Court File and Parties

COURT FILE NO.: FC-20-00001180 DATE: 20210825 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Y.S., Applicant AND: J.Y., Respondent

BEFORE: The Honourable Mr. Justice R.E. Charney

COUNSEL: Jonah Paritzky, Counsel for the Applicant J.Y., Self-Represented

HEARD: August 19, 2021

ENDORSEMENT

Introduction

[1] The Applicant, Y.S., brings this motion pursuant to Rule 4 of the Family Law Rules to have the Respondent, J.Y., found to be a special party within the meaning of the Family Law Rules, and, if they consent, to have the Office of the Public Guardian and Trustee (PGT) appointed as the Respondent’s representative in this proceeding.

[2] The Respondent opposes this motion.

[3] The PGT was given notice of this motion and has written to the Court to advise that it will consent to the appointment as legal representative if the Court makes the requisite findings that the Respondent meets the legal test to be declared a special party and there is no one else willing and appropriate to act as his representative. The PGT takes no position, however, on the evidence of incapacity before the Court and takes no position on whether the Respondent is capable or incapable.

Background Facts

[4] The parties were married on September 13, 2014. They have two children, ages 5 and 1.5.

[5] The parties are joint owners of a matrimonial home located in Newmarket, Ontario.

[6] The Applicant vacated the matrimonial home on April 23, 2019, and has resided with her parents since that date. The second child was born after she vacated the home.

[7] The Respondent takes the position that the parties are not legally separated. The family is happy, the separation is temporary and for the protection of the wife and children from criminal activity. The father continues to reside in the matrimonial home

[8] Since the date of separation, the Respondent has only exercised parenting time with the children under the Applicant’s supervision.

[9] The parties attended a Case Conference before Himel J. on July 30, 2021. In her Case Conference Endorsement, Himel J. indicated her concern that the Respondent qualified as a special party and may require the assistance of a litigation guardian such as the PGT, but made no finding in that regard. Leave was granted to the Applicant to bring a motion to have the father found to be a special party if she believes that he meets the criteria.

Legislative Framework

[10] Rule 2 of the Family Law Rules defines a “special party” as “a party, other than a child party, who is or appears to be mentally incapable for the purposes of the Substitute Decisions Act, 1992 (SDA) in respect of an issue in the case and who, as a result, requires legal representation”.

[11] The Rule 4(2) of the Family Law Rules authorize the court to appoint legal representation for a person who is a special party.

[12] Family Law Rule 4(3) authorizes the Court to appoint the PGT to act as a special party’s representative if there is no appropriate person willing to act as a special party’s representative and the PGT consents.

[13] The finding that an adult litigant is mentally incapable is a prerequisite for finding that the litigant is a “special party” who requires the appointment of a litigation guardian to act as his or her representative. Section 6 of the SDA defines incapacity to manage property in the following terms:

A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[14] The moving party bears the onus of establishing, on the balance of probabilities, that the subject party is incapable, and must provide evidence regarding the nature and extent of the incapacity: Costantino v. Costantino, 2016 ONSC 7279, at paras. 38 and 39.

[15] The principles relating to the appointment of a legal representative for a special party under the Family Law Rules was recently summarized by Sossin J. (as he then was) in Chai v. Law, 2020 ONSC 6998, at paras. 33 – 38:

There is a presumption of capacity under the Substitute Decisions Act, 1992. 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 ONSC 879, at para. 27.

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

In Costantino v. Costantino 2016 ONSC 7279, Justice Price 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):

[40] 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.

[41] For the appointment of a Litigation Guardian to be appropriate, the cause of incapacity must stem from a source of mental incapacity, such as mental illness, dementia, developmental delay, or physical injury, and not from a non-legal capacity-related reason, such as lack of sophistication, education, or cultural differences. 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)

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

[13] … 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.

[14] 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.

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. E.K.B, 2019 ONSC 6214, at para. 55.

In C.C. v. Children’s Aid Society of Toronto, [2007] O.J. No. 5613 (S.C.), 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.

[16] In Costantino Price J. set out the following factors that should be considered when applying the test for determining whether a party is under disability and requires a litigation guardian, at para. 57:

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.

Evidence in Support of Application

[17] In this case, the key evidence in support of the motion is the evidence of the Applicant and the appearance, demeanor and affidavits of the Respondent himself.

[18] The Applicant’s affidavit states that the Respondent’s paranoid behaviour began prior to their separation, but her affidavit evidence focuses on his behaviour since August 2020. She indicates that the Respondent believes that he has been the victim of “criminal activities” and that he has been targeted by crimes committed by the York Region Police and an unidentified Chinese organized crime group.

[19] The Respondent does not try to conceal these beliefs. His Court filings and his submissions on this motion are focused almost exclusively on his belief that some criminal groups are following him and committing crimes against him. The Respondent refuses to retain his own lawyer.

[20] The Applicant’s affidavit provides many examples of court documents filed by the Respondent that confirm her statements. Two examples will suffice.

[21] The Respondent’s Form 10: Answer contains the following passages:

We have suffered crimes, organized crimes and local POLICE CRIMES. On March 21, 2019 the Respondent suffered a concealed and unpredictable trap from the organized crime group, then those criminals included some SHAMEFUL bad constables have colluded together and it became a merged colluded bigger crime group. We were been ILLEGALLY tracked, tailed and monitored and we also suffered some mischief events, intimidation, and psychological intimidations. It directly threatened to the safety of our family, then the applicant separated and moved out on April 2019. The events have been escalated several times. The respondent became their common enemy.

Our family disasters are huge, but will be solved finally for Canada is a JUSTICE society and more department have been called. Once those disasters are solved, out family and marriage can be restored or re-built.

[22] On July 19, 2021, the Respondent sent the following e-mail to the Newmarket Trial Coordinator:

Please postpone the conference schedule which was scheduled on July 30 2021 for it seems to solve those crimes, organized crimes and shameful local police including bad Newmarket police crimes need more time. Our unlucky family has suffered crimes, organized crimes and shameful local police crimes. It caused my wife to move out, separated from me, but not our couple’s feelings and love are broken. Now, my wife wishes to divorce to end the bad situations and escape the huge family’s disasters. But that is so unfair to me, right?

[23] These written submissions are consistent with the submissions filed by the Respondent in the motion before me. For example, paras. 5 and 6 of the Respondent’s submissions/affidavit states:

I am a good father, a daughter slave, a responsible husband, a gentleman, a responsible UPRIGHT Canada citizen, deeply love the family, kids and wife. But unlucky, I have suffered serious high IQ indictable crimes, high IQ intelligence-oriented judicial organized crime groups and bad local police crimes since May 2018. And the accidents have escalated several times.

March and April 2019 was the FIRST PEAK of those criminal activities, many bad events happened. I also detected the criminals including bad police officers shamefully targeted our daughter and my wife in our parents-kid days and activities; they have abused my wife (Applicant)'s weakness in bad events. They knew my wife (Applicant) easily emotional collapsed and easily be misled for lack of analyzing ability.

[24] These written statements are also consistent with the Respondent’s submissions to the Court during this motion. He advised the Court that his family is happy, and that the separation is the result of complex criminal activities dating back to April 2019 in which the criminal offenders targeted not only the Respondent but his wife and child. It was these criminal activities, he explained, that led to his wife and child leaving the home in April 2019, for their own safety and to avoid catastrophe. He explained that the Applicant’s leaving the matrimonial home in April 2019 was not the result of an erosion of affection, and there is no break up of his marriage. When these external elements disappear, the family can come back together. He will be able to repair the family because his mental ability is many times stronger than his wife’s.

[25] I also permitted the Respondent to cross-examine the Applicant because he alleged that the statements in her Affidavit were not true. His cross-examination was irrelevant to the legal issues in this motion, and confirmed that the Respondent is unable to distinguish relevant and irrelevant issues and to represent himself in these proceedings.

[26] It is evident from the Respondent’s written and oral submissions that the Respondent does not understand the nature of these proceedings or appreciate the consequences of his communications. The Respondent is unable to address the legal and factual issues raised by the Applicant’s family law Application, and it will not be possible for this matter to move forward unless the Respondent is found to be a special party and the PGT appointed as the Respondent’s representative.

[27] This family law proceeding raises important legal and financial issues with serious implications to the parties and their children. Issues such as parenting time and the sale of the matrimonial home will have to be addressed. Given the Respondent’s belief that the parties are not separated, he is not capable of understanding these legal issues or addressing his own interests in Court without representation. This ruling is necessary to protect the interests of both the Respondent and the Applicant, and to protect the integrity of the judicial process for all participants, including the Court.

Conclusion

[28] Having reviewed this evidence, I am satisfied on a balance of probabilities that the Applicant has proven that the Respondent is not capable of understanding information that is relevant to making decisions with respect to the issues in this family law proceeding, and he is found to be a “special party” within the meaning of the Family Law Rules.

[29] An Order shall go appointing the PGT as the Respondent’s representative in this proceeding in accordance with the following terms:

1. The Respondent, J.Y., is declared to be a “special party” as defined in Rule 2(1) of the Family Law Rules, and there is no other person appropriate and willing to act as representative for the Respondent.
2. The Public Guardian and Trustee is hereby appointed legal representative for the Respondent, J.Y., in this proceeding pursuant to Rule 4(3) of the Family Law Rules.
3. As the Respondent’s legal representative, the Public Guardian and Trustee shall have all the powers of a litigation guardian pursuant to Rule 7 of the Rules of Civil Procedure.
4. The Public Guardian and Trustee shall be entitled upon request by the Public Guardian and Trustee, his counsel or his agent herein, to the production and delivery of any medical, financial or other personal information, including but not limited to documents, records, correspondence, clinical notes, reports, charts, assessments, or tests in relation to, from any doctor, medical facility, service provider or from any person, firm, corporation, institution or governmental authority whether federal, provincial or municipal, to which the Respondent would be entitled, without requiring the consent of the Respondent.
5. The Public Guardian and Trustee shall not be personally liable for the costs of any party to the proceeding.
6. The court staff shall issue and enter this Order immediately and provide the Public Guardian and Trustee, his counsel or his agent with three certified true copies of this Order forthwith.
7. This proceeding is adjourned for at least three months to permit the Public Guardian and Trustee to obtain and review documentation, and retain counsel, if appropriate.

Justice R.E. Charney

Date: August 25, 2021