DIVISIONAL COURT FILE NO.: 09-DV-1495
DATE HEARD: 20091006
SUPERIOR COURT OF JUSTICE – ONTARIO
(DIVISIONAL COURT)
RE: Wendy Marie Hilhorst, Applicant (Appellant in Appeal) -and- Emanuel Amaral, Respondent (Respondent in Appeal)
BEFORE: Justices Matlow, Kent, and Aston
COUNSEL: Appellant in person Respondent in person
HEARD: October 6, 2009, at Ottawa
E N D O R S E M E N T
Kent, J. (Aston, J. concurring)
Background
[1] The Appellant, Applicant, contends that the learned Motions Judge made a number of errors which culminated in a finding that no additional income would be imputed to the Respondent and that other relief sought by the Appellant would not be granted as sought by her.
Considerations
[2] With the exception of one issue which will be further addressed, this court has reviewed all of the issues raised in the Notice of Appeal and Factum of the Appellant. The ten pages of reasons delivered by the Motions Judge show that he was alive to the issues raised in the motion and understood the key arguments of the Appellant and the Respondent. The reasons articulated by the Motions Judge meet the test of adequacy as articulated by the Supreme Court of Canada in R. v. Walker, [2008] S.C.C. 34, para 20.
[3] This court is required to give considerable deference to judges who determine support obligations, which determination is always a discretionary exercise. (see Hickey v. Hickey, [1999] S.C.R. 518, para 10).
[4] We find nothing in the reasons of the Motions Judge indicating an error in law, a significant misapprehension of the evidence or a material error.
Further Issue
[5] It is understandable that, to the Appellant, it appears unfair that the Motions Judge adjourned the final disposition of the motion, directed the self-represented Respondent to provide further evidence and ultimately relied upon that evidence, in part, in arriving at his decision.
[6] The terms of the adjournment were set out by the Motions Judge in his endorsement dated 28 October, 2008 as follows:
Today, I heard detailed argument on the applicant’s motion to vary. At its core, is the issue regarding whether the respondent is hindered in earning an income because of his back injury sustained in a motor vehicle accident – 5 years ago. I require better evidence on this issue.
Therefore, I will adjourn my decision until I have further evidence. This adjournment, therefore, is made subject to the following conditions:
(1) Within 30 days from today the respondent shall file a further affidavit spelling out the details of his injury and how it impacts on his ability to work at his trade or in any other employment.
(2) The respondent shall attach to this affidavit as an exhibit a copy of a detailed med. report from his family doctor setting out the nature of the injury, the consequences of the injury, any treatment that is being prescribed, the prognosis, and how the consequences of the injury impact his, the respondent’s, ability to work. Should his family doctor not be able to answer all these questions or issues, I would expect her, the family doctor, to refer to any evidence available from any other doctors who have been consulted.
(3) This affidavit shall, as aforesaid, be served and filed within 30 days.
(4) The applicant shall have the right to question the respondent on this affidavit if desired and shall have the right to correspond with the doctor if desired. If counsel wishes to correspond with the doctor, the respondent shall provide the doctor with written authorization to answer the questions asked.
(5) The applicant shall have a period of 30 days from receipt of the respondent’s affidavit, or 3 days from receipt of any further information as above, to file a responding affidavit.
(6) If the applicant determines not to question the respondent or seek further information, or file a further affidavit, counsel should write to me to such effect.
(7) When the parties are ready to supplement their arguments presented today they should do so in writing addressed to me. They shall each have the right to comment on the other’s submissions within 10 (ten) days of receipt of same.
(8) Costs reserved.
[7] In adjourning the motion, directing that additional evidence be provided and setting the above terms, the Motions Judge did not usurp the function of counsel. This case is distinguishable from Farrar v. Farrar (2003), 2003 15943 (ON CA), 32 R.F.L. 5th, 35 (Ont. C.A.) and not inconsistent with that decision.
[8] The Respondent did not provide the evidence as he was specifically directed. Instead he provided other and additional evidence. Some of the material so provided was clearly relied upon by the Motions Judge.
[9] This is a situation where the perception of unfairness is not the reality. The Motions Judge provided a mechanism that allowed the Appellant and her counsel to:
(a) receive the evidence;
(b) question the Respondent on the further affidavit;
(c) correspond with the doctor who provided information to the Respondent for the affidavit and ask the doctor questions;
(d) file a responding affidavit; and
(e) make further submissions.
[10] The appellant, upon receipt of the evidence, indicated through her counsel that she would not question the Respondent, correspond with the doctor or file a responding affidavit. See Appeal Book, Tab 5.
[11] One can readily appreciate the frustration of the Appellant and her counsel upon being confronted with additional voluminous evidence. One can understand a tactical decision “not to spend any more money on legal fees than is necessary”. But making that decision and choosing not to object to the admissibility of the additional evidence carried with it the risk that the evidence might be relied upon, even though it was not provided as directed.
[12] Nevertheless, procedural fairness was accorded to the Appellant.
Result
[13] For all the above reasons, this appeal must be dismissed.
Costs
[14] The self-represented Respondent seeks costs in an amount sufficient to cover his disbursements. Costs are fixed in the amount of $350.00, payable forthwith by the Appellant to the Respondent.
Justice J. C. Kent
Justice David R. Aston
Matlow, J. (Dissenting)
[15] With respect, I disagree with the disposition of this appeal by the majority. I would allow the appeal, set aside the order of Power, J. and remit the motion before him to be reheard before a different judge of the Family Law Branch of this Court. I would also give the parties an opportunity to make any submissions regarding costs in writing by exchanging those submissions and filing them with the Registrar of this Court at Ottawa within 30 days.
[16] The motion before the motion judge was principally for an order increasing the amount of child support and expenses that ought to be paid by the respondent to the appellant for the child of the parties who resides with the appellant. In support of her application the appellant submitted to the motion judge that the respondent had understated his true income by falsely claiming to be disabled as a result of injuries which he had suffered in a motor vehicle accident and unable to return to work and generate additional income. On the basis of this submission it was her position that additional income ought to be attributed to the respondent than the amount that he disclosed.
[17] As stated in the motion judge’s reasons for decision, at the conclusion of the argument of the motion, he made the following endorsement (at paragraph 27);
Today I heard detailed argument on the appellant’s motion to vary. At its core, is the issue regarding whether the respondent is hindered in earning an income because of his back injury sustained in a motor vehicle accident _+ 5 years ago. I require better evidence on this issue.
Therefore, I will adjourn my decision until I have further evidence. This adjournment, therefore, is made subject to the following conditions:
Within 30 days from today the respondent shall file a further affidavit spelling out the details of his injury and how it impacts on his ability to work at his trade or in any other employment.
The respondent shall attach to this affidavit as an exhibit a copy of a detailed medical report from his family doctor setting out the nature of the injury, the consequences of the injury, any treatment that is being prescribed, the prognosis, and how the consequences of the injury impact his, the respondent’s, ability to work. Should his family doctor not be able to answer all of these questions or issues, I would expect her, the family doctor, to refer to any evidence available from any other doctors who have been consulted.
The affidavit shall, as aforesaid, be served and filed within 30 days.
The applicant shall have the right to question the respondent on this affidavit if desired and shall have the right to correspond with the doctor if desired. If counsel wishes to correspond with the doctor, the respondent shall provide the doctor with written authorization to answer the question asked.
The applicant shall have a period of 30 days from receipt of the respondent’s affidavit, or 30 days from receipt of any further information as above, to file a responding affidavit.
If the applicant determines not to question the respondent or seek further information, or file a further affidavit, counsel should write to me to such effect.
When the parties are ready to supplement their arguments presented today, they should do so in writing addressed to me. They shall each have the right to comment on the others submissions within ten days of receipt of same.
[18] The motion judge’s reasons for decision further recorded the following (at paragraph 29);
Notwithstanding that Mr. Amaral did not attach to his affidavit a report from his family doctor, the affidavit is very detailed. I accept this affidavit as relevant evidence even though it departs somewhat from my direction. Notwithstanding the applicant’s objections, I am satisfied that Mr. Amaral is not a malingerer and that, indeed, his back injury is genuine and absolutely impacts his ability to earn an income.
[19] As well, the motion judge set out the following excerpt from the respondent’s new affidavit (at paragraph 30);
On November 11th, 2008, I had a doctor’s appointment. My original doctor, Dr. Bagnell, has since retired and my family doctor is now Dr. Campbell. During my appointment I actually seen a doctor named Dr. Geddes, as Dr. Campbell was away. Dr. Geddes has written a report regarding my current situation and it is attached to this affidavit as Exhibit “K”.
[20] The motion judge then set out Dr. Geddes’ conclusions as follows (at paragraph 31);
This letter confirms that he has ongoing restrictions to his employability because of back pain. He has been seen infrequently at this clinic since 2004. I have not seen him prior to today. His original physician is no longer at this clinic.
[21] Counsel for the appellant declined an opportunity to cross-examine the respondent on his new affidavit or to deliver a further affidavit to respond to it. This is described in the motion judge’s reasons as follows (at paragraph 34);
Counsel for the applicant elected not to cross-examine (question) Mr. Amaral on his new affidavit. As well, counsel did not file a responding affidavit. In his letter to me dated December 1, 2008, he said “Given the content of the respondent’s affidavit it does not appear necessary for the applicant to file a reply affidavit.
[22] Recognizing that the scope of the respondent’s new affidavit extended beyond the limits of what the motion judge had asked for, the motion judge stated the following (at paragraph 32);
Mr. Amaral’s new affidavit also includes references to some of the matters raised in argument on October 28,2008, in addition to the issue of his employability and ability to work. Counsel for the applicant objects to this. The objection is well taken. Therefore, I do not take into consideration in reaching my decision the information that was not responsive to my direction. In any event, most of this additional material is argument.
[23] On all of the material before him, the motion judge then reached the following conclusions (at paragraph 36);
Mr. Amaral is not a malingerer and is not underemployed. There should be no substantial adjustment in his reported income.
This finding was substantially fatal to the outcome of the applicant’s motion.
[24] Numerous grounds of appeal were raised in the appellant’s notice of appeal and in her factum. However, in her oral submissions, without abandoning the other grounds of appeal raised, she confined herself to issues relating to the motion judge’s use of the respondent’s new affidavit.
[25] I am not persuaded that there is any merit in the other grounds of appeal. I am, however, persuaded that the motion judge erred in his use of the respondent’s new affidavit and that his errors now require the intervention of this court.
[26] In particular, although the motion judge required the respondent to file a further affidavit to which is attached “a copy of a detailed medical report from his family doctor…” containing certain specified information, the letter attached was not a “medical report”. Nor was it “from his family doctor”. For these reasons alone, the appellant’s counsel was entitled to expect that the motion judge would not consider any part of the letter and that it would not be necessary for him to cross-examine the respondent or file a further affidavit to challenge what was written by the author. However, it is evident that the motion judge did take the contents of the letter into account in arriving at his final conclusions.
[27] The copy of the letter (at page 97 of the respondent’s compendium) appears to be on the letterhead of North Kingston Community Health Centre, signed by Dr. John Geddes and is dated November 11, 2008. Despite the fact that it contains assertions of what occurred even prior to July, 2004, the author states that he did not see the respondent prior to November 11, 2008. The author does not state that he is the respondent’s “family doctor” or that he examined the respondent or that he reviewed any notes written by another person, leaving the reader totally uninformed about the basis for what is set out in the letter. Nor does it reveal if the author even had access to the notes. It therefore did not meet the criteria stipulated by the motion judge. Nor did it provide any information to indicate that it could be relied on. Even if it was based on the author’s review of another doctor’s notes, it would not have been admissible although the notes themselves might have been. It follows, in my view, that the motion judge erred in relying to any extent on the letter
[28] I conclude, therefore, respectfully that the motion judge’s use of the respondent’s affidavit, including the copy of Dr. Geddes’ letter, was unfair and prejudicial to the appellant and that his order should now be set aside.
Justice P. T. Matlow
Date Released: October , 2009.
DIVISIONAL COURT FILE NO.: 09-DV-1495
DATE HEARD: 20091006
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Wendy Marie Hilhorst, Applicant (Appellant in Appeal) -and- Emanuel Amaral, Respondent (Respondent in Appeal)
BEFORE: Justices Matlow, Kent and Aston
COUNSEL: Appellant in person Respondent in person
ENDORSEMENT
Matlow J.
Kent J.
Aston J.
DATE RELEASED: October , 2009.