Gary Joseph | Sept 2023

This article was originally published by Law360 (www.law360.ca), part of LexisNexis Canada Inc.

Mental health issues are increasingly part of a family lawyer's practice. Inadequate community resources for those suffering from such afflictions exasperate the problem. Often dealing with the emotional impact of a separation and/or divorce can drive an otherwise emotionally healthy client to emotional or mental breakdown. Marital breakdown and mental health issues often cause a family lawyer to question the client's ability and capacity to instruct counsel. I have compiled this summary of issues that arise when counsel is confronted with a client who is not able to instruct for reasons of mental health and/or cognitive impairment.

Client with diminished capacity and professional obligations: Rules of Professional Conduct

I suggest that first and foremost, the lawyer should consider the Rules of Professional Conduct (RPC). The salient points in the PC for lawyers acting for a mentally or cognitively disabled client are:

1. When a client's ability to make decisions is impaired by mental disability, the lawyer shall, as far as reasonably possible, maintain a normal lawyer and client relationship as provided for in Rule 3.2-9.

2. If the disability is such that the client no longer has the legal capacity to manage his or her legal affairs, the lawyer may need to take steps to have a lawfully authorized representative appointed to protect the interests of the client.

3. The lawyer has an ethical obligation to ensure that the client's interests are not abandoned.

4. The lawyer must hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship unless authorized by the client or required by law to be disclosed.

Appointing the Public Guardian and Trustee

The Family Law Rules authorize the court to appoint legal representation for a person who appears to

be mentally incapable. Rule 2(1) of the Family Law Rules provide as follows:

2(1) '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 as follows:

4(3) If there is no appropriate person willing to act as a special party's representative, the court may authorize the Children's Lawyer or the Public Guardian and Trustee to act as representative, but only with that official's consent.

Section 6 of the Substitute Decisions Act, 1992 defines incapacity as follows:

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 sum, where a litigant lacks mental capacity, the court may designate them a special party and appoint the Public Guardian and Trustee as his or her representative. The cases recognize that the definition of a "special party" under the Family Law Rules is broader than that of a party "under disability" pursuant to Rule 7 of the Rules of Civil Procedure (Zabawskyj v. Zabawskyj, [2007] 0.J. No. 4643).

The purpose of appointing a litigation guardian

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. This was commented on by Justice D.G. Price in Costantino v. Costantino, 2016 ONSC 7279, paras. 36-37:

36 The purpose of appointing a litigation guardian is to protect both the litigant who is

incapable of making the necessary decisions in a proceeding, and the other litigants. Justice

Coo, in Bilek v. Constitution Insurance, in 1990, noted, "One must be very cautious in coming

to a conclusion which would bar the plaintiff from having the final say in how his litigation is to

be conducted or resolved." However, Master Beaudoin, as he then was, in Cameron v. Louden,

in 1998, noted that Rule 7 of the Rules of Civil Procedure, providing for the appointment of a

litigation guardian in a civil action, is designed for the protection of not only the disabled

litigant, but also the other party to the litigation, and the court. He stated:

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. [Emphasis added]

37 Justice Stinson, in 626381 Ontario Ltd. v. Kagan, Shastri, Barristers & Solicitors, in 2013, adopted master Beaudoin's characterization of the rationale of Rule 7. He stated:

These procedural safeguards set out in Rule 7 are designed to protect not only the person under a disability, but also "to protect the integrity of the judicial process for all participants in the litigation, including the Court." (Murphy v. Carmelite Order of Nuns.) As noted by Lofchik J. in Lico v. Griffiths, at para. 24, because the rules protect the person under a disability, they consequently_protect the entire court procedure. [Citations omitted] [Emphasis added]

Proving incapacity

Where incapacity has been raised, it must be proven by the moving party on a balance of probabilities (Costantino v. Costantino, paras. 38-39, citing Sosnowski v. Johnson, 2006 ONCA 32309; Torok v. Toronto Transit Commission, [2007] 0.J. No. 1773 (Ont. Master), para. 24; and Cameron v. Louden, [1998] 0.J. No. 2791 (Ont. Master)). The test for incapacity is an objective. Capacity must be determined on the basis of "the evidentiary record, not subjective assessments." (Chai v. Law, 2020 ONSC 6998, paras. 33-38.)

The applicable test

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 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 v. Zabawskyj at para. 13; Chai v. Law, supra, paras. 33-38.) In Costantino v. Costantino (supra, para 40), Justice Price noted 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.

The following factors should be considered when determining whether a party is under disability and requires a litigation guardian, see Y.S. v. J.Y., 2021 ONSC 5736, para. 16, and Costantino v Costantino, supra, para. 57:

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.

Gary S. Joseph is counsel to the firm of MacDonald & Partners LLP. A certified specialist in family law, he has been reported in over 350 family law decisions at all court levels in Ontario and Alberta. He has also appeared as counsel in the Supreme Court of Canada. He is a past family law instructor for the Law Society Bar Admission Course and the winner of the 2021 OBA Award for Excellence in Family Law.

The opinions expressed are those of the authors) and do not necessarily reflect the views of the author's firm, its clients, LexisNexis Canada, Law360 Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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