Court File and Parties

COURT FILE NO.: CV-19-81874 and CV-23-93015 DATE: April 9, 2024 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: File NO: CV-19-81874 JOHN RAPHAEL MCMAHON, EXECUTOR AND ESTATE TRUSTEE UNDER THE LAST WILL AND TESTAMENT OF DOUGLAS SARGENT MONTGOMERY, Deceased, Plaintiff / Defendant by Counterclaim AND: JOAN MONTGOMERY, Defendant/ Plaintiff by Counterclaim

File NO: CV-23-93015 JOAN MONTGOMERY, (Moving Party) Applicant AND: JOHN RAPHAEL MCMAHON, EXECUTOR AND ESTATE TRUSTEE UNDER THE LAST WILL AND TESTAMENT OF DOUGLAS SARGENT MONTGOMERY, Deceased, (Responding Party) Respondent

BEFORE: Rees J.

COUNSEL: Mr. J.L. Lee Mullowney for Ms. Montgomery Mr. Clarke for Mr. McMahon Ms. K. Lindsay for the Public Guardian and Trustee

HEARD: April 4, 2024

Endorsement

Introduction

[1] Before me are competing motions under r. 7 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for the appointment of a litigation guardian for Ms. Joan Montgomery in CV-19-81874 and CV-23-93015. The first motion was brought by Mr. McMahon in CV-19-81874. Ms. Montgomery then commenced the application in CV-23-93015 and brought two motions under r. 7 in CV-19-81874 and CV-23-93015.

[2] There is a lengthy history to these proceedings that I need not discuss here because the parties have agreed to adjourn Mr. McMahon’s motion, which makes allegations against counsel for Ms. Montgomery and seeks costs against him personally. The parties have also agreed to adjourn the determination of the costs of these motions to the motion judge hearing the balance of the issues raised in Mr. McMahon’s motion.

The Parties’ Positions

[3] Counsel for Ms. Montgomery argues, and Mr. McMahon agrees, that Ms. Montgomery is a person under disability within the meaning of r. 7 and that the court ought to appoint a litigation guardian for her. Further, they also agree that the Public Guardian and Trustee (PGT) ought to be appointed as her litigation guardian because there is no other proper person who can act as her litigation guardian.

[4] Ms. Montgomery was served in CV-19-81874 and CV-23-93015 with Requests for Appointment of Litigation Guardian. She has not responded, nor has she identified a litigation guardian. She did not attend the hearing today.

[5] Ms. K. Lindsay appeared for the PGT, a non-party at this time. The PGT takes no position on the r. 7 motions but is not opposed to being appointed as litigation guardian if I were to conclude that Ms. Montgomery is a party under disability and that there is no other proper person who is willing and able to act as litigation guardian.

The Law

[6] Rule 7.01(1) of the Rules of Civil Procedure requires that, “[u]nless the court orders or a statute provides otherwise, a proceeding shall be commenced, continued or defended on behalf of a party under disability by a litigation guardian.” Further, r 1.03(1) of the Rules of Civil Procedure defines “disability” as “mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, in respect of an issue in the proceeding, whether the person has a guardian or not.”

[7] Section 6 of the Substitute Decisions Act, 1992 provides:

Incapacity to manage property

6. 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.

[8] Litigation guardians protect parties under disability, opposing parties, and court procedures: Cameron v. Louden, at para. 4; see also Huang v. Braga, 2016 ONSC 6306, at para. 17.

[9] To appoint a litigation guardian under r. 7, the Court must be satisfied of two things:

a. The person must appear to be mentally incapable with respect to an issue in the case; and, b. As a result of being mentally incapable, the person requires legal representation to be appointed by the Court.

To be clear, the cause of the incapacity must arise from mental illness, dementia, developmental delay or physical injury and not from some other (non-legal capacity related) reason such as a lack of sophistication, education or cultural differences: C.C. v. Children’s Aids society of Toronto at para 25; Huang, at para. 18.

[10] The following factors should be considered:

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.

See Huang, at para. 19 and the authorities cited therein.

[11] Courts may rely of various types of evidence in evaluating the appropriateness of appointing a litigation guardian, including:

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.

See Huang, at para. 20.

[12] Medical evidence is not a pre-requisite to a finding that a person is a party under disability. A party’s refusal to undergo an assessment of mental capacity is a factor the court may consider. A party may, by their behaviour, put their mental capacity in issue: Auriemma et al. v. Cristoveanu, 2023 ONSC 5072, at paras. 37 and 38, and the authorities cited therein.

Analysis

Issue 1: Is Ms. Montgomery a party under disability?

[13] Ms. Montgomery participated in a capacity assessment on August 28, 2023. Ms. Montgomery only provided limited medical records and declined to provide more. Through her daughter and long-time friend, however, there is evidence before the Court of long-standing mental illness. I find this evidence to be both credible and reliable. Ms. Montgomery has experienced well-developed paranoid delusions following her divorce from her former husband in 2005. Her former husband passed away in 2015.

[14] Ms. Montgomery’s mental illness is also evidenced by her social media posts and communications. For instance, she believes incorrectly that her matrimonial proceedings remain ongoing and that they relate to the estate proceedings currently before the Court. Ms. Montgomery also alleges that several lawyers, judges, and politicians committed fraud in relation to her 2005 divorce. Further, she alleges in several communications that various individuals have engaged in various crimes. She does so incoherently and without any apparent basis in reality.

[15] In her report dated September 15, 2023, the Capacity Assessor concluded that Ms. Montgomery lacks the capacity to litigate. The Capacity Assessor formed the following opinion, which I accept:

a. Although Ms. Montgomery knows the surface level facts regarding the proceedings, her understanding of the process and appreciation of the factors impacting the outcome of litigation is limited. Her understanding is not grounded in reality. b. Ms. Montgomery is unable to understand the facts of the litigation. Her understanding of the facts is entangled with her delusional beliefs. She cannot differentiate between relevant an irrelevant issues. She often goes off on tangents about her historical divorce (unrelated to the current proceedings), women being abused, and conspiracy theories. She cannot be redirected. c. Ms. Montgomery is unable to understand her chances of succeeding or the risks of an adverse costs award. She has a fixed belief that she will win. d. Ms. Montgomery is unable to make the sort of decisions that arise in litigation and is unable to arrive reasonable decisions. e. Ms. Montgomery is unable to conduct the proceedings by giving proper instructions and approving compromises. Ms. Montgomery is unable to stay focused and to understand her options. She is unable to weight the pros and cons to give instructions. f. Ms. Montgomery is unable to appreciate the potential outcomes and potential problems of the litigation. g. Ms. Montgomery is unable to instruct counsel. She is unable to understand and weigh their advice. h. Ms. Montgomery is also unable to participate in discovery and give evidence. Her mental health impedes her ability to analyze, reason, make decisions, and provide reasoned answers to questions. She would be unable to answer questions relevantly.

[16] Considering the record as a whole, I conclude that Ms. Montgomery is mentally incapable in relation to her capacity to litigate and that this mental incapacity arises from a mental illness. Further, I conclude that because she is mentally incapable, Ms. Montgomery requires legal representation to be appointed by the Court.

Issue 2: Should the PGT be appointed as Ms. Montgomery’s litigation guardian?

[17] Rule 7.04 of the Rules of Civil Procedure provides:

Representation of Persons under Disability

Litigation guardian for party

7.04 (1) Unless there is some other proper person willing and able to act as litigation guardian for a party under disability, the court shall appoint,

(a) the Children’s Lawyer, if the party is a minor; (b) the Public Guardian and Trustee, if the party is mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding and there is no guardian or attorney under a power of attorney with authority to act as litigation guardian; (c) either of them, if clauses (a) and (b) both apply to the party.

[18] Ms. Montgomery’s only child, a daughter from whom she is estranged, provided an affidavit on these motions. She is unwilling and unable to be her mother’s litigation guardian.

[19] Similarly, Ms. Montgomery’s long-time friend is unwilling and unable to be Ms. Montgomery’s litigation guardian. Since Ms. Montgomery’s long-time friend suffered a stroke following the capacity assessment, she has been physically unable to care for Ms. Montgomery and has not been able to reconnect with her in a meaningful way.

[20] As discussed, Ms. Montgomery has not responded to these motions nor has she proposed a litigation guardian.

[21] I am satisfied that there are no other proper persons who are willing and able to act as Ms. Montgomery’s litigation guardian. Therefore, I conclude that it is appropriate to appoint the Public Guardian and Trustee to do so.

Issue 3: Should the unredacted affidavit of the capacity assessor be sealed?

[22] Ms. Montgomery requested that certain portions of her medical records in the unredacted affidavit of the capacity assessor be sealed. The framework for sealing orders was discussed by the Supreme Court of Canada in Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 SCR 75.

[23] This point was not fully argued and I am thus not well-positioned to decide it. I therefore adjourn this aspect of the motion. If the PGT wishes to pursue the sealing order, the parties may make submissions in writing within 30 days of the release of this endorsement. The submissions should not exceed 1,250 words and should address the test in Sherman Estate and relevant authorities in the r. 7 motion context.

Issue 4: Allegations made against counsel for Ms. Montgomery personally

[24] The allegations made and the relief sought by Mr. McMahon against counsel for Ms. Montgomery personally was adjourned sine die on consent. I will therefore not consider those allegations here, and I have not come to any conclusion on their merits.

[25] That said, I make the general observation that navigating a client’s mental illness and capacity raises difficult ethical and professional challenges for counsel. Further, allegations of misconduct or abuse of process against counsel in a proceeding should never be made lightly or to secure a tactical advantage. To be clear, I do not say this is the case here – I have made no determination – but I make these observations as a general caution for any litigant.

Disposition

[26] The court declares that Joan Montgomery is a person under disability in this action (CV-19-81874) and in this application (CV-23-93015) and, as a result, it is necessary for decisions to be made on her behalf by a person who is designated to do so.

[27] The PGT is appointed and shall act in the capacity of litigation guardian for Joan Montgomery in these proceedings.

[28] The titles of proceedings in all documents served or delivered in these proceedings after the date of this endorsement shall identify Joan Montgomery as follows:

Joan Montgomery, by her litigation guardian, the Public Guardian and Trustee

[29] The request for a sealing order is adjourned and may be heard in writing if the PGT wishes to pursue it.

[30] The PGT shall be entitled, upon request, to production and delivery from anyone of all information relating to Joan Montgomery to which she would be entitled without requiring her consent.

[31] Counsel for Ms. Montgomery shall serve a copy of this endorsement on her.

[32] Any counsel formerly retained by Ms. Montgomery shall cooperate with the PGT and shall deliver to the PGT all documentation and information requested by the PGT in respect of Joan Montgomery and these proceedings.

[33] Costs are reserved to the judge hearing the balance of the relief sought in Mr. McMahon’s motion.

[34] Mr. McMahon’s motion is adjourned sine die.

Justice Owen Rees Date: April 9, 2024