Court File and Parties
COURT FILE NO.: 28466/06
DATE: 2018-05-08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
EDWARD STANLEY GRANASIUK Applicant
– and –
JANET RUTH GRANASIUK BY HER LITIGATION GUARDIAN, IRIS HARRISON Respondent
John G. Cox, for the Applicant
HEARD: February 20 and 21, 2018
ENDORSEMENT
kurz j.
Overview
[1] On February 20 and 21, 2018, I heard the uncontested trial of this proceeding. In this endorsement I explain why I am not ready to issue a final judgment at this time and the steps that I am considering taking before I do so.
[2] The parties are former married spouses. The Applicant, Edward Stanley Granasiuk (“the father”) brought an application against the Respondent, Janet Ruth Granasiuk (“the mother”) for sole custody and supervised access to their only child, Alexander Granasiuk, born September 1, 1998 (“Alexander”). Alexander is now 19 years old. The father claims an unequal division of net family properties. He also sues the mother for damages on behalf of Alexander for assault (child abuse) and breach of fiduciary duties (child neglect). As well as general and special damages, he seeks aggravated, punitive, and exemplary damages. All told, he seeks about $2 million in damages, plus costs.
Litigation History of this Proceeding
[3] The proceedings between the parties are largely resolved, other than issues related to equalization and the father’s civil claim against the mother. On February 14, 2007, Gray J. granted the father final custody of Alexander. On June 24, 2008, Gray J turned down the mother’s motion for temporary access. She has not been granted any access to Alexander since that order was made. She has not seen him in about a decade. The former matrimonial home was sold and its proceeds, totalling about $420,000, are being held in trust. On May 29, 2009, as set out below, Daley J. struck the mother’s pleadings.
[4] The key to my diffidence in this matter is the fact that the mother suffers from a variety of cognitive deficits as well as emotional and psychiatric difficulties. She has been found to fall below the first percentile of intelligence. In addition, she suffers from mental illness that has (at least in the past) involved hallucinations. I cite some evidence for those propositions below.
[5] In the course of this trial, the father has tendered the report of Dr. Zohar Waisman, a staff psychiatrist at North York General Hospital. Dr. Waisman stated in his report of June 22, 1008, after reviewing a brief of psychiatric records regarding the mother, that:
Mrs. Janet Granasiuk has been described by multiple assessors as suffering from intellectual delay as well as major mental illness. Various assessors have suggested different diagnostic formulations that included a major depressive disorder with psychotic features, schitzoaffective disorder, and bipolar disorder. Mrs. Granasiuk has reported to various assessors that she has suffered from recurrent auditory and visual hallucinations for many years and was initially reluctant to take any medications as per her mother’s instructions. She was ultimately placed on various antidepressants and antipsychotics.
Mrs. Granasiuk suffers from a serious mental illness and intellectual delay that render her incapable, despite her best wishes to care for her son. The various progress notes by her psychiatrist document the presence of hallucinations and delusions requiring treatment with potent psychopharmacological interventions.
[6] A psychoeducational assessment of the mother found that her “… overall intellectual ability placed in the intellectually deficient range, well below the first percentile… very vulnerable, much more so than she may present…”
[7] None of the judges who previously touched this case refer to this evidence of the mother’s intellectual and psychiatric status. That fact is central to the concerns that I describe below.
[8] On September 13, 2006 Corbett J. ordered, on consent, that the mother’s mother, Iris Harrison, be appointed her litigation guardian in this proceeding. I will have more to say about that role under the Family Law Rules below. I must note, as Gray J. did in his endorsement of June 24, 2008, that there is evidence that Ms. Harrison, the mother’s litigation guardian, abused the mother when she was a child. Gray J. quotes psychologist, Dr. Christina Riccuiti, as stating that the mother’s “… early family history is noteworthy in that she experienced severe physical, verbal and emotional abuse by her parents.” Dr. Waisman’s report speaks of the mother’s reluctance to take medication to deal with her hallucinations “…as per her mother’s [i.e. Ms. Harrison’s] instructions.”
[9] On June 24, 2008, Gray J. refused the father’s request to remove Ms. Harrison as the mother’s litigation guardian. He rejected the request because the father had consented to Ms. Harrison’s appointment nineteen months earlier, on September 13, 2006. The father consented to the appointment despite long knowledge of Ms. Harrison’s abuse of the mother. Gray J. declined to appoint the Office of the Public Guardian and Trustee (“OPGT”) in Ms. Harrison’s place. He was concerned that such an appointment would add to the expense of this proceeding.
[10] In his costs endorsement of February 12, 2009, regarding another motion in this proceeding, Quigley J. noted that the mother was subsisting on public assistance and that her parents had declared bankruptcy. He found that the litigation guardian, Ms. Harrison, and her husband “…seem intent on continuing to force this matter to be dealt with in an adversarial and costly way rather than seeking alternative ways of achieving resolution.” Quigley J. ordered costs of $5,000 against the mother, citing the failure to prepare for a series of settlement conference appearances. But for the mother’s financial circumstances, Quigley J. would have ordered the mother to pay more. The costs were payable within 30 days.
[11] On May 29, 2009, Daley J. struck the mother’s pleadings. Ms. Harrison had just recently retained counsel, who had not filed any materials for the father’s motion to strike. Daley J. found that the mother had breached numerous court orders for the purpose of stalling the litigation process.
[12] That conduct included the failure to pay a series of costs orders and her share of certain home repairs. In addition, the mother’s litigation guardian failed for a time to obey an order that she retain counsel. Because she had no counsel, Ms. Harrison also refused to participate in a conference call with psychologist, Dr. Raymond Morris, in order to commence an access assessment.
[13] Daley J. found that the mother’s breaches of various orders was willful. He found that she “…learned little as a result of the attendance at the settlement conference on January 30, 2009…” and that she had “… wilfully and with a purpose failed to comply with the order of Quigley J. of February 26, 2009…” In assessing costs of $10,000 against her, Daley J. found that the mother had acted in bad faith.
[14] On February 27, 2014, almost five years after Daley J.’s order, the mother moved for leave to bring a further motion. She sought, through her mother as litigation guardian, to move for access to Alexander and the payment out of trust of money held from the proceeds of sale of the former matrimonial home. In denying leave, Wein J. acknowledged that the mother was in a “… circular trap: (she can’t pay past orders until she obtains some money, + she can’t proceed with a claim to the money in trust until she pays past orders).”
[15] Wein J. exercised her discretion to refuse to order the release of any funds to the mother. She did so because of the father’s civil claims against the mother, which may take priority to her entitlement to the money. I should note that Wein J. stated that the mother was “…now reported to be mentally stable and earning a modest income.”
[16] For his part, the father took no steps to bring this proceeding to a conclusion until November 1, 2017, almost 8 ½ years after Daley J. struck the mother’s pleadings. On November 1, 2017 the father brought a motion for directions. Since the mother’s pleadings had been struck over eight years earlier, the motion was unopposed. Ultimately, on November 23, 2017 Fitzpatrick J. ordered that an uncontested trial take place. He granted the father leave to provide evidence for that hearing by affidavit.
[17] I then heard the uncontested trial of this proceeding on February 20 and 21, 2018.
The Uncontested Evidence
[18] The uncontested evidence before me points to the mother having physically and emotionally abused and neglected Alexander in his early years. Most of that abuse and neglect occurred when the father left the mother alone or under minimal supervision to care for Alexander while he was at work. The evidence also pointed to the father recognizing the existence of at least some of the mother’s parenting limitations from the time that Alexander was born onwards. In the first month of the child’s life, he noted that the mother did not seem interested in her son. His parents reported to him that when he was at work the mother neglected the child and was physically rough in handling him. The father claims to have performed all of the parenting roles for the child when he was not working. He also had to do the cleaning for the mother in that she continuously left the home messy and unclean. This arrangement continued until the father left the mother on October 6, 2006, when Alexander was eight years old.
[19] The father’s evidence further indicates that the abuse and neglect have combined with Alexander’s intellectual delays and difficult behaviour to adversely affect Alexander’s present level of emotional functioning. The uncontested expert evidence before me opines that Alexander will most likely require a lifetime of psychiatric intervention to treat him for the trauma that he received at the hands of his mother.
[20] The father has offered three reasons for failing to provide evidence regarding an equalization of the parties’ net family properties. First, he says that the mother’s pleadings have been struck, so she has no claim to an equalization payment. He points out that the matrimonial home, the major family asset, whose proceeds would fund an equalization payment, was registered in his name. Second he claims an unequal division of net family properties. Finally, he says that whatever may be owing to the mother by way of equalization, it is more than set off by his civil claims against her on behalf of Alexander.
[21] All of that being said, I note that:
a. The father has filed no net family property statement for the trial;
b. While his amended application claims an unequal division of net family property, that is only because of an unsecured loan that his parents allegedly made to the parties. What the father pleads that he seeks is that the entire amount of that loan be included in his net family property for “equalization purposes” and that any equalization payment owing by the mother to the father be paid out of her share of the proceeds of sale of the matrimonial home. Otherwise he seeks an equalization of the net family properties of the parties.
c. The father has offered no real evidence in his trial affidavit to help me determine the equalization issue, other than broad and bald statements about his role during the marriage and the mother’s misconduct during it. He says that they entitle him to an unequal division of the parties’ net family properties. However that claim is not pleaded in his amended application. That pleading only refers to one factor relevant to a claim to an unequal division of the parties’ net family properties – the loan from the father’s parents.
d. Thus, even if any entitlement of the mother to an equal or non-equal division of net family property will be set-off against the father’s civil claim, the mother is entitled to credit for that set-off. In order to make the determination of that set-off, the court needs to determine how much money the mother is entitled to receive before any consideration of set-off.
My Concerns with the lack of Representation of the Mother
[22] Both during and following the hearing of the trial in this matter, I have been troubled by the two contradictory notions of the mother that have arisen in the course of this litigation. She is portrayed as both responsible and not capable of responsibility.
[23] On the one hand, the father claims that the mother is responsible for the gross abuse and neglect of her son. This position has already been noted and factored into previous decisions of this court. Further, the mother has also been found to be responsible for the improper conduct of this proceeding.
[24] On the other hand, the evidence discloses the mother’s significant intellectual and mental health limitation. They are serious enough that a litigation guardian was appointed to represent her as a special party in this proceeding under R. 4(2) of the Family Law Rules (“FLR”).
[25] I note that the term “litigation guardian” is not found in the FLR. It is found in R. 7 of the Rules of Civil Procedure. Here the appointment of a ‘litigation guardian” was descriptive term, referring to the role assumed by the person authorized under FLR 4(2) to represent a special party in a family law proceeding.
[26] The definition of a special party under R. 2(1) of the FLR requires that if the party is an adult, he or she must be or appear 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…
[27] Two sections of the Substitute Decisions Act, 1992, sections 6 and 45, deal with mental incapacity. Both define it as an inability to understand information relevant to making a decision, whether for the management of property or personal care. They read as follows:
Incapacity to manage property
- 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
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.
[emphasis added to both provisions]
[28] In Costantino v. Costantino, [2016] O.J. No. 59 (SCJ), a family law case, Price J. elaborated on the test for the appointment of a litigation guardian. He stated:
41 For the appointment of a Litigation Guardian to be appropriate, 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 a non-legal capacity-related reason, such as lack of sophistication, education, or cultural differences.13 Additionally, the incapacity, so caused, must affect the litigant's decision-making in relation to the issues in the litigation.
[emphasis included in original]
[29] Under FLR R. 4(2), the test for the appointment of person to represent a special party is that the person be “appropriate for the task” and willing to act as representative of the special party.
[30] In Huang v. Pan, 2016 ONSC 6306, [2016] O.J. No. 5238 (SCJ), T.L. Archibald J. explored the purpose for appointing a litigation guardian as follows:
16 The purpose of requiring a litigation guardian has been eloquently set out by Master Robert Beaudoin (as he then was) at paragraph 4 of Cameron v. Louden, 81 ACWS (3d) 32, [1998] O.J. No 2791 (Gen Div):
The purpose of a rule requiring a litigation guardian for parties under disability is drawn for protection to the party, the other parties and the Court itself. The rule offers protection to the party 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. A 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.
17 Litigation guardians are necessary to protect parties under disability, but also to protect opposing parties and court procedures.
[31] Here, the fact that the mother has already been found to be a special party means that she was or appeared to be mentally incapable of understanding the issues that were the subject of the litigation against her. Ms. Harrison, as litigation guardian, was required to be “appropriate for the task” of representing the mother. That obligation would have continued throughout the course of her representation of the mother.
[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:
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.
I find that the representative of a special party, like Ms. Harrison, is subject to a similar duty in regard to the special party.
[33] The endorsements set out above make clear that Ms. Harrison did not act appropriately in representing or protecting the interests of her vulnerable daughter. Ms. Harrison was the one responsible for the conduct of the mother’s litigation. Yet implicit in the rulings of a number of judges, is the fact that she failed to act appropriately in that defence.
[34] Once Ms. Harrison was appointed, the mother had no right to determine the course of her defence. Ms. Harrison assumed the metaphorical tiller that guided the mother’s defence. While the mother lacked or appeared to lack the mental capacity to defend herself, she was found to be responsible for the conduct of the person who was supposed to conduct that defence. The fact that Ms. Harrison may have had a history of abusing the mother makes the concern about the appropriateness of Ms. Harrison’s conduct all the more acute.
[35] Under FLR R. 4(3),
If there is no appropriate person willing to act as a special party’s representative, the court may authorize the Children’s Lawyer or the Public Guardian and Trustee to act as representative, but only with that official’s consent.
[36] While Gray J. considered whether it is appropriate to appoint the OPGT in 2008, it does not appear that he was informed of the full extent of the mother’s intellectual deficits or psychiatric concerns. That appears to be true of Quigley J. as well. I add that when the parties appeared before Gray J., the full extent of the inappropriateness of Ms. Harrison’s representation of the mother had yet to become manifest.
[37] When the matter came before Daley J., again he was not informed of the full extent of the mother’s disabilities. The argument before him appears to have been centred on her blame for the litigation failures of Ms. Harrison. It does not appear that he was informed of the fact that the mother’s means were so meagre that she was in receipt of public assistance. Thus she lacked the means to pay the substantial costs awards that her mother had incurred in her name. All of that likely explains why, in striking the mother’s pleadings, Daley J. mainly referred to her conduct, not that of her litigation guardian. Of course it was Ms. Harrison, not the mother who had carriage of the proceedings and was responsible for the procedural improprieties attributed to the mother.
[38] The record also does not show that Daley J. was asked to consider whether it would be appropriate to request the appointment of the OPGT under FLR R. 4(3) before considering the striking of the mother’s pleadings. Recall that just about a year earlier, the father asserted that Ms. Harrison should not have been allowed to continue as the mother’s litigation guardian because of her history of abuse against the mother. He asked that the OPGT be appointed in Ms. Harrison’s stead. Such an appointment may have ameliorated the concerns that led to the striking of the mother’s pleadings.
[39] Similarly when the matter came before Wein J. And Fitzpatrick J. there was no reference to or consideration of the extent of the mother’s disabilities, nor an argument raised in favour of the appointment of a responsible representative for the mother like the OPGT. I appear to be the first judge to be informed of those deficits and concerns.
[40] Further, and perhaps even more to the point, the expert evidence cited above raises the issue of whether the mother had the intellectual capacity or the emotional ability to control her behaviour at any relevant time. That would include the times that she is alleged to have abused and/or neglected Alexander. However there is no one before the court who can raise the question of whether the mother’s disability is relevant to the claims being made against her.
[41] Nor can anyone question the role of the father in leaving the child alone with the mother over so many years. He claims that he was not aware of the mother’s disabilities until after she began abusing the child. That assertion seems on its face to be improbable. More importantly, the father’s own evidence is that the abuse went on for many years. His lawyer’s factum states at par 21 that:
Alexander was physically, emotionally, and mentally abused and neglected by the Respondent [mother] on a regular basis since he was born. This included approximately 28 documented incidents of abuse…
[emphasis added]
[42] For all of those reasons, I question whether the court can do justice to the parties and the child by proceeding without any appropriate representation on behalf of the mother. FLR R. 2(1) states that the primary objective of the FLR is to enable the court to deal with cases justly. FLR R. 2(4) states that the court is required to apply the FLR to promote the primary objective. FLR R. 2(3) sets out that dealing with cases justly includes ensuring that the procedure is fair to all parties.
Further Steps that I am Considering
[43] In light of all of the concerns, facts, and authorities set out above, I am considering requesting the OPGT to participate in this proceeding. The primary way that it could do so would be to represent the interests of the mother as a special party under FLR R. 4(3). In the alternative, if the OPGT demurs with that request, I am considering the appointment of an amicus curiae to deal with the issues raised by the mother’s disability in regard to the civil claims made against her. Either could also deal with the equalization/unequal division issue.
[44] I recognize that the mother’s pleadings have been struck almost nine years ago. But when I consider the prejudice to the father and Alexander of this proposed step. I must note that the father waited for well over eight years after the mother’s pleadings were struck before seeking a trial of this proceeding.
[45] In saying all of the above, I recognize that it would be improper for me to effectively sit in appeal of Daley J.’s order. I do not propose to do so. Rather, having heard the father’s evidence thus far, I have been made aware of a number of relevant facts, rules and alternative steps were not brought to his attention at the time that he heard the motion to strike. Had they been, the result may have been far different. The same may well be true for the other judges who had carriage of this proceeding.
[46] I also note that I have not been provided with sufficient evidence to deal with the determination of what, if any equalization payment the mother is entitled to receive, even if it is set-off against the father’s civil claims on behalf of Alexander. I require that evidence. If I have missed it, I ask that I be referred to it.
[47] Before I take any further step, I ask that the father and his counsel provide their written submissions regarding my proposal to involve the OPGT within 14 days. If they wish they may also make an appointment to speak to the matter before I make any further decisions in this regard.
Kurz J.
Released: May 8, 2018
COURT FILE NO.: 28466/06
DATE: 2018-05-08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
EDWARD STANLEY GRANASIUK Applicant
– and –
JANET RUTH GRANASIUK BY HER LITIGATION GUARDIAN, IRIS HARRISON Respondent
REASONS FOR JUDGMENT
Kurz J.
Released: May 8, 2018