Chai v. Law

Ontario Reports

Ontario Superior Court of Justice

Sossin J.

November 17, 2020

153 O.R. (3d) 764 | 2020 ONSC 6998

Case Summary

Family law — Practice — Applicant residing in long-term care facility applying for equalization of family property — Applicant bringing motion to declare himself a special party and to have his daughter appointed litigation guardian — Motion granted — Motion should have been brought by daughter but procedural irregularity did not defeat it — Uncontested medical evidence established that applicant was unable to understand relevant information about case issues or appreciate reasonably foreseeable consequences — Daughter appointed litigation guardian as she was already attorney for property and personal care — Family Law Rules, O. Reg. 114/99, rules 2, 4.

The parties were married in China in 1959 and immigrated to Canada in 1989. They had two children. One of the children was the applicant's attorney for property and personal care. The applicant resided in a long-term care facility. The parties divorced in 2018. The applicant sought equalization of the parties' family property. On the basis of mental incapacity, he brought a motion seeking to have himself declared a "special party" within the meaning of rule 2(1) of the Family Law Rules and to have his daughter appointed as litigation guardian under rule 4.

Held, the motion should be granted.

The motion likely should have been brought by the daughter, but the procedural irregularity was insufficient to dismiss the motion. There was no prejudice in the motion as it had been brought, and no subterfuge benefitting the daughter. It was clear that the daughter was bringing the motion on her father's behalf and leave to amend would have been granted if necessary.

The applicant met the threshold as a "special party". A "special party" was not able to understand information relevant to making a decision regarding an issue in a case, or was not able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision about the issue. The key evidence in support of the motion came from the applicant's treating physician at the care home, who concluded that he likely did not have the capacity to make financial decisions, that he could not perform basic and instrumental activities of daily living and that it was questionable whether he could make personal or medical decisions. The respondent provided no contrary medical evidence.

Although the respondent raised concerns about the daughter's claims to be a disinterested party, those concerns were not sufficient to disqualify the daughter as a litigation guardian. Given the daughter's uncontested role as attorney for property and personal care, it was not an appropriate case to refer to the Public Guardian and Trustee as a potential litigation guardian.

C. (C.) v. Children's Aid Society of Toronto, [2007] O.J. No. 5613 (S.C.J.); Costantino v. Costantino, [2016] O.J. No. 5963, 2016 ONSC 7279, 2016 CarswellOnt 18301 (S.C.J.); Evans v. Evans, [2017] O.J. No. 3716, 2017 ONSC 4345, 281 A.C.W.S. (3d) 275, 96 R.F.L. (7th) 300 (S.C.J.); Jewish Family and Child Service of Greater Toronto v. B. (E.K.), [2019] O.J. No. 5855, 2019 ONSC 6214, 451 C.R.R. (2d) 224, 34 R.F.L. (8th) 180 (S.C.J.); Laferriere v. Laferriere, [2019] O.J. No. 751, 2019 ONSC 879 (S.C.J.); Zabawskyj v. Zabawskyj, 2007 CanLII 51349 (S.C.J.)

Statutes referred to

Substitute Decisions Act, 1992, S.O. 1992, c. 30 [as am.]

Rules and regulations referred to

Family Law Rules, O. Reg. 114/99, rules 2 [as am.], (1) [as am.], 4 [as am.], (2) [as am.]

MOTION to declare applicant to be a special party under the Family Law Rules.

Letitia Lee, for applicant.

Simon Van Duffelen, for respondent.

Endorsement of SOSSIN J.: —

Overview

[1] This motion was brought by the applicant, Tet Chai ("Mr. Chai"), for a declaration that he is a "special party" within the meaning of rule 2(1) of the Family Law Rules, O. Reg. 114/99, on November 10, 2020.

[2] Mr. Chai did not attend.

[3] The respondent, Sui Chun Law ("Ms. Law"), opposes this motion.

[4] The parties married in China on November 15, 1959.

[5] The parties purchased a property in Hong Kong after marriage. Whether this can be considered a matrimonial home is in dispute.

[6] There are two children of the marriage, Peggy Chai and Greendy Chai.

[7] The parties immigrated to Canada in 1989.

[8] The parties lived in subsidized housing at Town Haven Place, in Toronto.

[9] Mr. Chai moved back to Hong Kong in 2003, though the date of separation is in dispute.

[10] After a fall in 2017, however, Mr. Chai moved back to Toronto, and now resides in a long-term care facility.

[11] In February 2017, the property the parties had purchased in Hong Kong was sold.

[12] Ms. Law brought an application for Divorce in 2017. The Divorce was issued in May 2018.

[13] A fresh application was brought by Mr. Chai in 2018, seeking equalization of the parties' family property.

A Preliminary Procedural Issue

[14] There is a preliminary issue with respect to the procedure by which this motion has been brought.

[15] The motion has been brought by Mr. Chai seeking to have himself declared a "special party" within the meaning of Rule 2 of the Family Law Rules and to have his daughter, Peggy Chai, appointed as Litigation Guardian under Rule 4 of the Family Law Rules.

[16] Counsel for Mr. Chai confirmed that all of her instructions have come from Peggy Chai.

[17] Further to Power of Attorney documents dated March 12, 2017, Peggy Chai is Mr. Chai's Attorney for Property and Personal Care

[18] It appears that Peggy Chai operated on the assumption that in her capacity as Mr. Chai's Attorney she could direct that this motion be brought by Mr. Chai as the applicant.

[19] There does not appear to be a prohibition against a person arguing that they are a "special party" under the Family Law Rules, and this procedural path is certainly not unprecedented (see, for example, Evans v. Evans, [2017] O.J. No. 3716, 2017 ONSC 4345 (S.C.J.)).

[20] Nonetheless, in my view, this motion likely should have been brought by Peggy Chai as the party seeking to have Mr. Chai declared a "special party" and to be appointed as Mr. Chai's Litigation Guardian.

[21] While Ms. Law argues this procedural irregularity is sufficient to dismiss the motion, I do not share this view.

[22] Ms. Law submits that she would have focused on Peggy Chai's conduct in the litigation and unsuitability as a Litigation Guardian for Mr. Chai in this application had she been the moving party.

[23] I do not see prejudice in this motion as it has been brought. There is no subterfuge which has benefitted Peggy Chai as a result of Mr. Chai bringing this motion.

[24] Ms. Law has made submissions on why she opposes Peggy Chai being appointed as Litigation Guardian, so this opportunity has not been lost.

[25] Further, the affidavit on behalf of the applicant was sworn by Peggy Chai, in which she states that she was advised by counsel that this motion was necessary in order to continue the application.

[26] Mr. Chai's factum states that (at para. 23), "Given Chai's age and health condition, the applicant's daughter, Peggy Chai moves for an order appointing her as Chai's representative" (emphasis added).

[27] Therefore, the fact that Peggy Chai is responsible for bringing this motion on Mr. Chai's behalf is clear.

[28] If leave were necessary to grant leave to amend the Notice of Motion to clarify that this motion is brought by Peggy Chai, I would be prepared to do so.

[29] I turn now to the merits of the motion.

Analysis

[30] The Family Law Rules authorize the court to appoint legal representation for a "special party".

[31] Rule 2(1) of the Family Law Rules provides:

"special party" means a party, other than a child party, 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.

[32] Rule 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".

[33] There is a presumption of capacity under the Substitute Decisions Act, 1992, S.O. 1992, c. 30. The court must be careful to ensure that there is sufficient evidence before that presumption is rebutted for purposes of declaring a person to be a "special party"; Laferriere v. Laferriere, [2019] O.J. No. 751, 2019 ONSC 879 (S.C.J.), at para. 27.

[34] The test for incapacity is an objective one, and a determination of capacity must be based on the evidentiary record, not subjective assessments.

[35] In Costantino v. Costantino, [2016] O.J. No. 5963, 2016 ONSC 7279 (S.C.J.), Price J. ordered a litigation guardian for a schizophrenic litigant who was not taking his medication. He relied on the medical evidence and the lawyer's evidence which questioned his client's capacity to give him the instructions he required to conduct the action. He described the test for the appointment of a Litigation Guardian as follows (at paras. 40-41):

The test for appointment of a litigation guardian is a functional one. It relates the incapacity of the litigant, generally, to manage his property, as defined in the Substitute Decisions Act, 1992, to the issues that must be decided in the particular litigation. The test, as set out in Rule 4 of the Family Law Rules, is the same, in this respect, as is set out in Rule 7 of the Rules of Civil Procedure. It is that:

a) The person must appear to be mentally incapable with respect to an issue in the case and,

b) As a result of being mentally incapable, the person requires legal representation to be appointed by the Court.

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.

(Emphasis in original, footnotes omitted).

[36] In Zabawskyj v. Zabawskyj, 2007 CanLII 51349 (S.C.J.), Justice D.M. Brown (as he then was) highlighted the breadth of the concept of mental incapacity under the SDA (at paras. 13-14):

Rules 4(2) and (3) of the Family Law Rules contemplate that an adult 'special party' will be represented in a proceeding either by a private person or the Public Guardian and Trustee. Rule 2(1) of the Family Law Rules defines a 'special party' as one 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". This definition of 'special party' is slightly broader than that of a party 'under disability' in Rule 7 of the Rules of Civil Procedure.

The concept of mental incapacity under the SDA is quite broad -- i.e., is a person able to understand information that is relevant to making a decision in the management of her property or personal care, or able to appreciate the reasonably foreseeable consequences of a decision or lack of decision: SDA, sections 6 and 45.

[37] Therefore, a "special party" is a person who is mentally incapable about an issue in a case where the party is not able to understand information that is relevant to making a decision regarding the issue, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision about the issue: Jewish Family and Child Service of Greater Toronto v. B. (E.K.), [2019] O.J. No. 5855, 2019 ONSC 6214 (S.C.J.), at para. 55.

[38] In C. (C.) v. Children's Aid Society of Toronto, [2007] O.J. No. 5613 (S.C.J.), Backhouse J. set out the evidence which may be considered in a determination of whether a person is a "special party".

(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.

[39] In this case, the key evidence in support of this motion is medical evidence in the form of a letter from Dr. Ross, dated January 18, 2018.

[40] Dr. Ross was Mr. Chai's treating physician at the Castleview Wychwood Towers Long-Term Care Home.

[41] Dr. Ross' letter was provided in response to a request from Peggy Chai, prior to this application.

[42] Dr. Ross states at the outset of his letter that he is not a "trained capacity assessor".

[43] Dr. Ross outlines Mr. Chai's diagnosis involving a range of serious health issues, including "dementia". During the interview conducted by Dr. Ross, Mr. Chai was not able to recall the year or location of his residence, though he could identify the city and country in which he resided.

[44] Dr. Ross concludes that, "It is fair to say that he likely does not have capacity to make financial decisions, cannot perform basic and instrumental activities of daily living and it is questionable as to whether he can make personal or medical decisions."

[45] Peggy Chai relies on non-medical evidence as well.

[46] Peggy Chai's own affidavit evidence is that her father is "mentally incapable" (at para. 3 of Peggy Chai's affidavit, sworn October 5, 2020).

[47] Ms. Lee, counsel for Mr. Chai, confirmed in her oral submissions that, in her view, Mr. Chai is not able to provide instructions for purposes of this litigation.

[48] Ms. Law has not provided any contrary medical evidence with respect to Mr. Chai's mental capacity. She argues that she has been prevented from seeing Mr. Chai by Peggy Chai for the past two years.

[49] Ms. Law relies on the fact that Dr. Ross' evidence was not a formal capacity assessment, was based on only partially completed tests, and took place almost three years ago.

[50] Ms. Law states in her affidavit that she believes Mr. Chai has mobility constraints but that his mental state is "roughly what one would expect of a 100 year old male" (para. 24).

[51] Ms. Law further relies on the affidavit evidence of Ms. Kwong. Ms. Kwong is a lawyer working in the same office as Ms. Lee.

[52] In Ms. Kwong's affidavit dated April 26, 2018, she confirms that during an interview conducted on March 18, 2018, at which Peggy Chai attended with Mr. Chai, he was able to answer four questions put to him: (1) whether he knew the reason he was attending the meeting; (2) whether he knew who Peggy Chai was; (3) whether he knew who Ms. Kwong and counsel for Ms. Law was; and (4) whether he knew what the application was about.

[53] According to Ms. Kwong, Mr. Chai answered these questions "correctly", though his answers to follow up questions became "blurred" and "unclear", and he appeared to wane after about ten minutes into the 25-minute interview.

[54] Finally, Ms. Law relies on Mr. Chai's own signature on legal aid documentation, dated June 2019, which was witnessed. Signing a legal document would be inconsistent with the claim that he lacked capacity at that time in 2019.

[55] Finally, Ms. Law also has raised questions about the 2017 Powers of Attorney appointing Peggy Chai in this role. For example, in her affidavit dated October 30, 2020 (at para. 3), Ms. Law states that the Power of Attorney must have been filled in by someone other than Mr. Chai, as it is in English, which Mr. Chai does not speak.

[56] The address for Mr. Chai in the Powers of Attorney was listed as the address of Ms. Law, though Ms. Law gave evidence that Mr. Chai had not lived there since 2003. Ms. Law further stated that Peggy Chai used the Power of Attorney for Mr. Chai to gain access to Ms. Law's residence searching for valuables in the spring of 2017.

[57] Notwithstanding these concerns and allegations, however, Ms. Law has taken no steps to challenge these Powers of Attorney documents.

[58] There is no medical evidence of Mr. Chai's current state, nor any basis to conclude that while he lacked capacity in 2017 or 2018, he may have improved to a point where he is now capable in 2020. Counsel for Mr. Chai stated that current COVID-19 restrictions effectively have placed Mr. Chai in isolation, making a current assessment almost impossible.

[59] Ms. Kwong's affidavit evidence suggests Mr. Chai has the ability to understand information about where he is and what is happening around him, but not that he has the capacity to appreciate the risks and consequences of litigation.

[60] In other words, Ms. Kwong's evidence does not contradict the medical opinion of Dr. Ross.

[61] Similarly, there is insufficient information surrounding the 2019 legal aid document to determine what Mr. Chai understood about the document.

[62] Considering the evidence as a whole, and specifically the uncontroverted evidence of Dr. Ross as Mr. Chai's treating physician, I find that Mr. Chai meets the threshold as a "special party" under Rule 2 of the Family Law Rules.

[63] In the alternative, if Mr. Chai is a "special party", Ms. Law argues Peggy Chai should not be appointed as his Litigation Guardian.

[64] Ms. Law raises concerns with respect to Peggy Chai's claim that she is a disinterested party in this application. Ms. Law relies on an allegation that Peggy Chai attempted to sell the parties' Hong Kong property without authorization in 2017, and the alleged incident where she entered Ms. Law's home looking for valuables.

[65] In her October 5, 2020 affidavit, Peggy Chai states (at para. 11) that "I am appropriate for the task as I have no adverse interest against my father in this intended litigation, and he trusted me to be his power of attorney for property during his time with full mental capacity. I am willing to act as his litigation guardian in this intended family law litigation."

[66] In my view, while there are no doubt tensions between Peggy Chai and Ms. Law, the conduct of Peggy Chai alleged by Ms. Law is not sufficient to disqualify her as a Litigation Guardian for Mr. Chai.

[67] Given Peggy Chai's uncontested role as Mr. Chai's Attorney for Property and Personal Care, I do not believe this is an appropriate case to refer to the Public Guardian and Trustee as a potential Litigation Guardian.

[68] Therefore, under Rule 4 of the Family Law Rules, Peggy Chai is appointed as Litigation Guardian for Mr. Chai.

[69] Mr. Chai's Notice of Motion does not seek costs and none are ordered.

Order to Go as Follows:

[70] I declare the Applicant, Tet Chai, to be a "special party" pursuant to Rule 2 of the Family Law Rules.

[71] Peggy Chai is appointed as Litigation Guardian for Tet Chai for purposes of this application pursuant to Rule 4 of the Family Law Rules.

Motion granted.

End of Document