Superior Court of Justice - Ontario
COURT FILE NO.: FS-20-16582
DATE: 2023-01-19
RE: Heather Liddell-MacInnis, Applicant
AND:
Joseph MacInnis, Respondent
BEFORE: M. Kraft, J.
COUNSEL: C. Hibberd, for the Applicant Mimi Chen, for the Respondent
HEARD: January 19, 2023
ENDORSEMENT
Nature of the Motion
[1] The respondent’s counsel brings a motion to find the respondent, Joseph Gavin MacInnis a “special party” within the meaning of the Family Law Rules (“FLRs”). Additionally, an order appointing the Office of the Public Guardian and Trustee (“OPGT”) to represent the respondent is sought pursuant to r.4(3) of the FLRs.
[2] The applicant does not contest the motion brought by the respondent’s counsel and is not opposed to the OPGT being appointed litigation guardian for the respondent if the Court finds the respondent to be a “special party”.
[3] The OPGT consents to being appointed litigation guardian for the respondent provided the Court makes the requisite finding that the respondent is a “special party”.
Issue to be Determined
[4] The issues to be determined on this motion are,
a. Whether or not the respondent is a “special party” as defined in the caselaw and within the meaning of the (“FLRs”) and are there any other person appropriate and/or willing to act as a representative to the respondent?
b. If the answer to a. is yes, should the OPGT be appointed in this proceeding as the respondent’s representative?
The Law
[5] Where a litigant lacks mental capacity, the Court may designate them a special party and appoint the OPGT as his or her representative. The cases recognize that the definition of a “special party” under the FLRs is broader than that of a party “under disability” pursuant to Rule 7 of the Rules of Civil Procedure Zabawskyj v. Zabawskyj, 2007 51349 (SCJ), para. 13.
[6] Rule 2(1) of the FLRs provides that a “special party” means a party who is a child or who is or appears to be mentally incapable for the purposes of the Substitute Decisions Act, 1992, in respect of an issue in the case and who, as a result, requires legal representation, but does not include a child in a custody, access, child protection or child support case.
[7] If there is no appropriate person willing to represent a special party, rule 4(3) provides that the Court may authorize the Office of the Children's Lawyer or the OPGT to act as representative, but only with that official's consent.
[8] Section 6 of the Substitute Decisions Act, 1992, defines “incapacity” as 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.
[9] In Constantino v. Constantino, 2016 ONSC 7229, at paras. 36-37, Price J. confirms that the appointment of a litigation guardian is meant to protect not only the person suffering from a disability but the integrity of the judicial process for all participants in the litigation, including the Court.
[10] When incapacity if raised as a concern, it must be proven by a moving party on a balance of probabilities: Constantino, paras. 38-39, citing Sosnowski v. Johnson, 2006 ONCA 32309.
[11] The test for incapacity is an objective test. Capacity must be determined on the basis of “the evidentiary record, not subjective assessments.”: Chai v. Law, 2020 ONSC 6998, paras. 33-38.
[12] The concept of mental incapacity under the Substitute Decisions Act, 1992, is “quite broad”. The question is whether the person is able to understand information that is relevant to making a decision in the management of his/her property or personal care, or able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. On the basis of that definition, a “special party” is “a person who is mentally incapable about an issue in a case where the party is not able to understand information that is relevant to making a decision regarding the issue or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision about the issue”: Zabawskyj, para. 13; Chai, paras. 33-38.
[13] In Costantino v. Costantino, Price J. noted, at para. 40, that “[t]he test for appointment of a litigation guardian is a functional one. It relates to the incapacity of the litigant, generally, to manage his property, as defined in the Substitute Decisions Act, 1992, to the issues that must be decided in the particular litigation.”
[14] As set out in Y.S. v. J.Y., 2021 ONSC 5736, at para. 16 and Constantino, at para 57, the following factors should be considered when 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.
Application of the Law to the Facts of this Case:
[15] The issues in this family law case include the determination of appropriate levels of child and spousal support and property division. The parties have three children over the age of majority, one of whom is enrolled in post-secondary educational studies.
[16] The affidavit of the respondent, sworn on February 2, 2022 sets out that he has been diagnosed with cirrhosis of the liver, hepatic encephalopathy and major depressive disorder.
[17] Since September 2021, the respondent has been on long term disability due to the decline in his health. Prior to being placed on long term disability, the respondent worked as an accountant.
[18] In support of his long term disability claim, Dr. Rakesh Jetly, a psychiatrist, completed a medical examination and concluded as follows:
“I can say with certainty that Mr. MacInnis is completely disabled from performing his own occupation as an Assurance Partner. Despite not fully comprehending his role within his firm, he presents as somebody totally disabled from virtually any occupation. He was unable to manage a video platform after over a year of working virtually. He could not maintain a conversation and was unable to answer very simple questions such as when he was married and to describe his role in the workplace. His emotional instability with frequent crying and despair would interfere with interpersonal communication. His abnormalities with sustained attention would make him unable to pay attention to details and position that is often required in the financial industry.
[19] In November 2022, the respondent’s application for CPP disability benefits was approved.
[20] On September 29, 2022, the respondent was found in the bathroom after having fallen and lost consciousness for an unknown period of time. The respondent’s medical records from CAMH indicate that he reported having had 2 beers, slipping and falling in the shower and passed out for 1.5 hours. The respondent was found by his superintendent and EMS was called and he was taken to the hospital.
[21] The respondent’s counsel arranged for the respondent to attend a capacity assessment, with Dan Silver, a social worker and psychotherapist who is a designated capacity assessor under Ontario’s Substitute Decisions Act, 1992. Mr. Silver assessed the respondent on December 4, 2022. Mr. Silver’s report was limited to an assessment as to whether the respondent had capacity to instruct his legal counsel.
[22] On December 6, 2022, Mr. Silver’s report was completed and it confirms that he is of the opinion that the respondent “is incapable of instructing counsel”. Some of Mr. Silver’s pertinent findings are as follows:
a. The respondent was unable to describe the process or the significant events related to the [matrimonial] litigation;
b. The respondent is unable to access the information required to demonstrate an understanding of the important events associated with this litigation;
c. The respondent lacks the factual knowledge base to manage the decision-making demands of his circumstances;
d. The respondent has signs of very poor memory recall;
e. The respondent is unable to realistically appraise the risk and likely outcome of a decision;
f. The respondent is unable to rationally manipulate information to reach a reasoned decision consistent with personal values.
[23] Based on the evidentiary record before me, I find that the respondent is unable to understand and appreciate the decisions required to be made to conduct this litigation; the nature of the proceedings; the consequences of his decisions; and the difference between relevant and irrelevant issues. Accordingly, I find the respondent to be a “special party”.
[24] Counsel for the respondent made submissions that he is aware of no other individuals who are in a position to act as the respondent’s litigation guardian. The individual with whom the respondent resides, Ms. Dorothy Timmermans, is listed as a witness for the family trial on the Trial Scheduling Endorsement Form, dated June 22, 2022, and is therefore in a position of conflict.
[25] The applicant deposes in her affidavit sworn on January 10, 2023, that the respondent had no contact with his mother for the last 12 to 14 years of the parties’ marriage; he has a strained relationship with his adult children and she is unaware of any individual who could or would act as the respondent’s representative in this application.
[26] Accordingly, I find that there is no one else willing and/or appropriate to act as the respondent’s representative.
[27] Counsel for the OPGT confirmed that they will consent to the appointment to act as the respondent’s litigation guardian provided the Court finds the respondent to be a special party and there is no one willing and appropriate to act as his representative and a draft order is signed including specific terms required to allow them to properly represent special parties.
The Conduct of the Matrimonial Case
[28] On June 22, 2022, Faieta, J. heard a trial management conference in this matter. At that time, an exit TMC was scheduled for February 27, 2023 and the trial of this matter was scheduled to commence on March 27, 2023 for 10 days.
[29] In December 2022, the applicant brought a 14B motion seeking to enforce my temporary support order from 2021 requiring the respondent to pay spousal support, child support, and maintain the mortgage and other household related expenses since about June 2022. The applicant sought leave from Faieta, J., as per the trial scheduling endorsement form required, to bring a motion prior to the trial of this matter.
[30] In response, counsel for the respondent sought leave to bring this motion to appoint the OPGT as the litigation guardian for the respondent and for an order finding the respondent to be a “special party” because he had been found by Mr. Silver, a capacity assessor on December 6, 2022, to be incapable of instructing counsel under the Substitute Decisions Act, 199. Counsel for the respondent was unable to obtain instructions from the respondent or respond to the applicant’s 14B motion.
[31] On December 18, 2022, Faieta, J. granted the respondent leave to bring this motion, returnable today; granted the applicant leave to enforce the existing support orders after today’s motion was determined; and if a party determines that they wish to seek an adjournment of the trial scheduled to commence on March 27, 2023, they are to notify the Trial Coordinator as soon as possible.
[32] During today’s motion, counsel for the OPGT indicate that they wanted a short adjournment of the trial scheduled to commence on March 27, 2023 to enable them to retain counsel, be brought up to speed and develop a litigation strategy. Counsel for the applicant indicated that her client will not agree to such an adjournment because her financial circumstances are dire. The Court expressed concern about the trial of this matter being delayed into 2024. Faieta, J.’s order of December 18, 2022 remains in force and effect. The applicant has leave to bring a motion to enforce the existing support order now that this motion has been determined and if the OPGT wishes to request an adjournment of the trial of this matter, a motion will need to be brought and the Trial Coordinator is to be notified as soon as possible.
ORDER
[33] This court makes the following order:
a. The respondent is a “special party” as defined in r.2(1) of the Family Law Rules and there is no other person appropriate and willing to as his representative;
b. The OPGT shall be appointed in this proceeding as representative for the respondent pursuant to r.4(3) of the Family Law Rules and shall have all the powers of a litigation guardian pursuant to Rule 7 of the Rules of Civil Procedure;
c. The title of these proceedings shall be amended to show the name of the respondent as “Joseph Gavin MacInnis, by his representative, the Public Guardian and Trustee”;
d. The OPGT shall be entitled upon required by the OPGT, his counsel or his agent herein to the production and delivery of any medical, financial or other personal information, including but not limited to documents, records, correspondence, clinical notes, reports, charts, assessments, or tests in relation to the Respondent, Joseph Gavin MacInnis, from any doctor, medical facility, service provider or from any person, firm, corporation institution or governmental authority whether federal, provincial or municipal, to which the Respondent, Joseph Gavin MacInnis, would be entitled without requiring the consent of the Respondent, Joseph Gavin MacInnis.
e. Any counsel formerly retained by the Respondent, Joseph Gavin MacInnis, in this proceeding shall co-operate with the OPGT by immediately delivering to the OPGT or his counsel any and all documentation and/or information requested by the OPGT or his counsel in respect of the Respondent, Joseph Gavin MacInnis.
f. The OPGT shall not be personally liable for the costs of any party to the proceeding.
g. The OPGT, as representative, shall be authorized to apply for Legal Aid Services on behalf of the Respondent, Joseph Gavin MacInnis, and is hereby authorized to execute any documents required by Legal Aid Ontario to secure Legal Aid Services for the Respondent, Joseph Gavin MacInnis, including directions with respect to property.
h. The signed order attached shall be issued and entered by the court staff immediately and provide the OPGT, his counsel or his agent with three certified copies of this order forthwith.
M. Kraft, J.
Date: January 19, 2023