Representation of a “Special Party”: Issues Arising from Mental Incapacity in Family Law Cases

When a party in a family law proceeding becomes mentally incapable in respect of an issue in the case (or in respect of the case as a whole), a person may bring an application for authorization to represent the party. Under the Family Law Rules, a party who is found to be mentally incapable for purposes of the Substitute Decisions Act is a “special party”. In civil litigation, a mentally incapable party is referred to as a “party under disability”.

The recent case of Smith v. Smith, 2022 ONSC 6457, reiterates the principles to be considered when determining whether a party is a “special party”, and whether a person should be appointed as the party’s representative.

Foremost, there is a presumption of capacity under the Substitute Decisions Act. Accordingly, the court must carefully consider whether there is sufficient evidence to rebut that presumption before making a finding of incapacity. The moving party bears the burden of proof and must provide evidence of both the nature and extent of the incapacity.

The test for incapacity is itself objective, and a determination of incapacity must be made based on evidence, rather than a person’s subjective assessment. The court in Smith, supra, goes on to assess the relevant factors in making such an objective determination with respect to incapacity, as previously set out in the seminal case of Costantino v. Costantino, 2016 ONSC 7279. Issues of mental capacity are typically determined based on medical or psychological evidence that the party is either: (a) not able to understand information that is relevant to making a decision on an issue in the litigation; or (b) unable to appreciate the reasonably foreseeable consequences of a decision on the issue (or failure to make a decision). In some cases, the court may also consider other evidence, including:

• evidence from those who know the party well;
• the appearance and demeanour of the party;
• the party’s own evidence; and
• the opinion of the party’s lawyer.

The basis for a finding of incapacity must be something more than a lack of education or sophistication: “The cause of incapacity must stem from a source […] such as mental illness, dementia, developmental delay, or physical injury”. The fact that a person does not understand the issues in a case, or appreciate the consequences of a decision, does not mean that the person is a “special party”. There must be evidence that the person is unable to understand and appreciate the issues and consequences. Even in circumstances where a medical diagnosis underpins an incapacity application, such diagnoses alone are sometimes insufficient evidence of incapacity. The courts have clarified that while capacity issues are generally decided on medical evidence, capacity remains a legal as opposed to a medical determination.

Finally, once the court has made a finding that a party is a “special party”, it must determine whether the person seeking to represent the party is both appropriate for the task and willing to act as the party’s representative. The Family Law Rules provide that if there is no appropriate person willing to act as representative, the court may authorize the Public Guardian and Trustee to represent the special party.