W.A.C. v. C.V.F., 2021 ONSC 7657

COURT FILE NO.: FC-16-960

DATE: 20211119

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

W.A.C.

Applicant father

– and –

C.V.F.

Respondent mother

Marie G. Michaels, for the Applicant father

Self-Represented, although not present

HEARD: November 16, 2021

RELEASED: November 19, 2021

Justice Alex Finlayson

PART I: NATURE OF THIS PRE-TRIAL MOTION

[1] The core issue currently outstanding in this proceeding is the father’s parenting time with the parties’ son E., now age 12. Although temporary orders have been made for that parenting time to occur, I am told that the father has not seen E. in over a year.

[2] This matter first came before me for a Trial Management Conference in May, 2021, the week before an anticipated trial also in May. For the reasons expressed in my written decision dated May 31, 2021, I adjourned both the TMC and the trial, the latter to proceed during these trial sittings in November, 2021: see W.A.C. v. C.V.F., 2021 ONSC 3942. That was the fourth adjournment of the trial in this case, which has been before this Court since 2016.

[3] I appointed Deborah Stewart to act as amicus curiae in the intervening period on July 12 and 21, 2021, to assist the Court in various ways, in part by assisting the mother to put forward her case at trial: see W.A.C. v. C.A.F., 2021 ONSC 5140 [^1]. Amicus now brings a pre-trial motion dated September 2, 2021, for a determination that the applicant mother is a special party, and for an order authorizing the Office of the Public Guardian and Trustee (the “PGT”) to provide representation on her behalf. Amicus also seeks directions about her continued role in this case as a result of a number of developments that have occurred since I appointed her in July, although her position may be different depending on the outcome of this pre-trial motion.

[4] Formally, amicus takes no position about whether the Court should find the mother is a special party and authorize the PGT to act. During submissions, she referred the Court to the concerns she encountered in trying to work with the mother since July and to certain other evidence militating in favour of the Court making the finding. She also referred to evidence and made submissions relevant to not making the finding. In the final analysis, amicus submitted that the test has been met based on the record before the Court.

[5] Amicus did not proceed on November 16, 2021 with her request for directions about her continued role in this case. She instead asks the Court to defer argument about that until after the release of this decision. Therefore, this is my decision about amicus’ motion for a determination as to whether the mother is a special party and if so, for an order authorizing the PGT to represent the mother.

[6] In the case management Endorsement of August 31, 2021, I directed that this motion and related motions for production of the mother’s health records, for confidentiality orders, and for directions about the conduct of this motion, would be heard over two days. On September 24, 2021 [^2], I heard submissions about the records, for confidentiality terms and for directions relating to the conduct of this motion. I released my decision on those issues on October 15, 2021 (see W.A.C. v. C.V.F., 2021 ONSC 6849) and adjourned the main issue to November 16, 2021, what would have otherwise been the first day of the trial.

[7] The mother has not attended Court since August 24, 2021[^3]. Nor has she consistently attended at all appearances in the past, both those that proceeded before me and other judges. On November 15, 2021, the mother filed another 14B Motion asking for adjournments of both this motion and the trial, specifically asking for, “[a]n order for Disability Accommodation under the Human Rights Code and Accessibility for Ontarians with Disability Act to Adjourn Trial and Special Party Motion scheduled for November 16, 2021” [^4]. Her request for these most recent adjournments is based on her assertion that she has retained counsel, but that her counsel had a family emergency and had to leave the country. Her request is also based on health grounds. She says she is waiting for further cardiology appointments in January and February, 2022, and she is at risk of heart attack and death if this proceeding continues. Amicus also brought to the Court’s attention these recent adjournment requests from the mother, both orally and by uploading the documents into caselines.

[8] Amicus takes no position on the mother’s requests for adjournments.

[9] The father wants this trial to proceed. But during argument on September 24, 2021, the father said he would not oppose amicus’ motion to determine whether the mother is a special party and to authorize the PGT to represent her. He said he would not be present in Court during argument about those issues. He also said he would agree not to receive any of the mother’s health records that the Court might order produced. Father’s counsel did ask for leave to bring a motion about the father’s parenting time, if the trial subsequently got adjourned because the Court finds the mother to be a special party on this motion. All of this is set out in more detail in the written decision of October 15, 2021 [^5].

[10] Notwithstanding his position on September 24, 2021, both the father and his counsel attended on November 16, 2021, having been served with the mother’s most recent motion for adjournments. The father wanted directions from the Court about when his trial would commence. Additionally, father’s counsel advised the Court that she was recently injured and requested the Court accommodate her in certain ways her during argument of these motions, and then the trial if it proceeds. To be clear, the father’s counsel did not ask for an adjournment for herself based on her recent health issues, in light of the delay that has already been occasioned in this case.

[11] After some preliminary discussion at the outset of the November 16, 2021 attendance, the father agreed to leave the virtual court room, in keeping with his position taken on September 24, 2021. I allowed father’s counsel, who is already in possession of the mother’s health records as a result of my written decision of October 15, 2021 and my subsequent Endorsement of October 22, 2021, to remain, but I asked her to restrict her submissions to the mother’s request for adjournments, and to the issue of accommodations.

[12] The father opposes the mother’s requests for adjournments. He says the mother is engaging in a dedicated campaign to delay this case and her latest reasons for the adjournment are not credible. In addition to telling the Court what accommodations that she might need, in response to questions from the Court and in the absence of any evidence or submissions from the mother on this point, father’s counsel also made some submissions about what accommodations the Court might put in place for the mother, if the trial proceeds.

[13] Arthur Wilwerth and Kathleen Lindsey, counsel for the Office of the Public Guardian and Trustee (the “PGT”), were in attendance on November 16, 2021. In keeping with what Mr. Wilwerth told the Court on September 24, 2021, the PGT takes no position about whether the mother should be found to be a special party. The PGT will consent to represent the mother if the Court makes the finding, but it is not ready to proceed during these sittings. The PGT needs six months to be ready for trial, and three months to be ready to respond to any motion brought by the father concerning his parenting time. The PGT also asks that if appointed, the Court grant the terms set out in the draft Order attached to the Statement of Law that it filed, to enable it to discharge its duties. I note that the terms of the draft Order request a broader order for production of the mother’s health records than that which I ordered on October 15, 2021.

[14] The PGT takes no position on the mother’s request for adjournments, although as I just indicated, the PGT advances an adjournment request of its own for different reasons. As a result of my ruling respecting whether the mother is a special party, the PGT’s request for an adjournment is moot.

PART II: SUMMARY OF THIS DECISION

[15] Amicus brought this motion out of a concern that a number of interests involved in this litigation need to protected, particularly the mother’s. Amicus had good reason to be concerned. But although she raised a myriad of valid concerns with the Court, amicus also recognized that the Court must be cautious before ruling that a person is a special party. There must be compelling evidence to make the finding. A finding that a person is a special party is a significant Order that impacts the person’s rights to participate in the litigation. That includes their ability to contribute towards decisions about how it will be concluded.

[16] This is a difficult decision in this case, perhaps a ‘close call’. But ultimately, I would find the mother is an ungovernable litigant, not an incapable litigant as defined in the applicable test. She has caused havoc throughout this court proceeding, escalating as this trial approached. While they are not necessarily mutually exclusive, ungovernability and incapacity are also not necessarily synonymous either.

[17] For the reasons that follow, I find that the evidence does not rise to the level required for the Court to determine the mother is a special party. It is for that reason I have already said the second group of issues, being whether the PGT should be authorized to provide representation and whether the PGT should be afforded an adjournment to prepare, are moot.

[18] The mother’s request for adjournments is also denied. Should the mother choose not to attend the trial, the trial shall proceed in her absence. Should she fail to attend, the Court has the authority to make orders in her absence. Upon further reflection, it is not up to amicus, or father’s counsel, or the Court to speculate what accommodations for the mother should be put in place. The Court urges the mother once again to attend and to inform it of any accommodations it can make to aid her participation at the trial, other than an adjournment.

[19] On November 16, 2021, I orally granted the father’s counsel the specific accommodations she sought to argue the motion. I ask her to bring these to my attention again as the trial commences and as it proceeds, or if her needs change during the trial, to ensure that her needs are met fully.

[20] The parties and amicus have already been advised through the trial coordinator’s office to appear before me today at 2PM, to discuss any last-minute scheduling and organizational issues prior to this trial commencing next week. I will also hear any submissions amicus wishes to raise about her continued role in this case.

PART III: BACKGROUND AND CONTEXT

A. The Prior Proceedings

[21] A trial in May, 2021 did not proceed in this case, nor had a trial proceeded before other judges of this Court on three prior occasions, in 2020 and 2019. Since May 2021, I have been attempting to manage the conduct of this proceeding, to try to bring this case to trial and to its conclusion. There is no question that the parties, and the child in particular, need finality.

[22] As part of my attempts to manage this litigation since May, I have presided over approximately 6 pre-trial motions, the most recent being the two motions now before the Court. I have already written three substantive decisions, and released a number of other Endorsements. My three written decisions are cited above in the first part of this decision.

[23] Cumulatively, those written decisions contain a detailed account of the entire history of this case. They explain the outcome of the prior pre-trial motions that I have heard, most of which are related to the motions now before the Court. Between the last written decision of October 15, 2021 and now, I have released two additional Endorsements dated October 15, 2021 and October 22, 2021. Those Endorsements address the fact that on October 15, 2021, I made an order for production of the mother’s health records from three health care practitioners pursuant to rule 19(11) of the Family Law Rules, but one of the mother’s health care practitioners did not initially comply with that Order, after being so directed by the mother.

[24] Although I have summarized the entire history of this case in those prior written decisions, it is necessary for me to refer once again in this decision to aspects of the prior proceedings, as what has transpired is directly relevant to the relief now sought. I do not intend to repeat all of the history contained in the prior written decisions and Endorsements. This decision should be read alongside those written decisions, and perhaps the Court’s other Endorsements. Doing so will provide any additional context needed.

B. Overview of the Circumstances Leading Up to This Motion

[25] Amicus, appointed by orders of this Court dated July 12 and 21, 2021, had already made a number of efforts to attempt to work with the mother, but by mid-August amicus was encountering many difficulties. Amicus’ efforts have continued right up until argument of this motion. Amicus contacted the trial coordinator and requested an earlier date to appear and seek directions from the Court. She felt the difficulties that she was experiencing were of such importance that they could not wait until the TMC that was then booked for September 17, 2021 [^6]. Upon being made aware of amicus’ request to bring the matter forward, I asked the trial coordinator to schedule an appearance for August 24, 2021.

[26] August 24, 2021 is the last time the mother has come to Court. It was on that date that amicus told the Court of her concern that the mother might be a “special party” within the meaning of rule 2(1) of the Family Law Rules, O. Reg. 114/99, as amended. I advised the parties that this important issue should be dealt on motion, with a proper evidentiary record. The father continued to say he would not be bringing such a motion. Amicus said she would do so. Towards the end of the appearance, the mother was distressed. She says that she had to go to the hospital after the August 24, 2021 appearance and the health aspect of her current request for adjournments seems to follow from that Court date.

[27] In the Endorsement of August 31, 2021 subsequently released, I granted leave for this motion and associated requests for relief to be brought. As set out earlier and in the prior written decision of October 15, 2021, I heard submissions about preliminary issues relating to the need for the mother’s health records, confidentiality terms, the conduct of this motion, the evidence needed for this motion, and other related matters on September 24, 2021. The balance of the motion was then adjourned to proceed on the November 16, 2021, what would have otherwise been the first day of the trial.

[28] Amicus brings this motion for a determination about whether the mother is a special party, in part because the mother has self-identified as a person with a disability. The mother has stated to amicus, and to the Court, that she has processing and cognitive health issues, among other physical health issues. Amicus says she has been unable to obtain information from the mother about her position for the trial, about what witnesses should be called, about how the child’s views should be made available to the Court, and about what accommodations she needs, other than telling amicus she needs another lengthy adjournment. Amicus says that the mother wishes to retain counsel, but she has been incapable of doing so and going forward, she will be incapable of doing so. Fundamentally, in keeping with her duties to the Court, amicus wishes to ensure that the mother’s interests in the litigation are protected. Amicus is also concerned about fairness to the father, the child’s best interests, and the integrity of the Court’s process.

[29] As set out above, the mother has filed a 14B Motion to adjourn both this motion and the trial. She filed this 14B Motion on November 15, 2021, the day before the motion was scheduled to proceed even though a timetable for the hearing of this motion was put in place back in August.

[30] As she has done several times before, the mother filed the request for an adjournment in writing on short notice, and then did not come to Court. That the mother filed this 14B Motion was brought to my attention by court staff late in the day on November 15, 2021, again by the Registrar on the morning of November 16, 2021, and again by amicus when the motion commenced. The mother even failed to attend Court in the face of a summons to witness that amicus had served upon her. Bringing this motion for adjournments led, at least in part, to the attendance of the father and his counsel, notwithstanding their prior agreement not to participate when the motion about whether the mother is a special party was to be argued.

PART IV: LEGAL CONSIDERATIONS ABOUT WHETHER THE MOTHER IS A SPECIAL PARTY

[31] I set out the applicable legal principles that govern this motion in the written decision of October 15, 2021. I did so in that decision to frame the questions then before the Court about how this motion would proceed and about the evidence that would be presented at it. I set out the applicable legal principles to address why the mother’s health records were needed and why I was ordering them produced in advance of argument. But as those legal principles also obviously govern the main issues now before the Court, I will repeat them again here rather than merely referring back to them in the prior decision by reference. As I am not making an order authorizing the PGT to represent the mother, I will not repeat the law relevant to that issue.

[32] Pursuant to rule 2(1) of the Family Law Rules, “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. This definition in rule 2(1) does not define capacity or incapacity. It is necessary to turn to the Substitute Decisions Act, 1992, S.O. 1992, c. 30, as amended for guidance. See Children Aid Society of the Niagara Region v. W. D., 2003 2293 (Ont. S.C.J.) ¶ 11.

[33] Section 1(1) of the Substitute Decisions Act, 1992 defines “capable” as meaning “mentally capable”. “Capacity” has a corresponding meaning. “Incapable” means “mentally incapable”, and “incapacity” also has a corresponding meaning. Section 6 states that, “[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”. There is similar wording as it pertains to the management of one’s personal care, in section 45.

[34] With reference to the Substitute Decisions Act, 1992, therefore, the test for finding a party to be a “special party” has been interpreted to mean when, “…one 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 regarding the issue”. See Children Aid Society of the Niagara Region v. W. D. ¶ 10-14. At ¶ 40 of Torok v. Toronto Transit Commission, 2007 15479 (Ont. S.C.J.), the Court said “[t]he ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision in the litigation includes the ability to consider a reasonable range of possible outcomes, including those that are unfavourable. This ability is essentially the capacity to assess risk, which requires consideration of a variety of results, both positive and negative”.

[35] The cause of the incapacity must stem from a source of mental incapacity, such as mental illness, brain injury or developmental delay. It is not to be confused with a lack of sophistication, education or cultural difference. See Limbani (Litigation Guardian of) v. Limbani, 1999 CarswellOnt 929 (Ont. Gen. Div.) ¶ 9-11; see also C.(C.) v. Children’s Aid Society of Toronto, 2007 CarswellOnt 9879 (S.C.J.) ¶ 25. A self-represented litigant is not incapable just because they might conduct their case unreasonably, do not understand the legal process, or because they do not have a lawyer.

[36] Other principles are:

(a) A person will be presumed capable to make the decisions in question in litigation;

(b) The onus is on the moving party to establish on a balance of probabilities that the person in issue lacks capacity;

(c) As the definition in rule 2(1) of the Family Law Rules states, a person may be capable of making some decisions, and incapable of making others. Courts have recognized degrees of capacity;

(d) Compelling evidence is needed to rebut the presumption of capacity. The Court must be cautious in coming to a conclusion that would bar the party from having a final say in how the litigation is conducted or resolved; and

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

See Calvert (litigation guardian of) v. Calvert, 1997 12096 (Ont. Gen. Div.); see Children Aid Society of the Niagara Region v. W. D. ¶ 13, 14; see Torok v. Toronto Transit Commission ¶ 24; and see also Y.S. v. J.Y., 2021 ONSC 5736 ¶ 15.

[37] At ¶ 27-29 of C.(C.) v. Children’s Aid Society of Toronto, Backhouse J. found that a “functional test” of capacity has evolved in the case law. The “functional test” includes a consideration of the person’s ability to understand the nature or context or overall issue in the litigation, the person’s ability to know or understand the minimum choices or decisions required and to make them, and an appreciation of the consequences and effects of his or her choices or decisions. At ¶ 31 and 32, Backhouse J. listed the following factors as ones that the Court should consider as part of the “functional test”, namely:

(a) the nature of the proceedings;

(b) the person’s ability to understand the nature and effect and consequences of what he or she is or may be called upon to participate and decide on;

(c) the person’s inability to choose and keep counsel;

(d) the person’s inability to represent himself or herself;

(e) the person’s inability to distinguish between relevant and irrelevant issues; and

(f) the person’s mistaken beliefs regarding the law or court procedures may be relevant to the issue of appointment, but only if these deficits are a result of a source of mental disability, such as mental illness, head injury or dementia.

PART V: ANALYSIS RESPECTING WHETHER THE MOTHER IS A SPECIAL PARTY

[38] I will now apply Backhouse J.’s functional test. I must consider, based on the record before me, whether the mother understands the minimum choices required of her, and whether she appreciates the consequences of her choices or her failures to act, in relation to one or more issues in the case. To do so, I have considered the factors above that Backhouse J. laid out, with regard to the mother’s conduct both inside and outside the litigation, the arguments about her ability to retain and keep counsel, and the medical evidence that has been deposited with the Court as a result of my Order of October 15, 2021.

A. The Mother’s Conduct

[39] The summaries of the prior proceedings in the written decisions of May 31 and July 21, 2021 include that:

(a) There have been multiple attempted but aborted conferences before other judges and myself;

(b) There was a prolonged contempt motion to address the father’s parenting time that resulted in the temporary resumption of his parenting time;

(c) The OCL had been appointed five times, yet a section 112 investigation and report has never been fully completed (there are three partial or inconclusive reports in this case);

(d) There have been two motions to seal and then to lift the sealing order made respecting the OCL’s partially completed reports and other portions of its files;

(e) There have been multiple requests by the mother to adjourn the trial and other events in this case; and

(f) There have been numerous attempts by the Court to get information from the mother so it could accommodate her needs while also addressing the father’s interest in having this case heard, the child’s best interests, and the child’s need for some finality.

[40] Within this lengthy and involved procedural history, there are numerous examples of the mother not filing the material that was required of her by the Family Law Rules at different stages of this case. Some examples include:

(a) There was supposed to be a Settlement Conference on May 10, 2017, but it did not proceed. Rowsell J.’s Endorsement of May 10, 2017 indicates that the mother did not file a financial statement for that appearance, nor did she provide other information that ought to have been provided to have a proper Settlement Conference;

(b) I am now told by counsel for the father that the mother has never filed a financial statement[^7];

(b) A Settlement Conference did not proceed on June 20, 2018 because the mother did not file the necessary brief;

(c) The Court has never been able to complete the mother’s case in Trial Scheduling Endorsements, other than in a cursory way back in 2018, despite six Trial Scheduling Conferences or TMCs that were scheduled to proceed, being those on October 24, 2018, February 4, 2019, April 26, 2019, May 17 and 19, 2021 and September 17, 2021; and

(d) The mother has never filed any material for this trial.

[41] Twice that I am aware of, most recently at an appearance before myself on August 24, 2021, and another time in 2018 as reflected in the endorsement of Rowsell J. dated June 30, 2018, the mother became very distressed in Court. As set out earlier, I am told that after the August 24, 2021 appearance, the mother went to the hospital.

[42] There are also a number of instances where the mother has chosen not to come to Court. Yet in most of those instances, she still filed material in advance of those appearances before not attending. While on my count she did this once before my involvement in this case, her pattern of doing this has occurred most frequently during the appearances that have proceeded before me, beginning with the mother’s request for an adjournment of the May, 2021 TMC and trial. Specifically:

(a) The mother did not attend Court for a Trial Scheduling Conference on April 26, 2019. Despite her failure to attend, Gunsolus J. declined to strike the matter from the trial list and ordered the mother to comply with Hughes J.’s access Order, then in force;

(b) The mother did not appear for either of the TMCs that I booked on May 17 or 19, 2021. The mother sent a friend on her behalf to the May 17, 2021 appearance. She also filed two 14B Motions to adjourn the trial and the second TMC. When I directed that the adjournment would be argued orally, the mother did attend on May 25, 2021; and

(c) The mother did attend on July 12 and August 24, 2021, but she has not attended since then. For each of the September 17, September 24, October 15 and November 16, 2021 subsequent attendances, the mother filed either 14B Motions, Confirmation Forms or she sent emails, to advise of her position that this case should be adjourned, without then attending.

[43] The mother has been asked by multiple judges of this Court, myself included, that she file proper or further medical evidence in support of her adjournment requests, and additionally to advise the Court what accommodations she requires to proceed with the trial. She has also been encouraged by judges to consult with the Court’s Accessibility Coordinator, yet there is no evidence before me that that has ever occurred. More recently she has been given information by email from the Operational Support Branch, Court Services Division of the Ministry of the Attorney General about how to work with the Accessibility Coordinator. She has been given direct contact information for a manager in this court house by the Court Services Division. This Court also appointed amicus in part to assist her in this regard. The email from the Court Services Division references that, and invites her to involve amicus. Yet she has either failed or perhaps more aptly, refused to do any of these things.

[44] At some of the earlier appearances before me, the mother had the assistance of a lawyer, who told the Court she was offering only “disability support” to the mother, but not legal advice. But ostensibly with the assistance of that lawyer, the mother did not put any information before the Court about accommodations she needs.

[45] More particularly:

(a) On June 20, 2018, Rowsell J. told the mother via his Endorsement of that date that she must provide “detailed” medical information from her treating physicians if she wanted further adjournments;

(b) On September 24, 2019, Fryer J. dismissed the mother’s request for an adjournment, and asked the mother to advise the Court what accommodations she though would assist her. Fryer J. also suggested to the mother that she consult with the Court’s Accessibility Coordinator and asked her to then outline her requests for accommodations in a 14B before the next Court date;

(c) On November 20, 2019, Gunsolus J. “urged” the mother to put forth the specific accommodations that she requires to participate;

(d) In the written decision of May 31, 2021, I commented on the calibre of medical evidence then before the Court. I advised the parties I was contemplating appointing amicus. In the subsequent written decision of July 21, 2021, I indicated that amicus would be made available to the mother for a number of reasons, including to assist her in putting forward the accommodations she needs to participate, other than an adjournment;

(e) Amicus has been unable to obtain any information about accommodations from the mother;

(f) Although the mother attended with the lawyer/disability support person at some of the appearances before me since May, the lawyer made no submissions on behalf of the mother about accommodations; and

(g) The email from Court Services Division is dated November 13, 2021. It appears that it was sent to the mother in response to a complaint she made to MPP Phillips’ office on October 27, 2021 [^8]. The email from Court Services Division gave the mother detailed information about accessibility, in addition to links to additional information on websites, and contact information for a manager in this court house [^9].

[46] Although the OCL has been appointed some five times by judges of this Court to investigate and to prepare a report pursuant to section 112 of the Courts of Justice Act, it has been unable to complete any investigations or to file a report. The OCL has embarked upon three such investigations, but it has only been able to file discontinued reports.

[47] In the written decision of July 21, 2021, I reviewed the history of the involvement of the OCL in some detail, albeit in the context of the pre-trial motion that was then before me, brought by the father to lift a sealing Order dated October 23, 2019 that had been imposed respecting over two of those discontinued reports and certain other material in the OCL’s files. I did not then need to determine who bore the responsibility for those incomplete reports, although I did note that some findings had been made about this, at least on an interim basis, in the October 23, 2019 Endorsement. I also noted that during the submissions on the motion to lift that sealing Order that I heard on July 12, 2021, the mother told the Court that the OCL and/or the clinical investigator violated her human rights.

[48] On July 21, 2021, I rendered a ruling lifting the sealing Order so that the discontinued reports could be used at trial. According to the OCL’s discontinued report dated March 29, 2018 (the “first discontinued report) now contained in the father’s Supplementary Trial Record, clinician Linda Bleau wrote that on March 20, 2018, the mother advised her that she would not allow the child to be interviewed, and the mother advised Ms. Bleau that she had health issues that impacted on her ability to participate in the investigation. In the body of that discontinued report, Ms. Bleau also wrote that the mother became upset with her, because she had met with the father first. Ms. Bleau wrote that the mother accused her of bias.

[49] The next OCL clinician, who prepared the second incomplete investigation and report, was Naimoi Singh. Also contained in the father’s Supplementary Trial Record is her discontinued report dated July 23, 2019 (the “second discontinued report”). Page 2 of the second discontinued report describes that an observation visit with the mother had initially been scheduled to proceed, but unfortunately it had to be cancelled due to a child protection investigation. Ms. Singh was able to then schedule an observation visit with the father after the completion of the child protection investigation, but not with the mother. The second discontinued report describes that despite multiple attempts, the mother would not reschedule. Ms. Singh wrote that the mother “refused to confirm the visit and did not wish to be contacted by this Clinician”. She also wrote that the mother requested accommodation, the OCL sought to accommodate the mother with additional time, and despite the mother saying she did not want to be contacted by the Clinician, Ms. Singh still continued to attempt to reschedule with her, but without success.

[50] The final report in the father’s Supplementary Trial Record is that of clinician Karen Guthrie-Douse of May 12, 2020 (the “third discontinued report”). This is the report that was prepared after the motion for the initial Order to seal the previous two reports and other documents. At ¶ 7 of Nicholson J.’s Endorsement of October 21, 2019, he wrote that the mother in submissions “committed to fully cooperating with the new s. 112 investigation. Her previous lack of cooperation was the reason at least one of the two prior reports was defective/incomplete.” Yet Ms. Guthrie-Douse reports that the mother did not then participate in any interviews with her.

[51] In addition to not following procedural directions or Orders of multiple judges of this Court, the mother has also breached Court Orders respecting more substantive issues like parenting terms. She has been found in contempt by Hughes J. Soon after the contempt motion concluded, temporary Orders respecting parenting were not followed once more. More particularly:

(a) Between August 2, 2018 and March 7, 2019, the parties appeared before Hughes J. and Woodley J. on five separate occasions on the contempt motion. Hughes J. found the mother in contempt but noted that there had been some purging of the contempt under her watch;

(b) It appears that difficulties respecting the father’s parenting time quickly resumed once the contempt motion was finalized. For example, on April 26, 2019, Gunsolus J. ordered the mother to comply with Hughes J.’s order, but he changed the location of the supervised exchanges from a YMCA to a different company because of the mother’s “behaviour towards staff” at the YMCA; and

(c) It appears that the mother is once again in breach of the now governing temporary Order of Fryer J. dated September 24, 2021 for parenting time. I am told the father has not seen the child in over a year.

[52] The mother has actively interfered with the implementation of this Court’s Orders of September 24 and October 15, 2021 for the production of health records. For brief oral reasons given on September 24, 2021 with the written decision of October 15, 2021 to follow, I ordered the mother’s health records from three health care providers to be deposited with the Court for my review, to aid in my determination about whether to grant amicus’ motion for production of the records for use at the argument of this motion. I also explained in the written decision of October 15, 2021 that mother had written to the health care providers after I made the Order on September 24, 2021, in an attempt to block their compliance with my Order.

[53] The mother’s medical files produced to the Court contain a number emails to the health care providers of this ilk. Amicus attached one such email from the mother to her chiropractor as Exhibit “B” to the affidavit of her assistant, Lisa Jenkins, sworn November 7, 2021. In the email, the mother told the chiropractor, among other things:

(a) that she has requested “disability accommodation”;

(b) that he as her service provider was bound by her request;

(c) that according to an unnamed human rights lawyer, he was 100% protected from being in contempt;

(d) that if he were to release her medical information pursuant to an Order of this Court, he would be in violation of “the Human Rights Code, the privacy act and the Health information Act”;

(e) that he should “just ignore them” and “they can’t do anything”, referring to amicus or perhaps the Court;

(f) that there will be a “big report” from the Human Rights Tribunal and it will include the fact that [he] turned over her information, if he complies with this Court’s Order; and

(g) she swore “on [her] kids life that this protects you”.

[54] It was also revealed to the Court (because the chiropractor sent numerous emails to the Court after the release of the September 24, 2021 Order) that the mother sent him a copy of her Notice of Motion for leave to appeal my decision to the Divisional Court. The chiropractor interpreted this email from the mother, or perhaps her leave motion, as an Order not to release the file.

[55] Ultimately, I had to address his failure to comply with the Order of September 24, 2021 in the written decision of October 15, 2021, and I rendered a separate Endorsement for his benefit, to secure his compliance. His records were eventually deposited with the Court, although not in a manner that was as timely as the records from the other two doctors.

[56] This Court has learned that the mother has launched a series of motions for leave to appeal numerous temporary Orders of this Court to the Divisional Court, as is her right, but she has not yet proceeded with them. In the written decision of October 15, 2021, I described in more detail what this Court has been made aware of, respecting her conduct in the Divisional Court.

[57] Finally, the mother has made complaints and outright attacks on numerous professionals involved with this case. The mother has targeted the OCL, amicus, the agent retained to appear for amicus on September 24, 2021, those working in this Court, the Attorney General for Ontario, and at least three judges of this Court. Her emails to her treating health care providers, in an attempt to have them breach an Order of this Court, are manipulative and bullying, if not threatening. She has complained about and threatened those who have tried to help her and to help this family. Her complaints have been made by email and otherwise, and have been made to the Human Rights tribunal, to professional regulatory bodies, and to the Canadian Judicial Council. She has made comments about the Court on the internet. She has also written to the Prime Minister of Canada or to someone in his office.

[58] Most recently, on Friday, November 12, 2021, amicus received by courier a package of documents and a voice recording of a conversation between amicus and the mother from November 9, 2021. Amicus says the recording was made without her knowledge or consent. The package contained a document for use in a proceeding before the Human Rights Tribunal of Ontario. The document is a request for an order to add amicus, the agent she retained to appear for her on September 24, 2021, and “the System”, meaning the Superior Court of Justice-Family Division in Oshawa, as parties to the proceeding. The document is now attached as Exhibit “A” to the supplementary affidavit of Lisa Jenkins sworn November 15, 2021.

[59] Attached to this Human Rights Tribunal form are some 18 pages of narrative wherein the mother describes her view of the prior proceedings of this case, and her view of the manner in which she has been treated in it by amicus and those in the Court system. Although amicus made a number of submissions about the contents of this document and what it reveals about the mother’s functioning and perceptions, and while I have considered her submissions, I decline to comment about those submissions. Except to the limited extent that they are relevant to my determination about the mother’s capacity, the merits of the mother’s complaints are not the subject of this case before me. They will have to be dealt with in due course, in the appropriate forum.

B. The Mother’s Ability or Inability to Retain, Instruct and Keep Counsel

[60] Amicus argues that although the mother wishes to have a lawyer, she has been unable to retain counsel and even if she does so soon, it is likely that she will be unable to keep counsel. The written decision of July 21, 2021 already contains some analysis about the mother’s ability to work with a lawyer, as that was also relevant to the decision to appoint amicus. Although I dealt with this issue previously in that different context, I will repeat here much of what I said previously since amicus’ submissions at this current motion focused heavily on this factor.

[61] After reviewing the history of the prior proceedings when this case first came before me (some of which I highlighted above), during argument of the mother’s adjournment motion in May, I raised with the parties whether there might be questions about the mother’s capacity in this proceeding. After being told that was not being pursued by either of the parties, I indicated that I was considering appointing amicus, and I later made that appointment in July.

[62] I appointed amicus to assist the Court, in large part by assisting the mother. The mother has not engaged with amicus. The evidence now filed by amicus reveals that the mother told her that she cannot proceed in this matter, at least for another year from November 2021. It also reveals that amicus has been unable to ascertain from the mother her position for trial, her proposed witnesses, her position about how the child’s views should be made available to the Court, or what accommodations she might need, other than requesting another lengthy adjournment.

[63] Even if the mother does not wish to work with amicus, she has had other access to counsel, but so far she has not availed herself of it. For example, when I heard submissions about whether to appoint amicus on July 12, 2021, the mother had two lawyers attend Court with her. One lawyer was supposed to act for her in this family law case. The other was the disability support person referred to earlier. The mother and the family lawyer initially thought that she had a valid legal aid certificate, but counsel for Legal Aid Ontario attended and informed the Court that the legal aid certificate had been issued in error. Counsel laid out what she would need to do to appeal the denial of her request for another certificate and even said he would expedite the consideration of her appeal if she filed one.

[64] The mother did subsequently complete her appeal with the assistance of the lawyer who was offering her disability support. As a result, a contributory certificate was granted to her, as of August 20, 2021. But the evidence before the Court, beginning on September 24, 2021 and elaborated upon during submissions on November 16, 2021, confirms that the mother has not yet signed the contribution agreement necessary to validate that legal aid certificate.

[65] Although the mother did not come to Court on September 24, 2021, in her Confirmation Form dated September 23, 2021, the mother claimed she was searching for a lawyer and that she had an appointment booked with someone on September 28, 2021 to discuss her case. In her affidavit sworn November 15, 2021 filed in support of the most recent 14B Motion for an adjournment, the mother says she selected a lawyer[^10], but the lawyer had to leave the country due to an urgent family matter, and the mother’s “files” are with the lawyer. The mother says that the ARCH disability law center has also offered a lawyer to her to provide support to her family lawyer about disability laws and to protect her rights, which she says have been violated during this case.

[66] Despite these statements, other than that one occasion on July 12, 2021, no lawyer for the mother retained to represent her for the substantive issues in this case has attended on any of the court dates during my entire tenure on this case. No lawyer has ever authored a letter setting out the nature of his or her involvement on behalf of the mother, or detailing the family emergency that the mother describes. No lawyer has confirmed a retainer. Neither the lawyer that the mother says she was consulting with on September 28, 2021, nor the recently selected lawyer (if they are different lawyers) has been identified by name. No lawyer from ARCH disability center has ever been identified. No lawyer from ARCH disability center has ever come to Court or written a letter for the mother to present to the Court. Moreover, amicus tried to obtain the name of the recent lawyer from the mother, but the mother would not share it with her. And even when the mother had that lawyer to provide her with disability support but not legal advice, that lawyer offered no assistance to the mother in terms of making submissions to the Court, even about disability accommodations.

[67] The evidence now filed by amicus also reveals that when the mother has had legal help there has been some disconnect between the information she supplied and what is actually transpiring in this case. For example, even though amicus has not been table to ascertain a position from the mother to present to the Court, amicus learned that the mother did articulate her claims in her appeal to Legal Aid Ontario, with the assistance of the disability support person/lawyer referred to above. Again, amicus says that the mother’s claims to Legal Aid Ontario about what remains in issue in this case, do not correspond with the mother’s pleadings, nor do they reflect the state of the orders already made.

[68] On the other hand, there is some evidence that the mother has been able to retain counsel. For example, the mother did have the family lawyer with her on July 12, 2021. More recently, amicus retained a process server to conduct a search of any active proceedings in the Court involving the mother. Amicus learned that the mother has commenced at least 2 civil actions, and in one of those proceedings she has retained counsel. Amicus reached out to the mother’s counsel of record in that civil action, who I am told expressed no concerns about the mother’s status as a special party in the proceeding he is handling, although amicus does report that her communication with him was limited given solicitor-client privilege between that lawyer and the mother.

C. The Absence of Oral Evidence or Even a Proper Report from the Mother’s Treating Health Care Providers

[69] As I wrote in the decision of October 15, 2021, in Barnes v. Kirk, 1968 389 (Ont. C.A.), the Ontario Court of Appeal held that there should normally be medical evidence in motions of this nature. More recently, at ¶ 14 of Winter v. Sherman Estate, 2018 ONCA 379, van Rensburg J.A., sitting in motions Court, said, “…direct medical advice and information about a person’s actual mental condition is key”. See also 626381 Ontario Ltd. v. Kagan, Shastri ¶ 26.

[70] I appreciate that both the PGT in its statement of law, and amicus in argument, say that medical evidence is not necessarily required. For example, in Y.S. v. J.Y., Charney J. found the Respondent to be a special party based on “the evidence of the Applicant, demeanor, and affidavits of the Respondent himself”: see ¶ 17. But in this case, additional medical evidence, in the form of oral testimony from a treating health care practitioner, would have greatly assisted the Court. And as I also indicated in the written decision of October 15, 2021, the medical evidence I do have, whether filed previously or in the health records that I ordered to be produced, is conflicting. And no additional medical evidence was tendered, whether oral or documentary, for November 16, 2021.

[71] At ¶ 130 –133, and 136-145 of the written decision of October 15, 2021, I said the following about the state of the medical evidence before the Court:

[130] In this context, I turn to the medical letters that the mother herself placed before the Court. For the adjournment motion in May, the mother filed two letters from health care professionals; one undated letter from Dr. Kachooie; and a letter dated May 12, 2021, co-authored by Dr. Salomeh Redjvani, a chiropractor, and Srikanth Lahoti, a physical therapist.

[131] The letter from Dr. Kachooie states that the mother was hospitalized in 2018 for blood clots in her lungs. It states that she was involved in car accidents in 2019 and 2020. The first car accident caused a traumatic brain injury and multiple physical injuries. The second one made her “profoundly worse”. It also says that she had surgery in 2020.

[132] The letter goes on to state that the mother relies on multiple pain medications and requires regular therapy. It concludes that due to her traumatic brain injury, the mother is not able to participate in the proceeding “at this time”, and that if she is placed in this position, it will exacerbate her symptoms.

[133] The letter from Dr. Redjvani and Ms. Lahoti “strongly advise[d] that this hearing be postponed due to [the mother’s] inability to participate due to current health circumstances”. It says when she can participate in court proceedings, “please allow her the appropriate disability accommodation”. It made no suggestion as to what an “appropriate disability accommodation” might be.

[136] For the appearance on August 24, 2021, the mother provided the Court a letter from Dr. Horseman dated August 9, 2021. The mother also gave this letter to amicus and portions of it are excerpted in the affidavit amicus filed in support of the records motions [footnote omitted here]. Among other things, Dr. Horseman described the mother as attending at his clinic with severe pain, and other ailments. In further interviews, she reported concentration and memory issues. Dr. Horseman’s opinion is that the stress of the court process is impeding her recovery. He writes that “[i]t is hard for her to use her cognitive abilities and function appropriately as would be required by the court”.

[137] At the same time, the mother filed the short one line letter from Dr. Jeyaratnam, her family doctor. It merely states that the mother “does have mental capacity to make her own decisions” [footnote omitted here].

[138] I agree with amicus that the information the mother provided through these most recent letters, does not give the Court a complete picture of the medical issues. There is a lack of specificity about the extent and impact on the mother’s ability to manage issues in the proceeding. The letters do not provide detailed information about the nature of the brain injury, the treatment plan and prognosis, and how each doctor reached their conclusions. As amicus also says there is a lack of detail about the possible accommodations needed for trial.

[139] As a result of this Court’s Order of September 24, 2021, I have now had the benefit of reviewing the records from two of the three doctors. The records contain additional information about the mother’s diagnosis with a brain injury and other injuries, about the pain from which she suffers, about the treatment that she is receiving, and about the medications she takes. There are some records in their files that comment upon her memory, concentration and processing. There are some limited records relating to mental health…..

[140] The records corroborate that the mother is suffering from various ailments. They do not draw complete conclusions about the extent to which the mother’s capacity is impaired. The basis upon which Dr. Jeyaratnam concluded that the mother has capacity to make decisions needs to be explored.

[141] I find that the fact that there were unanswered questions based on the letters the mother produced prior to these motions renders the health records important under the Stavro test. I find this to be so, even though there continue to be unanswered questions based on the health records themselves. The fact that there remain unanswered questions does not diminish the records’ importance. The fact that there are continuing questions likely highlights the need for viva voce evidence at the main motion. The records are therefore also important to amicus’ ability to decide who to call to testify, and to decide how to call that viva voce evidence effectively.

[142] When amicus first raised the question of whether the mother is a special party at the August 24, 2021 attendance, she suggested that she might call viva voce evidence from the mother’s neurologist. However, amicus has instead moved for production from Drs. Kachooie, Horseman and Jeyaratnam. On August 24, 2021 and September 17, 2021, she informed the Court that she did not know the identity of the neurologist. I surmised that the mother’s family doctor’s file (Dr. Jeyaratnam) might contain this information. Having now reviewed the records, I see that it does [footnote omitted here].

[143] In that absence of knowing the neurologist, on September 17, 2021 I asked amicus to turn her mind to the qualifications of the medical professionals from whom records were being sought (including a chiropractor and a physiatrist). I asked amicus to consider whether these health care professionals are able to provide opinions about capacity. And if not, would that diminish the relevance of their records? In response to this question, amicus obtained and supplied to the Court Drs. Kachooie’s, Horseman’s and Jeyaratnam’s curriculum vitae for the further attendance on September 24, 2021.

[143] At the motion about the mother’s “special party” status, the Court will be called on to weigh all of the evidence placed before it. The Court will have to apply the test articulated in the aforementioned cases to the evidence, to arrive at a conclusion about the mother’s “special party” status in these proceedings. In argument on September 24, 2021, Ms. Austin submitted that the doctors’ records may contain medical evidence relevant to the determination about capacity, even if no such specific finding is made in the records, and even if they are unable to comment on capacity in the litigation, per se. Upon further reflection about the question I posed of counsel on September 17, 2021, I agree with her.

[144] The qualifications of any of these doctors to offer an opinion as participant experts may be addressed at the main motion. For the purposes of these records motions, even if it turns out that one or more of the doctors are not qualified to offer an opinion about capacity, their observations and interactions with the mother still have relevance to the Court’s conclusion about whether she is a “special party”, according to the functional test set out in Backhouse J.’s decision in C(C.) v. Catholic Children’s Aid Society of Toronto.

[72] And later, at paragraph 274(f), I gave the following direction as part of the Court’s order:

274 Once amicus reviews the health records being produced, amicus shall decide what oral evidence will be called on the motion, and she shall serve the necessary summons to witness. Amicus shall advise the mother and counsel for the PGT forthwith upon making the decision. She should also be prepared to address any issues about qualifications, even if a witness shall be called as a treating practitioner/ participant expert.

[73] In the affidavit of amicus’ assistant sworn November 7, 2021, amicus advised the Court that she would not be relying on the medical records that the Court ordered produced, saying there was nothing contained in those records as potential evidence that the mother is or is not a special party. Consequently, amicus did not issue a summons to witness to any of the health care providers. Nor did she pursue calling the mother’s neurologist, which she contemplated doing at one point previously. During submissions, amicus said that the health care practitioners’ lack of qualifications to diagnose the mother’s capacity in this proceeding informed her decision. She is also rightly concerned about proportionality.

[74] But with the greatest of respect to amicus’ submissions about relevance and qualifications, the Court disagrees. The qualifications of any of these health care providers, which included the mother’s family doctor, could have been explored in a voir dire had there been oral evidence. And regarding amicus’ statement in the affidavit that there is nothing contained in the records as potential evidence:

(a) Although they are based on the mother’s self-reports, Dr. Horseman’s file contains a form dated August 4, 2021, in which the mother reported experiencing not only a number of physical ailments, but also difficulty with finding words, difficulties with comprehension, and difficulties with memory loss; and

(b) In Dr. Jeyaratnam’s file, there is the aforementioned letter opining about the mother’s capacity to make decisions. But there are also a psychiatric referral form dated July 3, 2021 to address various potential mental health diagnoses, and a referral dated October 28, 2020 for an assessment to consider “cognition/dementia”. There is nothing in the records indicating whether these referrals were acted upon.

D. The Mother’s Failure to File an Affidavit Respecting Whether She is a Special Party or to Testify

[75] In the written decision of October 15, 2021, I wrote, albeit once again in a different context, that where a party’s capacity is potentially an issue and that party is self-represented, the judge may wish to ask some questions of the party directly: see the Honourable Justice Michelle Fuerst and the Honourable Justice Mary Anne Sanderson, “Ontario Courtroom Proceudre”, 4th ed., 2016, LexisNexis Canada Inc., page 115. I also noted that in Y.S. v. J.Y., Charney J. allowed the opposing party to cross-examine the self-represented party, whose capacity was called into question.

[76] At ¶ 274(g) and (h), I directed that the mother was to file an affidavit in response to this motion about whether she is a special party, or that she may testify orally, and there might then be cross-examination by amicus. In response to this paragraph of the October 15, 2021 decision, amicus issued a summons to witness.

[77] Had the mother testified, the Court would have also been in a position to make some inquiries of her directly about her understanding of this proceeding, the outcome she is seeking, whether and how she would participate if the trial goes ahead, the evidence she intended to call, the recent statements she has made about retaining counsel to explore if there is actually a lawyer retained, and importantly the accommodations she might require if the trial were to proceed.

[78] However, the mother did not appear.

E. Summary and Conclusions About Whether the Mother Is A Special Party

[79] Earlier, I described this motion as a ‘close call’. I found many of amicus’ submissions to be persuasive.

[80] First, the Court remains concerned that the mother will either chose not to participate at the trial if it goes ahead, or if she does, that she will have many difficulties representing herself. Indeed, these are two of the several reasons that the Court appointed amicus in July.

[81] Second, the Court continues to have some concerns about the mother’s ability to understand the nature or context or overall issues in the litigation, her ability to know or understand the minimum choices or decisions required and to make them, and whether she has an appreciation of the consequences and effects of her choices or decisions based on this evidence.

[82] In summary, the mother has not always filed the material that she was required to file, she has not always come to Court, and she has not provided relevant health information when told to do so by the Court. This is an indication that she is acting contrary to her own interests. It is also a potential indication that she does not appreciate that Orders are being made in her absence as the Court has not found it to be appropriate to grant any more adjournments. Or there is some evidence to suggest she thinks it does not matter if Orders are being made against her, since she has made a request for an adjournment (characterized by her as “disability accommodation”) and thus Orders do not need to be complied with.

[83] Third, and related to the latter, the mother has exhibited some lack of understanding of the law and procedure. For example, as I indicated in the written decision of October 15, 2021, the mother views requests for, and orders that she provide information about her health, beyond that which is willing to provide voluntarily, as a violation of her rights. The mother continues to make requests for adjournments without the necessary evidentiary basis, even though such requests have been denied previously based on the record then before the Court.

[84] Fourth, there is some indication that the mother is unable to distinguish between relevant and irrelevant matters. She is very focused on making allegations that she is being discriminated against and mistreated by those involved with this case, the Court system itself, and other involved in the justice system although not directly in this case. Concurrently, she has mostly refused to participate in this Court’s processes, or with the OCL, she is breaching Orders and she has not seemingly taken steps to prepare for trial.

[85] Fifth, amicus argues that the mother wants to work with counsel, but that she is incapable of doing so. There is some merit to this submission. Again, the Court itself felt compelled to explore that issue in May and July, and ultimately the Court decided to appoint amicus to ensure the mother had assistance at the trial.

[86] But on the other hand, while her participation has been principally directed at seeking adjournments of various events or the trials that have been scheduled, the mother has at times filed material and she has been able to make submissions when it suited her. As I indicated in the written decision of May 31, 2021, for the adjournment motion heard May 25, 2021, the mother was able to prepare and file two adjournment motions and several affidavits, including responses to the father’s motion to lift the sealing Order. She also had lengthy submissions, typed and uploaded into a teleprompter, from which she read. She was able to stop the teleprompter mid-argument to respond to questions from the Court, and she was able to return to her presentation thereafter. She also advised me that she has another friend who is a lawyer, who helped her prepare.

[87] The mother made some submissions respecting the appointment of amicus, not solely based on a request for an adjournment. The past Endorsements reveal that the mother filed a cross-motion during one of the attendances before Justice Hughes on the contempt motion. The Endorsement of Nicholson J. dated October 23, 2019 reveals that while the mother did not file material, she did make submissions respecting the initial motion to seal the OCL’s discontinued reports. She also filed material and made submissions opposing the father’s motion to lift the sealing Order that I heard on July 12, 2021.

[88] Second, based on the material in the father’s Supplementary Trial Record, even though she ultimately refused to follow through with the OCL, there is information in the discontinued reports about the mother’s position in this case and facts that would be relevant to that position. This is as recently as 2019 and 2020 and it is in several respects quite detailed.

[89] More particularly, the second discontinued report reveals that clinician, Ms. Singh, was able to conduct an interview with the mother, during which she provided facts about the relationship and parenting, her own health and her position in the proceeding. The mother provided an intake form and in so doing, she advised clinician, Ms. Guthrie-Douse, who prepared the third discontinued report, of information similar to the kind she told Ms. Singh.

[90] Third, while the inability to represent oneself may be an indicator that a person is a special party according to Backhouse J.’s functional test, it is only one factor to consider. I note again that the mother’s inability to either retain or keep counsel was also a factor relevant to a decision to appoint amicus. There are a number of decisions in which courts have appointed amicus under such circumstances. But such does not necessarily mean that a litigant who needs the assistance of amicus is also a special party or someone requiring of a litigation guardian.

[91] Moreover, the July 21, 2021 written decision contemplated that the mother might not work with amicus, either in whole or in part, even though I still made the appointment. I made a number of comments to that effect: see W.A.C. v. C.A.F., 2021 ONSC 5140 ¶ 61-62. And in part, I also created a different role for amicus, apart from merely helping the mother.

[92] At ¶ 42-44 of the July 21, 2021 decision, I noted the Ontario Court of Appeal’s comments at ¶ 35-36 of Morwald-Benevides v. Benevides, 2019 ONCA 1023, that the trial judge consider as an alternative to appointing amicus, whether he or she is able to walk the self-represented party through essential documents, giving her an opportunity to explain her position respecting either her documents or the other side’s documents. While I found that this would be far from ideal and problematic in the circumstances of this case, thus militating in favour of the amicus appointment that I made, there may now be no other option for this case. The mother’s failure to work with amicus, while certainly a factor, is not dispositive of this motion.

[93] And I must still consider that there is some evidence of the mother getting legal assistance for some purposes (ie. the lawyer/friend who helped her prepare material and submissions for the adjournment motion in May, the lawyer who thought he had a valid legal aid certificate on July 12, 2021, the lawyer who assisted the mother as the disability support person, and the recently retained civil lawyer). The recent emergence of the civil lawyer is some evidence of a current ability to work with a lawyer. Whether that relationship will endure is not something that I am in a position to decide. Unfortunately, it could not be better explored because of solicitor-client privilege, but I do take into account that he has not raised a concern about the mother’s capacity with amicus.

[94] Fourth, looking at the evidence as a whole, what the Court has before it is an ungovernable litigant. An ungovernable litigant may also be a litigant who lacks capacity. However, the two are not always overlapping.

[95] The case law provides that if there is incapacity, its cause must stem from a source of mental incapacity, such as mental illness, brain injury or developmental delay. It is not disputed in this case that the mother has been diagnosed with a brain injury arising out of her motor vehicle accidents. But is this Court able to conclude, based on the record before it, that her brain injury is the cause of the aforementioned behaviour, and more fundamentally an inability to understand the minimum choices required of her, and an inability to appreciate the consequences of her choices or her failures to act, in relation to one or more issues in the case?

[96] The mother is presumed to have capacity and compelling evidence is required to rebut the presumption. The non-medical evidence could be interpreted both to militate in favour of, and against making a finding. Additional medical evidence, which would have been key, was not provided to me, despite the Court’s comments in its October 15, 2021 decision.

[97] This Court has been actively involved in the management of this case, trying to get it ready for trial this fall. Given the absence of the additional medical evidence, the Court could have adjourned this motion to require yet another attendance on this motion to hear oral evidence. Given the mother’s failure to attend, the Court could have adjourned the case for the purpose of having her attend too. In some circumstances, the Court might order a capacity assessment.

[98] But all of those steps would require the 5th adjournment of this trial. The trial would be delayed to the spring 2022. The Court gave ample time for this motion to be heard. It was scheduled to be heard in two parts. Scheduling was done over two months ago. On both September 24 and November 16, 2021, the Court allocated several hours for argument.

[99] Ultimately, no one in this case, whether the father, the mother or amicus, is asking the Court to adjourn the motion for further evidence. The Court has already gone to some lengths to address a plethora of pre-trial issues, not the least of which includes appointing amicus. At some point the parties themselves must take ownership of the conduct of this case. While the Court must be active in its case management, the parties and any counsel involved have a shared duty to help the Court in that regard. In the end, it is not the Court’s sole or even primary responsibility, nor is it amicus’ job, to drive this litigation.

[100] And in regards to the capacity assessment, even if the Court could make an order like this on its own initiative, I have no confidence whatsoever that the mother would cooperate and submit to it. Ordering a capacity assessment may very well run the risk of triggering another round of interlocutory proceedings directed at enforcing her compliance with such an order.

[101] I conclude that additional steps of this nature are not proportional. Any more delay would not be in E.’s best interests. However, whether there should be evidence from a health care practitioner at the trial proper, called for a different purpose, is quite another issue.

[102] In conclusion, while the mother is unquestionably suffering from physical ailments, and likely problems with cognition and her mental health, there is insufficient evidence to find that she is a special party.

PART VI: ANALYSIS RESPECTING THE MOTHER’S REQUEST FOR AN ADJOURNMENT

[103] The mother has sought and been denied adjournments of the trial multiple times. Where the trial has not proceeded, that has been due to other reasons, not because the mother has ever persuaded the Court to grant her an adjournment on health grounds.

[104] The mother’s most recent request for adjournments of this motion and the trial is based on two arguments: the mother says she has counsel who is not available; and because of a fragile health situation pertaining to her heart.

[105] I adopt the applicable legal principles and the analysis that I set out in the written decision of May 31, 2021 regarding adjournments. See W.A.C. v. C.V.F., 2021 ONSC 3942 ¶ 50-53.

[106] I have already set out the evidence that the mother has provided, alleging she retained counsel, but counsel is not available. Based on that evidence, this ground for an adjournment is dismissed. If the mother’s files are with a lawyer who is now out of the country, then she should make arrangements to retrieve them from that lawyer’s office through a staff person there, so she may use them at the trial.

[107] Regarding the request based on health, the mother says she was “forced” to take part in proceedings on August 24, 2021 during which her body wet into medical distress. She says she subsequently underwent testing of her heart on October 1, 2021 and was told she has low blood flow to the bottom of the heart. She says her cardiologist told her that he would be putting her on medication for a week to slow down her heart and would do a scan of her heart. She says she must wait until January or February 2022 for the scan to occur and she is at risk of heart attack and death.

[108] While a judge may reconsider a previous procedural ruling, such as the prior denial of an adjournment, I have already given direction to the mother about the evidence that she would need for that to be considered in the overall circumstances of this case, as did also Rowsell J. several years ago. For example, at ¶ 122-123 of the written decision of October 15, 2021, I wrote, “[w]ere a 5th adjournment request to be granted based on the mother’s inability to participate, that would take this case into its 6th year. For such a request to be made and seriously considered, cogent medical evidence would be required. The mother should know this…”

[109] Yet once again, the mother has not filed any medical evidence whatsoever that details these conditions. In contrast, I note that in Dr. Jeyaratnam’s files, there is a very recent report from cardiologist Dr. Ashok Mukherjee dated August 5, 2021 that says the mother has “atypical symptoms not likely cardiac in etiology. I offered her simple reassurance versus screening cardiac investigations. She feels more comfortable being rescreened for heart disease.” He therefore organized various tests. The reference to being “rescreened” is because in the same report, Dr. Mukherjee notes that she submitted to these tests in the past and her earlier tests “failed to demonstrate any underlying ischemic structural or arrhythmic heart disease.”

[110] What I wrote at ¶ 53 and 66 of the May 31, 2021 decision and are worth repeating:

[53] It must be remembered that this case also concerns a child. It is not just the parties’ interests that should be taken into account, but also the child’s. See for example White v. White, 1995 4568 (N.S. S.C.). It is not only that the child is not seeing his father for months that is relevant here. It is well accepted that delay in cases involving children should be avoided where possible. This principle has statutory recognition. See section 26 of the Children’s Law Reform Act.

[66] As Fryer J. succinctly stated in her Endorsement of September 24, 2019, when she last confronted a similar adjournment request from the mother:

... the court has an obligation to balance the interests of and prejudice to each of the parties and most importantly ensure that E’s best interests are being addressed. [The mother’s] medical issues are one aspect of this balancing exercise. I am concerned that this case has been languishing in the system for some time now and the trial has been delayed. I am very concerned that E.’s relationship with his father remains fractured and this must be addressed in a timely fashion.

[111] This most recent health ground as a basis for the adjournment requests is also dismissed. I invite the mother to obtain updated reports from her cardiology appointments and particularly those that discuss a risk of heart attack and death. The mother should also feel free to summons her cardiologist and her family doctor to testify about any accommodations that she may need, for the outset of the trial.

PART VII: OTHER ISSUES

A. Next Steps

[112] The parties have already been instructed to appear before me at 2 PM today (November 19, 2021). This decision is being released in the morning before their attendance.

[113] At Ms. Stewart’s request, there shall be a discussion about amicus’ role during the trial, and if necessary, I will make an Order for additional directions about that. The parties should be prepared to discuss any other matters of a housekeeping nature. The trial shall begin on Tuesday, November 22, 2021. If the mother chooses not to attend, the trial shall proceed in her absence and she is warned that the Court has the authority to make orders in her absence.

[114] At the risk of being repetitive, the Court has been asking the mother repeatedly to advise it of the accommodations she requires, without success. Without any assistance, the Court has been is left to craft accommodations on its own. The Court has already put in place some measures that may already be accommodations for the mother.

[115] For example, the trial is happening virtually. The mother will therefore be able to participate from home or elsewhere, but she must make arrangements to have the child absent from the proceeding. Second, in the written decision of May 31, 2021, I surmised that it might assist the mother to have much of the father’s evidence in advance. My Order of May 31, 2021 has detailed terms requiring that to occur. Although they were not initially complied with by the father, I ordered further terms in my Order of July 21, 2021 and I understand the mother has had the father’s trial materials since late August (well over two months) which includes much of the evidence in chief by way of affidavit and other documentary evidence. Third, I am prepared to implement any other reasonable measures that the mother may request. I am not prepared to impose accommodations on her. It is now up to her. At this point, I will offer only suggestions. Accommodations could include abbreviated sitting times, longer breaks, the ability for the mother to stand or sit as needed, and the ability of the mother to prepare notes and to read from them during her testimony. The parties may wish to consider whether the mother may have a support person present.

[116] Not only will this trial start on Tuesday next week, but I note the mother is the Respondent. In addition to the time between the release of this decision and the start of the trial, the mother will have even more time to prepare, as she will be presenting her case as the Respondent, and therefore going second. So this will give the mother even more opportunity to be prepared.

[117] Counsel for the father requires some accommodations too. I ask counsel for the father to advise the Court again, whether today, at the start of the trial and/or throughout the trial as to any of her reasonable needs and the Court will make efforts to accommodate them.

B. Other Issues

[118] This child has been left in limbo while this case has been delayed over and over again. He has a right to finality, and a right to a healthy relationship with both of his parents, whatever form that may take, so long as that is in his best interests.

[119] Although I was not inclined to adjourn this motion to further explore questions of the mother’s capacity with better health evidence for the reasons set out above, there are entries in the mother’s health records, both about the impact of her physical injuries on her daily functioning, potential mental health issues and her use of medication. It has become increasingly time sensitive that the Court hear some evidence about this child. If they were not already planning on doing so, the Court is once again asking the parties, or even amicus, if necessary, to consider whether they should be calling viva voce evidence, from the mother’s family doctor, not about the mother’s capacity, but about whether her health is impacting her ability to parent.

[120] I also intend to use the appearance at 2 PM to discuss with the parties whether they have all the necessary documentary evidence needed for this trial. If necessary, I will issue further directions in that regard.

PART VIII: ORDERS

[121] I make the following Orders:

(a) The Court finds that the mother is not a special party;

(b) The motion to authorize the PGT to act as a representative for the mother is dismissed;

(c) The mother’s request for adjournments of this motion and the trial is denied;

(d) The parties are to appear before me at 2 PM today for scheduling and to address any last minute scheduling or other related issues, which may include amicus’ role in the trial next week; and

(e) The trial shall begin on Tuesday next week.

[122] I thank amicus for her assistance with this important issue about whether the mother is a special party, and I thank counsel for the father for her submissions respecting the adjournments.

Justice Alex Finlayson

Released: November 19, 2021

COURT FILE NO.: FC-16-960

DATE: 20211119

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

W.A.C.

Applicant father

– and –

C.V.F.

Respondent mother

REASONS FOR JUDGMENT

Justice Alex Finlayson

Released: November 19, 2021

[^1]: This decision was inadvertently styled as W.A.C. v. C.A.F. The style of cause contains a typographical error. It ought to have been W.A.C. v. C.V.F. [^2]: The first part of the argument was supposed to proceed on September 17, 2021, but it was adjourned at the request of one of the mother’s health care providers, who held some of the records being sought. He requested the adjournment to obtain legal advice. [^3]: She did not attend on September 17, 24 or November 16, 2021. [^4]: The mother has in the past filed several other 14B Motions and/or Confirmation Forms asking to adjourn conferences, motions and this trial. Those requests have already been adjudicated. The Court has previously dismissed requests by the mother to adjourn the trial. [^5]: Furthermore, in the written decision of October 15, 2021, I accepted the father’s undertaking not to participate on November 16, 2021 (but did find a legal basis to order his non-attendance). I found that the health records should be provided to the father’s counsel on terms, despite his position. I also granted him leave to bring the motion, if the trial later got adjourned. [^6]: The September 17, 2021 TMC did not proceed. [^7]: As I indicated in the summary of the prior proceedings in the May 31, 2021 decision, the mother initially had a claim for s. 7 expenses, which means she ought to have filed a financial statement. Then, on February 12, 2018, Rowsell J. noted that the mother instead chose to withdraw her claim for section 7 expenses, even though he previously allowed her to reconsider the request. But amicus’ affidavit evidence, now before the Court for this motion, reveals that in the material the mother prepared for her appeal to Legal Aid Ontario of the denial of another legal aid certificate, she told Legal Aid Ontario that s. 7 expenses and retroactive child support are in issue. Whether these are still in issue in this case is not clear to me. [^8]: The mother did not include a copy of the complaint to MPP Phillips’ Office. [^9]: The mother included this email as Exhibit “B” to her affidavit sworn November 15, 2021 that she filed with her recent 14B Motion for adjournments. [^10]: I do not know if this is the same lawyer as the person referred to in the Confirmation Form dated September 23, 2021.