DATE: 20060113
DOCKET: C41826
COURT OF APPEAL FOR ONTARIO
CRONK, ARMSTRONG and LANG JJ.A.
B E T W E E N :
Douglas Griffin
Steven Bookman for the appellant
Appellant(s)
- and -
Margaret O’Brien
Mark Shelston for the respondent
Respondent(s)
Heard: November 23, 2005
On appeal from the judgment of Justice Monique Métivier of the Superior Court of Justice dated April 19, 2004.
CRONK and ARMSTRONG JJ.A.:
1This is an appeal by Douglas Griffin (“Griffin”) from the judgment of Regional Senior Justice M. Métivier of the Superior Court of Justice dated April 19, 2004 in which the application of Griffin to vary a divorce judgment was dismissed. The application proceeded by way of trial. Griffin is not a lawyer and acted on his own behalf.
2Griffin sought to rescind arrears of spousal and child support and other relief. He sought to have the trial judge determine that his annual income was $16,492.
3In proceedings in the Quebec Superior Court of Justice in June 1999 the court found that Griffin’s income was $115,000 per year. In an application before Cosgrove J. in the Superior Court of Justice in July 2003, Griffin sought a determination that his income was less than $115,000 per year. Cosgrove J. concluded that his income was $115,000 per year and commented that the material relied upon by Griffin from his joint venture partner was not in “affidavit form sworn under oath”.
4When Griffin appeared at trial in this proceeding, he attempted to rely upon a notarized letter from the chairman of Sterling Resources, his joint venture partner, which set out information concerning monies received by Griffin from Sterling. On the objection of counsel for the respondent, the trial judge refused to admit the document and advised Griffin that it would be necessary to call the author of the letter as a witness.
5Griffin requested an adjournment to permit him time to call the proposed witness either in person or by way of videoconference. The request was denied. The trial judge called a brief recess to permit Griffin to telephone the proposed witness who resides in New Jersey. The proposed witness was unable to travel to Ottawa that day to testify.
6In her reasons for judgment, the trial judge said:
Dr. Griffin appeared at trial once again without adequate supporting documentation sufficient to rebut the finding of the Superior Court of Justice of June 30, 1999 determining his income at $115,000.00 per annum. Notwithstanding the very pointed remarks made by Justice Cosgrove, Dr. Griffin appeared at the trial with only a notarized statement from Sterling Resources as to the amounts of money he has been loaned and his business relationship with them. No witness from what he described as his “joint venture partner” was available for cross-examination. An adverse inference must be drawn from this.
7In our view, Griffin, as a self-represented litigant, was denied the opportunity to fairly present his case on the issue of his income. He had been criticized by Cosgrove J. for failing to have his supporting documents in affidavit form sworn under oath. He appeared before the trial judge with a notarized document under oath. He apparently did not realize that in a trial proceeding, he could face an objection and an adverse ruling which prevented his filing the notarized document.
8It is apparent that Griffin thought he was responding to the criticism of Cosgrove J. in the prior proceeding in which he was criticized for failing to produce the information from Sterling Resources in affidavit form. The fact that he had had experience as a self-represented litigant does not mean that he understood what was legally required of him to secure the admission of his proposed evidence at trial.
9The record indicates that the trial judge did much to assist Griffin in explaining to him how he should proceed to present his case. There is much in Griffin’s overly aggressive conduct of his litigation against his former wife that invites justifiable criticism. However, it was incumbent on the trial judge, in the particular circumstances, to assist Griffin by granting an adjournment for a reasonable period of time to permit him to secure the personal attendance of the witness. This is particularly so in view of the fact that the trial judge drew an adverse inference from his failure to call a witness from Sterling Resources.
10In the result, the appeal is allowed and a new trial is ordered. This is not a case in which the respondent should be required to bear the burden of a costs order. We make no such order.
11Paragraph 8 of the order of Métivier J., which prohibits Griffin from instituting further proceedings without leave of the court, was not challenged in this appeal and remains in place.
“Signed E.A. Cronk J.A.”
“R.P. Armstrong J.A.”
LANG J.A. (Dissenting):
12I have had the opportunity to read the reasons of Cronk J.A. and Armstrong J.A. I am unable to agree with their conclusion that Métivier R.S.J., in the circumstances of this case, erred by refusing an adjournment to Dr. Griffin, a self-represented litigant.
13The refusal of an adjournment is an exercise of discretion that is entitled to deference. In my view, since the trial judge properly exercised her discretion, I would dismiss the appeal.
The Context of the Trial
14A trial judge’s exercise of discretion must be considered in context. In this case, there are three important components of that context. First, Dr. Griffin, who holds a doctorate in adult education and is experienced in business, is a sophisticated self-represented litigant knowledgeable about trial procedures. Second, Dr. Griffin has been found to be a vexatious litigant; that is, a litigant who persistently relitigates issues, including the quantum of his income. He does not appeal this finding. As the trial judge said:
Dr. Griffin has been unremitting in his attempt to litigate the same issue [quantum of support] over and over again. He has been assiduous in his efforts to use the courts of two provinces for purposes not intended.
This order mentioned above is based on the long history of litigation between the parties, the attempt of Dr. Griffin to raise issues in this application which had in fact been disposed of in previous proceedings, his non-payment of costs, his refusal to follow various court orders, and his failure to make any spousal support payments since March 2001 despite the court's dismissal of his motion for variation.
15Third, even if an adjournment had been granted, and the evidence at issue accepted into evidence, it would not have affected the result.
(a) History of Proceedings
16Dr. Griffin and his former wife, Ms. O’Brien, separated in Quebec in 1998. They shared custody of their two children. After their separation, Dr. Griffin left his paid employment. In their 1999 Quebec divorce proceedings, Dr. Griffin represented himself. He did so both at the divorce trial itself and in various pre-trial motions, which were determined on viva voce evidence. Accordingly, Dr. Griffin was familiar with the trial process and the calling of oral evidence.
17At the divorce trial, Dr. Griffin provided evidence that he had been offered an annual salary of $100,000 by Sterling Resources Incorporated (Sterling). On the basis of that income, and his $15,000 annual pension, the Quebec Superior Court determined his responsibility for spousal and child support.
18Since Dr. Griffin did not appeal this determination of his income, he was bound to a 1999 income of $115,000. Ms. O’Brien did appeal on other issues and succeeded in having the trial judgment varied to provide her with open-ended spousal support.
19Thirty-three days after the January 2000 decision in Ms. O’Brien’s appeal, Dr. Griffin applied to vary (the 2000 variation) on the grounds that Ms. O’Brien was living a life of “luxury” because she had bought an air conditioner and a computer. He also argued that Ms. O’Brien, who was trying to start a bakery business, was not making adequate efforts to obtain employment. In July 2000, when Dr. Griffin’s variation application was dismissed, the court found that Dr. Griffin’s income remained at $100,000 plus his pension. Again, Dr. Griffin did not appeal this finding.
20In June 2000, Dr. Griffin brought a motion in Ontario to prevent Ms. O’Brien from registering complaints about him with the police and to prohibit her from asking for security to be present during court appearances. He was unsuccessful. Costs of $200 were awarded against him. Those costs remain unpaid. When asked about his failure to pay them at the 2004 trial, Dr. Griffin testified, “I have no memory of this whole incident”. When reminded that in 2002 he had again been ordered to pay those costs, he testified he also “completely forgot” about that order.
21In early 2001, when Quebec Revenue began diverting part of his pension towards his support arrears, Dr. Griffin stopped paying any direct support.
22In April 2001, nine months after the dismissal of the 2000 variation application, Dr. Griffin brought a second variation application (the 2001 variation), this time in Ontario. He alleged changes in the parties’ incomes and filed a financial statement showing his $15,000 pension as his only income. For the first time, he stated that he did not earn income from Sterling, but instead was only borrowing money from Sterling to establish a business. On this basis, he alleged that income had been wrongly attributed to him since 1998. At the same time, however, he filed the Quebec equivalent to an Ontario Supportmate calculation, which showed his income before taxes at $105,000. His positions appeared to be inconsistent.
23In preparation for the hearing of the 2001 variation, Dr. Griffin was ordered to make full financial disclosure, following which he obtained an unsworn statement from Sterling addressed to the Ministry of Revenue of Quebec about “loans” it made Dr. Griffin. When the application was heard on August 15, 2001, the application judge determined that there had been no change in circumstances since the 2000 variation. In his reasons, he referred to Dr. Griffin’s failure to provide supporting evidence for his claim as “an abuse of process”.
24Although Dr. Griffin appealed to Divisional Court, he did not appear on the date set. His appeal was dismissed. In July 2002, he moved to set aside that dismissal. The motion judge referred the matter to a panel. In November 2002, the Divisional Court panel dismissed the motion and awarded total costs against Dr. Griffin of $850. He did not pay those costs.
25Although Dr. Griffin learned that his appeal should have been to this court, he testified that he did not take that route of appeal because he could not afford to do so. It follows from his decision not to appeal that, to November 2002, Dr. Griffin had not experienced a material change in circumstances.
26During the course of the Divisional Court proceedings, Ms. O’Brien disclosed that her business had closed and that she had obtained government employment. In April 2002, Dr. Griffin commenced a third variation application (the 2002 variation). This time his financial statement stated that he was borrowing $2,290 a month to cover his monthly deficit. He reiterated that income had been wrongly attributed to him since 1998.
27The 2002 variation was stayed, first, pending the result in Divisional Court and, later, until he paid the Divisional Court costs. In ordering the second stay, Aitken J. noted that the “burning” issue for trial would be Dr. Griffin’s impecuniosity.
28In April 2003, once Dr. Griffin paid the Divisional Court costs, MacKinnon J. ordered financial disclosure and a hearing of the application.
29In July 2003, the parties argued the application before Cosgrove J. who considered the affidavit evidence, including the wife’s affidavit confirming that her bakery business had closed and that she now had government employment. Cosgrove J. reserved his decision. In his reasons, he accepted Ms. O’Brien’s evidence. He did not accept Dr. Griffin’s evidence about his diminished income. He found that he could not:
reconcile the wide fluctuation of monies (loans?) received from time to time by Mr. Griffin from Stirling Resources with Mr. Griffin’s explanation of his business relationship with Stirling; in addition [he did] not accept at face value Mr. Griffin’s explanation why Stirling Resources delayed so long in concluding a formal business arrangement with him.
30Cosgrove J. varied child support to accord with Dr. Griffin’s $115,000 income and Ms. O’Brien’s new $40,000 income. He also referred the issues of spousal support and the retroactivity of the variation for a trial on oral evidence, specifically noting that “credibility” was central to those issues. With his extensive experience in the court’s processes, and the history of these proceedings, Dr. Griffin would have known that witnesses and viva voce evidence would be required to establish his alleged impecuniosity.
(b) Proceedings Below
31The variation trial was heard in March 2004 (the 2004 variation) when Dr. Griffin owed approximately $100,000 in support arrears. Dr. Griffin was sufficiently knowledgeable about court processes that he succeeded in obtaining a stay of enforcement of the arrears pending the outcome of the variation proceedings.
32At the commencement of trial, Dr. Griffin stated his position clearly: “I am alleging that my income is not and has never been $115,000.” The trial judge carefully and thoroughly explained trial procedure to Dr. Griffin. She cautioned him both that he could not keep relitigating the same issue and that he could not appeal the decision of an earlier court by means of a subsequent variation application. The trial judge told Dr. Griffin that he was required to show a change in circumstances since the last variation. The trial judge, while cognizant that she must preserve her neutrality, assisted Dr. Griffin throughout the trial. She cautioned him that witnesses give evidence and are then subject to cross-examination. She warned that “letters” from people would not be admitted because they would not be subject to cross-examination. Dr. Griffin indicated that he did not anticipate calling any witnesses. The trial judge assisted Dr. Griffin throughout his evidence. She guided him properly into areas of evidence that were relevant to her determination and away from areas that were irrelevant. A reading of the transcript, in my view, shows that the trial judge considered Dr. Griffin’s evidence about his arrangements with Sterling to lack logic.
33Dr. Griffin testified that Sterling asked him to consider a partnership instead of employment within weeks of its 1998 offer. Sterling proposed that Dr. Griffin would work and, for that work, Sterling would “lend” him money. Dr. Griffin had no evidence to confirm this arrangement, except Sterling’s letter of June 2001, which was now incorporated in a December 2003 affidavit, referred to in argument and in my colleagues’ reasons as a notarized letter.
34Dr. Griffin testified that initially Sterling lent him $68,000 annually (tax free), a sum that he considered acceptable relative to its earlier employment offer of $100,000 annually. Sterling, he testified, set up a Nova Scotia subsidiary for the purpose of lending this money to Dr. Griffin. In addition to those loans, Dr. Griffin testified that he expected to share in Sterling’s profits.
35He also testified that his “revenue” was no longer $68,000 a year because Sterling had suffered a temporary downturn. In early 2001, he testified, Sterling had told him orally that the money it would be able to send “would be very spotty and very variable”. Sterling did not confirm these new arrangements with Dr. Griffin in writing. Dr. Griffin gave evidence that he accepted the offer he says Sterling made. However, he provided no reasonable explanation for the offer that he accepted despite the fact that his full-time efforts had succeeded in obtaining 10,000 licences for Sterling’s software, both in the public and private sectors.
36While acknowledging that he had been requested to provide further information about various aspects of his relationship with Sterling, all Dr. Griffin offered was the one-page Sterling affidavit. He explained, “They are not a party to this hearing. The amount of money they consider as a loan or as an investment or an asset is – is of no material substance to this hearing”.
37For the years that were properly the subject of this variation, Dr. Griffin testified that the “loans” he received in 2001 were $24,000 or $25,800; in 2002 were $35,900, and in 2003 were $38,448. Moreover, despite his earlier evidence that the “loans” from Sterling were unpredictable, Dr. Griffin was able to predict with certainty in March 2004 what those loans would be for the entire year: $38,400.
38When the trial judge asked Dr. Griffin why he would continue with this unorthodox and seemingly unfair arrangement, he indicated that he wanted to maintain his independence and he wanted to be available for his children. He also testified that Sterling’s software was “brilliant”; he expected the business would keep him employed post-age 65, and he expected a “potential percentage of the sales”. To support his optimism, he testified that Sterling’s success was demonstrated by its retainer of two other persons in Ottawa.
39Dr. Griffin testified that his two businesses, first, the Computer Assisted Learning Institute, and, later Business Knowledge Systems earned no income. Dr. Griffin also testified that his expenses exceeded his pension income by about $6,000 monthly. Despite that evidence, he could not show any corresponding debt to explain how he funded that deficit.
40In addition to advancing these explanations, Dr. Griffin’s credibility was affected by other evidence. He admitted that he transferred his interest in a cottage to his sister “to protect it for his children”. Apparently, he considered he was protecting his children by making the cottage unavailable to satisfy his support arrears. He also acknowledged that he had tried unsuccessfully to have public mischief charges laid against Ms. O’Brien.
41Dr. Griffin attempted to introduce into evidence a package of documents that was incomplete, disorganized, and often irrelevant or inadmissible. That package included the Sterling affidavit, as well as such paperwork as photocopies of character references and a letter from his wife’s parents.
42Apart from the issue of his “loans”, Dr. Griffin challenged Ms. O’Brien’s income both before and after the second variation. After their separation, Ms. O’Brien started a biscuit-baking business. For this purpose she and her business partner, Mr. Boyer, a chef, had obtained government grants, which Dr. Griffin alleged totalled $62,000. Dr. Griffin argued that those grants should be included in Ms. O’Brien’s 2000 income. Similarly, he argued that Ms. O’Brien’s 2000 income should be increased by the amount of the business’s debt at the end of that year of $31,420 and, additionally, by its 2000 sales of $29,917. Apart from the lack of logic of this position, Ms. O’Brien’s lawyer objected to the admission of this evidence. Ms. O’Brien’s earnings (or lack of earnings) from the biscuit business had been litigated in the 2001 variation.
43Dr. Griffin repeatedly spoke about Ms. O’Brien’s alleged failure to provide the 2001 biscuit business financial statements, even though he knew that the company had closed in 2001. He testified that he had summoned Boyer to the trial so that he could ask him about what monies he took out of the business. However, he no longer wanted Boyer to testify because, he said, Boyer had threatened to beat him up. Dr. Griffin testified that he had called the police about this. Despite that position at trial, Dr. Griffin now challenges the trial judge’s decision on the basis that she failed to have Boyer arrested and brought to court.
44In my view, the trial judge was entitled to conclude that the biscuit business and Boyer’s potential evidence were irrelevant to whether there had been a change in circumstances. She was entitled to reach a similar conclusion about the evidence that would have been given by the accountant Dr. Griffin summoned.
45Dr. Griffin wanted other money included in Ms. O’Brien’s income. Since Dr. Griffin was not meeting his support obligations, Ms. O’Brien’s parents lent or gave her an average of $22,000 annually to support herself and her children. At trial, Dr. Griffin took the position that these funds should be applied to increase Ms. O’Brien’s income and to reduce his support obligations.
46Dr. Griffin also made a damages claim of $25,000 for “prejudice, material harm and stress”. This claim was based on his arrest in April 2003 for criminally harassing Ms. O’Brien. He spent one night in jail. He subsequently entered into a peace bond. At this trial, he denied harassing Ms. O’Brien and sought $75,000 in damages.
47During his evidence, Dr. Griffin failed to produce documents that he had been ordered to produce and that were subpoenaed. He also declined to provide relevant evidence and sought to introduce irrelevant evidence. Much of the evidence he did give, both with respect to his own and Ms. O’Brien’s income, was an attempt to re-litigate issues determined in earlier variation proceedings.
48At the conclusion of his evidence, Dr. Griffin unsuccessfully sought to have the Sterling affidavit admitted. The next morning, Dr. Griffin requested the adjournment to call the statement’s author. He then, apparently for the first time, called the author to give evidence. The witness was unable to attend from New Jersey. Dr. Griffin gave no indication of when the witness would be available.
49The evidence offered in the Sterling affidavit gave only the following information about “loans” to Dr. Griffin:
Sterling Resources provides loan advances directly to Dr. Griffin ... Our records show that in the period between September, 1998 and May, 2002, Sterling Resources provided a total of $119,173.11 in US funds as loan advances to Dr. Griffin. Subsequently, during the 18-month period between June 1, 2002 and November 15, 2003 inclusive, Sterling has provided a total of $57,672 in Canadian funds to Dr. Griffin.
50It is in this context that Dr. Griffin’s request for an adjournment was refused. Although, in addition to refusing the adjournment, the trial judge also drew an adverse inference from his failure to have the witness available, it is clear that, in any event, the trial judge was, not surprisingly, of the opinion that Dr. Griffin had made every attempt to structure his income to frustrate his support obligations.
Analysis
51Rule 52.02 of the Rules of Civil Procedure applies by virtue of rule 1(8) of the Family Law Rules. Rule 52.02 provides that “[a] judge may postpone or adjourn a trial to such time and place, and on such terms, as are just” [emphasis added].
52Khimji v. Dhanani (2004), 69 O.R. (3d) 790 (C.A.) is helpful in setting out the degree of deference paid to this exercise of discretion on the part of a trial judge. In Khimji, the majority accepted Laskin J.A.’s statement of the principles applicable to reviewing a denial of an adjournment written in his dissent:
A trial judge enjoys wide latitude in deciding whether to grant or refuse the adjournment of a scheduled civil trial. The decision is discretionary and the scope for appellate intervention is correspondingly limited. In exercising this discretion, however, the trial judge should balance the interests of the plaintiff, the interests of the defendant and the interests of the administration of justice in the orderly processing of civil trials on their merits. In any particular case, several considerations may bear on these interests. A trial judge who fails to take account of relevant considerations may exercise his or her discretion unreasonably and if, as a result, the decision is contrary to the interests of justice, an appellate court is justified in intervening (para. 14).
53A trial judge has the discretion to adjourn a trial. That discretion must be exercised judicially, balancing the interests of the parties with a view to providing an expeditious and fair hearing. This applies in both the civil and family context and whether dealing with litigants represented by counsel or with self-represented litigants. See McLeod v. Castlepoint Development Corp. (1997), 31 O.R. (3d) 737 (C.A.), leave to appeal to the S.C.C. refused, [1997] S.C.C.A. No. 191, Cornfeld v. Cornfeld, [2001] O.J. No. 5733 (C.A.), and Appiah v. Appiah (1999), 118 O.A.C. 189.
54In my view, the trial judge did not err in exercising her discretion to refuse the adjournment for several reasons.
55First, the adjournment was not the issue. The real issue was the admissibility of the information in the Sterling affidavit. Dr. Griffin would have been content if that evidence had been admitted. The same information, however, was provided through Dr. Griffin’s own evidence and was rejected.
56Second, the information in the Sterling affidavit would have had no impact on the result. Even if corroborated by a Sterling witness, Dr. Griffin’s “loan” evidence was irretrievably illogical.
57Third, Dr. Griffin did not deny that he had been offered employment by Sterling at $100,000 a year, that he worked full time for Sterling, and that he had been successful in selling licences. The issue before the court was not what Sterling actually paid Dr. Griffin, but what amount should be attributed to him for support purposes. The trial judge made this clear by fixing his income “for support purposes”. This attribution of income was amply supported by the evidence.
58Fourth, Dr. Griffin said that Sterling’s evidence was irrelevant. Further, despite being directed to do so, he failed to produce adequate particulars of his dealings with Sterling. It would have been unfair to allow him to call Sterling as a witness when he had failed to comply with an earlier order for pre-trial disclosure.
59Fifth, it was open to Dr. Griffin to produce bank records at trial to corroborate his diminished income from Sterling. He chose not do so. Although acknowledging two bank accounts, Dr. Griffin produced no bank statements for 2004 and only one for 2003. When asked why, he replied, “these are the ones I picked up this morning”. The bank statements that he produced for earlier years did not support his evidence. He produced no statements that could show a pattern of payments from Sterling.
60Sixth, although Dr. Griffin claimed that he had diminished income from Sterling and was suffering a large monthly deficit as a result, he failed to produce any evidence to show a corresponding increase in debt.
61Seventh, it was apparent to the trial judge that Dr. Griffin would continue to relitigate findings made in earlier variation proceedings that he had chosen not to appeal. It was for this reason that he was declared a vexatious litigant. An adjournment would have only allowed a continuation of this improper and abusive conduct.
62Eighth, the trial judge was under an obligation to provide the parties with a fair trial and to balance their respective interests. It would have been unfair to both Ms. O’Brien and to the parties’ children to adjourn the trial. In my view, the trial judge provided both parties with a fair trial.
Conclusion
63The trial judge exercised her discretion after considering the question of fairness to both parties. I am unable to see any prejudice to Dr. Griffin. Proceedings in family law ought to be concluded within reasonable time lines. This application had been extant for two years. I see no reason to interfere with the trial judge’s exercise of her discretion. I would dismiss the appeal with costs to the respondent.
RELEASED: January 13, 2006
“EAC”
“Signed S.E. Lang J.A.”
