ONTARIO COURT OF JUSTICE

CITATION: Briand v. Dupuis, 2019 ONCJ 158

DATE: 2019 02 19

COURT FILE No.: Toronto DFO-17-15959

BETWEEN:

SHAWN BRIAND

Applicant

— AND —

RENEE DUPUIS

Respondent

Before Justice S. O’Connell

Reasons for Endorsement released on February 19, 2019

Shawn Briand.............................................................................................. on his own behalf

Joseph Kary............................................................................... counsel for the respondent

Dana Cohen........................ counsel and agent for the Office of the Children’s Lawyer

O’CONNELL J.:

Introduction:

[1] The Office of the Children’s Lawyer has brought a motion for an order setting aside a Summons to Witness served on Dr. Rachel Birnbaum in this matter.

[2] Counsel for the respondent mother has served a Summons requiring Dr. Birnbaum to give evidence in these proceedings regarding an OCL clinical investigation and report and updated report that she completed in 2008 and 2009, approximately ten years ago.

[3] A custody and access trial in this matter is scheduled to proceed on Monday, February 25, 2019.

[4] The Office of the Children’s lawyer seeks to quash or set aside the Summons.

[5] The applicant father, Mr. Briand, supports the Children’s Lawyer’s motion.

Brief Background:

[6] Dr. Birnbaum is a professor at King’s University College at Western, in London, Ontario. Previously, she was a clinical agent of the Office of the Children’s Lawyer (OCL) for the province of Ontario and conducted what are known as ‘section 112’ custody and access reports (“OCL Reports”).

[7] Dr. Birnbaum was served by Mr. Joseph Kary, counsel for the respondent mother, with a Form 23 Summons to Witness, along with the requisite witness fee requiring her attendance for trial in this matter.

[8] The Summons to Witness asks that Dr. Birnbaum bring copies of the OCL Reports that she prepared for the custody and access case that she investigated in 2008, in accordance with section 112 of the Courts of Justice Act. Dr. Birnbaum provided an OCL report in 2008 and then an updated OCL report in early 2009.

[9] The Summons requests that in addition to her reports, Dr. Birnbaum bring her curriculum vitae, her clinical notes and records from the 2007/2008 investigation, police records relating to the parties in her original reports, doctor’s records and school records pertaining to the different children, the hospital records and CAS records relating to the different mother and the different children, although the same father.

[10] Dr. Birnbaum’s clinical investigation and reports related to different children and a different mother than in this case. The only common party is the applicant father, Mr. Briand, as he was the same father in the 2008 custody and access investigation.

[11] The three children who were the subject of the 2008 report are now all adults. There was never a trial of that court proceeding. Dr. Birnbaum recommended that custody of the three, now adult children, be with the applicant father. It is her understanding that the case settled after her investigation was completed.

[12] Dr. Birnbaum has had no contact with the children who are the subject of this proceeding. She has no knowledge of the current parenting abilities of the parties in this matter and she has never met Ms Dupuis, the respondent mother. Since her file was closed in or around late 2008, Dr. Birnbaum has had no further involvement with Mr. Briand or the mother and children involved in her 2008 reports.

[13] Further, given the time passed since her file was closed and the fact that the children are now adults, Dr. Birnbaum no longer has any clinical notes or records associated with her 2008 reports and investigation. Dr. Birnbaum contacted the clinical department at the OCL and they have informed her that they do not have any records relating to this file given that it was closed more than 11 years ago and the children are now adults.

[14] Dr. Birnbaum also points out that even if she did have the clinical notes and records associated with the 2008 file, there would be a serious breach of confidentiality if she were required to produce what was requested in the Summons, given that these documents relate to a different mother and different children, who are now adults.

The Law and Governing Principles:

[15] Rule 23 (3) of the Family Law Rules, O.Reg.114/99 governs the issuing of summons to witnesses (or subpoenas) in family law hearings in Ontario. It reads as follows:

SUMMONS TO WITNESS

(3) A party who wants a witness to give evidence in court or to be questioned and to bring documents or other things shall serve on the witness a summons to witness (Form 23) by special service in accordance with subrule 6 (4), together with the witness fee set out in subrule (4). O. Reg. 114/99, r. 23 (3); O. Reg. 322/13, s. 13.

[16] The leading case regarding when it is appropriate to quash or set aside a summons to a non-party witness is the Newfoundland Court of Appeal’s decision in Kent v. Kent, [2010] O.J. No. 287; 2010 NLCA 53; 88 R.F.L. (6^th) 241; 2010 CarswellNfld 278 (N.L.C.A.).

[17] In that case, the court held that where the evidence sought to be elicited from a subpoenaed witness is relevant to a live issue in the case, there is a prima facie right to require the attendance of the witness by means of a subpoena or summons.

[18] The jurisdiction of the court to quash or set aside a subpoena should be used cautiously and sparingly. This is because a party has the right, subject to the obligation not to abuse it, to control the presentation of his or her case.

[19] However, the right of a party to issue a subpoena is subject to the inherent jurisdiction of the court to control its own process.

[20] The criteria on which a summons or subpoena to a non-party may be quashed include the following:

a. the information sought is not relevant to the live issues in dispute;

b. the subpoena or summons was irregularly issued;

c. the information is privileged from production or is prohibited by statute;

d. the subpoena was not issued in good faith for the purpose of obtaining relevant evidence but for an ulterior or improper purpose;

e. the matter (such as an interlocutory application in a proceeding) to which the subpoena relates is frivolous or vexatious;

f. compliance would be oppressive as to the number, nature and breadth of the documents required or would work an unnecessary hardship, as where the documents may not be easily or readily retrievable and the expense does not justify their production considering their importance to the case, their potential availability from other sources and the importance of the privacy interests at stake;

g. its issuance is otherwise an abuse of process;

[21] The burden is on the party issuing the summons to show that the information sought is relevant to the live issues in the proceeding.

[22] The burden is on the witness challenging the summons to show that other grounds exist that would justify quashing the summons.

[23] A person who wishes to challenge a subpoena or summons may do so either by:

(a) making application in advance of the date specified for appearance setting forth the grounds upon which the challenge is being made;

(b) appearing, with or without counsel, on the date specified in the subpoena or summons and making application to quash the subpoena, specifying the grounds relied on.

[24] Upon an application being made, the judge may give directions to the party issuing the summons as to what material should be submitted to show the relevance of the information sought to the live issues in dispute and why, generally, the information is needed from the particular witness in question, as opposed to from any other available source, and when during the trial the information is needed.

[25] The judge may also give directions as to whether further material should be filed by the person challenging the summons and by other parties, as well as how and when the various issues involved in the challenge should be argued;

[26] As an alternative to quashing the summons, the judge may consider whether the summons should be limited in scope or whether the execution of the summons should be postponed to a later date in the trial when the necessity for the evidence may become more apparent. See Kent v. Kent, supra.

Analysis and Application to the Facts in this Case:

[27] Counsel on behalf of the Office of the Children’s Lawyer submits that it is a basic principle of evidence that the test for admission is relevance. Further, the probative value of the evidence sought to be admitted must outweigh any prejudicial effect.

[28] In this case, Dr. Birnbaum’s investigations and reports are over ten years old. They involve different children with a different mother. The reports are relatively short and there is not a lot of information contained in them about the father, other than collaterals, given the unique circumstances of that case.

[29] Counsel submits that Dr. Birnbaum cannot comment on anything that collateral reports stated to her as this would be hearsay. Dr. Birnbaum no longer has any of her notes and clinical records regarding her investigation. She would simply be reading what is in her report. Dr. Birnbaum has very little recollection if any, of a case that she investigated over ten years ago.

[30] Even if she did have an independent recollection of her clinical observations or findings, Dr. Birnbaum would have nothing to say about the father’s current parenting abilities after ten years of no contact, and certainly nothing at all to say about the respondent mother and children in this case, as she has never met them.

[31] Further, there is a secondary but also very important issue regarding the confidentiality of the records of the mother and adult children in the other case and the information contained about them in Dr. Birnbaum’s reports.

[32] Finally, whether or not the 2008-2009 OCL Reports are admissible as evidence in this case, there is nothing to prohibit mother’s counsel from vigorously cross-examining the father on the contents of the OCL reports, in particular regarding his past parenting history.

[33] Counsel for the respondent mother submits that the information contained in the 2008 OCL reports about the applicant father are very relevant to the issues in this trial for the following reasons:

1. The parties separated in August of 2017. The two children of their relationship and who are the subject of this trial are twins. They will be two years old in April of this year. The children have resided with the respondent mother since the parties’ separation. The mother is 35 years old and the twins are her only children. According to mother’s counsel, the evidence will show that the twins are thriving in her care.

2. The father is 47 years old and has four children by previous relationships, in addition to the two children who are the subject of this trial (six children in total). He has been convicted of assaulting the mother of his three older adult children and there is a significant past history of children’s aid society involvement regarding the parenting of his other children.

3. The respondent mother was forced to move to Newmarket after the separation, due to circumstances not of her choosing, according to mother’s counsel. There is a non-harassment order in place prohibiting the father from attending the mother’s residence.

4. This is a high conflict case and the parties cannot communicate.

5. The father is seeking sole custody of the children. In the alternative, he is seeking joint custody of the children and an order that they reside with him.

6. Mr. Kary, counsel for the mother wants to be able to cross-examine Dr. Birnbaum about the father because he submits that the father has a long and disturbing family history and that Dr. Birnbaum observed this and saw the impact of the father’s hostile attitude towards the mother of the children of his previous relationship.

7. Counsel for the mother served the father with a Request to Admit (Form 22). It attached copies of Dr. Birnbaum’s OCL Reports dated February 3, 2008 and dated January 16, 2009, regarding the father’s other children and relationships. The Form 22 requests that the father admit, only for the purposes of this case, that the two OCL Reports attached are genuine and true copies of the original OCL Reports completed in 2008 and 2009.

8. The father refused to admit that the copies of the OCL Reports attached to mother’s Request to Admit are genuine and authentic copies.

[34] I agree with Ms Cohen, counsel and agent for the OCL, that mother’s counsel can cross-examine the father at length on both of the OCL Reports prepared by Dr. Birnbaum, whether or not they are admissible as evidence in this proceeding. The scope of cross-examination is wide and mother’s counsel would be entitled to cross-examine the father on the contents of the reports, his history of previous relationships, his children and parenting history, and whether he followed through with any of Dr. Birnbaum’s recommendations.

[35] The difficulty however, is that the father in this case appears to be refusing to accept that the copies of the previous OCL reports that the mother was able to obtain are genuine or authentic.

[36] Section 112(3) of the Courts of Justice Act provides that an Investigation and Report of the Office of the Children’s Lawyer is evidence at a hearing of the proceeding and states as follows:

(3) An affidavit of the person making the investigation, verifying the report as to facts that are within the person’s knowledge and setting out the source of the person’s information and belief as to other facts, with the report attached as an exhibit thereto, shall be served on the parties and filed and on being filed shall form part of the evidence at the hearing of the proceeding. R.S.O. 1990, c. C.43, s. 112 (3). [Emphasis added.]

[37] The question here is what proceeding? The OCL reports completed by Dr. Birnbaum were regarding a completely different proceeding, involving different parties (except the father) and different children.

[38] The copies attached to the mother’s Request to Admit include Affidavits which purport to be signed by Dr. Birnbaum. As well, the copies of both Reports appear to be signed by Dr. Birnbaum.

[39] During the course of the argument of this motion, the court specifically asked the father if he agreed that the copies of Dr. Birnbaum’s 2008 OCL reports provided by mother’s counsel were genuine and authentic copies that could be relied upon at trial or in cross-examination. The father would not provide a clear answer to the court. The father appeared to be suggesting that mother’s counsel may not be providing accurate or authentic copies. The father appeared to be suggesting that he would deny that the reports were authentic or accurate if he was cross-examined on them.

[40] For this reason alone, I conclude that the Summons to Witness will not be set aside in this matter, however, it will be significantly limited in scope.

[41] Given that the applicant father in this case appears to be questioning the authenticity of the 2008-2009 OCL Reports produced by the mother in this trial, and is somehow suggesting that they may be fabricated or altered in some way, Dr. Birnbaum will be required to testify regarding the authenticity of the reports produced and to confirm that she did, in fact, conduct the OCL investigations regarding the applicant father and his other family in 2008.

[42] Dr. Birnbaum will not be required to bring any of the supporting documentation required in the Summons to Witness, other than the two OCL Reports that she prepared in 2008 and 2009 regarding the applicant father and his other children.

[43] If Dr. Birnbaum has any independent recollection of her 2008 and 2009 investigation and her clinical observations regarding the applicant father’s parenting or communication abilities at that time, then she may give evidence on those issues. Any weight that should be given to that evidence will be left (obviously) to the trial judge. Dr. Birnbaum will not be required to give evidence that would in any way breach the confidentiality of the mother or adult children in the 2008-2009 OCL Reports.

[44] Given the above limitations imposed, Dr. Birnbaum’s evidence may likely be very short. Counsel for the respondent mother shall contact Dr. Birnbaum to ascertain a convenient time and date for her to testify.

[45] In addition, since Dr. Birnbaum teaches in London, Ontario, the court will permit her to testify via the Court’s secure video testimony procedure if that is more convenient for her. If necessary, Dr. Birnbaum should contact counsel for the respondent and the court’s trial coordinator, Ms Elise Cattani, to make arrangements to testify in this matter.

[46] I thank counsel for their very helpful submissions.

[47] This is not an appropriate case for costs.

Released: February 19, 2019

Signed: Justice Sheilagh O’Connell