Superior Court of Justice
COURT FILE NO.: 1295/21
DATE: 2022-11-17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Patrick Lawrence Smith Applicant
– and –
Judy Smith Respondent
COUNSEL:
Nigel Smith, Counsel, for the Applicant
M. Peter Sammon, Counsel, for the Respondent
HEARD: November 16, 2022
JUDGMENT
THE HONOURABLE MR. JUSTICE A. PAZARATZ
[1] For reasons set out below, this court grants the following order as requested in the Notice of Motion dated November 8, 2022:
The Applicant is declared to be a Special Party in this proceeding as defined Rules 2 and 4(2) of the Family Law Rules, O Reg 114/99.
Doris Taylor shall be appointed as Legal Representative for the Applicant in this proceeding, pursuant to Rule 4(2) of the Family Law Rules, O Reg 114/99.
There shall be no Order as to costs.
[2] This motion was contemplated by Justice Kril in her endorsement of November 3, 2022, at the conclusion of a partial Settlement Conference. The matter was adjourned to a continuing Settlement Conference on January 12, 2023 at 11:00 a.m.
[3] The request is supported by a detailed affidavit filed by Doris Taylor, the Applicant’s sister. The affidavit includes significant medical evidence confirming the Applicant’s lack of mental and cognitive capacity.
[4] The requested order is not opposed by the Respondent who is represented by counsel.
[5] I will briefly summarize the circumstances:
a. The Applicant is 76 years old. He is currently in a retirement home in Hamilton.
b. The Respondent is 71. She resides in Petawawa.
c. The parties were married on December 30, 1981 and separated on or about April 1, 2021. They have no dependant children.
d. During the relationship the parties resided in the matrimonial home in Petawawa, Ontario.
e. There are significant financial issues to be determined, including the support needs and entitlements of each of the parties; the status of the matrimonial home; and equalization of net family property.
[6] The affidavit of Doris Taylor sworn November 8, 2022 includes the following information:
a. Taylor resides in Hamilton.
b. She requests permission to act as the Applicant’s Legal Representative.
c. She has no interest adverse to the Applicant.
d. She has provided written authority to Nigel Smith to act as counsel.
e. The Applicant was diagnosed with dementia in November 2020.
f. On December 9, 2020 Taylor obtained a Power of Attorney for the Applicant in relation to property.
g. The Applicant was placed into care at the Chartwell residence in 2020. On May 1, 2021 he transferred to his current care residence in a Hamilton retirement home.
h. The Applicant is not in a position to provide instructions or to make major decisions with respect to his day-to-day life, let alone this complex family law matter. The Applicant has moments of lucidity, however, the Applicant has significant memory problems. He has virtually no comprehension.
i. He was referred to the Seniors Mental Health Outpatient clinic for an assessment of behaviours, sleep disturbance, memory impairment, delusional behaviour, forgetfulness and anger outbursts. An initial Case Manager Assessment dated April 19, 2022 included comments such as he “is unable to make sense when speaking as he cannot follow the conversation flow. Confabulates quite a bit.” and “Nursing staff report that Patrick ‘often is very confused, can have short conversations but nothing profound’.”
j. A Geriatric Psychiatric Consultation note dated April 25, 2022 commented that the Applicant was unable to make sense when speaking; he could not follow the conversation; and he has begun speaking with the television as though it could communicate with him. His long-term memory is “great” but his short-term memory is poor. He cannot remember appointments and misplaces items. His “cognition has declined quite substantially”, and he has been assessed as having a major neurocognitive disorder.
k. On a standardized mini mental state examination – a series of simple questions and physical tasks – the Applicant scored a 6 out of 30 during his April 25, 2022 consultation. A test score of less than 10 indicates a severe cognitive impairment.
[7] As a result of the Applicant’s seriously impaired and declining mental health, his sister Taylor has been assisting the Applicant with, among other things, his healthcare, his general legal matters, and with professional appointments. She seeks authority to continue to do so.
[8] Under Rule 2(1) of the Family Law Rules, a “special party” is 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.”
[9] Pursuant to Rule 4(2) the court may authorize a person to represent a special party if the person is appropriate for the task and willing to act as a representative.
[10] There is a presumption of capacity under the Substitute Decisions Act. 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 (SCJ); Chai v. Law, 2020 ONSC 6998 (SCJ).
[11] An adult litigant must be found to be mentally incapable as a pre-requisite to a finding that the litigant is a “special party” who requires a legal representative. Costantino v. Costantino, 2016 ONSC 7279 (SCJ).
[12] Where mental capacity is challenged in a legal proceeding, the moving party bears the onus of establishing that the party is incapable, and must provide evidence regarding the “nature and extent” of the incapacity. Torok v. Toronto Transit Commission, [2007] O.J. No. 1773 (SCJ).
[13] 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. The resulting incapacity must affect the litigant's decision-making in relation to the issues in the litigation. Chai v. Law, 2020 ONSC 6998 (SCJ).
[14] The test for incapacity is an objective one, and a determination of capacity must be based on the evidentiary record, not subjective assessments. Chai v. Law, 2020 ONSC 6998 (SCJ). In Costantino v. Costantino, 2016 ONSC 7279 (SCJ), Price J. listed factors to be considered:
[57] The jurisprudence has identified the following factors that should be considered when applying the test for determining whether a party is under disability and requires a litigation guardian:
a) A person’s ability to know or understand the minimum choices or decisions required and to make them;
b) An appreciation of the consequences and effects of his or her choices or decisions;
c) An appreciation of the nature of the proceedings;
d) A person’s inability to choose and keep counsel;
e) A person’s inability to represent him or herself;
f) A person’s inability to distinguish between relevant and irrelevant issues; and,
g) A person’s mistaken beliefs regarding the law or court procedures.
[58] Issues of mental capacity generally are to be decided on medical evidence. Courts have, in some circumstances, considered various types of evidence in determining whether a Litigation Guardian should be appointed:
a) Medical or psychological evidence as to capacity;
b) Evidence from persons who know the litigant well;
c) The appearance and demeanour of the litigant;
d) The testimony of the litigant; and,
e) The opinion of the litigant’s own counsel.
[15] The concept of mental incapacity is quite broad. A person is mentally incapable when not able to understand information that is relevant to making a decision regarding an issue in the litigation or unable to appreciate the reasonably foreseeable consequences of a decision -- or lack of a decision -- regarding the issue. Sosnowski v. Johnson, 2006 CarswellOnt 5630 (ON CA); Jewish Family and Child Service of Greater Toronto v. B. (E.K.), 2019 ONSC 6214 (SCJ); Zabawskyj v. Zabawskyj, 2007 CanLII 51349(SCJ).
[16] As Backhouse J. stated in C.C. v. Children’s Aid Society of Toronto, [2007] OJ No. 5613 (SCJ): There is a distinction to be drawn between failing to understand and appreciate risks and consequences, and being unable to understand and appreciate risks and consequences. It is only the latter that can lead to a finding of incapacity.”
[17] In this case the medical and observational evidence provided by Taylor satisfies me that the Applicant is mentally incapable of dealing with the issues in this case and that he requires legal representation to be appointed by the court.
[18] I am also satisfied that the Applicant’s sister is an appropriate and reliable person to act on his behalf.
Pazaratz J.
Released: November 17, 2022
COURT FILE NO.: 1295/21
DATE: 2022-11-17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Patrick Lawrence Smith Applicant
- and -
Judy Smith Respondent
REASONS FOR JUDGMENT
Pazaratz J.
Released: November 16, 2022