upon request by the PGT, 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 Z.Y., from any doctor, medical facility, service provider or from any person, firm, corporation institution or governmental authority whether federal, provincial or municipal, to which Z.Y. would be entitled, without requiring the consent of Z.Y.
e) Any counsel formerly retained by Z.Y. in this proceeding shall co-operate with the PGT by immediately delivering to the PGT or his counsel any and all documentation and/or information requested by the PGT or his counsel in respect of Z.Y.
f) The PGT shall not be personally liable for the costs of any party to the proceeding.
g) The society shall provide a complete copy of the Continuing Record to the PGT and trustee forthwith.
h) The PGT, as representative, shall be authorized to apply for Legal Aid Services on behalf of Z.Y., and is hereby authorized to execute any documents required by Legal Aid Ontario to secure Legal Aid Services for Z.Y., including directions with respect to property.
i) The court staff shall issue and enter this Order immediately and provide the PGT, his counsel or his agent with three (3) certified true copies of this Order forthwith.
[28] The court has signed the draft order submitted by the PGT. Court staff shall issue it forthwith and send it to counsel.
[29] The return date will be May 18, 2023, at 2 p.m. for 60 minutes by videoconference.
Released: April 5, 2023
Justice Stanley B. Sherr