“The respondent’s position is that the applicant is a special party as defined in Rule 2(1) of the Family Law Rules. According to that rule, a special party is defined as follow:
“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 and has to be, access, Child protection or adoption of child support case.
The definition of incapacity is found at s.6 of the Substitute Decisions Act (“SDA’). The test for incapacity is:
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 reasonably foreseeable consequences of a decision or lack of decision.
According to Rule 4(3) of the Family Law Rules:
(3) If there is no appropriate person willing to act as a special party’s representative, the courts may authorize the Children’s Lawyer or the Public Guardian and Trustee to act as representative, but only with the patient’s consent.
…
In Children’s Aid Society of the Niagara Region v. W. D. 2003 CanLII 2293 (ON SC), [2003] O.J. No. 3244, at para. 11, Quinn J. stated:
From what I am able to determine, one is mentally incapable in respect of an issue in a case where one 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 regarding the issue.
In the same decision, Quinn J. also found that there is a presumption that one has capacity. According to Quinn, J. the presumption applies unless there are reasonable grounds to believe that one is not able to understand and appreciate. The burden of proof of incapacity is on a balance of probabilities.
In C.C. v. Children’s Aid Society of Toronto [2007] O.J. No. 5613, Backhouse J. found at para 34:
Courts have considered the following types of evidence in determining the appropriateness of the appointment of a representative or litigation guardian:
(a) medical or psychological evidence as to capacity;
(b) evidence from persons who know the litigant well;
(c) the appearance and the demeanour of the litigant;
(d) the testimony of the litigant;
(e) the opinion of the litigant’s own counsel.”