COURT FILE NO.: 238/14

DATE: 20151015

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Dawn Lobb, Applicant

AND:

Carl Joseph Corcoran, Respondent

BEFORE: J.S. McLeod, J.

COUNSEL: Judith Holzman, Counsel, for the Applicant

Simon Schneiderman, Counsel, for the Respondent

HEARD: October 1, 2015

REASONS ON MOTION

[1] The respondent, Carl Joseph Corcoran (herein after referred to as “C.J.C.”) brings a motion for an order declaring that C.J.C. is a special party within the meaning of Rule 2(1) of the Family Law Rules and for an order appointing William Corcoran (herein after referred to as “W.C.”) as his legal representative.

[2] There has previously been a finding that C.J.C. is a “special party” pursuant to the meaning of Rule 2(1) of the Family Law Rules.

[3] The applicant, Dawn Lobb (herein after referred to as “D.L.”) opposes the appointment of W.C. She alleges that W.C. is unsuitable for the following reasons:

a. W.C.’s ordinary residence;

b. W.C.’s role as a witness at trial;

c. W.C.’s mental state;

d. W.C. as a potential beneficiary under the respondent’s will, as well as the likelihood that the respondents’ age and stated health is such that he may not live to see the end of these proceedings;

e. the historical interference and influence over the respondent by his adult children in all matters related to this proceeding and financial support of the applicant and her children, not respecting the respondent’s own preferences and decisions;

f. W.C.’s lack of financial independence; and

g. W.C.’s an individual who lacks financial stability and shows a desire to have the funds to provide for his family, may receive a large lump sum payment from the respondent’s life insurance proceeds, a proportion of which would necessarily form part of any pre-trial settlement in these proceedings.

[4] In my previous endorsement of October 1st, 2015 I referenced Rule 1(7) and 4(2) of the Family Law Rules which deal with the issues of special parties, their legal representation, and matters not specifically covered under the Family Law Rules.

[5] There can be no doubt that where matters are not specifically covered under the Family Law Rules they are in fact to be decided by analogy to the Rules of Civil Procedure. (see Rule 1(7) of the Family Law Rules)

[6] D.L. submits that I ought to consider her evidence in support of the “multitudes of concerns” herein before specifically identified. It is her submission that these concerns ought to render W.C. unsuitable as acting as legal representation for C.J.C.

[7] I have previously referenced the objectives as set out in Rule 2(2), (3), (4) of the Family Law Rules.

[8] It is to be noted that W.C. was not appointed legal representative of C.J.C. until my order of October 1st, 2015. Be that as it may D.L. submits that the court ought to consider her evidence which she submits would effectively preclude W.C. from acting as legal representative.

[9] As indicated earlier I have reviewed the affidavit evidence filed by D.L. in support of her opposition. Those affidavits are found at Tab 47, 49 and as of the date of releasing these reasons an unfiled affidavit. These affidavits contain the evidence as deposed to by D.L. In addition I have reviewed the affidavit of Vanna Manno, a law clerk with the legal offices acting on behalf of D.L.

[10] I was previously asked to disregard the evidence of D.L. found at Tab 47 of the continuing record it being the position of D.L.’s counsel that her affidavit of Tab 49 effectively summarizes and updates her previous evidence.

[11] I have also reviewed the affidavit evidence of W.C. found at Tab’s 46 and 48 of the continuing record. Finally I have reviewed the affidavits found at Tab’s 30, and 43 of the continuing record.

[12] Although not strictly bound by Rule 7.02(2) of the Rules of Civil Procedure I find as a fact that the affidavits filed by W.C. would comply with the requirements set out under Sub-paras a, b, c, e, f, g, h of this Rule. (Sub-para d is not applicable).

[13] The affidavit of W.C. found at Tab 48 of the continuing record contains at Exhibit A thereof an affidavit of W.C. sworn the 25th day of August 2015 which is a photocopy of the original document previously served upon the applicants solicitor.

[14] It clearly demonstrates that W.C. is ordinarily resident in Ontario. Likewise it demonstrates W.C.’s economic independence. For whatever reason D.L. fails to address these points and simply chooses to ignore this evidence.

[15] D.L. then submits that there is a conflict of interest and lack of bias. In support she relies upon her conjecture that W.C. may be a beneficiary of his father’s estate, and her assertions that W.C. is somehow financially dependent upon C.J.C. Once again, her evidence is conjecture and fails to address specifically the evidence of W.C. on these very points.

[16] D.L. speaks to a “concern” with W.C.’s mental state, however, I find that there is nothing in the materials filed which give rise for any concern in this regard.

[17] Much of the evidence filed to support D.L.’s position attempts to “paint W.C.” with the same brush as other family members. Once again this is conjecture and speculation.

[18] The suggestion that W.C. and C.J.C. may share a common interest in the litigation does not ipso facto preclude him from being the legal representative of C.J.C.

[19] The court was concerned and voiced its concern to counsel for D.L. given what the court considered to be something of a veiled threat that in the event that W.C. was appointed as legal representative for C.J.C., then her next step would be to commence an application similar to that as set out under Rule 7.06(2) of the Rules of Civil Procedure for his removal.

[20] Counsel assured the court that this was in fact not the case and accordingly I advised that I was invoking the objectives as set out in paras. 2(2), (3), (4) of the Family Law Rules in order to indicate to D.L. that if this were in fact an application to remove under 7.06(2) of the Rules of Civil Procedure and if the evidence as presented to the court at this stage of the proceedings was admissible in its totality (and it is not) that the court would still find W.C. a suitable legal representative as there has not been clear and demonstrated conflicts nor had the legal representative acted contrary to the interests of the adult dependent. In this regard I would refer to the decisions of Barber (Litigation guardian of) v. South East Community Care Access Centre [2012] O.H.R.T.D. No. 357, paras. 3-5.

[21] I agree that what is required is a finding as to whether or not W.C. can provide an unclouded opinion with respect to the interests of C.J.C. This is as set out in the Berkelhammer[^1] decision at para. 25.

[22] Pursuant to the decision of Slark[^2], I see no reason why W.C. could not keep the interest of C.J.C. front and centre and according it is the hope of this court that D.L. will have a clear understanding, based upon the evidence she has tendered to date (some of which would otherwise be inadmissible) that this court would not find that W.C. is “not acting in the best interest of C.J.C. and his representation would otherwise continue.

[23] I have requested that counsel submit their requests for costs. The respondent, C.J.C., to deliver his written requests limited to two pages, within 14 days of this decision. The applicant D.L. to submit her response within 7 days thereof, said response limited to two pages. Finally that the reply of C.J.C. be delivered within 7 days of the response and limited to one page.

McLeod, J.

Date: October 15, 2015

[^1]: Berkelhammer v. Berkelhammer Estate, 2012 ONSC 6242, 2012 CarswellOnt 14001 (Ontario Superior Court of Justice)

[^2]: Slark (Litigation guardian of) v. Ontario, 2010 ONSC 1726, [2010] O.J. No. 5187