Tag: family law litigation

01 Aug

“Special Parties” and Litigation Guardians in Family Law Proceedings

Umair Estate & Trust, Estate Planning, Guardianship, Litigation, Power of Attorney Tags: , , , , , , , 0 Comments

Where an incapable person is named as a party in a legal proceeding, the appointment of a representative is necessary to ensure that the person’s interests are adequately represented in the litigation.

Litigation Guardians in Civil Proceedings

Rule 7.01(1) of the Rules of Civil Procedure states that, unless the Court orders or a statute provides otherwise, a litigation guardian shall commence, continue or defend a proceeding on behalf of a “party under disability.” The Rules define “disability” to include a person who is mentally incapable within the meaning of sections 6 or 45 of the Substitute Decisions Act, 1992.

Rule 7 of the Rules of Civil Procedure provides additional guidance regarding litigation guardians in civil proceedings, including the powers and duties of a litigation guardian.

But what about parties who are under an incapacity and who are named as parties in a family law proceeding in Ontario?

“Special Parties” Under the Family Law Rules

In Ontario, the Family Law Rules apply to family law cases in the Superior Court of Justice’s Family Court, the Superior Court of Justice and the Ontario Court of Justice. The Family Law Rules provide guidance on the appointment of representatives for incapable persons in family law matters.

Rule 2 of the Family Law Rules defines a “special party” as 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 proceeding.

Pursuant to Rule 4(2), the Court may authorize a person to represent a special party if the person is appropriate for the task and willing to act as representative. If there is no appropriate person willing to act, the Court may authorize the Children’s Lawyer or the Public Guardian and Trustee to act as the representative.

Mancino v Killoran – More Than One Potential Representative

A recent decision illustrates the conflicts that may arise when more than one person believes that they are the most appropriate person to act as an incapable person’s representative in a family law proceeding.

In Mancino v Killoran, 2017 ONSC 4515, the Applicant asserted a claim for spousal support and for an interest in a property against the Respondent (“Michael”). Michael had been diagnosed with Alzheimer’s, and was a resident at a long-term care home. Michael’s sister (“Colleen”) and his son (“Allan”) both sought to represent Michael’s interests in the litigation, and filed affidavits in support of their positions.

Justice Gareau considered Michael’s power of attorneys and testamentary documents, which were executed at a time when Michael was still capable. Allan was named as Michael’s attorney for property and co-attorney for personal care. Allan was also named as the sole Estate Trustee of Michael’s Estate.

Justice Gareau held that “[t]he fact that Michael…, at a time when he had capacity, placed Allan… in a position of trust over his personal property and the administration of his estate indicates that he had confidence in Allan…to represent his best interests.” Michael’s sister Colleen was not named in any of Michael’s testamentary documents, which Justice Gareau found to be a “powerful and persuasive fact.”

The Court concluded that there was nothing in the evidence that would persuade the Court to depart from Michael’s express wishes regarding the management of his property. In the result, Allan was appointed to represent Michael as a special party in the family law litigation.

Thank you for reading,

Umair Abdul Qadir

10 Dec

Overlays of Family, Estates and Contract Law

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The impact of Stone v. Stone will clearly have a lasting impact on the practice of family law.  This case stands for the general proposition that a spouse can not deplete their assets with the effect of diminishing their spouse’s entitlement under the Family Law Act.  Similarly, the estates bar has recently witnessed a similar effect as a result of the decision in Pecore v. Pecore:  Transfers of assets into joint ownership between persons other than spouses are inevitably now subject to even greater scrutiny than before.

In the context of the estates practitioner, it can be seen that the principles raised in Stone clearly have some bearing on estates litigation.  When a spouse transfers assets into joint ownership with his daughter from a first marriage,  the surviving second spouse will no doubt argue that the presumption of resulting trust applies, having consideration to Pecore.  But Stone may have relevance as well, particularly in circumstances in which the deceased and the second spouse enter into a Marriage Contract which provides for a guaranteed entitlement of the surviving spouse on the death of the other. To what extent is the spouse who promises such entitlement precluded from gifting assets or transferring assets into joint ownership?  A complex overlay of contract,  family, and estates law ensues.  Unless the assets are significant, the costs of litigating such a dispute inevitably militate in favour of settlement.

David M. Smith



21 May

Specialization and Client Service

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Law firms, such as ours, tend to emphasize the benefits to clients of their respective area of specialization. The common pitch to prospective clients is that there is less of a learning curve on each file and, as a general proposition, most problems have usually (with some variation) been seen before.

However, the flip side of specialization is that it may not always best serve the client who presents a hybrid problem spanning two or more areas of law .  In such circumstances, counsel need to candidly assess to what extent their area of specialization may limit their ability to serve their client.  On the other hand, because certain areas of law tend to overlap with considerable frequency, the client who seeks specialized advice is well-served when such counsel recognize this fact and adapt accordingly. 

Certainly, the practice of estate litigation can often overlap with family law litigation.  Take , for example, a beneficiary designation dispute.  While at first glance an estates issue, the existence of a separation agreement and its impact on the dispute inevitably gives rise to legal issues where family law counsel will have considered the issue from their own perspective.  So, too is the decision facing a surviving spouse as to whether to elect under the Family Law Act on the death of his or her spouse. Again, responsible counsel have an obligation to best serve the client.

Continuing Legal Education plays a role as well.  For instance, the Ontario Bar Association has in the past run a program entitled "Kissing Cousins."  A joint venture of the Family Law and Estates and Trusts Sections of the OBA, the mandate of this program has been to highlight practice issues in which estates and family law issues overlap.

David M. Smith




09 May

Go Away And Don’t Come Back!

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"Some day, a wise person in a position of authority will realize that a court of law is not the best forum for deciding custody and access disputes, where principles of common sense masquerade as principles of law." – Mr. Justice Joseph Quinn as quoted in the Globe and Mail.

Until that day, the fighting parents who appeared before Mr. Justice Quinn have been barred from court unless they obtain special leave.  Looking at the context, it’s hard to argue they did not earn it: 25 court orders from 12 different judges over 7 years, three contempt motions, one suspended sentence, 12 different lawyers, 2000 pages of court filings. 

An apparent lack of respect for the rulings of the Court by both litigants was a factor in this extraordinary Order.   As Mr. Justice Quinn is quoted, "[b]oth sides have shown an inability to abide by court orders such that their access to this court should be restricted by the requirement to obtain leave." 

Mr. Justice Quinn is further quoted as saying "[t]he parties have gorged on court resources as if the legal system were their private banquet table. It must not happen again,".  It is easy to forget that courts are very expensive operations: rent, upkeep and salaries.  An hour before a judge in court is not cheap for society, whether or not the litigants are represented by lawyers.  As a purely editorial comment, it is heartening to see principled recognition of this fact.

The father, perhaps unsurprisingly given the reported facts, is apparently considering an appeal.

Enjoy the weekend,

Chris Graham

12 Jul

Marriage and Incapacity

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Persons found to be incapable to manage their property may, nonetheless, be capable to marry (for an in depth discussion of this issue see the 1998 decision of Justice Cullity in Banton v. Banton).

This reality gives rise to all kinds of potential legal dilemmas and truly represents the flashpoint between capacity litigation and family law litigation. If a person incapable of managing their property enters into a marriage, there is a near-certain likelihood that friction will develop between the new spouse and the incapable person’s substitute decision maker.

In large part, the making of financial decisions together is one of the defining characteristics of a marriage. In the situation of a marriage between a capable person and an incapable person with a guardian of property, the substitute decision maker inevitably has a role to play. And what if the new spouse brings a child into the marriage?

Clearly, the family law regime imposes support obligations upon spouses in the event of separation. But how is this obligation reconciled with the obligation of the substitute decision maker to act in the financial best interests of the incapable person?

From the perspective of the legal practitioner, expertise in both family and capacity law is required to seek a creative resolution of any disputes that can develop

Have a great day,




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