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Evans v. Evans, 2017 ONSC 4345

This case set out a strict interpretation of the test for the appointment of a litigation guardian.


The parties were married for 18 years and had two children. Both children are now in their late 20’s and do not qualify for child support. The final order in 2009 awarded the wife $5,400 per month in spousal support.

The wife ceased working after a mental break-down in January 2015 and received long-term disability payments until her claim was denied on the basis that she was not attending the recommended rehabilitation.

In June of 2012, the husband brought a motion to change the court order and terminate support.

The wife brought a motion for an order declaring her a special party and the sought appointment of a litigation guardian. The husband claimed that this would deny him the ability to cross-examine her, and therefore opposed the motion.


According to rule 2 of the Family Law Rules, “special party” means a party who is a child or who appears to be mentally incapable for the purposes of the Substitute Decisions Act, 1992. This statute states several things with regards to capacity. Firstly, that there is a presumption that people possess capacity, and therefore the onus of proof is on the party claiming incapacity. Secondly, it states that a person is incapable of managing property if he or she can’t comprehend information that is relevant to the decision making with regards to the property, or is unable to appreciate the rationally foreseeable consequences of their decisions.

Rule 4(2) of the Family Law Rules states that the court may authorize a person to represent a special party if the person is appropriate for the task and willing to act for them.

In this case, Justice Doyle applied a strict interpretation of the legal test, stating that a very stressed or anxious person can still be in a position to make decisions. Therefore, despite the wife’s mental fragility and the severe harm that the trial would likely cause her, the judge held that this fragility did not mean a lack of capacity. On this basis, a litigation guardian was not appointed.