The use of a litigation guardianship in family law proceedings has recently come into the limelight through recent news about Canadian boxing legend George Chuvalo, now 80 years of age, who through his litigation guardian is currently involved in family law proceedings with his wife of 23 years, 61 year-old Joanne Chuvalo.
Although Chuvalo is famous for never having been knocked down in any of his 93 fights, he has significant cognitive impairments stemming from years of enduring blows to the head. While Chuvalo lives in an Ontario long-term care home separately from his wife, an application for divorce was initiated by his adult son and daughter as his litigation guardians. They acted under a continuing power of attorney, the validity of which is now challenged by his wife, who also seeks his court-appointed guardianship in a separate proceeding.
Family law proceedings brought under litigation guardianship are well known and widely reported. In Ontario, Calvert v. Calvert, 32 O.R. (3d) 281 (Benotto, J.) was brought under litigation guardianship and dealt with the legal test of mental capacity to separate and divorce. Hunt v. Worrod, 2017 ONSC 7397 (Koke, J.) is a December 2017 judgment on an application to enforce the terms of a separation agreement, also brought under litigation guardianship, that involved an extensive review of the legal test of capacity to marry. In Chuvalo v. Chuvalo, 2018 ONSC 311 (Kitely, J.), the Court held a four-day trial in January 2018 over the very narrowly prescribed issue of applicant’s mental capacity to reconcile, as a preliminary issue to the divorce proceedings that are still under way.
A common thread running through all family law cases brought or defended under litigation guardianship is the appropriate legal test of the mental capacity of the party under guardianship: whether to marry, to separate, to reconcile, to divorce, or to retain and instruct counsel. Each of these legal tests is separate and distinct, and each test must be applied separately within the factual context at the time of the marriage, separation, reconciliation, or at each stage within the relevant legal proceedings. The fact that a person is capable, or incapable, of one of these functions at one time may have little bearing on the person’s capacity for another function at another time.
In Chuvalo, Justice Kitely gave a very concise and authoritative review of current case law on the legal tests of capacity to marry, to separate, and to instruct counsel [at paragraphs 49-59] in arriving at a decision on the applicant’s mental capacity to form the intention to reconcile with his wife. In this, she considered Calvert v. Calvert, in which Justice Benotto held that “[t]he capacity to instruct counsel involves the ability to understand financial and legal issues,” putting it “significantly higher on the competency hierarchy” than the related tests of mental capacity to marry, separate or divorce. The practical effect of this decision, followed in Chuvalo, is that a person might well possess the requisite mental capacity to marry, separate and divorce, but still fail to meet the legal test of capacity to retain and instruct counsel in legal proceedings involving those very matters. This condition would inevitably lead to the appointment of a litigation guardian in family law matters.
The choice of an appropriate litigation guardian is extremely important. In Chuvalo, although proceedings were initiated by the applicant’s adult son and daughter acting under a continuing power of attorney, litigation guardianship has since been transferred, on consent, to the Public Guardian and Trustee. In most cases, appointment of a neutral litigation guardian with no emotional ties or financial interests in the outcome of the family law proceedings is the optimal result.
The migration of litigation guardianships in both Chuvalo and Calvert is instructive to family law lawyers. In both cases, proceedings were initiated by litigation guardians who were immediate family members with a financial interest in the outcome of the proceedings. In both cases, these litigation guardianships did not last and were eventually transferred in the case of Chuvalo to the Public Guardian and Trustee, and in the case of Calvert to an experienced and well respected Ontario family lawyer with no interest in the outcome of the proceedings.
Family law proceedings involving a litigation guardianship often determine property rights over complex estates and/or large sums of money. Considerable skill, knowledge and expertise are usually needed to properly assess the legal interests at stake and to instruct counsel.
In view of Canada’s aging population, family law lawyers should be always attuned to issues of cognition and mental capacity, and to the possibility that the appointment of an experienced and disinterested family law lawyer as litigation guardian could be the most prudent and desirable result from the outset of family law proceedings.
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Graham Webb and Miera Srebrolow
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