Court File and Parties

Date: July 11, 2024 Court File No.: D42727/22 Ontario Court of Justice

B E T W E E N:

KEISHA ANN BROWN APPLICANT

ROGER ROWE, for the APPLICANT

- and –

ROHAH ST. OLIVER WILLIAMS RESPONDENT

TAJINDER KAUR SILVA, for the RESPONDENT

Heard: July 11, 2024

Justice S.B. Sherr

Endorsement

[1] The respondent (the father) seeks an adjournment of this trial about his child support obligations for the parties’ children, K.W., age 14, R.W., age 8 and R.O.W., age 3 (the children).

[2] The main issue for the court to determine at this trial is the father’s ability to earn income. He worked steadily until June 2023 as a trucker, earning annual income of over $70,000. He left this job and has not worked since then. He is presently on social assistance. The father says he is unable to work due to severe anxiety and depression.

[3] The applicant (the mother) seeks to impute income to the father for support purposes.

[4] At the trial management conference held on January 12, 2024, it was determined that the mother would have one hour to cross-examine the father and 30 minutes to cross-examine any medical professional who prepared a report on his behalf.

[5] The father attached a report from his psychiatrist (the psychiatrist) to his trial affidavit. He did not serve the required notice of intention to file a practitioner’s report pursuant to section 52 of the Evidence Act. He also did not produce the psychiatrist for cross-examination on April 12, 2024, the first day of trial.

[6] The court decided to overlook the father’s failure to provide the required notice pursuant to the Evidence Act and after hearing evidence from the parties, adjourned the trial to give the father the opportunity to produce the psychiatrist on the return date for the purpose of cross-examination. The court told the father it was his obligation to produce this witness if he wanted to rely on his evidence. See: Carew v. Loblaws Limited (1977) 1977 1075 (ON SC), 18 O.R. (2d) 660 (HC); Children’s Aid Society of Algoma v. A. (B.), 2001 32526 (OCJ).

[7] The case returned to court on April 30, 2024. The father had served a summons on the psychiatrist, but the psychiatrist did not attend at court. The father sought an adjournment of the trial. The mother opposed this. Counsel for the father explained that the psychiatrist told her he could not attend because he was undergoing chemotherapy. The court granted the adjournment on the following terms:

a) The psychiatrist was bound over to the return date pursuant to the summons. b) The father’s counsel was to serve the endorsement on the psychiatrist. c) If the psychiatrist’s notes and records were produced to the mother’s counsel at least 7 days before the next trial date, the remainder of the trial could be held by videoconference. d) The father’s counsel was to ensure that the psychiatrist was able to participate by videoconference. Otherwise, the attendance was to be in person.

[8] The matter returned to court today. The psychiatrist did not provide his notes and records and did not attend at court. The father sought another adjournment of the trial. The mother opposed this request.

[9] The father filed an affidavit setting out the following:

a) His counsel served the April 30, 2024 endorsement on the psychiatrist. b) His counsel requested the psychiatrist’s notes and records. c) The psychiatrist requested payment of $600 to produce his notes and records. d) The psychiatrist told him on June 8, 2024 that he was scheduled to undergo chemotherapy. e) He sought funding to make the payment requested by the psychiatrist. f) His counsel made several unsuccessful attempts to contact the psychiatrist. Calls were not returned. g) He went to the psychiatrist’s office on June 28, 2024, but it was locked. He continued to call the psychiatrist, but his voicemail was full. h) On July 2, 2024, his counsel contacted the College of Physicians and Surgeons of Ontario (the College). They have been unsuccessful in contacting the psychiatrist. i) On July 9, 2024, his counsel’s assistant called the psychiatrist’s phone number. His voicemail was full. j) He has been unable to see the psychiatrist due to the psychiatrist’s health issues. k) He is not working and is on public assistance.

[10] Delay in family proceedings is antithetical to the best interests of the children who require finality and peace. See: Rigillo v. Rigillo, 2019 ONCA 647, at para. 6; Ammar v. Perdelwitz, 2022 ONCA 425.

[11] In Madi v. King, 2020 ONSC 3611, the court set out the following principles in determining if an adjournment should be granted:

[12] The granting or refusing of an adjournment is a discretionary act. As summarized by Perell J. in Ariston Realty Corp. v. Elcarim Inc., 2007 13360 (ON SC) at para. 34, depending on the circumstances of each case, to judicially exercise the discretion to grant or refuse an adjournment, a judge may need to weigh a number of relevant factors. These factors include:

• the overall objective of a determination of the matter on its substantive merits;
• the principles of natural justice;
• the need for justice not only to be done but appear to be done;
• the circumstances of the request for an adjournment and the reasons and justification for the request;
• the practical consequences of an adjournment on both substantive and procedural justice;
• the competing interests of the parties in advancing or delaying the progress of the litigation;
• any prejudice not compensable in costs suffered by a party by the granting or the refusing of the adjournment;
• whether the ability of the party requesting the adjournment to fully prosecute or defend the proceeding would be significantly compromised if the adjournment were refused;
• the need of the administration of justice to process proceedings in an orderly fashion; and
• the need of the administration of justice to effectively enforce court orders.

[13] When dealing with an adjournment request in family proceedings, the best interests of the child should be added to the list of relevant factors.

[12] This court adds that rule 2 of the Family Law Rules must also be considered – to deal with cases justly.

[13] In considering what is just in these circumstances the court has considered the following:

a) The mother is being put to additional cost because the psychiatrist has not come to court. b) The mother has been prepared to proceed at each appearance. The delay in completing this case is frustrating and stressful for her. c) It is the father’s responsibility to produce the psychiatrist for cross-examination. d) The father has made diligent efforts to produce the psychiatrist for cross-examination. e) The psychiatrist’s health issues are beyond the control of the father. f) The issue of the father’s ability to work due to health issues is the central issue in this case. The medical evidence is important to make this determination. g) The mother’s child support claim is not prejudiced by an adjournment. Her claim for ongoing child support is actually less than in the temporary support order in place. h) The parenting issues in this case were previously resolved.

[14] Neither party is asking the court to take a heavy-handed approach to enforce the summons on the psychiatrist, due to his medical situation. The court will not issue a bench warrant.

[15] The court finds it just, in the circumstances of this case, to grant one more adjournment.

[16] The father should continue his attempts to obtain the psychiatrist’s notes and records and keep in touch with the College to assist him in doing this. If they are produced, they should immediately be shared with the mother’s counsel.

[17] The father has to face the reality that the psychiatrist may be unable to treat him or participate in this case. This case cannot go on indefinitely. The father needs to take steps to produce a psychiatrist who will be subject to cross-examination. This might mean obtaining a new psychiatrist.

[18] The court will grant a lengthier adjournment as it recognizes the father may have challenges obtaining a new psychiatrist. The new psychiatrist will also likely need several sessions with the father to provide a meaningful report. The court would want to see the following in any report:

a) A diagnosis of the father’s medical conditions. b) A prognosis for the father. c) A treatment plan for the father. d) Information about the father’s compliance with the treatment plan. e) Specific and detailed information connecting the medical condition to the ability of the father to work. For instance, can he work at a job other than truck driving? Can he work part-time?

[19] A court order will go on the following terms:

a) The trial is adjourned until January 10, 2025, at 2 p.m. for a half-day. b) The appearance will be in person, subject to the directions set out below. c) The father shall provide the complete notes and records of the psychiatrist to the mother’s counsel upon receipt. d) If the psychiatrist’s complete notes and records are provided to the mother’s counsel by December 30, 2024, he may give his evidence on the return date by videoconference. e) The psychiatrist is bound over to the return date pursuant to the summons served upon him. If he is unable to attend court, he should provide a letter to the court explaining why and deliver that letter to the father’s counsel. It is not a valid excuse for the psychiatrist to not attend court because the father has not paid his fees for his notes and records. The psychiatrist is under summons and must attend court unless he is medically unable to do so. f) If the father wishes to rely on the opinions set out in the psychiatrist’s report he must produce the psychiatrist for cross-examination. If the psychiatrist does not attend for cross-examination on the return date, the court will hear submissions about what parts, if any, of his report are admissible, and for what purpose. g) If the father wishes to rely on the report of a new psychiatrist, he is to comply with the notice provisions set out in section 52 of the Evidence Act, request production of the complete notes and records of the new psychiatrist and provide them to the mother’s counsel upon receipt. h) If the father files a report from a new psychiatrist, he is to produce the new psychiatrist for cross-examination on the return date. If the father’s new psychiatrist provides his complete notes and records to the mother’s counsel by December 30, 2024, the new psychiatrist may give his evidence on the return date by videoconference. i) The father should give a copy of this endorsement to the psychiatrist and any new psychiatrist the father sees. j) The father is to serve and file by December 16, 2024, an updated sworn financial statement, his 2023 income tax return and notice of assessment and his last 3 pay stubs or social assistance stubs. k) The mother may have an additional 30 minutes on the return date to cross-examine the father. l) The mother will have up to one hour to cross-examine any psychiatrist produced by the father. m) The trial will proceed on the return date, peremptory on the father. The trial will proceed, whether or not he produces a psychiatrist for cross-examination. n) The parties may seek an earlier trial date if the father has filed his psychiatrist’s report, delivered his psychiatrist’s notes and records to the mother’s counsel, and has confirmed that his psychiatrist will attend court to be cross-examined.

[20] The father’s counsel shall take out this order. The psychiatrist’s name should be included in the body of the order.

Released: July 11, 2024

Justice Stanley B. Sherr