“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 CanLII 51349 (SCJ), para. 13.
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.
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.
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.
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.
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.
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.
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.
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.”
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.”
Liddell-MacInnis v. MacInnis, 2023 ONSC 513 (CanLII) at 5-14