Court File and Parties

COURT FILE NO.: FS-17-21794 DATE: 20190116 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Amit Sadhu AND: Shivani Kaul

BEFORE: J.T. Akbarali J.

COUNSEL: A. Lee for the Applicant/Moving Party K. MacDonald for the Respondent/Responding Party

HEARD: January 3, 2019

Endorsement

Overview

[1] In this motion I am asked to determine whether to order the respondent wife to undergo a capacity assessment.

Background

[2] The parties were married in February 2011. They are the parents to a five year old daughter, A, who has been diagnosed with autism.

[3] The parties separated in September 2017. They continue to live in the same home together with their daughter and the husband’s parents. The parties and their daughter share a single bedroom.

[4] The genesis of this motion lies in the husband’s concerns about the wife’s mental well-being. Among other things, the wife has expressed her belief that the husband’s parents arranged to have a chip implanted in her body which allows a live stream of her activities to be relayed to them. She has also indicated that the husband has hidden video cameras in the home which he uses to monitor her. She has stated that he listens to the calls she makes on her phone. The husband denies any attempts to monitor the wife.

[5] The wife has stated that the husband has Asperberger’s and that he gave A. autism “through his blood”. The husband denies that he has Asperberger’s. He states that the wife has made inappropriate comments to A about being videoed and about the husband being the reason A has autism. The wife denies having made such statements in the presence of A.

[6] At different times the wife has stated that A’s autism is cured. The husband states that the wife has made inappropriate treatment decisions about A’s autism. The wife states that she now accepts that A’s autism diagnosis is permanent and denies that she has made inappropriate treatment decisions for A. Rather, she had reasons for the decisions she took, and while the husband might disagree, the disagreement between them does not reflect a lack of capacity on her part.

[7] The husband believes it may be necessary to seek to have the wife declared a special party under r. 2(1) of the Family Law Rules, O. Reg. 114/99. As a precursor to such a motion, he seeks an order requiring the wife to undergo a capacity assessment under s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43, or s. 79 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30.

[8] The wife agrees that she has a delusional disorder but argues that it is limited to her ideas about being monitored and that it does not impair her judgment. She relies on a report of a medical assessment of her psychiatric condition undertaken by a psychiatrist on referral from her family doctor, and two letters from her family doctor. The husband states that the letters and the report are not capacity assessments. He has provided a report from a capacity assessor that states that the psychiatrist’s report does not amount to a capacity assessment. Unfortunately, none of the psychiatrist, family doctor, or capacity assessor provided affidavits. All their evidence is hearsay, thus not admissible for truth of its contents.

[9] The wife states that she is currently undergoing treatment for her delusional disorder and that she is compliant with the recommended treatment. She states that she no longer has ideas about being monitored. She states there is no basis for an order requiring her to undergo a capacity assessment, and that such an order would be an unwarranted intrusion into her privacy and autonomy.

Issues

[10] The main issue before me on this motion is whether I should make an order directing the wife to undergo a capacity assessment under s. 105 of the Courts of Justice Act or s. 79 of the Substitute Decisions Act, 1992.

[11] In addition, there is a question about whether terms of an order of Paisley J. dated February 6, 2018 should be extended. Paisley J.’s order granted the husband temporary sole custody of A, and dispensed with the mother’s consent for medical treatment. It also directed that neither party remove A from Ontario. The parties agreed on consent to extend these provisions for six months once they expired. The consent agreement extends to February 9, 2019. The husband seeks a further six month extension of these terms. The wife agrees only to a continuation of the non-removal term of the order for a further six months.

Analysis

Should the court order a capacity assessment under s. 105 of the Courts of Justice Act?

[12] The court has jurisdiction under s. 105 of the Courts of Justice Act to make an order for a capacity assessment. The parties agree that the husband bears the burden of establishing that the order should be made. Section 105(2) provides that:

Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.

[13] Where, as here, the request for a capacity assessment comes from another party, s. 105(3) applies. It provides:

Where the question of a party’s physical or mental condition is first raised by another party, an order under this section shall not be made unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe that there is substance to the allegation.

[14] In 626381 Ontario ltd. v. Kagan, Shastri, Barristers & Solicitors, 2013 ONSC 4114, Stinson J. made clear that a mental examination should not be the norm on a motion to appoint or remove a litigation guardian. Rather, an order under s. 105 is exceptional. He wrote, at para. 40:

A s. 105 order to obtain the required evidence should be the rare exception and not the rule. Moreover, such an order is discretionary and should not be granted lightly or without good reason. Due consideration must be given to the autonomy of the individual, having regard to the intrusive nature of a mental examination.

[15] Stinson J. went on to find that a contextual analysis must be employed to determine whether an order should issue under s. 105 in a civil proceeding. He held that the court must balance the affected party’s fundamental rights against the court’s duty to protect the vulnerable, the interests of the other parties and the court, as well as the societal interest in a fair, efficient and effective dispute resolution process: para. 58. He noted that the court cannot make a determination whether a party requires the assistance and protection of a litigation guardian without adequate evidence. Where it is not available, it may be necessary to require a mental examination under s. 105: para. 59.

[16] Although Kagan, Shastri was a decision made in a civil context, the principles enunciated therein with respect to litigation guardians apply equally in the family law context: Costantino v. Costantino, 2016 ONSC 7279 at paras. 36-37. In a family law case, in my view, when considering the possible appointment of a litigation guardian, the court is not concerned only with the litigant, the other parties, itself, and society’s interest; it must also be concerned with the interests of the children who may be affected.

[17] When balancing the interests of the affected parties under s. 105, I accept that the capacity assessment that is sought is a significant intrusion on the wife’s autonomy and privacy interests.

[18] However, I must also consider the interests of others. It is very important that A’s interests be protected. A is young and has special needs. The question of the wife’s capacity may relate to her ability to parent. The wife’s capacity also relates to her ability to conduct the proceeding and perhaps settle some or all of the issues between the parties. It is in A’s interests, as well as the interests of the parties, that any agreement reached on any issues be reliable.

[19] Moreover, I must also consider the integrity of the court process. Rule 2(2) of Family Law Rules describes the primary objective of the Rules: to enable the court to deal with cases justly. Rule 2(5)(c) sets out the court’s duty to help the parties settle all or part of a case. The court cannot conduct its processes with integrity when there are questions as to the wife’s capacity. I note that in other attendances before this court, other judges of this court have repeatedly raised concerns about the wife’s capacity.

[20] There is good reason to believe there is substance to the husband’s allegation that the wife may not have capacity. In particular:

a. The wife agrees she has a delusional disorder and has made statements before various courts about the delusions she has. This is a factor that supports the husband’s allegations but is not determinative in itself. b. While the wife now states that she no longer believes she has a chip inside her body or is under video surveillance, she has not specifically disavowed other delusions, such as her earlier statements that the husband has Asperberger’s and gave A autism “through his blood”. c. The wife’s own statements conflict. While she now states she understands A’s autism to be a lifelong condition, she earlier stated that A had been cured. There is no explanation for the change in her belief, apart from the wife’s evidence that earlier statements to the court were made in circumstances where the wife was stressed as she had no counsel and was not familiar with court processes or the culture of the court. However, many litigants are unfamiliar with court processes and the culture of the court; their unfamiliarity may lead them to take inappropriate procedural steps or positions but does not generally alter the substance of their submissions, or cause them to advance irrational beliefs. d. The wife’s beliefs about A’s autism being cured may have affected her parental decision-making. There is evidence before me that the wife declined appropriate therapy for A. The wife says she declined speech therapy because it was parent-child therapy, which A had already completed, and that A needed child-child therapy which she is now receiving. However, the husband’s evidence is that the wife declined all therapy such that the therapist closed her file and the husband had to intervene to get it reopened. An email from the therapist (which is hearsay) suggests that the wife declined “group therapy” because it conflicted with A’s school hours, not because it was the wrong type of therapy. e. There is also evidence before me that the wife cancelled a follow-up appointment with A’s specialist at Holland Bloorview hospital. The husband states that A was discharged by the hospital as a result, which would have led to discontinuation of further treatment for her without any follow up with anyone. The husband states he intervened and was able to persuade the hospital to set up a new follow-up appointment for her. f. The wife has also in the past stated that she will take A to the United States, where her brother is, or to India, to live. She has made some of these statements in earlier appearances before the court. She no longer states she will remove A from the jurisdiction and is willing to consent to an extension of the non-removal order; however, her idea to remove A at a young age from the home and family she knows without any plan for A’s continued relationship with the husband and no real plan to establish herself in the United States or India demonstrates a lack of judgment that raises a question as to her capacity to make decisions for A. g. The wife’s medical report from the psychiatrist, Dr. Ali is not a capacity assessment. Moreover, it is hearsay and inadmissible for proof of the truth of its contents. Even if I could rely on it for its truth, it leaves significant questions unanswered. For example, although Dr. Ali’s report states that the wife did not show impaired judgment, the report does not explain what type of judgment Dr. Ali was considering, or whether the results of his 90 minute assessment can reliably be generalized to the wife’s day-to-day functioning. The report itself is brief, and there is nothing to assist the court in understanding the value of the single assessment as a basis to do anything more than suggest a starting point for treatment options. I note that the appointment with Dr. Ali was through the “Schizophrenia Triage and Referral Service” which, by its name, does not suggest a clinic at which an in-depth examination and analysis can be undertaken. I might be wrong about that, but there is no evidence in the record to assist me in understanding what transpired at the 90 minute session or what use can reliably be made of the results of the report in understanding the wife’s capacity. It is also unclear from Dr. Ali’s report how much background information he had. For all these reasons, even if the report were inadmissible, it would be inadequate: Forgione v. Forgione, 2007 CarswellOnt 3197 at para. 3. h. The wife’s letters from her family doctor, Dr. Cheung are similarly not capacity assessments, and are also hearsay. There are two letters appended to the wife’s affidavit, each of which is very brief and is based in significant measure on the wife’s self-reporting. The first letter confirms that Dr. Cheung has prescribed medication in accordance with Dr. Ali’s recommendation and relates Dr. Cheung’s observation that the wife is able to take care of A. There is no explanation in Dr. Cheung’s letter as to why she holds that view, how she would know, or her qualifications to form that view. Dr. Cheung’s second letter reports the wife’s continued compliance with her medication regime, a matter about which the wife also gives evidence. In the second letter, Dr. Cheung also states that the wife reports improved sleep, appetite and mood. The wife also deposes to these improvements. However, the husband deposes the opposite: he has noticed no change. One might expect he would have since the parties continue to reside together and share a bedroom. i. The evidence of the parties conflicts on a number of points. Interestingly, however, it is often not the events that transpired about which the parties disagree, but the reason for the events. For example, the parties agree that the wife took A out the day after dental surgery despite the surgeon’s recommendation that A rest that day. The wife says A was doing well and she judged A would benefit from some fresh air. The husband says the wife took A out because the wife stated she did not want to be videoed. Similarly the parties agree that the wife bathes A in a basement bath that is unheated. The wife says the room is warm enough and the tub is bigger so A can splash around more. The husband says the wife believes there are cameras in the upstairs bath, but not the basement bath. I cannot resolve these factual disputes on a paper record but the husband’s evidence is consistent with the beliefs the wife has previously expressed. These conflicts in the evidence raised the question of the wife’s current beliefs and how they may impact her care of the child.

[21] To make an order under s. 105, I must be satisfied that the allegation is relevant to a material issue in the proceeding: s. 105(3). It is not sufficient that the material issue be the conduct of the proceeding; if it were, the words of s. 105(3) that the allegation be relevant to a material issue in the case would have no practical meaning, as the requirement would be satisfied in every case before the court. Thus, to ensure that the husband’s request for a capacity assessment is not capricious, it must be relevant to a material issue in the proceeding apart from the wife’s capacity to conduct the proceeding.

[22] In my view, in this case the wife’s capacity is relevant to a material issue in the proceeding in that the wife’s capacity may impact her ability to care for and make decisions for A. I have already given examples of decisions the wife has made for A, including refusing group speech therapy, cancelling her follow-up appointment with her specialist, and making plans to relocate with her to the United States or India that raise questions about the wife’s ability to make decisions for A. I have reviewed evidence in the record that raises similar concerns about the wife’s care of A, including the wife’s decision to take A out against doctor’s recommendations the day following her dental surgery and bathing A in an unheated bathroom. The record also includes allegations that the wife makes inappropriate comments in front of A. Cumulatively, there is sufficient evidence in the record to convince me that the wife’s capacity is relevant to the material parenting issues in the proceeding.

[23] The wife argues that, having regard to the test for a litigation guardian, there is sufficient indicia of capacity such that the capacity assessment is not necessary. She relies on C.C. v. Children’s Aid Society of Toronto, [2007] O.J. No. 5613 at paras. 32, 34, where Backhouse J. noted factors that are relevant to the appointment of a litigation guardian include a person’s ability to keep and retain counsel. The wife submits that since she retained counsel close to a year ago, she has kept counsel and appropriately participated in the proceedings. Counsel advises, in her capacity as an officer of the court, that she is able to obtain instructions from the wife. This is a factor that will be relevant on a motion for a finding that the wife is a special party, if one is brought.

[24] However, in C.C., Backhouse J. identified other relevant factors to include medical evidence as to capacity, evidence from people who know the litigant well, the appearance and demeanour of the litigant, and the testimony of the litigant. On the record before me, there is worrying testimony from the wife, and also evidence from the husband, who knows her well, that is troubling. There is inconsistency in the evidence before me that is relevant to the question of the appointment of a litigation guardian such that medical evidence would be important to the court determining that issue.

[25] Based on this contextual analysis, I conclude that it is appropriate that the wife undergo a capacity assessment. The husband has proposed that the assessment be undertaken by Dr. Gayle Kumchy, who has earlier confirmed her availability. The wife did not object to Dr. Kumchy conducting the assessment if one was ordered. The husband has also indicated his willingness to pay for the assessment. Accordingly, I order the wife to undergo a capacity assessment with Dr. Kumchy as soon as practicable. The husband shall bear the costs of the assessment.

Should a capacity assessment be ordered under s. 79 of the Substitute Decisions Act, 1992?

[26] It is worth noting that I reach the same conclusion that a capacity assessment is required through an application of the test under s. 79(1) of the Substitute Decisions Act, 1992. Section 79(1) provides:

If a person’s capacity is in issue in a proceeding under the Act and the court is satisfied there are reasonable grounds to believe that the person is incapable, the court may, on motion or on its own initiative, order that the person be assessed by one or more assessors named in the order, for the purpose of giving an opinion as to the person’s capacity.

[27] The principles to be applied when considering whether to direct a capacity assessment under s. 79(1) were set out by Strathy J. (as he then was) in Abrams v. Abrams, [2008] O.J. No. 5207 at para. 53:

(a) the purpose of the SDA, as discussed above; (b) the terms of section 79, namely: (i) the person’s capacity must be in issue; and (ii) there are reasonable grounds to believe that the person is incapable; (c) the nature and circumstances of the proceedings in which the issue is raised; (d) the nature and quality of the evidence before the court as to the person’s capacity and vulnerability to exploitation; (e) if there has been a previous assessment, the qualifications of the assessor, the comprehensiveness of the report and the conclusions reached; (f) whether there are flaws on the previous report, evidence of bias or lack of objectivity, a failure to consider relevant evidence, the consideration of irrelevant evidence and the application of the proper criteria; (g) whether the assessment will be necessary in order to decide the issue before the court; (h) whether any harm will be done if an assessment does not take place; (i) whether there is any urgency to the assessment; and (j) the wishes of the person sought to be examined, taking into account his or her capacity.

[28] I have already addressed most of these factors in my analysis under s. 105 of the Courts of Justice Act. From that analysis, it is clear that the wife’s capacity is in issue and the nature and quality of the evidence before me establishes that there are reasonable grounds to believe she may be (or perhaps was) incapable. The nature of these proceedings, and particularly the parenting issues that are engaged, support the need for a capacity assessment. The report prepared to date is not a capacity assessment and is not sufficient, even if it were admissible evidence on this motion. Moreover, given the conflicting evidence on many factual points, a capacity assessment will be necessary to decide the issue if it indeed comes before the court. I am also concerned with the potential harm to A if the assessment does not take place, given the potential impact the wife’s capacity may have on her ability to parent. Given A’s young age and special needs, and the parties’ current living situation, there is urgency in moving this matter forward. A capacity assessment is the first step in doing so. I regret that the capacity assessment must be ordered against the wishes of the wife, but in the circumstances, I see no alternative.

Terms

[29] On consent of the parties, the term of Paisley J.’s order directing that neither party remove A from the jurisdiction shall be extended for six months from today’s date or until further order of the court, whichever comes first.

[30] Given my determination that a capacity assessment is necessary, and the evidence about the wife’s past reluctance to facilitate A’s medical treatment, in my view it is in A’s best interests that the husband continue to have interim sole custody of A, and that the wife’s consent for medical treatment be dispensed with. However, I see no reason why the wife should not be informed about A’s medical treatment or have the opportunity to attend A’s medical appointments and be consulted about A’s treatment. Accordingly, I order the husband to keep the wife informed about A’s medical condition, and ensure she is informed about A’s medical appointments which she may attend if she wishes. The husband shall consult with the wife before making a decision about A’s medical treatment. These terms shall continue for six months from today’s date or until further order of the court, whichever comes first.

Costs

[31] At the hearing, the parties agreed that partial indemnity costs of $10,000 all inclusive are fair and reasonable for the successful party on this motion, subject to adjustment based on the offers to settle delivered by the parties. The parties agreed to provide me with their offers to settle in sealed envelopes, which I opened after reaching my decision on the merits of this motion.

[32] I have reviewed the terms of the parties’ offers to settle. The wife’s offer included many clauses relating to matters not in issue on this motion. It cannot be said that she beat her offer to settle.

[33] The husband’s offer included terms that the wife undergo a capacity assessment with Dr. Kumchy for which he would pay. He has met this term of his offer. However, his offer included a term that the parties would agree to be bound by the results of the capacity assessment. I made no such order. I was not asked to make such an order, and I doubt that I could have made such an order if asked. However, the result is that the husband did not beat his offer to settle either.

[34] Accordingly, based on the parties’ agreement, the wife shall pay $10,000 all-inclusive in partial indemnity costs, disbursements and HST to the husband within thirty days.

Conclusion

[35] The wife shall participate in a capacity assessment conducted by Dr. Gayle Kumchy, to take place as soon as practicable. The husband shall pay the costs of the capacity assessment.

[36] The husband shall continue to have interim sole custody of A, and the wife’s consent to medical treatment shall be dispensed with. The husband shall keep the wife informed about A’s medical condition, including about A’s medical appointments, which the wife may attend if she wishes. The husband shall consult with the wife before making a decision regarding A’s medical treatment. Neither party shall remove A from Ontario. These terms will remain in effect for six months from today’s date, or until further order of the court, whichever comes first.

Akbarali J. Date: January 16, 2019.