ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Melissa Ann Laferriere
Applicant
- and -
Daryn Michael Laferriere
Respondent
COUNSEL:
Erinn Fitzpatrick, for the Applicant
Acting in person, for the Respondent
HEARD: January 31, 2019
BEFORE: Ellies J.
REASONS FOR DECISION
OVERVIEW
1This is a motion to determine whether the respondent, Daryn Laferriere, is a “special party” within the meaning of r. 2 of the Family Law Rules, O. Reg. 114/99.
2The motion arises within the context of a high-conflict custody case involving the parties’ two children, A., born March 20, 2003 (age 15), and A.J., born March 25, 2007 (age 11).
3Following submissions on the motion, I ruled that Mr. Laferriere is a special party. These are my reasons for doing so.
BACKGROUND FACTS
4These proceedings were commenced under the Divorce Act, R.S.C. 1985, c.3 by Ms. Laferriere in 2016. The issues are custody, access, support and equalization. Ms. Laferriere has been represented throughout by Ms. Fitzpatrick.
5A trial in this case began on December 11, 2017. By that time, Mr. Laferriere was representing himself. At the time the trial began, A. was living with Mr. Laferriere and A.J. was living with Ms. Laferriere.
6At the outset of the trial, Mr. Laferriere requested an adjournment. Among other things, he submitted that he was “compromised” because he could not maintain his composure. It was obvious that Mr. Laferriere was having difficulties in that regard. He was shaking and appeared unable to focus his thoughts. He stated that he recently started to suffer from what appeared to me to be anxiety.
7I reserved my decision on the issue of an adjournment and ruled that I wanted to hear evidence on the issue of custody and access for the purpose of making at least a temporary order in that respect, if the adjournment request was granted.
8The matter proceeded with Ms. Fitzpatrick calling the author of a report prepared under s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43 on behalf of the Office of the Children’s Lawyer. The witness then was cross-examined by Mr. Laferriere, although (and I mean no disrespect by this) not very effectively.
9Ms. Laferriere testified the next morning. Following her testimony in-chief, the court recessed for lunch. Mr. Laferriere failed to return to the courtroom when court resumed. During the lunch break, Ms. Laferriere received a distressing telephone message from Mr. Laferriere that was later played in the courtroom in the presence of the police.
10As a result of concerns I had for the welfare of Mr. Laferriere and A., I ordered that Ms. Laferriere have temporary custody of both A. and A.J. pending completion of the adjournment motion and requested that the police assist in the enforcement of that order. A. was located at school and taken into Ms. Laferriere’s custody. Mr. Laferriere was located by the police shoveling snow a few doors down from his own residence. He was asked by the police to return to court, and he did so.
11The next day, I met with A. alone, but on the record. Following my meeting with her, I ordered that A. be returned to live with Mr. Laferriere and that A.J. continue to reside with Ms. Laferriere. I also specified Christmas access. The trial was adjourned without a fixed date.
12Two further orders were made with respect to access subsequently such that, by March 27, 2018, Mr. Laferriere had access to A.J. on two weekends per month and Ms. Laferriere had access to A. on one.
13During the adjournment of the trial, a series of conferences took place before other judges of our court but, unfortunately, none of those conferences resolved the case. Eventually, the trial was scheduled to resume on July 18, 2018.
14As the trial date drew near, however, the court received communications through the office of the trial coordinator indicating that Mr. Laferriere was not medically able to participate. These included email messages from Mr. Laferriere, as well as a letter from Joseph Sinicrope, a lawyer representing Mr. Laferriere on a limited scope retainer.
15Mr. Laferriere did not attend on July 18.
16As a result of receiving those communications and the fact that Mr. Laferriere had failed to attend, I adjourned the trial again. Later, on August 24, 2018 I directed that Ms. Fitzpatrick bring a motion for the purpose of determining whether Mr. Laferriere should be declared a special party. I directed Ms. Fitzpatrick to serve the motion materials on the Office of the Public Guardian and Trustee (“PGT”), as well as on Mr. Laferriere.
17Counsel on behalf of the PGT authorized Ms. Fitzpatrick to appear as her agent at the motion and to indicate that the PGT takes no position on the motion. Once again, Mr. Laferriere did not attend.
ISSUE
18The sole issue is whether Mr. Laferriere should be declared a special party.
ANALYSIS
19In deciding this motion, I have been greatly assisted by two individuals. The first is Ms. Fitzpatrick, who put together a helpful brief and made what I consider to be very fair and even-handed submissions. The second is Backhouse J. whose decision in C.C. v. Children’s Aid Society of Toronto, [2007] O.J. No. 5613 (S.C.) continues to be relied upon by courts, including this one, as a leading case on the law, the issues and the evidence relevant to a determination of a party’s capacity to represent himself or herself in family proceedings.
20As Backhouse J. points out, one must look by analogy to rr. 7.01(1) and 7.03(5) of the Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194, rather than the Family Law Rules, for a clear statement of the principle that a party under disability must be represented by a substitute decision maker (a “litigation guardian” under the Rules of Civil Procedure) in proceedings involving that party. Rule 7.03(5) requires the party commencing a proceeding to move for the appointment of a litigation guardian for a responding party under disability where no such motion is otherwise brought, in much the same way that I directed that this motion be brought by Ms. Fitzpatrick on behalf of Ms. Laferriere.
21Under the Family Law Rules, a party under disability is referred to as a “special party”. Rule 2(1) defines that term to mean:
[A] party who is a child or who is or appears to be mentally incapable for the purposes of the Substitute Decisions Act, 1992 in respect of an issue in the case and who, as a result, requires legal representation, but does not include a child in a custody, access, child protection, adoption or child support case…
22As the court pointed out in C.C. (at p. 25), the test has two parts: (1) the party must appear to be mentally incapable with respect to an issue in the case; and, (2) as a result, must require legal representation to be appointed by the court.
23Under ss. 6 and 45 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, a person is incapable of making decisions relating to their property or their personal care if the person is not able to understand information that is relevant to making a decision with respect to those issues, or is not able to appreciate the reasonably foreseeable consequences of a decision or a lack of decision with respect thereto. Similarly, under the Family Law Rules “one is mentally incapable in respect of an issue in a case where one is not able to understand information that is relevant to making a decision regarding the issue or is not able to appreciate the reasonable foreseeable consequences of a decision or lack of a decision regarding the issue”: Children’s Aid Society v. W.D., 2003 CanLII 2293 (ON SC), [2003] O.J. No. 3244 (S.C.), at par 11.
24Where the test is met, r. 4(2) provides that the court may authorize a person to represent a special party where that person is appropriate for the task and willing to act as a representative. Where there is no such person, as in this case, r. 4(3) provides that the court may authorize the PGT to act as representative, but only with that official’s consent. In this case, the PGT responded to the motion by sending a letter, filed on behalf of the PGT by Ms. Fitzpatrick, advising that the PGT is prepared to act on Mr. Laferriere’s behalf as representative, if so ordered.
25In C.C., Backhouse J. summarized the types of evidence that courts have considered in determining whether a party is capable of representing themselves, including (par 34):
(a) medical or psychological evidence regarding the litigant;
(b) evidence from persons who know the litigant well;
(c) the appearance and demeanor of the litigant;
(d) the testimony of the litigant; and
(e) the opinion of the litigant’s own counsel.
26I will consider the evidence before me using these categories. First, however, it is helpful to set out one important principle.
Presumption of Capacity
27In her helpful submissions, Ms. Fitzpatrick reminded the court that there is a presumption of capacity under the Substitute Decisions Act, 1992. I agree with her submission that, given the significant consequences to a party who is deemed to be a special party, the court must be careful to ensure that there is sufficient evidence before that presumption is rebutted.
28As Ms. Fitzpatrick also reminded the court, Mr. Laferriere has been difficult throughout the proceedings. To give but one example, he recently refused to sign a consent to allow Ms. Laferriere to apply for a passport for A.J. to allow her to take him on vacation to Florida, notwithstanding the fact that Ms. Laferriere still has temporary custody of A.J. and that Mr. Laferriere has no concerns that she will not return to Canada with him. Ms. Fitzpatrick submits that one should be careful not to confuse Mr. Laferriere’s tendency to be unreasonable with incapacity.
29I also agree with this submission. As Backhouse J. wrote (par 39) in C.C.:
It is immaterial whether one’s words, deeds and choices appear reasonable to others. Reasonableness in the eyes of others is not the test. The test for incapacity is an objective one.
30In this case, however, the indications that Mr. Laferriere is a special party extend far beyond his unreasonableness.
Demeanor
31I have already referred to Mr. Laferriere’s demeanor on December 11, 2017, the date the trial was first to commence in this matter. Mr. Laferriere has appeared before me on other occasions, on all of which he seemed to be suffering the same symptoms as he demonstrated on December 11, in varying degrees.
32While I agree with Ms. Fitzpatrick’s submission that Mr. Laferriere appears to be intelligent, I also agree with her submission that he appears “to lack insight”. I will return to the motion that Ms. Laferriere had to bring to obtain a passport for A.J. to give an example.
33During the motion, Mr. Laferriere was asked to list the reasons why he opposed Ms. Laferriere’s request for an order dispensing with Mr. Laferriere’s consent to obtain a passport. The first reason he gave was that, in a message he had received from or on behalf of Ms. Laferriere, he was told that, if he did not respond to the request that he consent to the passport, Ms. Laferriere would move for an order. Mr. Laferriere submitted that Ms. Laferriere should be precluded from bringing the motion because he did respond, albeit in the negative.
34This is just one example of Mr. Laferriere’s inability to understand what really matters regarding the issues before the court.
Testimony
35Mr. Laferriere has not yet testified before me, at least not while being in the witness stand. However, as with most litigants who represent themselves, Mr. Laferriere has sometimes given evidence while making submissions. Whenever he makes submissions, Mr. Laferriere tends to focus on procedural minutiae that seem to obscure completely the substantive aspects of this case. In other words, Mr. Laferriere often seems to lose sight of the big picture. Again I return to the passport motion for an example.
36The second reason Mr. Laferriere gave for opposing the motion was the fact that he had been served with the notice via email whereas there is no agreement in place between them to accept electronic service pursuant to r. 6(2)(c.1) of the Family Law Rules. While this may or may not be true, by raising it as a reason for not cooperating in allowing his son to travel to Florida Mr. Laferriere again demonstrated a complete inability to understand the real issue in the motion.
37There are other reasons for finding that Mr. Laferriere lacks the necessary capacity that might also fall under the heading “testimony”, although not strictly speaking.
38Before I put a stop to his practice of writing to the trial coordinator (see my endorsement of July 17, 2018 (2018 ONSC 4416)), Mr. Laferriere would write prolix messages which were often angry in tone and very disrespectful of the court process and those involved in it. I view the tenor of those messages as some indication that Mr. Laferriere lacks capacity. Most people would have known better than to write to a court official in that way.
39The content of Mr. Laferriere’s messages are also telling. In a message dated July 12, 2018 Mr. Laferriere wrote:
I feel I am beside myself at this point, stressed to the point of too much going on to handle nor figure out ways to address all these problems. In my opinion there are too many things going on and are now unmanageable. – Which I suspect was done on purpose to try and get me to cave and give into control and dictations.
40Throughout his oral and written submissions to the court, Mr. Laferriere has repeatedly stated that he simply wants the court proceeding to stop. He seems incapable of accepting the fact that Ms. Laferriere has a right to ask the court to make decisions regarding legal issues between her and Mr. Laferriere upon which they are unable to reach an agreement.
Medical Evidence
41Attached to Mr. Laferriere’s July 12 message was a scanned copy of a note purportedly from Dr. Wayne Phillipson, dated July 10, 2018. The note is brief. It reads:
To Whom It May Concern:
Re: Daryn Laferriere…
Daryn is unable to attend court on July 18, 2018 due to medical reasons. He is being assessed for these issues.
Yours truly,
[etc.]
42I agree with Ms. Fitzpatrick’s submission that, by itself, this note says nothing about Mr. Laferriere’s capacity to participate in these proceedings. However, Mr. Laferriere did say on December 11, 2017 when he was asking for an adjournment that he had an upcoming appointment with Dr. Phillipson in connection with the recent onset of what I have called anxiety, for lack of a more accurate medical description.
Evidence of Persons Who Know the Litigant Well
43Ms. Laferriere and Mr. Laferriere started living together in 1995 and separated in 2014, according to Ms. Laferriere. Ms. Laferriere testified on July 18 in support of a request to vary the temporary access order in place pending the completion of the trial. During the course of her testimony, she said that she believed that Mr. Laferriere is “not well” and that she was concerned that he might harm himself physically if A. was removed from his care.
44Again, this evidence is not sufficient by itself to find that Mr. Laferriere is not able to participate in the trial. However, when combined with the other evidence, it helps to lead to that conclusion.
Counsel’s Opinion
45Mr. Sinicrope was the third lawyer retained by Mr. Laferriere. While there may be some ethical issues surrounding his letter to the court of July 5, 2018, there is no issue as to the meaning of its contents. The contents of the letter demonstrate that Mr. Sinicrope understood the factors that are crucial to determining whether his client was capable of instructing him. These include the client’s ability to understand the issues in the litigation and the consequences of making a decision or failing to do so.
46In his letter, Mr. Sinicrope states unequivocally that he does not believe that Mr. Laferriere has the capacity to instruct counsel or that he is “in any way capable of proceeding to complete the trial of this matter.”
CONCLUSION
47For the foregoing reasons, I find Mr. Laferriere is mentally incapable within the meaning of the Substitute Decisions Act, 1992 and, therefore, is a special party within the meaning of the Family Law Rules. An order has issued appointing the PGT as his representative, with the PGT’s consent.
48The parties are directed to set a date for a trial management conference through the office of the trial coordinator, once the PGT is in a position to do so.
Ellies J.
Released: February 11, 2018
COURT FILE NO.: FS 16-3994
DATE: 2019/02/11
ONTARIO
SUPERIOR COURT OF JUSTICE
Melissa Ann Laferriere
Applicant
– and –
Daryn Michael Laferriere
Respondent
REASONS FOR decision
Ellies J.
Released: February 11, 2018