COURT FILE NO.: FS-17-00017367-0001 DATE: 2024-05-21 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Victor Sobieraj, Applicant AND: Marie Karpenko, Respondent

BEFORE: Howard J.

COUNSEL: Victor Sobieraj, Applicant, acting in person. Samuel A. Mossman, for the Respondent.

HEARD: May 17, 2024

Endorsement

Overview

[1] Both parties bring competing parenting motions, within the context of the respondent mother’s motion to change the final order of Hebner J. dated November 14, 2022. That order was made after a lengthy trial lasting some 19 days of hearing, supported by comprehensive reasons for judgment of more than 35 pages. The respondent mother’s motion to change was commenced on March 21, 2024.

[2] The parties started living together in or about 2006, were married on November 20, 2010, and separated on December 20, 2016.

[3] There is one child of the marriage, Liam Alexander Sobieraj, born July 18, 2016. It is common ground that Liam is a child with special needs.

[4] Pursuant to the said final order of Hebner J., the respondent mother has sole decision-making responsibility for Liam in all areas except spiritual upbringing, which is the responsibility of the applicant father, and Liam’s primary residence is with the respondent mother, but subject to a detailed schedule providing parenting time for the applicant father.

[5] It is also common ground that the applicant father experienced an episode of paranoia and, for the period from February 29, 2024, to March 6, 2024, he was hospitalized under the authority of the [Mental Health Act][1] at Victoria Hospital in London, Ontario. Particulars of that episode, as set out in the discharge summary prepared by Dr. Jedrin Ngungu, psychiatrist in the Department of Psychiatry at London Health Sciences Centre (disclosed in the applicant father’s affidavit sworn May 10, 2024), include the following:

a. The applicant, an officer with the Windsor Police Service currently on long-term disability leave, presented to Victoria Hospital on February 29, 2024, to report that “he was fearful for his life as he was being pursued by Hell’s Angels.” At the hospital, he appeared anxious and suspicious and was subsequently placed on a Form 1 under the Mental Health Act. He was consulted and admitted to Psychiatry.

b. Following admission to Psychiatry on February 29th, the applicant spent three days in the Emergency Department as there were no beds available in the Psychiatry Unit. The attending team did contemplate discharging him, but he then became quite psychotic and dysregulated, and hence he was kept in hospital for further assessment and stabilization.

c. On March 1, 2024, the applicant absconded from hospital. The local police were notified that he was a missing person.

d. After being found by the police, the applicant was readmitted to hospital on March 2, 2024. He was transferred to the Psychiatry Unit.

e. The applicant was discharged on March 6, 2024. The stated discharge diagnosis was: “[b]rief psychotic disorder, possibly related to insomnia, possibly related to stress. Substance mis/use not ruled out.”

f. The discharge plan for the applicant was indicated as follows:

1. His involuntary status has been discontinued with the issuance of Form 5.
2. He will be discharged home in the company of his father who is agreeable with this plan.
3. Both Victor and his father have been notified to seek help should his situation change.
4. Victor’s ex-wife has been notified of his discharge with Victor’s permission.
5. Victor was offered some medications to help with his insomnia and suspiciousness, but he declined. He was also offered a checkup appointment, which he equally declined.
6. He states that he will continue to follow up with psychologist for regular psychotherapy.

[6] Following his discharge from hospital, the applicant continued with weekly psychotherapy sessions with his treating psychologist, Dr. Andrew Taylor. The evidence of the applicant father is that he has been seeing Dr. Taylor for a number of years and has been diagnosed with adjustment disorder with mixed anxiety and depression.

[7] It is this episode of “brief psychotic disorder” suffered by the applicant father that prompted the respondent mother’s motion to change and, ultimately, both motions before the court.

[8] In the respondent’s notice of motion dated March 19, 2024, the respondent mother seeks, inter alia:

a. an order that the applicant father’s parenting time with Liam be supervised at New Beginnings or elsewhere;

b. an order that the applicant produce, within 30 days, “all medical records from London Health Sciences Centre, University Hospital, Victoria Hospital and/or any other medical facility where he has been assessed or received mental health treatment from January 1, 2024;” and

c. an order that the applicant produce, within 30 days, the clinical notes and records of Dr. Andrew Taylor from January 1, 2024, to date.

[9] In the applicant’s cross-motion dated April 16, 2024, the applicant father seeks, inter alia, an order that the respondent mother’s motion be dismissed and an order that the applicant father shall have make-up parenting time.

[10] When the motions were first returnable before the court on April 19, 2024, Thomas J. ordered that the motions be adjourned one week to permit the respondent mother to file reply material.

[11] In his endorsement following the return of the motions on April 26, 2024, Bondy J. wrote that:

I was unable to determine the current state of the applicant’s mental health on the record before me. I have suggested the following at a minimum:

1. The hospital records for his recent involuntary stay.
2. The notes of the hospital psychologist, Dr. Ngungu.

[12] The motions were adjourned to May 17, 2024, and a case conference was scheduled for May 7, 2024. The case conference was held on the scheduled date before Bondy J.

[13] At the hearing on May 17, 2024, the parties made oral submissions lasting the better part of one-and-a-half hours. I asked for and received a copy of the applicant’s 13-page written submissions, which he delivered in oral argument.

Issues

[14] The parenting time motions were not fully argued on their merits before me. On behalf of the respondent mother, Mr. Mossman asked that an order for production of the medical information sought be made first, with the balance of the motions being adjourned so that he could review the medical information with a view to retaining his own medical expert to provide an opinion. Indeed, the evidence of the respondent mother was that: “I do understand that I will likely have to engage an expert to provide an opinion on this matter.”

[15] Thus, the primary issue before me is whether the applicant father should be ordered to disclose the sought-after medical records and notes.

[16] The secondary issue involves the interim parenting time arrangements pending the return of the motions.

Analysis

[17] The respondent mother seeks disclosure of the applicant father’s medical records in relation to the mental health issues the father experienced most recently, and acutely, in late February and early March of this year. The mother contends that the father’s mental health issues impact his ability to parent their child. The respondent says that the applicant’s “mental instability is an issue that has caused me very great concern for a long time.” Given those long-standing concerns, coupled with the recent psychotic episode, the respondent mother does not believe that Liam is safe in the care of his father.

[18] Generally speaking, the applicant father maintains that the records in issue are private and confidential and should not be available for his ex-wife and others to access.

[19] In determining parenting-related issues based on a child’s best interests, the court should have the best available information concerning everyone involved in the child’s care and upbringing. [^2] “It would clearly be unfair to the children if a determination was made regarding their custody and access without the best information before the court concerning all persons involved in the children’s care and upbringing.” [^3]

[20] Subrules 2(2) and (3) of the [Family Law Rules][4] support full and frank disclosure that is relevant, proportional, and enables the court to deal with matters justly. The fundamental question is whether the various items of information are relevant or whether they have a semblance of relevance in light of the material issues in the case. [^5]

[21] Further, subrules 19(1) to (4) of the Family Law Rules require a party to provide, if requested, any document relevant to any issue in the proceeding that is in the party’s control or available to the party on request, unless it is protected from disclosure by privilege.

[22] When dealing with sensitive information, such as medical records, the court must balance the competing interests of a parent’s right to privacy against the interest in pursuing the truth to make an appropriate decision in the best interests of the child in order to make a sound disposition of the matter. [^6]

[23] In many cases, the courts have held that a parent’s privacy interest must yield in favour of the best interests of the child. [^7]

Disclosure of the hospital records

[24] There is no doubt that the applicant father’s hospital records from London Health Sciences Centre concerning Mr. Sobieraj’s February-March 2024 hospitalization are relevant to determining the nature of his mental health issues and whether his condition impacts his capacity to parent Liam.

[25] The February-March 2024 incident involving the episode of the father’s so-called “brief psychotic disorder” is very concerning. The respondent mother certainly has cause for concern, as does the court. That does not necessarily mean, however, as the mother has apparently concluded, that Liam will not be safe in the care of his father. But it does mean that the court must inquire into the circumstances and determine the issue. And while I appreciate Mr. Sobieraj’s submission that Dr. Taylor has already concluded that he does “not have any current concerns with [Mr. Sobieraj’s] safety or his ability to care for himself or a dependent child,” what Mr. Sobieraj needs to understand is that, with all due respect to Dr. Taylor, at the end of the day, that question is for the court to decide, not his psychologist.

[26] Among other things, there is a legitimate question about the potential for re-occurrence or relapse. I accept Mr. Mossman’s submissions on point that it is telling that, despite the respondent mother having expressly raised the issue of re-occurrence/relapse rate in her reply affidavit sworn April 22, 2024 (para. 8(d)), and despite Dr. Taylor expressly stating in his letter of April 24, 2024, that he had reviewed Ms. Karpenko’s affidavit of April 22, 2024, “and would like to respond in kind,” Dr. Taylor makes no comment – at all – about the issue of re-occurrence or relapse rate.

[27] In any event, during oral argument before me, Mr. Sobieraj stated that, subject to certain “reservations” that he held, he would consent to the voluntary disclosure of the hospital records surrounding the February-March 2024 hospitalization. Indeed, on more than one occasion during his oral submissions, Mr. Sobieraj indicated that he did not want to create any obstacles to the court’s process, and he expressly indicated that, to use his words, “I have nothing to hide.”

[28] I queried Mr. Sobieraj on his reservation to the voluntary production. In response, he indicated that he was concerned that the respondent mother might share the contents of the disclosure with Liam. That is a fair concern (and by that, I mean that there is no question that the seven-year-old Liam should not be privy to the circumstances surrounding his father’s recent hospitalization, not that I necessarily believe that there is a real risk that the respondent mother would disclose such information to the child). In any event, I indicated to Mr. Sobieraj during the hearing that the court could fashion a remedy – that is, impose restrictions on the permitted disclosure – that should address his stated concern. I will deal with that issue below.

[29] While I appreciate Mr. Sobieraj’s cooperation and his willingness to consent to disclosure of the hospital records, I will also say that, even without his consent, I was inclined to order the disclosure, subject to certain limitations that I address below.

[30] As I have referenced above, in his reply affidavit of May 10, 2024, Mr. Sobieraj attached as Exhibit “A” a copy of the discharge summary prepared by Dr. Ngungu on or about March 6, 2024. He did not disclose any other part of the hospital records, but he did disclose the discharge summary. To my mind, the applicant father’s disclosure of the discharge summary from Dr. Ngungu reflects the father’s willingness, on his own terms, to put his privacy concerns second in priority to his child’s (and others’) interest in having the court receive the best available information available in order to assess and determine the most appropriate parenting time schedule for Liam. [^8]

[31] Cast in more legal terms, it seems to me that the applicant father, having disclosed one part of the hospital records, should arguably be taken to have waived his right to privacy over the balance of those hospital records. As a general proposition, a litigant should not be able to pick and choose between confidential, private records in a file, deciding which specific records (favourable to his position) he is willing to disclose notwithstanding his privacy interests, while refusing production of other private records within the same file (perhaps not favourable to his position) on the same grounds of his right to privacy. The court should not countenance such “cherry-picking.”

[32] In any event, given Mr. Sobieraj’s consent to disclosure of the hospital records here, I do not have to conclusively determine the waiver issue.

[33] At the hearing of the motions, Mr. Sobieraj indicated that he had received a complete copy of the hospital records in issue from London Health Sciences Centre. There was reference to the involvement of his former counsel, Ms. Amanda Tubbs, in the original making of the request for disclosure of his records from the hospital. If I understood Mr. Sobieraj’s submissions correctly, he received a complete copy of the hospital records by secure electronic transfer sent in two parts (dated or sent May 3, 2024, and May 6, 2024), which Mr. Sobieraj was able to secure on the morning of May 7, 2024. In any event, Mr. Sobieraj confirmed to the court that he is in receipt of two electronic submissions from London Health Sciences Centre comprising their entire file in connection with his February-March 2024 hospitalization.

[34] On consent, there shall be an order that the applicant father shall produce those electronic files, comprising the complete record of London Health Sciences Centre in connection with his February-March 2024 hospitalization, to Mr. Mossman on or before Friday, May 24, 2024, subject to the restrictions below.

[35] I raise two further points regarding the scope of the disclosure order that I am making.

[36] First, in the respondent mother’s notice of motion, she sought disclosure of all hospital records from London Health Sciences Centre (and its associated hospital centres) “and/or any other medical facility where he has been assessed or received mental health treatment from January 1, 2024.” There is no evidence or any indication that Mr. Sobieraj was treated at any other medical facility and no evidence or any indication that he was treated at the London Health Sciences Centre group of facilities going back to January 1, 2024. The evidence indicates he began to be treated at London Health Sciences Centre on or about February 29, 2024. Indeed, there is not even an allegation that the applicant father was treated at London Health Sciences Centre or some other facility dating back to January 1, 2024. In the absence of same, there has been no showing of any likely relevance or semblance of relevance in respect of anything prior to the hospitalization on February 29, 2024, going back to January 1, 2024. As such, I regard any such inquiries in respect of alleged (or imagined) treatment prior to February 29, 2024, and dating back to January 1, 2024, to be an exercise in speculation and, by definition, a “fishing expedition.” That portion of the claim for disclosure is therefore denied.

[37] Second, even though the self-represented applicant father has consented to the voluntary disclosure of the hospital records, there should still be some restrictions on the permissible use following that disclosure.

[38] Mr. Sobieraj repeatedly expressed reservation that, in consenting to the disclosure of his hospital records, the information contained in those records should not be shared with Liam. As I have said, that is a valid concern.

[39] Indeed, I would place further restrictions on the use that may be made of the disclosed hospital records belonging to the applicant father. In particular, as I indicated during oral argument, given the intensely personal, private, and confidential nature of the hospital records, I believe it is appropriate to place some restrictions on the extent to which those records belonging to the applicant father may be shared with his ex-wife.

[40] Mr. Mossman voiced some opposition to the suggestion that he be subject to restrictions on the extent to which he is able to share the hospital records with his client. I realize now that, perhaps seemingly unfairly, I was rather dismissive of Mr. Mossman’s voiced opposition at the hearing of the motions. That said, I maintain that it is not unusual for the court to place restrictions on the extent to which highly sensitive records that have been ordered to be disclosed may be used or shared in the proceeding – and that has included restrictions that the documents be released to counsel only and restrictions on the extent to which counsel may share such information with their clients. [^9]

[41] However, upon reflection, I realize now that my statements to counsel during argument of the motions were couched in terms that were too absolute. It would place counsel in an untenable position if counsel were not permitted to share any contents of the private records with their client – at least for the purposes of obtaining instructions. As I now cast my mind towards how such conversations would play out between lawyer and client, it is obvious to me now that it may well be necessary for counsel to share at least some portions of the information contained in the hospital records with his client in order to obtain her instructions. I acknowledge that it will be important to craft the restrictions to be placed on the disclosure with such considerations in mind.

Disclosure of the clinical notes and records of Dr. Taylor

[42] Unlike his consent to the release of the hospital records, the applicant father did not consent to the requested release of the clinical notes and records of Dr. Andrew Taylor from January 1, 2024, to date.

[43] In my view, quite apart from the lack of the applicant father’s consent to the release of his psychologist’s records, somewhat different considerations apply to this second request by the respondent mother for disclosure of the clinical notes and records of the father’s treating psychologist.

[44] In short, there are medical records, and then there are medical records. While most all medical records may be said to be private and confidential, not all such records will necessarily engage the same degree of confidentiality and intimacy as therapeutic counselling records. “A client’s relationship with a therapist is very intimate and personal and typically requires self-disclosure of highly private thoughts or feelings for the therapy to be effective.” [^10] “Effective therapy requires a discourse between therapist and patient that touches upon the private and core thoughts and feelings of the individual. The records in question did not arise from an assessment or clinical investigation relating to the issues in the litigation. They arose in the context of private therapy.” [^11]

[45] As such, disclosure of therapeutic counselling records is highly intrusive, and there are compelling reasons for preserving the confidentiality of communications between patient and therapist. [^12]

[46] In respect of the respondent mother’s request for disclosure of Dr. Taylor’s clinical notes and records, I would make the following additional three observations.

[47] First, the evidence is uncontroverted that Dr. Taylor has been the treating psychologist of the applicant father for several years. But, to my knowledge – and it certainly is not in evidence before me on the present two motions – there is no evidence of the respondent mother ever having asked for the clinical notes and records of Dr. Taylor before now, despite him having been the treating psychologist for Mr. Sobieraj for many years.

[48] So, why now? Well, it seems plain that the direct impetus for the expressed concern of the respondent mother is the applicant father’s “brief psychotic disorder” of late February-March 2024. Again, the mother never moved for production of Dr. Taylor’s clinical notes and records before the father’s hospitalization.

[49] Second, especially where there is an order for disclosure of the primary hospital records, it is not clear to me, where the concern is for what happened with the applicant father during that hospitalization, how much the after-the-fact notes and records of the treating psychologist will really add to the truth-seeking function. Anything that might be contained in the clinical notes and records of Dr. Taylor concerning his patient’s hospitalization at London Health Sciences Centre in late February-March 2024 will, by definition, be a product of the information that the applicant father chose to share with Dr. Taylor and/or that Dr. Taylor gleaned from his own review of those hospital records released to him. In either event, the information coming to Dr. Taylor is at least second-hand or third-hand or perhaps even more remote. As such, it is not clear to me that the probative value (or lack thereof) of the information in question outweighs the compelling privacy interests that the applicant father has in such private, intimate, therapeutic counselling records.

[50] Finally, at the hearing of the motions, Mr. Mossman devoted some considerable time to the submission that little if any weight should be placed on the conclusions and position of Dr. Taylor, the long-time psychologist of Mr. Sobieraj, because, it was said, Dr. Taylor was biased. If the respondent mother’s position is correct, that Dr. Taylor is biased in favour of his long-standing patient, then I see no merit in the position of the respondent mother that production of Dr. Taylor’s (presumably biased) clinical notes, observations, and records is necessary for the just determination of the merits of the parties’ motions.

[51] In the circumstances, I am not satisfied that the compelled disclosure of the clinical notes and records of the long-time treating psychologist of the applicant father has been shown to be justified. I find this request to be overly intrusive and not proportional to the issues before the court.

[52] As such, I dismiss this portion of the respondent mother’s notice of motion.

Temporary without prejudice parenting time arrangements

[53] As I have ordered the disclosure of the hospital records, Mr. Mossman will require a reasonable period of time to review those records and, if it is thought necessary, arrange for his own medical expert to review the records as well and provide an opinion. Realistically, I do not see that process being completed by the end of the month, i.e., in ten days. The first regular Family Motion Court in June in Windsor is Friday, June 14, 2024. Accordingly, the motions shall return to the court on June 14, 2024.

[54] It is appropriate and necessary to include, as a term of the adjournment, provision for continued parenting time for the applicant father with Liam on a temporary and without prejudice basis. In para. 13 of her affidavit sworn April 22, 2024, the respondent mother states that she has maintained contact with the applicant father since his discharge from hospital “with daily phone calls and supervised visits with Liam, often multiple times per week.” In para. 38 of his affidavit sworn April 16, 2024, the applicant father indicates that he had supervised parenting time with Liam on March 16, 17, 21, 24, 26, 29, 30, April 4, 9, 13, and 15, 2024.

[55] Pending the return of the motions on June 14th next, the parties should maintain that pattern so that Liam has parenting time with his father multiple times per week, and not less than at least twice per week. For the time being, that parenting time should continue on a supervised basis. Consideration should be given to allowing Liam longer periods of parenting time with his father on the weekends.

[56] Paragraph 7 of the final order of Hebner J. dated November 14, 2022, provides that both parties shall be entitled to have FaceTime or telephone time with Liam once per day if Liam is in the other party’s care. I see no reason why that provision should not continue in full force and effect pending the return of the motions.

[57] These temporary without prejudice parenting arrangements are ordered as a term of the adjournment sought by the respondent mother. Both parties should understand that when the motions return on June 14th next, the court will expect that both parties will be in a position to make submissions on whether it is appropriate in this case for the court to order an interim variation of a final order.

Conclusion

[58] In the result, on consent, there shall be an order that all of the hospital records that the applicant father received by secure transfer from London Health Sciences Centre concerning his hospitalization there from February 29, 2024, to March 6, 2024, are to be disclosed by the applicant father to Mr. Mossman, in his capacity as counsel for the respondent mother, on or before Friday, May 24, 2024.

[59] Disclosure of the said hospital records is subject to the following restrictions:

a. The said disclosed hospital records may be used only for the purpose of dealing with the issues in this family proceeding and may not be used in any other proceeding.

b. The said disclosed hospital records shall remain in the possession of counsel only, subject to the following restrictions.

c. Counsel may share the contents of the said disclosed hospital records with his client only for the purposes of obtaining instructions from the respondent mother in connection with the issues in this family proceeding. No copy of the said disclosed hospital records, or any portion thereof, shall be delivered to the respondent mother or left in her possession.

d. Counsel may share the contents of the said disclosed hospital records with, and may provide a copy of same to, a qualified medical expert retained on behalf of the respondent mother for the purposes of providing an opinion in connection with the issues in this family proceeding. Any such expert is also subject to these same restrictions and, in particular, may not provide a copy of the said disclosed hospital records, or any portion thereof, to the respondent mother.

e. Except as provided herein, the said disclosed hospital records shall not be further shared, copied, disclosed, or released to any other person, except with leave of the court.

f. In particular, except as provided herein, neither the respondent mother nor her counsel may disclose the contents of the said disclosed hospital records to any other person, except with leave of the court.

g. At the conclusion of this proceeding, and after the expiry of any appeal period, counsel for the respondent mother (or his successor) shall have the said disclosed hospital records destroyed in a secure manner that preserves their confidentiality.

h. Under no circumstances whatsoever shall the respondent mother disclose or cause to be disclosed to Liam, directly or indirectly, the existence of the said disclosed hospital records, the contents of the said disclosed hospital records, or any information contained in the said disclosed hospital records.

[60] The request by the respondent mother for an order that the applicant father produce the clinical notes and records of Dr. Andrew Taylor from January 1, 2024, to date, is dismissed.

[61] The balance of the respondent mother’s motion (notice of motion dated March 19, 2024) and the applicant father’s motion (dated April 16, 2024) are adjourned to Friday, June 14, 2024.

[62] Pending the return of the motions on June 14th next, and as a term of their adjournment, it is ordered on a temporary and without prejudice basis that:

a. Liam shall have supervised parenting time with his father multiple times per week, and not less than at least twice per week. Consideration should be given to allowing Liam longer periods of parenting time with his father on the weekends.

b. The parties shall comply with para. 7 of the final order of Hebner J. dated November 14, 2022, which remains in full force and effect.

[63] In my view, success on the motions before me was divided. Mr. Sobieraj consented to the disclosure of the hospital records, although apparently not before the argument of the motions. I dismissed the respondent mother’s second claim for disclosure of Dr. Taylor’s clinical notes and records. To my mind, it cannot be said that either party was the clear successful party on this (limited) aspect of the motions before the court. As such, there shall be no order as to costs for the attendance before me.

Original signed by Justice “J. Paul R. Howard” J. Paul R. Howard Justice Date: May 21, 2024

Citations

[^1]: Mental Health Act, R.S.O. 1990, c. M.7. [^2]: See, for example, G.L.K. v. C.L.K., 2021 ONSC 5843, at para. 18. [^3]: Noel v. Noel, 2015 ONSC 4561, at para. 38. [^4]: Family Law Rules, O. Reg. 114/99. [^5]: Boyd v. Fields, 2006 ONSC 3700, at paras. 11-13. [^6]: See, for example, Porter v. Porter, 2009 ONSC 18686, at para. 17; Vecchio v. Abdelgawad, 2017 ONSC 5815, at para. 21; and Jackson v. Dixon, 2019 ONCJ 870, at para. 27. [^7]: See, for example, Lewis v. Schuck, 2018 ONSC 3887, at para. 24; Vecchio v. Abdelgawad, 2017 ONSC 5815, at para. 24; Porter v. Porter, 2009 ONSC 18686, at para. 17; Jewish Family and Child Service of Greater Toronto v. S. (H.B.), 2012 ONCJ 663, at para. 119; and S.(S.) v. S.(D.), 2008 NSSC 87, at para. 36. [^8]: See, by analogy, Lewis v. Schuck, 2018 ONSC 3887, at para. 25. [^9]: See, for example, G.(N.) v. Upper Canada College, at para. 4 (only counsel were permitted copies; no further copies; counsel and parties to take all reasonable steps to ensure that potential witnesses in the criminal trial were not exposed to the contents); and G.L.K. v. C.L.K., 2021 ONSC 5843, at para. 141 (disclosed records must remain in the possession of counsel only; clients to examine only at counsel’s offices, prohibited from making copies; and to be used only for the instant case). [^10]: G.L.K. v. C.L.K., 2021 ONSC 5843, at para. 89. [^11]: Child and Family Services for York Region v. H.(L.), 2013 ONSC 5622, at para. 28. [^12]: Benson v. Kitt, 2018 ONSC 7552, at para. 28.