CITATION: Must v. Shkuryna, 2017 ONSC 6258
COURT FILE NO.: FS-17-180-00
DATE: 20171019
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Robert Must v. Yana Shkuryna
BEFORE: Shaw, J.
COUNSEL: Mr. Must, Self-represented
Annie Noa Kenet, for Yana Shkuryna
Anthea Cheung, for the Public Guardian and Trustee
HEARD: September 26, 2017, at Brampton
ENDORSEMENT
Issue
[1] The respondent has brought this motion seeking an order that the Office of the Public Guardian and Trustee ("PGT") be appointed as the applicant's representative.
[2] The respondent's position is that the applicant is a special party as defined in Rule 2(1) of the Family Law Rules. According to that rule, a special party is defined as follow:
"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 and has to be, access, Child protection or adoption of child support case.
[3] The definition of incapacity is found at s.6 of the Substitute Decisions Act ("SDA'). The test for incapacity is:
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 reasonably foreseeable consequences of a decision or lack of decision.
[4] According to Rule 4(3) of the Family Law Rules:
(3) If there is no appropriate person willing to act as a special party's representative, the courts may authorize the Children's Lawyer or the Public Guardian and Trustee to act as representative, but only with the patient's consent.
[5] Counsel for the PGT was present at this motion and informs the court that it is not taking any position with respect to whether or not the applicant is a special party. In the event the court finds that the applicant is a special party, the PGT consents to act as his representative.
[6] The applicant seeks an order that the respondent's motion to appoint the PGT be dismissed.
Background
[7] The applicant has appealed a final order of Justice Clay from the Ontario Court of Justice dated March 17, 2017. Specifically, the applicant is appealing Justice Clay's finding that the respondent have custody of the child of the marriage. That appeal is set to be heard by Justice Ricchetti on November 7, 2017.
[8] The applicant has also brought a motion seeking custody of the child pending the appeal and an order barring the respondent from changing the child's name.
[9] On September 5, 2014, during the proceedings before Justice Clay in the Ontario Court of Justice, he made an order that the PGT be appointed to represent the applicant.
[10] The applicant unsuccessfully appealed Justice Clay's decision to the Superior Court of Justice and to the Ontario Court of Appeal.
[11] There were a number of subsequent endorsements from Justice Clay confirming that the finding of incapacity continued. Those endorsements were made on September 22, 2015, December 11, 2015, January 5, 2016, November 28, 2016 and January 26, 2017. In his final decision dated March 17, 2017, Justice Clay found that the applicant continued to be incapable. At no time did the applicant present any further evidence to Justice Clay regarding the finding of incapacity, despite being invited by Justice Clay to do so.
[12] As a result of the final order of Justice Clay, the appointment of the PGT has terminated. In the appeal proceedings before the Superior Court of Justice, the respondent is again seeking the appointment of the PGT based on a finding that the applicant is a special party is defined in the Family Law Rules.
Legal Test
[13] In Children's Aid Society of the Niagara Region v. W. D. 2003 CanLII 2293 (ON SC), [2003] O.J. No. 3244, at para. 11, Quinn J. stated:
From what I am able to determine, 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.
[14] In the same decision, Quinn, J. also found that there is a presumption that one has capacity. According to Quinn, J. the presumption applies unless there are reasonable grounds to believe that one is not able to understand and appreciate. The burden of proof of incapacity is on a balance of probabilities.
[15] In C. C. v. Children's Aid Society of Toronto [2007] O.J. No. 5613, Backhouse J. found at para 34:
Courts have considered the following types of evidence in determining the appropriateness of the appointment of a representative or litigation guardian:
(a) medical or psychological evidence as to capacity;
(b) evidence from persons who know the litigant well;
(c) the appearance and the demeanour of the litigant;
(d) the testimony of the litigant;
(e) the opinion of the litigant's own counsel.
Evidence Before this Court
[16] There is no medical or psychological evidence as to the applicant's capacity before the court. Furthermore, there is no evidence from persons who know the applicant well. As the applicant is self-represented, the court does not have an opinion from his counsel. The only evidence before the court to consider regarding his capacity is the applicant's appearance and demeanour and his testimony.
[17] The applicant presented as well-spoken and intelligent. He is able to complete and file material with the court. Intelligence is not, however, conclusive of capacity. This is not a question of whether or not the applicant understands information that is relevant to making a decision regarding an issue. The issue is whether the applicant is able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision regarding an issue.
[18] The affidavit filed in support of the respondent's motion attached a copy of the respondent's affidavit sworn August 14, 2017 in connection with the matter before the Ontario Court of Justice. That affidavit described conduct of the applicant including presenting Justice Clay with a "Kangaroo Award" in July 2014, creating websites regarding the respondent's new husband and issuing a Notice of Action in July 2014 seeking what can only be described as very strange relief against a number of named individuals.
[19] At paras. 49 to 54 of his decision, Justice Clay found as follows:
[49] However even if I find that the Applicant had the “ability to understand”, the two branch test would result in him being found to be incapable if he “fails to appreciate the reasonable foreseeable consequences of a decision or lack of decision.” I have no doubt that the Applicant fails this second branch of the test.
[50] The Applicant has not taken any steps in this proceeding that would improve his chances of success on his stated goal of obtaining either custody or an equal sharing of time with his young son.
[51] The Applicant has decided not to produce the relevant disclosure that he agreed with his former counsel to provide. His reason is an irrational one. He states that lawyers and judges are incapable of understanding the information. A capable person would know that the consequences of failing to provide court ordered disclosure are that it is difficult, if not impossible, to advance your claim.
[52] The Applicant has filed material in this court and in the SCJ that is completely unrelated to the issues at hand. That material appears to be the product of a person suffering from some obsessional or delusional thinking. It is so bizarre that on its face it raises legitimate questions as to whether the writer could care for a young child on his own and make decisions on behalf of that child.
[53] The Applicant convinced himself that, as the case management justice, I had become completely biased against him and that I am incompetent. He argued that his very presentation of the “award” and “certificate” would inevitably be seen as some evidence of mental disorder.
[54] I also find that there is no other appropriate person who can represent the Applicant in this proceeding. Therefore pursuant to s. 4(3) of the FLR I appoint the P.G.T. to act as special representative for the Applicant. I will sign the draft order filed which provides for the powers of the P.G.T. in that role.
[20] Since Justice Clay's final order dated March 17, 2017, the applicant has continued to demonstrate behaviour indicating that his lack of capacity continues. For example, on January 19, 2017, he appeared at the courthouse wearing a t-shirt with the names of Justice Donahue and Justice Clay to protest their decisions. He was removed from the courthouse by security. On March 9, 2017, he brought a megaphone and sign to the courthouse to protest. On July 28, 2017, the applicant attended at the office of the respondent's lawyer to serve his appeal materials. He was wearing a t-shirt with the names of Justice Clay and Justice Donohue and took pictures of the lawyer's office.
[21] At paragraph 33 of Justice Clay's decision dated September 5, 2014, he found that the applicant's submissions and materials “made it quite clear that he was suffering from some type of mental disorder. While he was clearly oriented as to time and place and the purpose of the hearing he was consumed by what to a lay person appeared to be some obsessive or delusional thinking."
[22] A review of the Factum filed by the applicant for the appeal of Justice Clay’s decision indicates that this type of obsessive or delusional thinking has continued. There are many examples of this throughout the Factum. For example, at paragraph 72, he seems to compare Justice Clay's decision to residential schools. In paragraph 91, he compares this case to a United Airlines' passenger who was removed from his seat. In paragraph 94, he compares this case to Viola Desmond's case. Much of the Factum contains statements that are unintelligible and have little connection to the basis for appealing Justice Clay’s ruling and why it is in his son’s best interest that he have custody. Very little of the material he filed with the court deals with his son’s best interests which suggests he does not understand the consequences of the decision to make these written submissions.
[23] In his oral submissions, the applicant made comparisons with the Utah nurse who refused to draw blood from a patient, Black Lives' matter and Joseph Groia. He said these were metaphors for his situation.
[24] The applicant also informed the court that he is setting up an appointment with the Attorney General for Ontario to talk about his case. He said in both his oral and written submissions that he was victim of the judicial brutality of Justice Clay.
[25] The applicant has moved for temporary custody of his son pending the appeal. In his Factum dealing with this issue, the following are some of the paragraphs setting out the basis for his claim for temporary custody:
This matter is pressing since the situation around the father’s participation and the child’s access to him is beyond norms of civility, sensibleness, and reasonableness (TAB 3 and TAB 6).
Monster making has earned Jessica Rogers of Calgary a criminal conviction. The mother’s conduct of pariah making out of the father is as brazen and fits the same pattern, even without burning houses (TAB 4). She promotes into “problems” (aka “exceptional circumstances”) regular operating features or mundane day to day operating challenges for the line of business in question. This is no different pattern than Jessica Rogers attempting to blame her burning house on her ex-boyfriend. Just a different situation and implementation.
It has been long recognized that no interest justifies abuse. The methods used for advancement of natives, communism building, wartime internments, etc. have been condemned.
Informed by the counselling of Kalev, received about the father from her and her courtiers, Yana Shkuryna accepts that they boy has been abducted by her.
The interest structure advocated by the mother is utterly artificial and senseless. It has also been condemned in context of the Truth and Reconciliation process. The structure has been identified as genocide and/or cultural genocide. The pattern of treatment the disability and the status of former spouse received has been universally classified as hate, phobia, and cruelty. It is not up to her or a court to decide what the father is capable of, whilst grounds for restrictions are absent as Justice Clay observed.
The Applicant has always carried himself within ambit of normative parental conduct whilst the Respondent palpably failed to do that even as her own submissions inform. She does not like that to be pointed out to her, but she is the one who chooses to act in those ways.
The Respondent and her agents will never be able to account for disregard of numerous classification/allocation rules and principles. If she and the agents are somehow right, one will be left wondering about validity of criminal conviction for accounting fraud for impresarios Garth Drabinsky and Myron Gottlieb (R. v. Drabinsky, 2011 ONCA 582). Different lines of business and situations, but the same patterns play out. It is all about giving full accounting for decisions made rather than one than excusing oneself with vague, boilerplate, myths riddled statements.
The above submissions are in line with generally accepted human resource management practices used for promotions and demotions in workplace.
[26] In paragraph 52 of his September 5, 2014 decision, Justice Clay commented that the material filed by the applicant was so bizarre that "on its face it raises legitimate questions as to whether the write could care for a young child on his own and make decisions on behalf of that child."
[27] Based on the applicant’s oral and written submissions before the court on this matter, I also am concerned with the applicant's ability to care for a child. Furthermore, a capable person would understand that the consequences of the content of his written and oral submissions will make it very difficult if not impossible to advance his claim for custody. The applicant fails to appreciate the consequences of his submissions.
[28] Justice Clay had invited the applicant to file medical material with the court regarding his capacity. He has failed to do so. There has been no new evidence submitted to the court regarding any change to the applicant's capacity since Justice Clay’s ruling on September 5, 2014. Based on his conduct and presentation both in his oral and written submissions for this motion, it is evident that his incapacity continue.
[29] Counsel for the PGT indicated that she would provide the court with specific wording for an order if a finding of incapacity was made. I request that she file that with the court. Counsel also requested that the November appeal date be vacated if there was a finding of incapacity warranting the appointment of the PGT.
[30] I find that the applicant is a special party pursuant to Rule 2(1) of the Family Law Rules. The Public Guardian and Trustee shall be appointed to represent him. The November 7, 2017 appeal date is vacated.
Shaw J.
Date: October 19, 2017
CITATION: Must v. Shkuryna, 2017 ONSC 6258
COURT FILE NO.: FS-17-180-00
DATE: 20171019
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Robert Must v. Yana Shkuryna
BEFORE: Shaw, J.
COUNSEL: Mr. Must, Self-represented
Annie Noa Kenet, for Yana Shkuryna
Anthea Cheung, for the Public Guardian and Trustee
ENDORSEMENT
Shaw, J.
DATE: October 19, 2017