WARNING

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87 (8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142 (3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court File and Parties

Court File No.: FC-25-00001027-0000

Date: 2026-02-12

Superior Court of Justice - Ontario

Re: HCFS of Hamilton, Applicant

And:

C.B., Respondent (Mother)

M.P., Respondent (Father)

Before: The Honourable Mr. Justice A. Pazaratz

Counsel: Kory Mikalski, Counsel, for the Applicant Amy Katz, Counsel, for the Respondent Mother M.P., Self-Represented Chithika Withanage, Office of Public Guardian & Trustee (Party to Motion Only)

Heard: February 11, 2026

Endorsement

[ 1 ] This is the agency's motion seeking a determination as to whether the father M.P. is a "special party" within the meaning of Rule 2(2) of the Family Law Rules.

[ 2 ] If he is found to be a "special party" the agency seeks an order that the Public Guardian and Trustee be appointed as his legal representative pursuant to Rule 4(3).

[ 3 ] The agency relies on the affidavit of Ashley Scott dated January 29, 2026.

a. I wouldn't have thought this is the best witness, because the affidavit largely sets out hearsay information from another worker, Karlee Rhodes. Rhodes is the one who met with the father. Rhodes is the one who heard the father make statements which the agency characterizes as part of the basis for the "special party" request.

b. However, Scott's affidavit also attaches as exhibits a series of text messages and emails sent by the father, which convey the same sorts of communications and ideas.

c. In the circumstances I am prepared to receive the whole of the affidavit.

[ 4 ] The subject child is 5 months old and was brought to a place of safety soon after birth. The parents were living in a tent, and they are still together.

[ 5 ] The mother retained Ms. Katz as counsel and is participating in the process. She was present in court this morning and confirmed that the father is aware of the court case generally and today's attendance for this specific motion.

[ 6 ] Indeed, during submissions I was advised that the father had sent an email to the court, copying all of the lawyers, after he was notified of the hearing date and given the Zoom link. I stood the matter down for counsel to forward that email communication, which I reviewed.

[ 7 ] The mother does not take any position on this motion.

[ 8 ] Ms. Katz advises that during her discussions with the mother this morning, the father was present, and the father heard Ms. Katz tell the mother that if the father opposes today's motion he should appear in court.

[ 9 ] At the outset, counsel for the Public Guardian and Trustee advised that they are not consenting to being appointed as legal representative for the father pursuant to Rule 4(3). She indicated that if the motion is re-heard based on further evidence, they may reconsider their position. But based on the evidence presented thus far, the PGT is not prepared to become involved.

[ 10 ] Counsel for the PGT indicated that they are not convinced that the father qualifies as a "special party" based on the legal test. She submitted that while there may be other concerns about the father's paranoia, nonetheless it appears that the father can understand and appreciate the issues and decisions to be made in this matter.

[ 11 ] Indeed, even the agency's materials reflect that despite all of his non-sensical and rambling statements, the father appears to understand the issues in this case. He understands that the child is in care. He speaks about the child's best interests.

[ 12 ] Counsel for the agency was candid in identifying that this motion was brought out of an abundance of caution, to address the issue of capacity early in the case, so that the determination of this child's situation can be resolved in an orderly manner, without any late-stage complications.

[ 13 ] 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).

[ 14 ] 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); Smith v. Smith, 2022 ONSC 6457 (SCJ).

[ 15 ] 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).

[ 16 ] 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).

[ 17 ] 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.

[ 18 ] 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; Smith v. Smith, 2022 ONSC 6457 (SCJ).

[ 19 ] 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."

[ 20 ] There is no doubt that this father makes statements which can be described as unusual, bizarre, paranoid, hostile and misinformed.

[ 21 ] But his antipathy toward the child protection process and the court system, and his refusal to participate or be respectful, is not sufficient to meet the "special party" test.

[ 22 ] The father's statements and behaviours suggest that he understands the issues, the process, his ability to participate, and the factors which will be considered by the court in determining the outcome in relation to his child. He is aware that the mother – with whom he continues to live – has counsel. So he knows what steps are being taken in this particular case. He is making a conscious decision to respond to the court process in a particular manner. That may not be a wise or helpful choice. But it is his to make.

[ 23 ] I am not satisfied that the Agency has met the test to find the father to be a special party. The motion is dismissed.

Pazaratz J.

Date: February 12, 2026