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Capacity in Family Law – Setting Aside Special Party Order

I have written previously regarding the challenges the family justice system faces when the capacity of a party is in question. [Legal Capacity in Family Law Litigation (February 20, 2019)]. In particular I have noted that more attention ought to be given to the capacity of the parties in the early stages of the proceeding (see Kirby v. Kirby, 2019 ONSC 232 (CanLII).

In a recent child protection case, a children’s aid society obtained an order on summary judgment motion placing the children in the care of the society with no access to the mother.

Earlier, the Court recognized the capacity issue and the mother was declared a special party pursuant to Rule 2(10) of the Family Law Rules which provides:

“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, adoption or child support case;

The Public Guardian and Trustee (PGT) was appointed as representative for the mother pursuant to Rule 4(3) of the Family Law Rules. A PGT assigned counsel appeared at the summary judgment motion on behalf of the mother.

The summary judgment motion was appealed by the mother who was no longer a “special party”.  The PGT and the assigned counsel sought leave to intervene as added parties on the appeal. The Court indicated the issues on the appeal included the following:

The appellant challenges the procedural fairness of the summary judgment proceeding, in part on the basis that the appellant was adversely affected by her inability to give instructions and direct counsel after she was declared a special party. The appellant confirms that she does not question the constitutional validity of the special party provisions of the Family Law Rules as contrary to sections 7 or 15 of the Charter.  Counsel for the appellant states that the issues relate to interpreting the Family Law Rules in accordance with Charter values, including how and when special party status should be assessed and reviewed through the course of litigation, and whether the appellant was deprived of the right to counsel by virtue of the special party provisions in a manner contravening procedural fairness and Charter values. Read in this context, the Notice of Appeal, paragraphs 3 through 7, the appellant’s factum and ….. proposed fresh evidence raise issues regarding the special party rules and their application in this case. The proposed fresh evidence implies an ineffective assistance of counsel claim, in questioning the alleged failure ……. to present certain evidence to the court.

The Court granted the request of the PGT and assigned counsel to be added as parties to the appeal and restricted the intervention to the following significant issues:

  1. the actions and conduct of the PGT and assigned counsel in this case, including responding to claims that the appellant was adversely affected by her inability to direct or give instructions about her case, and that PGT counsel concealed information from the court with respect to the appellant’s special party status, as well as ineffective assistance of counsel;
  2. statements of fact and law advanced by the appellant about the role and actions of the PGT and assigned counsel on the application and the summary judgment motion, including communications with the mother, observations or knowledge of the mother’s capacity, and the existence of a solicitor-client relationship or duty of confidentiality;
  3. the roles, duties and obligations of the representative of a special party and counsel appointed by a special party, in general;
  4. the roles, duties and obligations of  the PGT as a representative for a special party in child protection proceedings and of counsel appointed by the PGT for a special party in child protection proceedings, in general;
  5. alleged breaches of procedural fairness, Chartervalues and the Ontario Human Rights Code as they relate to the roles and actions of the PGT and assigned counsel;
  6. the alleged obligations of the PGT, counsel, and/or the judge to assess or raise the issue of incapacity or special party status during proceedings, as this relates to procedural fairness/Chartervalues arguments in this case or generally.

The hearing of the appeal, including the motions for fresh evidence is scheduled to be heard in late July 2019.

The decision on appeal should go a long way to clarify the role and scope of authority of counsel in Special Party and Litigation Guardian situations. Hopefully the decision will also heighten the awareness of legal capacity concerns in family law litigation generally.

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