Kirby v. Kirby, 2019 ONSC 232 (CanLII), http://canlii.ca/t/hwwzs
When is the legal capacity of a party in family law litigation considered? In Kirby v. Kirby, 2019 ONSC 232 Justice Conlan rendered his ruling on costs following a ten day matrimonial trial over which he presided. In the costs decision Justice Conlan noted the following:
 It is 2019, and Ian and Katherine Kirby, after 17 years, have a Final Order in their marathon matrimonial struggle.
 The trial, more like a sentence than a sojourn, lasted ten days. Katherine acted for herself, and she is responsible for much of the prolongation of the hearing.
 In the end, neither party was wholly successful after trial. Success was divided, but it can safely be said that Ian was more successful than Katherine.
 As to which party is more deserving of costs, there is no doubt that it is Ian.
 The proliferation of self-represented litigants in family law cases is here to stay. I suspect that there are many reasons for that: cuts to legal aid services, the self-help resorted to on the world wide web, and (let us not be so naïve to ignore) the voluntary choice by some litigants to act for themselves because they think that the judge will be forced into being their advocate.
 With respect to the latter category of self-represented litigants, it is time that we recognize that there are some (not most, maybe even not many) persons who can readily afford legal counsel but simply choose to act for themselves because they think that it will provide them a tactical edge in the courtroom. It will cause the presiding judicial official to go overboard with assistance, not just procedurally but substantively, or so goes the rationale.
 There is nothing wrong with self-representation. What is wrong, though, is hijacking the proceeding at the expense of the other side (who has counsel) and then expecting mercy from the court when it comes to deciding costs.
 We do not have two sets of rules and principles for costs in family litigation – one for those who hire lawyers and one for those who act for themselves.
 I find that Ian is certainly entitled to some costs. Overall, he was more successful after trial than Katherine was. Further, he made greater efforts than Katherine did to settle the case without having to endure a trial. And, finally, compared to Katherine, he was better prepared for and behaved much more admirably during the trial.
 From 2016 onwards, Ian’s actual costs total $190,438.63. Nine Court attendances occurred between the spring of 2017 and September 2018, before the trial started. During that time frame, Katherine was very difficult to deal with. Unreasonably so. For example, despite her claim that she was essentially destitute, she fought tooth and nail the sale of the Oakville home.
 Katherine’s unreasonableness continued during the trial itself. For example, she made wild allegations, for the first time, of being raped by Ian. She failed, without reasonable excuse, to comply with a prior Court Order made by Justice Miller regarding the delivery of expert reports. She single-handedly caused the hearing to be significantly longer than it should have been.
 Whether susceptible to being pigeon-holed as “bad faith” or not, so as to attract Rule 24(8), the conduct of Katherine over the last two years or so is worthy of serious condemnation by this Court. Awarding to Ian every cent of the $190,438.63 is in the cards.
 My only trepidation in doing so is that Katherine is, indeed, mentally ill. Her family physician’s evidence at trial confirms that. I am not sure how much of Katherine’s unreasonableness is due to her psychological issues. I am prepared to accept that some of it must be. (emphasis added).
 Hence, rather than full recovery of costs from 2016 to date, I have decided to reduce the $190,438.63 to $150,000.00 even. The end result is enhanced substantial indemnity recovery for that time period (about 78%).
How on earth could litigation of this magnitude be conducted without consideration of a Litigation Guardian for Katherine?
Surely this is not a function of self-representation. In this case I expect that the self-representation was a function of the mental health challenges. It is very difficult for family law counsel to secure instructions and marshal evidence effectively in these situations.
Too often a client with significant mental health conditions is viewed as difficult, primarily as a result of the circumstances surrounding the separation. When should the family law lawyer consider the client’s capacity to provide instructions? When should the Court?
The trial decision Kirby v. Kirby, 2018 ONSC 6958 broaches the issue based on the evidence of Katherine’s physician (“Pandke”) who testified at the trial:
 In her oral testimony, Pandke confirmed that Katherine suffers from panic attacks and depression. She has a long history of chronic pain, and that pain is linked to her mental health difficulties. She has been prescribed anti-psychotic medication. Her age is certainly not an aid to recovery. The litigation and the Court proceedings are likely a cause of Katherine’s further mental health deterioration in 2017 and 2018. For her own interests, according to Pandke, this case must come to an end.
 Pandke testified that she has not seen any sign that Katherine is malingering. Although Pandke cannot say for certain that Katherine is medically unfit to work, without completing a formal psychiatric evaluation of her (which process has started), Pandke did testify that Katherine’s mental health is very unstable and certainly would adversely affect her ability to work.
 Pandke has made a recent referral of Katherine to The Centre for Addiction and Mental Health.
 As of now, no determination has been made that Katherine is permanently disabled. Nor has Pandke ever thought that Katherine is incapable of making decisions such that The Office of the Public Guardian and Trustee ought to be involved.
The Court viewed the evidence presented regarding Katherine’s medical and mental health from the perspective of her capacity to earn an income for the purposes of determining her entitlement to spousal support:
 Frankly, I had the opportunity to observe Katherine closely for ten days of trial. The person that I saw is not capable of working any job. Nobody would hire her.
 With her myriad of physical health problems, her emotional fragility, her recent hospitalization after a total mental breakdown and suspected suicide attempt, and her current inability to work in any capacity, notwithstanding her sizeable inheritances received in recent years, I find that Katherine remains entitled to spousal support on a need basis.
In my experience, litigants in the family justice system are often struggling emotionally. Oftentimes those litigants are self-representing and challenging for counsel to deal with. Rarely however is legal capacity and the appointment of a Litigation Guardian considered. I suspect that failure stems from the fact that the party under disability does not raise the issue and does not put the issue before the court.
The issue was canvassed at length in 2018 in Granasiuk v. Granasiuk, 2018 ONSC 2904. Again a protracted history of litigation (12 years) came before the Court by way of an uncontested trial after the mother’s pleadings had been struck. In the father’s materials there was medical evidence that confirmed the mother’s serious mental illness. Justice Kurz noted that none of the many judge’s previously involved in the file referenced her intellectual and psychiatric status.
Family litigation in Ontario is primarily an adversarial evidence based process. If a litigant does not raise an issue or put evidence before the court the judge is not in all likelihood going to address the issue.
On his own volition, Justice Kurz questioned the capacity of the mother and referenced the Substitute Decisions Act and the test for the appointment of a litigation guardian:
In Costantino v. Costantino,  O.J. No. 59 (SCJ), a family law case, Price J. elaborated on the test for the appointment of a litigation guardian. He stated:
41 For the appointment of a Litigation Guardian to be appropriate, 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.13 Additionally, the incapacity, so caused, must affect the litigant’s decision-making in relation to the issues in the litigation.
[emphasis included in original]
In Huang v. Pan,  O.J. No. 5238 (SCJ), T.L. Archibald J. explored the purpose for appointing a litigation guardian as follows:
16 The purpose of requiring a litigation guardian has been eloquently set out by Master Robert Beaudoin (as he then was) at paragraph 4 of Cameron v. Louden, 81 ACWS (3d) 32,  O.J. No 2791 (Gen Div):
The purpose of a rule requiring a litigation guardian for parties under disability is drawn for protection to the party, the other parties and the Court itself. The rule offers protection to the party ensuring that a competent person with a duty to act for the party’s benefit is there to instruct counsel and take steps in the litigation on the party’s behalf. To the other parties, the rule offers the protection of a competent person who instructs counsel on how the proceeding is to be conducted, is responsible for costs and is responsible for seeing that the court’s eventual judgment is obeyed. A litigation guardian offers assurance to the court that its process is not abused by or against a party under disability and that its order will be obeyed.
17 Litigation guardians are necessary to protect parties under disability, but also to protect opposing parties and court procedures.
As a result, Justice Kurz requested the involvement of the PGT and adjourned the uncontested trial.
Clearly procedural safeguards are required in the family justice system to ensure the early flagging of files with mental health concerns in order to consider the involvement of the PGT. This should be routine at the early conferencing stages of the court proceeding in the same way that the Office of the Children’s Lawyer is considered regarding parenting issues.