The Divisional Court has very recently confirmed the test for capacity in family law proceedings in Must v. Shkuryna, 2019 ONSC 6445
The matter came before the Court by way of an appeal from an appeal from an Ontario Court decision. The Respondent had obtained an order that the Appellant was a special party and the Public Guardian (“PGT”) had consented to act. Under the Family Law Rules a special party is defined under Rule 2(1) as follows:
“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;
Under Rule 4 (2) the Court may order a person to represent a special party if the person is appropriate for the task and willing to act. If there is no approriate person to act for the special party, the court may authorize such representation by the Public Guardian if the PGT consents.
The Divisional Court confirmed the applicable tests as stated by the motions judge below:
 After having set out the relevant legal authorities, the motion judge set out the appropriate legal considerations from The Childrens Aid Society of the Niagara Region v. WD, 2003 CanLII 2293 (ON SC),  O.J. No. 3244 (S.C.J.) at para. 11:
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 decision regarding the issue.
 The motion judge then set out the factors traditionally considered in determining capacity:
- medical or psychological evidence as to capacity;
- evidence from persons who knew the litigant well;
- the appearance and demeanour of the litigant;
- the testimony of the litigant; and
- the opinion of the litigant’s own counsel.
In the court below there was no medical, psychiatric or psychological evidence and as the appellant was self-representing there was no opinion regarding capacity from his counsel.
This situation is not unusual in family law proceedings where estimates indicate that 65-75% of persons using the family court system are unrepresented.
In this case the appeal judge relied on the findings and observations of the case management judge over three years of proceedings in the Ontario Court of Justice to conclude that there was sufficient information to support a finding that the appellant was a special party. The Divisional Court supported this appraoch.
Counsel acting in matters where the capacity of the opposite party is questioned should request that the court note concerning behaviours and observations in the court’s endorsements. Together with affidavits and other documents filed by the alleged incapable person such endorsements can be used to support a motion to declare the person a special party.
The Divisional Court declined to decide whether a court could order a capacity assessment under section 105 CJA of its own volition to support a special party order.