Court File and Parties

Court File No.: FS-17-00417653-0000 Date: 2019-03-21 Ontario Superior Court of Justice

Between: GREG SOMERS, Applicant – and – NICHOLA FELDMAN-KISS by her Litigation Guardian MARY KEOGH, Respondent

Counsel: Christine Vanderschoot, Counsel for the Plaintiff T. Viresh Fernando, Counsel for the Respondent

Heard: February 19-20, 2019

Reasons for Decision

DIAMOND J.:

Overview

[1] The applicant and the respondent were married for just under three years, separating on or about August 8, 2015. The applicant commenced this proceeding on June 2, 2017. On July 16, 2017, the respondent served and filed her Answer. The issues in dispute included spousal support and an equalization of net family property.

[2] On August 16, 2017, the parties - together with their respective counsel - attended the first case conference before Justice Chiappetta. Negotiations ensued for several hours, and the parties ultimately executed Minutes of Settlement which resolved all issues between them. At the end of the conference, Justice Chiappetta incorporated the terms of the Minutes of Settlement into a formal consent court Order.

[3] The Minutes of Settlement provided, inter alia, that the respondent would receive the sum of $125,000.00 (payable in two instalments) conditional upon her moving out of the matrimonial home by November 30, 2017.

[4] On or around September 11, 2017, the respondent filed a Notice of Change in Representation and became self-represented in this proceeding. In early November 2017, Mary Keogh (“Keogh”, at the time the proposed litigation guardian for the respondent) retained T. Viresh Fernando to prepare an ex parte motion seeking an order (a) declaring the respondent to be a special party (ie. a person under disability), and (b) appointing Keogh as the respondent’s litigation guardian in this proceeding.

[5] The ex parte motion proceeded on November 14, 2017. The presiding judge (“the ex parte judge”) reviewed the evidentiary record and found that the respondent was (and was at the time of the August 16, 2017 case conference) a special party mentally incapable under the Substitution Decision Act, 1992 S.O. c. 30 (“SDA”) in respect of all issues in the proceeding. The ex parte judge appointed Keogh as the respondent’s litigation guardian, but refused Mr. Fernando’s request to seal the supporting medical opinions and Keogh’s supporting affidavit from the public record.

[6] After the ex parte order was issued, Mr. Fernando served that order and the supporting motion materials upon counsel for the applicant, together with a new, separate motion seeking an order declaring the Minutes of Settlement dated August 16, 2017 as null and void.

[7] The settlement contemplated by the Minutes of Settlement was not finalized. Since the fall of 2017, the applicant has been attempting to bring his motion seeking an order setting aside the ex parte order, and compelling the respondent to complete the settlement as agreed upon by the parties. In response, Keogh has now brought a further motion, this time on notice (“the new motion”), seeking the exact same relief granted by the ex parte judge but on new medical opinion evidence not filed before the ex parte judge on November 14, 2017.

[8] Justice Gilmore has been case managing this proceeding since early August 2018. Pursuant to Justice Gilmore’s Endorsement dated February 8, 2019, I was designated to hear the various motions brought by the parties on February 19-20, 2019. At the outset of the hearing, I indicated to counsel for all parties that, in my view, the issue of whether the respondent was and/or remains a special party must be heard and determined in advance of any other issue(s) raised on the motions. As such, argument on the specific issue of the respondent’s status as a special party proceeded over those two days. At the conclusion of the hearing, I took my decision under reserve.

[9] These are my Reasons for Decision.

Issues to be decided

[10] In my view, there are three issues to be decided on these motions:

• Issue #1 Should the ex parte order be set aside?
• Issue #2 If the ex parte order is set aside, should the doctrine of abuse of process be invoked to preclude the respondent/Keogh from bringing the new motion?
• Issue #3: If the new motion does not amount to an abuse of process, should the relief sought on the new motion be granted?

[11] I shall now address each issue in turn.

Issue #1 Should the *ex parte* order be set aside?

Special Parties

[12] Rule 2(1) of the Family Law Rules defines “special party” to be a party who is a child or who appears to be mentally incapable for the purposes of the SDA in respect of an issue in the case and who, as a result, requires legal representation, but does not include a child in a custody, access, child protection, adoption or child support case.

[13] Section 4(2) of the Family Law Rules provides that the Court may authorize a person to represent a special party if the person is (a) appropriate for the task and (b) willing to act as representative.

[14] Under section 2(1) of the SDA, anyone over the age of eighteen is presumed to be capable of entering into a contract. As held by Justice Doyle in Evans v. Evans, 2017 ONSC 4345, to displace the presumption set out in section 2(2) of the SDA, the Court must be presented with compelling evidence of incapacity.

[15] In Costantino v. Costantino, 2016 ONSC 7279, Justice Price held as follows:

“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. Additionally, the incapacity, so caused, must affect the litigant’s decision-making in relation to the issues in the litigation.

Where the appointment of a Litigation Guardian is sought, it is not enough to establish that the individual's words, deeds, or choices seem unreasonable to others. Rather, the evidence must establish, in respect of the issue(s) in the proceeding, that the party is unable to understand and appreciate relevant information or the reasonably foreseeable consequences of a decision, not simply that they fail to do so. Justice Backhouse, in C.C. v. Children’s Aid Society of Toronto, in 2007, stated, ‘There is a distinction to be drawn between failing to understand and appreciate risks and consequences, and being unable to understand and appreciate risks and consequences. It is only the latter that can lead to a finding of incapacity.’”

[16] Justice Price went on to provide a helpful summary of the factors to be considered by the Court when deciding if a person is a special party:

“The jurisprudence has identified 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.

Issues of mental capacity generally are to be decided on medical evidence. Courts have, in some circumstances, considered various types of evidence in determining whether a Litigation Guardian should be appointed:

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; and, e) The opinion of the litigant’s own counsel.”

Ex Parte Motions

[17] Under Rule 14(12) of the Family Law Rules, a party may bring a motion without notice if:

a) the nature or circumstances of the motion make notice unnecessary or not reasonably possible; b) there is an immediate danger of a child’s removal from Ontario, and the delay involved in serving a notice of motion would probably have serious consequences; c) there is an immediate danger to the health or safety of a child or of the party making the motion, and the delay involved in serving a notice of motion would probably have serious consequences; or d) service of a notice of motion would probably have serious consequences.

[18] The contents of Rule 14(12) create a presumption that, absent very limited prescribed circumstances, all motions are to be made on notice to affected parties. As held by the Court of Appeal for Ontario in A.M. v. J.M., 2016 ONCA 644:

“An ex parte order is intended to be used only in exigent situations where the delay required to serve the motion would probably have serious consequences, or where the giving of notice by the service itself would probably have serious consequences. A judge hearing an ex parte motion who is not satisfied of the probability of those consequences will decide that the motion cannot proceed ex parte and order that notice be given.

Where a motion is brought without notice, the person bringing the motion must make full and fair disclosure of all material facts (rule 39(6) of the Rules of Civil Procedure), including facts that may not be helpful to that party’s position. An ex parte order that is obtained without full and fair disclosure, even if the lack of full disclosure was unintended, is subject to being set aside. See for example, Rinaldi v. Rinaldi, 2013 ONSC 7368.

Notice and the opportunity to be heard are basic tenets of our justice system. Ex parte orders are therefore made only in very limited circumstances. The requirement for full and frank disclosure is essential to allow a court to fairly make a temporary order that will affect the rights of another person in an emergency situation where the court has not heard both sides of the story.”

[19] The policy behind the Court’s discretion to set aside an ex parte order made in the absence of full and fair disclosure is obvious. An ex parte motion is an extraordinary step in a proceeding. In the absence of a responding party, the Court strives to review what it presumes to be a reasonable, balanced summary of all relevant facts that could affect the outcome of the motion. If the Court is deprived of the opportunity to assess and appreciate all known material facts due to a moving party’s failure to provide full and fair disclosure, that step in the process is simply tainted and the ex parte order may be set aside on the sole grounds of a failure to comply with the duty to make full and fair disclosure.

The material before the *ex parte* judge

[20] The only evidence filed before the ex parte judge was the affidavit of Keogh affirmed on November 3, 2017. Keogh is a chartered accountant and a certified public accountant, and a friend of the respondent. While Keogh agreed to act as the respondent’s litigation guardian if the ex parte motion was successful, she herself had no professional qualifications to provide an opinion as to the respondent’s capacity or incapacity.

[21] Keogh thus relied on the expert opinions of Dr. Jason Booy (“Dr. Booy”, the respondent’s treating family physician since January 2017), and Dr. Chrissoula Stavrakaki (“Dr. Stavrakaki”, the respondent’s treating psychiatrist since September 2006).

[22] While both Dr. Booy and Dr. Stavrakaki signed Acknowledgments of Expert’s Duty forms (Form 20.1 of the Family Law Rules), neither Dr. Booy nor Dr. Stavrakaki swore affidavits setting out their opinions. Instead, Keogh simply attached letters dated November 2, 2017 (from Dr. Booy) and October 25, 2017 (from Dr. Stavrakaki) setting out their respective medical opinions. Of note, this was procedurally and substantively improper as without affidavit evidence, neither Dr. Booy nor Dr. Stavrakaki could be cross-examined upon their respective opinions.

[23] According to Dr. Stavrakaki, due to extreme childhood trauma, the respondent suffered from post-traumatic stress disorder, severe anxiety and depressive disorder, panic disorder and disassociate disorder. Dr. Stavrakaki opined that the respondent “did not have the cognitive ability to process, retain and understand the relative information or to understand and appreciate the relevance, importance, deficiency, drawbacks, risks and consequences of the material submitted by the applicant and a material prepared by her own lawyer as part of the legal pleadings with respect to the case conference.”

[24] Dr. Booy’s opinion agreed with the diagnosis made by, and the opinion of, Dr. Stavrakaki. Dr. Booy’s curriculum vitae disclosed experience in family medicine since 2013, but no psychiatric or psychological background at all.

[25] None of the clinical notes or records of Dr. Booy or Dr. Stavrakaki were produced before the ex parte judge.

Post-November 2017 events

[26] Despite Dr. Booy and Dr. Stavrakaki not swearing any affidavit evidence, Mr. Fernando agreed to produce them for cross-examination and, ultimately (but begrudgingly), produced their respective clinical notes and records.

[27] At Dr. Booy’s examination, it became readily apparent that Dr. Booy had little to no necessary experience or professional designations to opine on the issue of the respondent’s capacity or incapacity. As her treating family physician, Dr. Booy did not have the alleged expertise and qualifications to give the opinion evidence set out in his November 2, 2017 letter. Dr. Booy ought not to have signed the Form 20.1 as he was never an expert in the field of psychiatry.

[28] With respect to Dr. Stavrakaki, while the parties intended to proceed with her cross-examination, unfortunately she was subsequently involved in a motor vehicle accident and became unavailable to be cross-examined on her opinion. As such, her evidence to the respondent’s incapacity could not be (and was not) challenged.

Decision

[29] There is nothing in Keogh’s affidavit which satisfies any of the four enumerated grounds in Rule 14(12) of the Family Law Rules. There was no immediate danger to any child or to the respondent which would render service of the notice of motion to have serious consequences. The circumstances in which the respondent/Keogh found themselves did not make notice unnecessary or not reasonably possible. There was no urgency whatsoever to the ex parte motion. The respondent did not have to vacate the matrimonial home until November 30, 2017, and there was plenty of time for the applicant to be provided with notice of the motion.

[30] When I asked Mr. Fernando to direct me to the evidence which could satisfy any of the grounds in Rule 14(12), he could not do so. When asked then why the motion was brought on an ex parte basis, Mr. Fernando advised that “they needed the order sought”. This is exactly the type of situation which Rule 14(12) is designed to guard against, namely one party taking unfair advantage of the process by proceeding without notice to gain the upper hand on a party not present. On that basis alone, the ex parte order ought to be set aside.

[31] However, there is more that needs to be addressed. As stated above, there was no actual evidence from Dr. Booy or Dr. Stavrakaki filed before the ex parte judge. Dr. Booy was represented as a medical expert qualified to give the opinion he did. The ex parte judge was led to believe that Dr. Booy shared Dr. Stavrakaki’s opinion that the respondent lacked capacity under the SDA from August 16, 2017 onward. Dr. Booy is a family doctor. While he may be able to provide expert opinion evidence within his field, psychiatry is, and has never been, his field. The ex parte judge was misled by Dr. Booy’s signing of a Form 20.1.

[32] Dr. Stavrakaki was the respondent’s treating psychiatrist since September 2006. In her October 25, 2017 letter, she opined that the respondent was unable to appreciate the “reasonably foreseeable consequences of decisions or lack of decisions with respect to events leading up to August 16, 2017 and the events that took place on August 16, 2017, and the events that took place on August 16, 2017, as well as thereafter”. Dr. Stavrakaki did not disclose her clinical notes and records, and had she done so, the ex parte judge would have seen that there were no entries in her clinical notes and records for the years 2011–2016 inclusive. From a review of those clinical notes and records produced well after November 14, 2017, it appears that Dr. Stavrakaki’s opinion is largely based on the respondent’s self-reporting after the August 16, 2017 case conference before Justice Chiappetta. None of this was told to the ex parte judge.

[33] Mr. Fernando sought an order from the ex parte judge sealing the motion materials (including Keogh’s affidavit and the two medical letters of opinion) from the public record. Why would such a request be made when Rule 14(15) of the Family Law Rules requires a party who obtains relief on a motion without notice to serve all parties affected with the order and all materials used on the motion? This was a very strange request, and certainly inconsistent with the mandatory full and fair disclosure requirement on ex parte motions.

[34] In addition, during the hearing on November 14, 2017, the ex parte judge commented that the motion material before the Court did not explain why the relief was being sought (i.e. presumably as a “building block” step to ultimately seek an order setting aside Justice Chiappetta’s consent Order and the Minutes of Settlement). The ex parte judge noted that the proceeding was in fact concluded by that final consent Order, and asked why a litigation guardian needed to be appointed at this late stage. It was only in response to this question that Mr. Fernando confirmed that in the event the relief was granted, he would then be seeking an order setting aside the consent Order and the Minutes of Settlement as to quote Mr. Fernando “the proceeding is still very much a live issue before the court”.

[35] While I will have more to say about this when dealing with Issue #3, there was no formal capacity assessment conducted by either Dr. Booy or Dr. Stavrakaki or provided to the ex parte judge. The factors for the Court’s determination as set out in Justice Price in Costantino were not explicitly addressed by each either Dr. Booy or Dr. Stavrakaki.

[36] The record before me discloses the presence of numerous transgressions on the part of the respondent/Keogh as no real attention was paid to any of the mandatory safeguards necessary to protect against the inherent risks and failings of proceeding on an ex parte basis. The respondent/Keogh chose to make their ex parte bed, and under the governing jurisprudence, they are now forced to lie in it no matter how uncomfortable that may be.

[37] Accordingly, the answer to Issue #1 is “yes”, and the ex parte order is set aside in its entirety.

Issue #2 If the *ex parte* order is set aside, should the doctrine of abuse of process be invoked to preclude the respondent/Keogh from bringing the new motion?

The New Motion

[38] After the applicant’s motion to set aside the ex parte order was originally scheduled, and after the parties learned that Dr. Stavrakaki was unable to be cross-examined, the respondent/Keogh brought the new motion, which again seeks the identical relief granted by the ex parte judge, only this time on notice to the applicant and relying upon different evidence than what was filed before the ex parte judge.

[39] In support of this new motion, the respondent/Keogh relies upon the expert opinion of Dr. Richard W. Shulman (“Dr. Shulman”) who delivered two reports dated February 8, 2018 and May 30, 2018 respectively. Dr. Shulman concluded that it was more probable than not that the respondent lacked (and continues to lack) capacity to instruct counsel, and that she is a special party pursuant to Rule 4(2) of the Family Law Rules as a person vulnerable to decompensation if she participates in legal proceedings. Dr. Shulman further opined that the respondent was also retroactively a special party on August 16, 2017.

[40] While I will have more to say on this subject in my disposition of Issue #3, in support of his opinion, Dr. Shulman relies upon the conclusions and the clinical notes and records of both Dr. Booy and Dr. Stavrakaki even though Dr. Booy’s opinion has been subsequently withdrawn by Mr. Fernando, and Dr. Stavrakaki was never cross-examined.

[41] While the applicant has responded to the new motion by tendering the opinion evidence of Dr. Venera Bruto (“Dr. Bruto”), the applicant’s primary position is that to permit the respondent/Keogh to re-litigate the issue of the respondent’s capacity retroactive to August 16, 2017 would amount to an abuse of the Court’s process. As such, the applicant submits that the Court should decline to hear the new motion because it is an abuse of process.

The Doctrine of Abuse of Process

[42] As held by the Court of Appeal for Ontario in Intact Insurance Company v. Federated Insurance Company of Canada, 2017 ONCA 73, abuse of process is a common law doctrine developed by the Courts to protect the integrity of the adjudicative process. In many situations, an exercise of the Court’s discretion to invoke the doctrine abuse of process “turns ultimately on whether fairness requires re-litigation.” The factors to be considered in assessing the fairness of permitting re-litigation in any given case will vary with the circumstances.

[43] In Intact, the Court of Appeal for Ontario offered the following summary of the governing principles relevant to the doctrine of abuse of process:

• The doctrine of abuse of process is a manifestation of the court’s inherent power to prevent misuse of its process by re-litigation of previously decided facts;
• The doctrine abuse of process is primarily focused on preserving the integrity of the administration of justice rather than protecting the interests of individual litigants;
• Re-litigation inevitably has a detrimental effect on the due administration of justice. It can lead to inconsistent and even irreconcilable results, devalue formality and cause the expenditure of resources, both public and private, on further proceedings with no guarantee that the second result will be more accurate than the first;
• Re-litigation should thus be avoided unless the circumstances dictate that re-litigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole; and
• There is no closed list of the circumstances in which re-litigation is necessary. Courts will permit re-litigation if, in the specific circumstances, fairness dictates that the original result should not be binding in the new context.

[44] In Cunningham v. Morin, 2011 ONCA 476, the Court of Appeal for Ontario held that abuse of process is a discretionary principle that is not limited by any set of categories, and is to be used to bar proceedings with the objective of the public policy. This is particularly important in family law matters as the Court should typically seek to avoid allowing litigants to “circumvent the statutory scheme governing family law claims and introduce a potentially chaotic duplication of proceedings into an already overburdened family law justice system.”

Decision

[45] To begin, I am cognizant that a party may not be precluded from bringing a motion on notice (and presumably on new evidence) if a previous ex parte order obtained by that party is set aside. That said, in my view, and in light of the unsubstantiated (and arguably indefensible) decision to proceed without notice before the ex parte judge, to permit the respondent/Keogh to argue the new motion amounts to an abuse of process in the circumstances of this proceeding. As such, I dismiss the new motion on that basis alone.

[46] On the new motion, the respondent/Keogh seeks to “cooper up” the obviously deficient record filed before the ex parte judge and seek the identical relief which I have now set aside. As stated, the decision to proceed without notice before the ex parte judge was completely unjustified, and carried out to obtain the relief sought in a complete procedural and substantive vacuum.

[47] Mr. Fernando’s candid admission that the motion was brought without notice due to a “need to get the order” is very troubling. Mr. Fernando presumably acted on the instructions of Keogh, as it was his position before the ex parte judge that the respondent lacked capacity retroactively back to August 16, 2017. This would mean that at the time when he was retained, the respondent lacked capacity.

[48] In any event, regardless of the source of his instructions, a decision was made to preclude the applicant from participating in the process so that the ex parte order would hopefully be obtained - the first “building block” towards the goal of setting aside the consent Order and the Minutes of Settlement. This was a calculated, if not cavalier, decision fraught with risk and danger. As found in my disposition of Issue #1, the evidentiary record filed before the ex parte judge lacked significant material facts and misrepresented the expertise of Dr. Booy.

[49] Mr. Fernando argues that the fact that Dr. Stavrakaki was unable to be cross-examined due to an unexpected motor vehicle accident was beyond the control of the parties. While I agree with this statement, that is but one factor for the court to consider in the unfortunate history of this proceeding since November 2017.

[50] It cannot lie in the mouth of the respondent/Keogh to simply ask for a redo and reconstitute the identical motion on different evidence (evidence which was available as at November 14, 2017). The ex parte process is governed by principles designed to guard against the exact result which occurred in this case. To allow the respondent/Keogh to “hit the reset button” would permit the respondent/Keogh to run roughshod over all of the safeguards and precautions developed in the governing ex parte jurisprudence, and permit the respondent/Keogh to proceed through the back door after brazenly breaking down the front door without any keys.

[51] On the record before me, the new motion cannot possibly be seen to preserve the integrity of the administration of justice. It would be manifestly unfair to the applicant, who was never invited to take a position before the ex parte judge, to allow the same motion to proceed on notice given the conduct of the respondent/Keogh.

[52] Accordingly, the answer to Issue #2 is “yes”.

Issue #3 If the new motion does not amount to an abuse of process, should the relief sought on the new motion be granted?

Relevant Jurisprudence

[53] In the event that I am incorrect with respect to my disposition of Issue #2, and having (a) reviewed the reports and (b) observed the cross-examination of both Dr. Shulman and Bruto I will proceed to decide Issue #3 as well.

[54] The test of whether a party has capacity is to be assessed on a balance of probabilities. As such, proving incapacity (and displacing the presumption of capacity) is a burden that rests solely upon the respondent/Keogh. In the Supreme Court of Canada’s seminal decision of Starson v. Swayze, 2003 SCC 32, the Court held that a party with capacity must have the ability to understand the consequences of his/her decision making, but not necessarily demonstrate that he/she in fact used that ability in the circumstances of the specific case.

[55] The applicant relies upon the decision of Justice Morgan in Marek v. McKinnon, 2014 ONSC 342 (appeal allowed on other grounds 2014 ONCA 784), and with good reason. In Marek, Justice Morgan was asked to decide whether a settlement agreement should be enforced due to the plaintiff’s litigation guardian objecting on the basis of the plaintiff’s alleged incapacity at the time of entering into the agreement. Justice Morgan was not satisfied that the plaintiff was incapable as at the date of the settlement agreement, and expressly relied upon the following factors in support of his decision:

• The settlement agreement was reached in the past which thus required a retroactive assessment of the plaintiff’s incapacity;
• All parties had legal representation when the settlement agreement was reached;
• There was no evidence from the plaintiff’s solicitor (retained at the time of the settlement agreement) offering his observations of the plaintiff at the time; and,
• Neither the plaintiff nor his litigation guardian had brought any legal action against the plaintiff’s former counsel.

[56] Of note, and as described below, all of the above concerns are also present in the case before me.

Dr. Shulman

[57] Dr. Shulman is a psychiatrist who specializes in geriatric psychiatry. In coming to his opinion (described in greater detail below), Dr. Shulman reviewed and relied upon the opinions and clinical notes of records of Dr. Booy and Dr. Stavrakaki. Dr. Shulman met and interviewed the respondent for the first time on January 18, 2018 (some five months after the Minutes of Settlement were signed) and then again on May 3, 2018. He has offered a clinical, not diagnostic, opinion on the respondent’s present and retroactive capacity.

[58] After meeting with her on those two occasions, Dr. Shulman accepted and agreed with the previous diagnostic evaluation of Dr. Stavrakaki (and presumably Dr. Booy) that the respondent indeed suffers from post-traumatic stress disorder (“PTSD”) with anxiety, depressive and panic disorder symptoms. Dr. Shulman found the respondent to be extremely intelligent and capable but “very vulnerable to emotional distress disrupting her cognitive and decision making capacity during situations that provoke recurrence of her emotional trauma…certain stress triggers render the respondent prone to experiencing panic with a flight or fright reaction during times of stress such as the case conference.”

[59] Dr. Shulman opined that the terms of the Minutes of Settlement were not “in keeping with the respondent’s expressed wishes leading up to the case conference”, and thus it appeared that the respondent was not able to consider the consequences of her decision and, that her decision was not reflective of her stated understanding of the facts leading up to the case conference.

[60] Dr. Shulman summarized his opinion as follows:

“The only way for me to retrospectively understand her decision to accept a domestic contract that was a radical departure from her pre-case conference strategy is that she did indeed become severely emotionally unstable under this specific situation that she was in such that it is more probable than not that she lacked an ability to understand the relevant information and even more likely that she lacked the ability to appreciate the consequences of her decision. The basis for this opinion is that her impaired decision-making capacity would be situation specific dependent on the severe emotional stress she was experiencing in keeping with her vulnerability to emotional and cognitive dysregulation due to her underlying severe PTSD.”

[61] In cross-examination, it was pointed out to Dr. Shulman that he did not contact any collateral individual/witnesses who were present and/or in contact with the respondent on August 16, 2017. Dr. Shulman did not speak with the applicant, counsel for the applicant, Andrew Chris (“Chris”, counsel for the respondent at the time of the case conference) or the respondent’s sister with whom the respondent communicated by telephone on several occasions during the case conference. Indeed, all Dr. Shulman reviewed were the opinions and clinical notes and records of Dr. Booy and Dr. Stavrakaki and his own observations from meeting the respondent on two occasions for approximately one hour each.

[62] In his opinion, Dr. Shulman believed that while collateral information could be important for a retrospective capacity assessment, that information “can be easily gleaned from the medical records”, and such information “lends itself better to scrutiny and evaluation of the situation specific circumstances”.

[63] In cross-examination, Dr. Shulman testified that he did not know that the respondent was in contact with her sister on August 16, 2017, and he in fact never reviewed a copy of the Minutes of Settlement. Dr. Shulman relied upon the respondent’s self-reporting of symptoms. When pressed about his decision not to interview any collateral individuals, Dr. Shulman testified that he viewed the potential risk of bias from those individuals to be greater than the potential benefit of his own observations.

Dr. Bruto

[64] Dr. Bruto is a clinical neuropsychologist and licensed capacity assessor. She has provided comprehensive neuropsychological and psychological/psychiatric diagnostic assessments for adults and seniors with known or suspected psychiatric illnesses, cognitive disorders and/or neurobehavioral difficulties. Dr. Bruto did not meet with the respondent at any time, but offered her critiques of the reports of Dr. Booy, Dr. Stavrakaki and Dr. Shulman.

[65] With respect to her critique of Dr. Stavrakaki, Dr. Bruto testified that the respondent described various symptoms, and Dr. Stavrakaki jumped to conclusions based on self-reporting on the part of the respondent. There were no observations from any collateral individuals, and to quote Dr. Bruto “one cannot replace a capacity assessment with a list of symptoms”.

[66] In Dr. Bruto’s opinion, no actual capacity assessment was conducted by Dr. Stavrakaki, whose conclusions were critically compromised by several considerations, including:

• There was no formal assessment of the respondent’s capacity to understand information material to decisions required by litigation, or to appreciate the foreseeable consequences of various decision options;
• There was no emphasis upon a time specific nature of the alleged incapacity in order to displace the presumption of capacity; and,
• The fact that the respondent may have had a poor recall of relevant information is not the same as an incapacity to understand or recall that information with appropriate briefing.

[67] In conclusion, Dr. Bruto testified that the respondent’s distress, cognitive inefficiency or somatic concomitant symptoms should not be seen as surrogate markers for incapacity.

[68] With respect to Dr. Shulman’s opinion, Dr. Bruto testified that there is an important distinction between a party’s ability to understand the nature of the information relevant to a decision or its reasonably foreseeable consequences, and that person’s capacity to understand and appreciate the nature of that information and the reasonably foreseeable consequences. Dr. Bruto believed that Dr. Shulman’s clinical assessment was inappropriate, as the goal of such an assessment is to provide health care. The purpose of a capacity assessment however is to determine a person’s capacity to make decisions about issues in, for example, this family law proceeding. In Dr. Bruto’s opinion, an assessment of decisional capacity is not a clinical assessment.

[69] Dr. Bruto testified that decisional capacity is deemed to be time specific, as a person can be found to be capable one day, but not last week, and vice versa. As Dr. Shulman was asked to provide a retroactive opinion as to the respondent’s capacity on the date of the case conference, Dr. Shulman did not review the respondent’s understanding of the information relevant to the Minutes of Settlement or her appreciation of the implications of the settlement options on the day of the case conference with the respondent. Dr. Shulman focused upon the respondent’s remorse at a later date, which is not a relevant indicator in Dr. Bruto’s opinion.

[70] Dr. Bruto’s took issue with Dr. Shulman’s failure to approach or interview any collateral individuals who could have provided their observations as to the respondent’s alleged level of distress on August 16, 2017. Such collateral information would have helped everyone better understand if there was any objective evidence that the respondent did not understand the information relevant to the settlement or whether she appeared to not appreciate the implications or foreseeable consequences of accepting the Minutes of Settlement.

[71] Dr. Bruto believed it was a “stretch” to opine that a person with PTSD will automatically “go into a spin” whenever that person does not obtain what they are looking for. Dr. Bruto concluded that the key information, namely the respondent’s understanding of the deal she was presented and ultimately signed, was not truly reviewed or assessed by Dr. Shulman. Instead, what was discussed was her disappointment with that deal. As stated, this is not, in Dr. Bruto’s opinion, relevant to a capacity assessment.

Decision

[72] In my view, the respondent/Keogh has not led sufficient, reliable evidence to displace the presumption of capacity, and in particular a retroactive finding that the respondent lacked capacity as at August 16, 2017.

[73] I agree with Dr. Bruto that Dr. Shulman’s lack of speaking with (or even attempting to speak with) collateral individuals is problematic, especially given the fact that the only other facts and/or findings relied upon by Dr. Shulman are found within the reports and clinical notes and records of Dr. Booy and Dr. Stavrakaki. As set out in my disposition of Issue #1, Dr. Booy’s opinion must be completely disregarded (a fact unknown to Dr. Shulman at the relevant time), and Dr. Stavrakaki’s opinion did not undergo the crucible of cross-examination.

[74] The thrust of Dr. Shulman’s report is based on two, one hour meetings with the respondent, several months after the date of the case conference, during which the respondent understandably self-reported a series of symptoms based upon her personal view of and reaction to the fallout from the case conference and the Minutes of Settlement. I have difficulty understanding how Dr. Shulman concludes that the respondent lacked the ability to understand the consequences of her decision making when he never asked nor was told much if anything about the subject matter of the case conference and the Minutes of Settlement. Most of Dr. Shulman’s opinion is based upon the respondent’s self-reporting of various symptoms and her level of distress she felt on August 16, 2017, and more importantly afterwards. Dr. Shulman did not seek or rely upon any contemporaneous evidence, which according to Dr. Bruto (and I agree with her) would be more direct, reliable and valid evidence than what Dr. Shulman relied upon.

[75] Further, to the extent that Dr. Shulman did rely upon Dr. Booy’s clinical notes and records, during his August 31, 2017 appointment with the respondent, Dr. Booy noted that even though the respondent self-reported symptoms of nausea and “head spinning”, she advised that she believed that her lawyer did not adequately advocate for her on August 16, 2017 (which does not lend itself to a finding of incapacity). Dr. Booy also noted that the respondent’s “judgment was intact and her insight was good”. If this was the case two weeks after the case conference, how can Dr. Shulman opine on a balance of probabilities that the respondent was any different two weeks earlier? Symptoms, or a diagnosis of PTSD, are not surrogate markers for a finding of incapacity.

[76] In advance of these motions, the parties examined Chris who was present at the case conference. While the respondent/Keogh has yet to commence any legal proceedings against Chris, his evidence was clear that, in his estimation, there was no indication or hint that the respondent was suffering from any alleged lack of capacity.

[77] In the weeks which followed the case conference, the respondent signed and dropped off her executed mutual release of spousal support to the applicant’s lawyer, which in and of itself arguably demonstrates an appreciation of the consequences of the Minutes of Settlement.

[78] The respondent may have, and may continue to, suffer from certain mental health issues including PTSD, stress and anxiety, which all cause her distress. However, there is insufficient evidence in the record before me to establish that she was unable to make decisions regarding the issues in this proceeding and instruct counsel. The opinions of Dr. Stavrakaki and Dr. Shulman do not rise to the level of a capacity assessment necessary to make the findings sought by the respondent/Keogh.

[79] The evidentiary record cannot establish that the respondent was unable to understand or appreciate the reasonably foreseeable consequences of accepting the terms of the Minutes of Settlement. While stress and anxiety may have played a role, the respondent was still in a position to make a decision.

[80] Accordingly, in the event my disposition of Issue #2 is incorrect, the answer to Issue #3 is “no”.

Next Steps

[81] The net result of my Reasons for Decision is that the respondent is no longer a special party in this proceeding. This will no doubt lead to some practical considerations for Mr. Fernando, as he has presumably been taking instructions from Keogh since November 14, 2017.

[82] Before the balance of the relief sought on these motions is scheduled before me, Mr. Fernando should be afforded the opportunity to consider next steps with the respondent, as her instructions may be different than the instructions he has received from Keogh to date. I believe that the parties could benefit from a telephone or in person case conference, either before myself or Justice Gilmore as the case management judge. They may contact my assistant Michelle Giordano at michelle.giordano@ontario.ca to advise of their intentions.

Costs

[83] The applicant has been successful on the motions argued so far before me. I am not certain if the parties wished to address the issue of costs at this stage, or wait for Mr. Fernando to advise of the respondent’s intentions in light of my decision.

[84] I would ask the parties to advise me of their respective positions either at the contemplated case conference before me or Justice Gilmore, or by way of brief, written submissions totaling no more than two pages delivered in accordance with the following schedule:

a) the applicant’s submissions within 10 business days of the release of these Reasons; and, b) the respondent shall thereafter have an additional 10 business days from the receipt of the applicant’s submissions.

Diamond J.

Released: March 21, 2019