Court File and Parties

Date: 2024 0904 Superior Court of Justice - Ontario

Re: Mario Veronesi, Applicant And Natasha Radenovic-Veronesi, Respondent

Before: Vella J.

Counsel: Allen John Hodgins, for the Applicant Adam Prewer – Counsel for the Statutory Guardian for Property, the Public Guardian and Trustee

Heard: September 03, 2024

Endorsement - Approval of Settlement Involving a Party Under Disability and Directions for Appointment of a Litigation Guardian

Approval of Settlement Involving a Party Under Disability

[1] The parties have reached a settlement of all issues, except for the divorce, as reflected by signed Minutes of Settlement. The PGT moves for approval of the settlement on behalf of the Respondent Wife.

[2] By way of background, the Public Guardian and Trustee (PGT) was appointed, pursuant to s. 15 of the Substitute Decisions Act, 1992 (the “Act”), as the statutory guardian of property of the Respondent, as evidenced by the Certificate of the Public Guardian and Trustee, dated April 1, 2020. In order for the PGT to be appointed under this provision, a certificate must be issued under the Mental Health Act “certifying that a person who is a patient of a psychiatric facility is incapable of managing property”.

[3] In this capacity, the PGT reached an agreement on all property related and financial issues, other than divorce, on behalf of the Respondent, with the Applicant Husband, pursuant to its statutory authority.

[4] As a first step, the parties must satisfy me that the settlement should be approved pursuant to r. 7.08 of the Rules of Civil Procedure. Resort must be made to the civil rules, pursuant to r. 1(7) of the Family Law Rules, because the Family Law Rules do not address this issue. Court approval is required with respect to settlements reached with a party who has a legal disability.

[5] Rule 7.08(4) sets out the evidentiary requirements that must be met for an approval of a settlement:

(a) An affidavit of the litigation guardian setting out the material facts and the reasons supporting the proposed settlement and the position of the litigation guardian in respect of the settlement;

(b) An affidavit of the lawyer acting for the litigation guardian setting out the lawyer’s position in respect of the proposed settlement;

(c) Where the person under disability is a minor who is over the age of sixteen years, the minor’s consent in writing, unless the judge orders otherwise, and

(d) A copy of the proposed minutes of settlement.

[6] Rule 7.08(4.1) provides:

If there is no litigation guardian and the settlement that is the subject of the motion or application is in respect of a matter under the Substitute Decisions Act, 1992 to which this rules applies, the affidavit referred to in clause (4)(a) shall be provided by the moving party or applicant (as the case may be), and the affidavit referred to in clause (4)(b) shall be provided by his or her lawyer.

[7] I am satisfied based on the evidence filed and submissions made that the Settlement should be approved. Accordingly, I signed the Final Order and returned it to counsel to be issued and entered.

Next Steps for Proceeding with Request for a Divorce Involving a Party Under Disability

[8] A further issue was raised. The Applicant (who was not present nor was his lawyer), is seeking a divorce. The PGT advised that it does not have the statutory jurisdiction to consent to a divorce, given the limitations of its statutory jurisdiction under the Substitute Decisions Act which, in this case, related to property only. I agree. Even if the PGT was acting under its statutory jurisdiction regarding personal care under the Act, it would not extend to taking a position on behalf of the Respondent regarding the request for a divorce.

[9] The problem is that, regardless of whether the Applicant can satisfy the statutory criteria for a divorce under the Divorce Act, he still must serve the Respondent with his proceeding and the Respondent has a right of response. There is evidence before me that the Respondent is under a legal disability.

[10] Pursuant rules 2(2) and 17(4) of the Family Law Rules, I must identify the issues that require resolution and give directions as to how to proceed.

[11] In my view, a litigation guardian must be appointed for the Respondent Wife to accept service and respond to the divorce application. [1]

[12] As there is no provision under the Family Law Rules that provides for an appointment of a litigation guardian, again resort must be made to r. 7 of the Rules of Civil Procedure (“Civil Rules”).

[13] Pursuant to r. 7.01 of Civil Rules, unless the court orders or a statute provides otherwise, a proceeding must be defended by on behalf of a party under disability by a litigation guardian. Furthermore, pursuant to r. 7.03, the court must appoint a litigation guardian for a respondent, by court order.

[14] Furthermore, the proposed litigation guardian must bring a motion to the court to be appointed as such. In other words, a litigation guardian cannot simply self-appoint.

[15] The proposed litigation guardian must file an affidavit along with the notice of motion that satisfies the criteria set out in r. 7(10) (a) to (i) of the Civil Rules (as may be applicable depending on the nature of the disability), with the following exception. The PGT may apply to be the Respondent’s litigation guardian for purposes beyond their statutory jurisdiction such as for the purpose of accepting service of the Application for divorce and responding to it. If the PGT decides to do this, then its affidavit must only satisfy the criteria set out in r. 7(10) (a) to (f).

[16] If no motion is brought by a proposed litigation guardian, then, pursuant to r. 7.03(5) of the Civil Rules, the applicant (where it is the respondent who is the party under disability) [2] “shall move for an order appointing a litigation guardian for the party under disability”. If this route is followed, then the applicant must serve a request for appointment of the litigation guardian (Form 7A – Civil Rules) at least ten days before moving for the appointment by way of personal service or an alternative to personal service. The motion may be made without notice if the moving party satisfies the court that dispensing with notice is appropriate (r. 7.03(8)). The applicant may move to appoint the PGT in this manner (r. 7.03(9)).

[17] If there is no proper person who is willing and able to act as litigation guardian for a party under disability, then under r. 7.04,

“the court shall appoint…(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 the authority to act as litigation guardian…” [3]

[18] Accordingly, I direct that the next step in this proceeding is the appointment of a litigation guardian pursuant to the procedure set out in r. 7 of the Rules of Civil Procedure. The requisite motion may be returnable before me in writing and may be made by either the Applicant or the PGT. The parties are reminded that they must comply with the evidentiary requirements set out in r. 7.03(10). The motion materials should be drawn to my attention and provided to my judicial assistant at maria.kolliopoulos@ontario.ca.

Justice S. Vella Date: September 04, 2024

Footnotes

[1] As an aside, where the PGT is acting as guardian of property or a guardian of the person under the Act and exercising its statutory jurisdiction, there is no need to appoint a litigation guardian (r. 7.01(2), Rules of Civil Procedure).

[2] See r. 7.02 for the procedure when it is the applicant who is under disability.

[3] Note that r. 7 of the Rules of Civil Procedure also makes provisions for the appointment of a litigation guardian, including the Office of the Children’s Lawyer, if the party under disability is a minor, and also for a litigation guardian over the estate of a deceased party. However, these provisions are not applicable to the directions in the present matter.