2013 ONSC 1899, 2013 ONSC 1899

CITATION : Nezic v. Nezic, 2013 ONSC 1899 COURT FILE NO.: 33891/11 DATE: 2013-04-08 SUPERIOR COURT OF JUSTICE - ONTARIO RE: RANKO NEZIC, Applicant AND: MIRJANA NEZIC, Respondent BEFORE: COATS J. COUNSEL: Ranko Nezic, Self-Represented Mirjana Nezic, Not Appearing Ariel Schneider, Counsel for the Office of the Public Guardian and Trustee HEARD: March 18, 2013 ENDORSEMENT [ 1 ] This endorsement is further to my endorsements of January 23, 2013, January 28, 2013, March 7, 2013, and March 18, 2013. Mr. Schneider advised on March 18, 2013, that after the March 7, 2013 court attendance, he had phoned Ms.

Nezic and e-mailed her. She hung up on him. Mr. Nezic advised that he gave Ms. Nezic a copy of my March 7, 2013 endorsement and that although she was interested in what had happened and worried, she was not coming to court. My March 7, 2013 endorsement makes clear that the March 18, 2013 attendance was for a determination to be made as to whether the respondent is a “special party” (has capacity or not) and whether the Office of the Public Guardian and Trustee should be appointed to represent her in this litigation. Ms.

Nezic did not attend on March 18, 2013, nor on any other occasion when this matter has been in court. [ 2 ] Rule 4 of the Family Law Rules is the applicable rule. Mr. Schneider has made submissions that the “understand and appreciate” test applies to a determination of a “special party”; that is a person must be unable to understand information necessary to make a decision or be unable to appreciate the reasonably foreseeable consequences of making a decision or not making a decision. Mr. Schneider further submitted that a court must consider the entire body of evidence, including any medical evidence.

The best evidence is medical and the best evidence is up-to-date. A person is assumed to be capable and there must be compelling evidence of incapacity for a court to find a person a special party. As Mr. Schneider submitted, a court must proceed cautiously as such a finding removes decision-making from the party. It is not the reasonableness of the party’s decision, but whether the party has capacity to make a decision. I accept all of Mr.

Schneider’s submissions. [ 3 ] The Office of the Public Guardian and Trustee did not take a position as to whether the respondent has capacity, but will act if I find that the respondent is a special party and make a finding that there is no appropriate person willing to act as her representative. The Office of the Public Guardian and Trustee consents as required by Rule 4(3) if I make these findings. [ 4 ] I find that the respondent is a special party and appoint the Office of the Public Guardian and Trustee as her representative.

Temporary order to issue per draft order filed which I have signed and which is attached to this endorsement. I have made this determination based on the following: 1 . The respondent is unable to appreciate the reasonably foreseeable consequences of not making a decision to participate in this litigation. There is a matrimonial home appraised at $365,000 as of January 10, 2013. It is jointly owned, I am told, with a mortgage of approximately $123,000. Both parties continue to live in the home. The respondent, I am told, has no income.

The applicant wants exclusive possession of the home for himself and the children. The applicant wants to buy out the respondent’s interest at a 2005 value. The respondent has filed no Answer to the proceeding. She has made no claims of her own. She cannot possibly appreciate the potential consequences of her inaction. 2 . The respondent purportedly signed a paper on January 28, 2013 giving her interest in the house to the applicant with a note added that the house not be sold until both children finish university. She cannot possibly appreciate the potential consequences of this. The youngest child is 15.

It may be many years before she finishes university. In the interim, the house would be given to the applicant and not sold and yet the respondent has no income and no other asset of significance. 3 . The applicant testified under oath on January 28, 2013. He was very candid about the respondent’s history of mental health issues. It would be preferable if current mental health/medical information was available. Regrettably, it is not, as the respondent has not participated in this proceeding in any way and not attended court on any occasion. According to Mr.

Nezic the respondent was hospitalized on three occasions. Mr. Nezic testified the first time she got diagnosed with an “emotional disorder”. Her first hospitalization was for three weeks in 2003. Her second hospitalization in 2004 involved the Children’s Aid Society. She was hospitalized for 7-10 days. The third hospitalization was also on the initiative of the Children’s Aid Society. The police were also involved. This was shortly after the second hospitalization and she was hospitalized for about seven days. Mr. Nezic did not believe the respondent had been hospitalized since 2005.

Exhibit 1 confirms the respondent’s 2003 hospitalization (Joseph Brant Memorial Hospital Discharge Information Record dated October 29, 2003). The respondent continues to see a psychiatrist monthly and a counsellor once or twice a month. These are certainly not in isolation indicators of incapacity. The concern is that she is otherwise ignoring a court process which may have a significant impact on her. Mr. Nezic, in his testimony, stated “she has some kind of paranoia that we are stealing her things”. He describes her as “someone who is emotionally sometimes distress.” 4 .

There has been no other person put forward who would be appropriate to represent the respondent.

[ 5 ] In conclusion, order to go per draft order filed which I have signed and which is dated the date of this endorsement. COATS J. Date: April 8, 2013