ONTARIO COURT OF JUSTICE

Date: July 22, 2020

Court File No.: Toronto FO-20-15407

BETWEEN

J.K.L.D. Applicant Mother

— AND —

W.J.A. Respondent Father

Before: Justice Alex Finlayson

Heard on: July 16, 2020

Endorsement released on: July 22, 2020

Counsel:

• Ryan Gillissie, for the applicant mother
• Gary Gottlieb, for the respondent father

ALEX FINLAYSON J.:

PART I: OVERVIEW AND NATURE OF THIS ENDORSEMENT

[1] This preliminary ruling concerns the admissibility of certain evidence in affidavits, filed in support of competing custody and access motions before the Court. This is also my decision regarding the father's motion for production of the mother's health records of her family doctor, prior to the main motions proceeding.

[2] The parties, who are in their early and mid-20's, are the young parents of a 2 ½ year old boy named N.D.M.A. In their main motion and cross-motions, each parent claims various interim relief. There are claims for temporary custody, primary residence, access, child support, life insurance, police enforcement, a retraining order, challenges to the evidence, and other related claims before the Court. The motions were initially scheduled to be heard on July 16, 2020, but they will now be heard on August 27, 2020.

[3] The main motions did not proceed on July 16, 2020, because the father raised three, and possibly four preliminary issues. They are:

(a) The father has filed a supplementary Notice of Motion and an affidavit dated July 13, 2020, asking the Court to strike various paragraphs from the mother's affidavit material;

(b) In his supplementary affidavit of July 13, 2020, the father challenges the admissibility of two reports of the mother's family doctor, Dr. Donna Henrikson, dated June 15 and 30, 2020, which are attached to the mother's Reply Affidavit of July 6, 2020;

(c) In his main Notice of Motion dated June 29, 2020, the father seeks an order for production of the mother's clinical notes and records of her family doctor. The father made this request before the mother filed the two reports. He still wants the notes and records regardless of the reports now filed; and

(d) In his main Notice of Motion dated June 29, 2020, the father asks for an order requiring the mother to undergo physical and mental health examinations, pursuant to section 105 of the Courts of Justice Act. The father did not pursue this request for relief, when these motions came before me on July 16, 2020. However, I understood the father's counsel to say that this request might be revived, depending on the content of the mother's health records.

[4] I provide a summary of my ruling on these points here at the outset of this written decision.

[5] First, I dealt with most of the father's motion to strike various paragraphs of the mother's affidavit material during the hearing itself on July 16, 2020. I delivered brief oral reasons at the time. However, there were certain other challenges to the evidence that were not actually dealt with. So my ruling respecting the balance of the father's evidentiary objections follows in this decision.

[6] Second, the fact that Dr. Henrikson's reports are in the format of letters, addressed "to whom it may concern" does not matter. To exclude them because they are letters, or because they are unsworn as counsel argued, would be to disregard their substance, for their form. For the reasons that follow, I find that Dr. Henrikson is a participant expert. The two documents, which she has authored, are practitioner's reports. Except possibly in one very minor respect, the content of her reports is properly admissible for use at the custody and access motions, pursuant to rules 20.2(14) and (15) of the Family Law Rules, and section 52 of the Evidence Act. The father's request that the Court either strike the reports from the record, or disregard them, is therefore dismissed.

[7] I do intend, however, to issue further directions regarding how Dr. Henrikson's evidence should be dealt with, in light of one of the father's complaints that he cannot question Dr. Henrikson. I do so with regards to the operation of section 52 of the Evidence Act and rule 14(17)(3.) of the Family Law Rules.

[8] Finally, regarding the request for production of the mother's health records of her family doctor, I am persuaded that some of those records ought to be produced. However, the Court intends to order terms and conditions surrounding their production, in accordance with the Supreme Court's comments in M. (A.) v. Ryan, [1997] 1 S.C.R. 157.

PART II: ADDITIONAL BACKGROUND FACTS

[9] I next provide only a brief summary of the evidence about the parents' relationship, and the evidence and allegations about the mother's mental health. I do so to provide the context necessary to consider the preliminary arguments now being made. I am not making any findings about the history of the relationship, nor about any other matters relevant to a decision on the main motions. Those motions will proceed on August 27, 2020, and I will hear arguments about how to weigh and consider the evidence at that point. Nor do I make any findings about the mother's mental health or her ability to parent, except to say that I find there to be a sufficient evidentiary basis for a production order at this time. How the medical evidence should be weighed and considered, is also a matter for argument on August 27, 2020.

A. Background Relationship Facts

[10] In their competing affidavits, each parent claims to have been N.D.M.A.'s primary parent. In addition, father says that the paternal grandmother played a significant role in helping the parents care for N.D.M.A. Both sides do agree that during the relationship, the parties lived with the father's parents in their apartment in Scarborough for a period of time, and then in their own apartment after that, but it was in the same building as the paternal grandparents' apartment.

[11] On the mother's account, the parties separated in early 2019, but continued to live together in their own apartment, for well over a year, until the late winter or early spring of 2020. According to the mother, in about March of 2020, following an argument, she left with N.D.M.A. for Mississauga, to live with her new partner.

[12] After the mother left, the parents did manage to arrange a visit between father and son, over the weekend of April 17, 2020. The mother's view, based on text messages which she filed, is there was an agreement for father to return N.D.M.A. to her care at the end of the weekend. Instead, the father kept N.D.M.A. According to the mother, the father claimed N.D.M.A. was ill. Then, he relied on Covid-19 and said the child needed to self-isolate for 14-days.

B. Prior Legal Proceedings

[13] Neither parent came to Court right away, after the mother left for Mississauga in March, 2020. And while it was the mother who commenced this proceeding after the father kept N.D.M.A. in April, she did not do so until late May. Each parent explains his and her respective delay in coming to Court after the two above mentioned events occurred. To some extent, each relies on problems associated Covid-19 to explain their delay.

[14] On about May 19, 2020, the mother filed a 14B Motion asking the Court to schedule an urgent motion, or an urgent case conference, "related to the wrongful retention of a child". Upon receipt of that 14B Motion, I directed the parties to appear before me by teleconference, to be held on May 26, 2020.

[15] The mother and her counsel did appear on May 26, 2020; the father did not. Based on what I was told by the mother and her counsel, I formed the impression that father was indeed aware of the teleconference, but chose not to participate. So I wrote an Endorsement cautioning the father that he had to appear next time, or that orders might be made against him in his absence. I also ordered costs of $500, and I put the matter over to May 28, 2020.

[16] On May 28, 2020, the father and his new counsel appeared. I was then given conflicting information about what the father knew about the call on May 26, 2020. On consent of mother's counsel, I set aside the costs order of May 26, 2020. Those costs are now reserved to the motion. Counsel for the father requested an adjournment of the case conference to prepare for it, which I granted. I also made an order for production of the Children's Aid Society's notes and records concerning this family that day, based on some of the submissions made.

[17] The case conference proceeded on June 8, 2020. By that date, counsel for the father put counsel for the mother (and the Court) on notice that the father would be requesting production of the mother's health records, and perhaps an order that she submit to a mental health assessment, pursuant to section 105 of the Courts of Justice Act. I encouraged counsel for the mother to obtain and review the mother's clinical notes and records well in advance of the July 16, 2020 return date, and to consider whether the production issue could be resolved on consent.

[18] Otherwise, the parties agreed that the mother would have access to N.D.M.A. pending the motions, on a temporary without prejudice basis, on Tuesdays and Wednesdays, from 11:00 am to 5:00 pm. I ordered certain other terms incidental to access, relating to how the exchanges would occur. Some of those terms were not on consent but were ordered anyway, for oral reasons delivered. I made a scheduling order for the exchange of the motion materials, and I set the motions to proceed before me, on July 16, 2020.

[19] The parties did not reach any agreements respecting production of the health records between June 8, 2020, and the July 16, 2020 return date. Counsel for the father then raised the various preliminary issues at the outset of argument on July 16, 2020.

C. The Evidence Concerning the Mother's Mental Health

(1) The Mother's Initial Evidence About Her Mental Health

[20] In her initial affidavits of May 19, 2020 and June 2, 2020, the mother mostly described the conflict between the parents, during the time that they lived together, and post-separation, among other issues respecting parenting. She did not tie the parental conflict in any way to her mental health. Nor did she discuss her mental health at all in that first affidavit of May 19, 2020.

[21] In the May 19, 2020 affidavit, the mother does mention the involvement of Dr. Henrikson as her doctor, in passing. However, she mentions Dr. Henrikson in the context of pointing out that Dr. Henrikson is also the child's doctor. The point she wishes to make, is that she was responsible for ensuring the child's medical needs were met. And in her subsequent June 2, 2020 affidavit, the mother goes on to elaborate that the father then unilaterally changed N.D.M.A.'s doctor from Dr. Henrikson, to someone else, since keeping N.D.M.A. after that weekend, in April.

[22] The June 2, 2020 affidavit was prepared after the May 28, 2020 attendance before me. Unlike in the May 19, 2020 affidavit, now Dr. Henrikson is also discussed in a different way, insofar as the mother's health is concerned. The mother discloses that she had "post partum anxiety" after N.D.M.A.'s birth. She says N.D.M.A. had to stay in the neo-natal intensive care unit for three days after birth. Upon his release from the neo-natal intensive care unit, the mother says she realized that her anxiety was "disproportionate in the circumstances". So the mother says she saw Dr. Henrikson for anti-anxiety medication. She says it didn't really help, so she followed up and obtained a different prescription. It is the latter prescription, which she says she has been taking for about 1 ½ years. The mother also says she now meets with Dr. Henrikson once every three months, to evaluate "her medication and mental status".

(2) The Father's Evidence About the Mother's Mental Health

[23] The father makes more serious allegations about the mother's mental health in his responding affidavit of June 25, 2020. He says that following N.D.M.A.'s birth, the mother presented as very tired. This presentation continued, but then she also started to present as "very sad, despondent and unable to care for the child". The father said he became extremely worried. He observed the mother's personal hygiene to worsen. For example, she wouldn't wash her hair for "days and days".

[24] The father says that the mother became increasingly "agitated and angry". She would use foul language towards him and his mother, in the presence of the child. She would also scream and yell at the paternal grandmother.

[25] The father says that the mother presented as "strangely paranoid". She continuously accused him of having affairs. She would hack into his social media accounts. One time, the father says the mother tried to place his finger on his cell phone while he was sleeping, to unlock the phone. The father woke up while the mother was moving his hand, to unlock the phone, and thwarted her attempt.

[26] The father says that the mother became reliant upon him, and upon his mother, to do the majority of childcare tasks associated with caring for N.D.M.A. She refused to feed N.D.M.A. The father says it got to a point that he would not leave the child alone with the mother. He also says the mother would disappear for days on end, leaving him to care for the child. There is also an affidavit of the paternal grandmother before the Court. In part, she discusses some of her similar observations about the mother.

[27] The Children's Aid Society has been involved with the parents, post-separation. The father has filed all of the Children's Aid Society's notes and records with the Court, which he obtained pursuant to my production order of May 28, 2020. I have been specifically referred to two entries concerning the mother's mental health in these records.

[28] Father's counsel points me to a note of December 20, 2019, in which the mother denied suffering from "post-partum depression" to the Society, but admitted to suffering from "post-partum anxiety". However, she said she is "fine now". This statement was made by the mother, after the father had first reported a concern about the mother's mental health to the worker.

[29] In a subsequent note of January 7, 2020, the mother told the Society that "she does not have any mental health issues". At the same time, she said that she is on medication, and meets with her doctor.

(3) The Mother's Reply

[30] The mother's reply to some of the detail in the father's affidavit of June 25, 2020 about her mental health is rather brief. She does address some of the allegations the father made about her anger. But mostly, she relies on the two reports of Dr. Henrikson, attached as exhibits to her July 6, 2020 affidavit.

PART III: ISSUES AND ANALYSIS

A. The Father's Motion to Strike

[31] In his supplementary Notice of Motion dated July 13, 2020, the father challenges 8 paragraphs of the mother's Reply affidavit of July 6, 2020. I dealt with those paragraphs during argument. I struck 7 of the 8 paragraphs from the July 6, 2020 affidavit, with brief oral reasons delivered at the time.

[32] In his supplementary Notice of Motion dated July 13, 2020, the father also challenges paragraph 30 of the mother's affidavit of June 15, 2020. While some comments may have been made about this paragraph during submissions, it is my impression that argument about this paragraph remains outstanding. There may have been some confusion, because the father also complains about paragraph 30 of the mother's July 6, 2020 affidavit, not in his supplementary Notice of Motion, but rather in his affidavit of July 13, 2020. During argument, when I asked about the paragraph 30 referred to in the supplementary motion, my recollection is that most of the submissions centred around paragraph 30 in the mother's July 6, 2020 affidavit instead.

[33] Unfortunately, the mother's June 15, 2020 affidavit (and therefore paragraph 30 of it) was not even before me at the time arguments began. Although it had apparently been e-filed in advance, it was not brought to my attention, likely due to an error on the part of the Court. As a result, Mr. Gillissie re-sent it to the clerk during the motion, and I now have it.

[34] During submissions, Mr. Gillissie advised the Court that the purpose of the June 15, 2020 affidavit is to highlight for the Court the excerpts from the Children's Aid Society's notes and records upon which the mother intends to rely for the main motions. Mr. Gillissie confirmed, on the record, that the June 15, 2020 affidavit has nothing to do with the admissibility of Dr. Henrikson's medical reports, or the father's request for production of the health records.

[35] Because of its unfortunate late delivery to my attention, the Court now realizes that the mother's affidavit of June 15, 2020 remains in unsworn form. Therefore, it may be sworn over the telephone at the return of this motion in August, if Mr. Gillissie is unable to meet with his client before hand due to Covid-19. And to the extent that there continues to be an issue with paragraph 30 of that affidavit, I will hear very brief submissions about that next time.

[36] By contrast, I did hear much about paragraph 30 of the mother's July 6, 2020 affidavit. And it relates to the production motion.

[37] At that paragraph 30, the mother says that she has:

…offered to permit the [father] to write directly to [her doctor] to ask any further questions he may have provided the questions are vetted by my lawyer. He has had this offer since June 18, 2020. He has failed to take me up on my offer and now seeks blanket access to my personal medical files.

[38] The mother's unfortunate use of the word "offer" in this passage, has caused some controversy. In his affidavit of July 13, 2020, the father now says that the mother has disclosed an "Offer to Settle" a central issue. He also says that what the mother said about that Offer in her affidavit, is an inaccurate statement of what she actually offered. He asks for leave to disclose the Offer at the appropriate time after the motion. And during argument, father's counsel expressed concern that this statement has now tainted the integrity of the motion.

[39] In response, Mr. Gillissie says the use of the "offer" in that paragraph was not a reference to an "Offer to Settle". He says the communication or "offer" in issue, was not a without prejudice communication. Rather, he says that this statement is a statement of what the mother is prepared to have the Court order, and she offered that up before argument, too. In other words, this is a statement of a litigation position respecting production of the health records, communicated before the motion, and then to the Court in the affidavit.

[40] I have not reviewed the correspondence, in the event that it is actually an Offer to Settle proper. I have no way of knowing at this point, whose version of events respecting this letter is correct. But as I expressed to counsel on the record during argument about this, to the extent that the mother is arguing that the Court should order this as a term for the health records, as opposed to production of the records themselves, then that is a proper submission based on the framework in M. (A.) v. Ryan. To the extent that paragraph 30 is actually a partial, or even a complete statement of an Offer to Settle (or an inaccurate statement, but referable to an Offer to Settle nonetheless), then it ought not have been included in the material before the Court.

[41] None of which matters to the integrity of this motion. The Court has no intention of deciding the motion based on correspondence between counsel. The Court is not tainted or persuaded by the fact that the mother may have said this, or even "offered" this before the motion. So, I have considered Mr. Gillissie's submission that the Court should essentially order written interrogatories, as opposed to production, as a submission about how the Court should balance the competing interests in this case. That submission does not become weightier, just because the mother may have reduced it to writing in a letter though her counsel before hand. Whether Mr. Gottlieb then failed to take Mr. Gillissie up on this before July 16, 2020, or not, also does not matter either. In fact, Mr. Gillissie's submission does not even depend on any letter previously having been written; it could have just been made on the spot, in submissions. And as I will later explain, it is not a submission that I find persuasive, in the result in this case.

B. The Admissibility of Dr. Henrikson's Reports

[42] The father challenges the admissibility of Dr. Henrikson's reports on multiple fronts. In his factum, his affidavit of July 13, 2020, and during oral submissions, the father argues:

(a) The two "letters" are not sworn;

(b) The "letters", as they stand, are "prejudicial and unhelpful";

(c) The "letters" do not comply with the expert rule;

(d) They do not reveal Dr. Henrikson's qualifications to tender opinions. She is "making psychiatric diagnosis but has not sworn as to her qualifications to do so";

(e) The father is unable to question the doctor on her findings;

(f) The doctor is unable to offer an opinion about the mother's parenting, yet there is such an opinion in the letter of June 15, 2020; and

(g) As a result, the father asks the Court to either "strike the letters or simply ignore them".

[43] I will generally address these arguments in the order that they are listed above.

(1) Hearsay is Admissible on a Motion

[44] Hearsay is admissible on a motion, if the affiant has identified the source of the information, and states that she believes the information to be true. See rule 14(19) of the Family Law Rules. Yet even where the requirements of the rule and the case law interpreting it are met, the Court retains discretion to refuse to admit the hearsay. See Berger v. Berger, 2016 ONCA 884 ¶ 76.

[45] If it were exclusively upon this rule that the issue about the admissibility of Dr. Henrikson's reports turned, then there might be some limited, merit to the father's objection, albeit technical merit.

[46] Although the mother must believe in the truth of the contents of Dr. Henrikson's reports, since she offered them up as an explanation about her mental health to respond to the father's allegations (rather than responding more fully herself), she did not specifically state her belief in the truth of these reports. Nowhere in her affidavit does she say that she believes the two reports of Dr. Henrikson to be true. This is likely an oversight in affidavit drafting, rather than a deliberate omission of an important fact or requirement.

[47] Nevertheless, this motion does not really turn on the mother's non-compliance with the technical requirements of rule 14(19). Even if the mother's affidavit contained the missing statement(s) needed to properly engage rule 14(19), the father would still be arguing that the reports are inadmissible anyway, for the many other reasons summarized above. And the question of whether hearsay is admissible on a motion becomes more nuanced, when the hearsay in question is expert opinion evidence. It requires a review of more than just rule 14(19).

(2) The Admissibility of Expert Opinion Evidence

[48] At ¶ 39 of Girao v. Cunningham, 2020 ONCA 260, the Ontario Court of Appeal recently reiterated the test for the admission of expert opinion evidence. Four elements must be met in order for such evidence to be admitted. First, it must be necessary to assist the trier of fact. Second, no other evidentiary rule should apply to exclude it. Third, the expert must be properly qualified, assuming there is no novel science issue. And then fourth, the trial judge must execute his or her gate keeper function.

[49] Also at ¶ 39, the Court of Appeal goes on to say, "[t]hese four threshold elements implicitly give rise to another element: can a person who has expertise, but who is not qualified as an expert witness under r. 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, still provide expert evidence?". And at ¶ 40 and 41, the Court of Appeal said the answer to this question, is yes.

(3) Not All Experts Are Litigation Experts

[50] In Girao v. Cunningham, the Court of Appeal repeats what Simmons J.A. identified in Westerhof v. Gee Estate, 2015 ONCA 206, that there are two types of witnesses who have special expertise, and who may provide opinion evidence, but who are not the kind of expert witnesses described in rule 53.03 of the Rules of Civil Procedure.

[51] At ¶ 60 of Westerhof v. Gee Estate, Simmons J.A. held that such witness(es), (which would include a "participant expert"), are those "with special skill, knowledge, training or experience who has not been engaged by or in behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with rule 53.03 [of the Rules of Civil Procedure] where the opinion to be given is based on the witness' observation of or participation in the events at issue, and the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events."

[52] A "participant expert" would include a treating physician, like Dr. Henrikson in this case.

[53] Indeed, the Family Law Rules, recently amended in 2019, now delineate different kinds of experts. The definition of a "participant expert" in rule 20.2(1) uses similar, if not identical language as that used by Simmons J.A. in Westerhof v. Gee Estate. A "participant expert" is differentiated from a "litigation expert", which means a person engaged for the purposes of litigation to provide expert opinion evidence (ie. the Family Law Rules' equivalent to the rule 53.03 expert). And there is also the "joint litigation expert", which means a litigation expert engaged to provide expert opinion evidence for two or more parties. Each of these three experts are dealt with in separate subrules of rule 20.2.

[54] So while rule 20.2 is the "Expert Opinion Evidence" rule, in various respects, each of these kinds of experts are treated differently.

(4) How Expert Opinion Evidence Is Admitted On A Motion

[55] Girao v. Cunningham and Westerhof v. Gee Estate are both appeals of trial decisions. Neither of Girao v. Cunningham or Westerhof v. Gee Estate specifically address how expert opinion evidence may be introduced on a motion.

[56] Rule 20.2(15) does provide some guidance. It says that expert opinion evidence may be used on both an interim motion, and on a summary judgment motion. Rule 20.2(15) reads:

20.2(15) Unless the court orders otherwise, this rule applies, with the following modifications, to the use of expert opinion evidence on a motion for a temporary order under rule 14 or a motion for summary judgment under rule 16 :

1. Expert witness reports and any supplementary reports shall be served and filed as evidence on the motion in accordance with the requirements of subrules 14 (11) , (11.3) , (13) and (20) , as applicable.

2. Any other necessary modifications.

[57] The rule says nothing about the evidence having to be sworn.

[58] In his factum, the father relies on four cases to argue that, "[c]ourts have repeatedly confirmed that letters are not sworn evidence and are insufficient evidence on a motion, particularly where they relate to an issue of central concern". All of the cases pre-date the enactment of this rule.

[59] But quite apart from the silence in the new rule about whether the reports must be sworn, in my view the correct treatment of three of the four cases cited by the father, is found in the recent decision of Ellies R.S.J. in LaRoche v. Lynn, 2019 ONSC 6602 (S.C.J.). And specifically, Ellies R.S.J. distinguished three out of four of the father's cases. I intend to follow most of Ellies R.S.J.'s analysis.

[60] LaRoche v. Lynn concerned a motion to terminate spousal support, brought by the husband. In response, the wife alleged an ongoing inability to work, and attached an unsworn report of her psychiatrist to the affidavit material.

[61] At ¶ 28, Ellies R.S.J. said the following about whether the psychiatrist's report ought to have been sworn:

Counsel for Mr. Lynn relies on a number of cases in which courts have held that an expert's opinion should be introduced in a motion either in the form of an affidavit sworn by the expert which sets out the opinion, or in the form of a report attached to an affidavit sworn by that expert. [citations of cases omitted]. In my view, these cases are distinguishable because none of them deal with expert reports that are admissible under s. 52 of the Evidence Act, R.S.O. 1990, c. E. 23 .

[62] Two of the cases, (the citations for which I have omitted from the above passage in the interest of brevity), are amongst the four cases that the father relies upon in this case before me.

[63] The third case upon which the father relies is Sanzone v. Schechter, 2017 ONCA 566. And similarly, Ellies R.S.J. also distinguished that case, elsewhere in LaRoche v. Lynn. I will discuss Sanzone v. Schechter in more detail, next.

[64] Sanzone v. Schechter considered how expert evidence might be introduced on a summary judgment motion, not an interim motion. In that context, at ¶ 16 (which the father also cites in his factum in this case before me), the Court of Appeal held that a party can either file an affidavit from the expert containing his or her opinion, or an affidavit from the expert with the report attached. However, there is an exception mentioned in ¶ 16, namely when the opinion comes from a participant expert. The Court does not go on to explain how the opinion of a participant expert should be introduced.

[65] To properly consider the context in which the comments in ¶16 of the decision were made, it is important to pay particular attention to the kind of expert opinion evidence that was in issue in Sanzone v. Schechter. The unsworn letter in question in Sanzone v. Schechter, was that of a dentist. While sometimes a dentist may be a participant expert, that was not so in Sanzone v. Schechter. The dentist's letter in that case purported to give opinion evidence about the standard of care, not about any particular care that the dentist had provided to a patient. That is not the opinion evidence of a participant expert, as described in Westerhof v. Gee Estate.

[66] Therefore, the report could only be that of an expert, in the litigation expert sense of the term. The dentist's letter, however, did not comply with Rule 53.03 of the Rules of Civil Procedure, either.

[67] I agree with Ellies R.S.J.'s assessment of Sanzone v. Schechter, where he says at ¶ 33, "… the report was inadmissible because of its substance, rather than its form." Ellies R.S.J.'s assessment of the Court of Appeal's comments in ¶ 16 about the report having to be sworn, was that they were obiter. Nevertheless, it is still very persuasive commentary.

[68] Litigation experts are generally required to testify at a trial. There is no other rule or statutory provision allowing for the admission of their reports, otherwise. And for a summary motion, according to Sanzone v. Schechter even if it is obiter, their reports must be in a sworn form, too. See again ¶ 16.

[69] But to this, I would add two additional bases of distinction that make Sanzone v. Schechter different from this case before me.

[70] Sanzone v. Schechter involved a summary judgment motion. In summary judgment, there are specific consequences that may attach to relying on certain kinds of evidence, including hearsay. See Rule 20.02(1) of the Rules of Civil Procedure; see also Rule 16(5) of the Family Law Rules; see Drummond v. Cadillac Fairview Corporation Limited, 2019 ONCA 447 ¶ 21-33; and see Kawartha-Haliburton Children's Aid Society v. M.W., 2019 ONCA 316 at ¶ 80. These decisions of the Court of Appeal, (as do many decisions of this Court in both the child welfare and domestic family law contexts), cautioned against relying on hearsay and other less than trial worthy evidence, on a summary judgment motion.

[71] That caution does not apply with equal force on an interim motion. See again rule 14(19). So it may very well be that the litigation expert's report was to be sworn in Sanzone v. Schechter, because of the caliber of evidence required for summary judgment.

[72] But Sanzone v. Schechter does not address:

(a) whether expert opinion reports generally, need to be sworn for an interim motion, regardless of their type;

(b) whether there is a further distinction to be drawn for the purposes of an interim motion, depending on the kind of report in issue. In other words, whether some, but not all kinds of expert reports, need to be sworn for an interim motion; and

(c) specifically, whether a practitioner's report under section 52 of the Evidence Act needs to be sworn at all, regardless of whether the motion is an interim one, or summary judgment.

(5) Whether A Practitioner's Report Must Be In Sworn Form For Use At A Motion

[73] Because in this decision I am finding Dr. Henrickson's reports to be practitioner's reports, I need only address question (c), and only insofar as it pertains to an interim motion. I deal with that here.

[74] Pursuant to section 52 of the Evidence Act, a report obtained by or prepared for a party to an action and signed by a practitioner are, with leave of the court and after at least ten days notice has been given to all other parties, admissible in evidence in the action. In the family law context, rule 20.2(15) of the Family Law Rules now governs their use on a motion, too, but with necessary modifications.

[75] As an exception to the hearsay rule, a practitioner's report would be able to be admitted at a trial without the need to call the practitioner to testify, let alone at an interim motion. See Girao v. Cunningham ¶ 45. I agree with Ellies R.S.J. where he said, at ¶ 33 of LaRoche v. Lynn, that "[i]t seems illogical that a party would be required to obtain an affidavit in a paper-based proceeding such as a summary judgment motion, when a simple letter will suffice in a trial."

[76] I find that Ellies R.S.J.'s comments apply equally regarding an interim motion.

[77] So with those comments in mind, I turn to the fourth case upon which the father relies in this case before me: Berger v. Berger, 2016 ONCA 884. Berger v. Berger considered whether an unsworn memo from an employer, that a party had attached to his affidavit, qualified as admissible hearsay within the meaning of rule 14(19) and the case law that considers that rule. At ¶ 74-76, the Court held that it did not, or at least that it was in the discretion of the judge to exclude it. But the unsworn document in issue in Berger v. Berger was not practitioner's report, and so there was no discussion of the operation of section 52 of the Evidence Act.

[78] I do wish to acknowledge that all of the aforementioned analysis in LaRoche v. Lynn about whether a practitioner's report must be sworn, is technically obiter. That is because at ¶ 36, Ellies R.S.J. held that he ultimately did not have to decide whether the psychiatrist's report had to be sworn, or not. And that is because Ellies R.S.J. disregarded the psychiatrist's report altogether, as it went beyond the scope of what is permitted of a participant expert. See ¶ 36. In other words, the report was problematic in its substance, over its form.

[79] In this decision, I am relying on Ellies R.S.J.'s obiter analysis. I am specifically finding that the reports of Dr. Henrikson need not be sworn in this case. But as the father has made similar arguments about Dr. Henrikson exceeding the scope of what is permitted of a participant expert, I will also deal with whether the reports should be excluded or disregarded, based on their substance rather than their form, too. And I reach a different conclusion than did Ellies R.S.J. in LaRoche v. Lynn. Not because I disagree with the analysis, but because the reports in this case before me are different, and that makes this case distinguishable on this latter point.

(6) Whether Dr. Henrikson Ought To Have Complied With Rule 20.2(2) of the Family Law Rules

[80] Rule 20.2(2) lists of a minimum of 7 items that must be included certain expert reports. At paragraph 75 of his factum, the father submits that all "expert witness reports" must include these prescribed minimum facts. And Dr. Henrikson's reports do not contain the 7 items.

[81] The father's factum in this regard, contains a mis-statement of what the rule actually says. Rule 20.2, in its totality, is called the "Expert Opinion Evidence" rule. In rule 20.2(1), the three kinds of experts are differentiated and defined. It is true that rule 20.2(2), which the father cites, lists minimum prescribed facts that must be included in a report. However, that rule pertains only to the reports of a litigation expert, not every "expert witness report", which the father's factum mis-states.

[82] Rule 20.2(2) reads:

A party who wishes to call a litigation expert as a witness at trial shall, at least six days before the settlement conference, serve on all other parties and file a report signed by the expert and containing, at a minimum, the following

[83] By contrast, participant experts are governed by rule 20.2(14). It reads:

20.2 (14) A party who wishes to call a participant expert as a witness at trial shall,

(a) at least six days before the settlement conference,

(i) serve notice of the fact on all other parties, and

(ii) if the party wishes to submit any written opinion prepared by the expert as evidence in the trial, serve the written opinion on all other parties and file it; and

(b) serve on any other party, at that party's request, a copy of any documents supporting the opinion evidence the participant expert plans to provide.

[84] There is no prescribed content of the written opinion of a participant expert. Indeed, a written opinion is not even a prerequisite for his or her testimony at trial or on a motion.

(7) Dr. Henrikson Is A "Participant Expert"

[85] I find that Dr. Henrikson is a participant expert. I also find that she has not exceeded the scope of what is permitted of a participant expert.

[86] In her reply affidavit of July 6, 2020, the mother says that she was diagnosed with "post-partum anxiety". She says she has been treated since 2018, and that she takes Cipralex to deal with it. She says that Dr. Henrikson has no concerns about her. She then attaches the two reports from Dr. Henrikson.

[87] In her report of June 15, 2020, Dr. Henrikson explains that she is the mother's family doctor. She explains that she has written this letter, in response to the mother's request for information about her health condition, and about her mental health condition.

[88] More particularly, the report details that Dr. Henrikson has been the mother's doctor since the mother's birth, except for two periods between 2005 to 2009 (when the mother lived outside Toronto), and again from 2012 to 2017. Dr. Henrikson explains that the mother has a history of depressed mood in her teens, for which she was treated without much success. She says the mood improved on its own, with time, however.

[89] Dr. Henrikson writes that the mother developed "significant anxiety post-partum" and sought care from her on February 26, 2018. She says that the mother responded well to medication and has been doing well, apart from "understandable decreased mood" in response to the absence from her son due to custody issues. That, however, improved with an increased dose of medication, too. The mother has been compliant with treatment, and with renewing her medication on schedule.

[90] So although it is not a sworn statement, Dr. Henrikson has stated in her reports that she is the mother's doctor. That statement is admissible hearsay, as it is part of a practitioner's report (which I come to next). But regardless there is also sworn evidence about Dr. Henrikson's status as a doctor. The mother explained this in her sworn affidavits of May 19, 2020 and June 2, 2020.

[91] During submissions, counsel for the father conceded that Dr. Henrikson is a medical doctor, licensed to practice in Ontario. Had counsel not made that concession, I would have allowed counsel for the mother to obtain and file additional information about this, especially since counsel for the father argued that the main motions could not proceed on July 16, 2020 anyway, and there is now an adjournment period of a little over a month as a result. Out of an abundance of caution, and to the extent that it is even necessary, I will still allow counsel for the mother to put this information before me, in a better format.

[92] All of the above statements in Dr. Henrikson's report are properly those of a participant expert. They are the statements of "a witness with special skill, knowledge, training or experience who has not been engaged by or in behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with [rule 20.2(2) of the Family Law Rules] where the opinion to be given is based on the witness' observation of or participation in the events at issue, and the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events." See again Westerhof v. Gee Estate ¶ 60.

[93] In her second report of June 30, 2020, Dr. Henrikson merely particularizes by name, the medication that the mother initially took, before being switched to Cipralex. This aspect of the June 30, 2020 report is supplementary to the June 15, 2020 report. Separately, Dr. Henrikson also provides information that both parents attended well baby visits, at different times. Likewise, these are all statements that are properly those of a participant expert.

[94] At first blush, there are one or two small statements in Dr. Henrickson's June 15, 2020 Report that could be seen as problematic. Dr. Henrikson is of the view that there are no medical or mental health concerns that should "limit her from having full access to her child". She also says the mother is mindful of her emotional health, and seeks care when it is appropriate in order to be able to parent.

[95] At ¶39, 40, 43 and 44 of LaRoche v. Lynn, Ellies R.S.J. dealt with a somewhat similar, but a much more egregious departure from the limits of permissible participant expert opinion. First, I do note that Ellies R.S.J. did find that it was within the psychiatrist's expertise to comment upon the instability of the mother's mental health. However, there was a statement from the psychiatrist that the mother required spousal support as a result. At ¶ 39 of LaRoche v. Lynn, Ellies R.S.J. rejected that comment as a statement about a "legal issue, not a medical one".

[96] Third, there was also a statement from the psychiatrist that no employment that would accommodate that instability. It was this statement that Ellies R.S.J. found most problematic. It went beyond the scope of a participant expert, and into the area of a litigation expert.

[97] In the result, the Court excluded the report in its entirety, although I note that at ¶ 47, Ellies R.S.J. held that even if the report had been admitted, it would not have impacted the outcome respecting spousal support.

[98] In this case before me, I take no issue whatsoever with most of the statements of Dr. Henrikson, including her observation that the mother is mindful of her emotional health, and that she seeks care when it is appropriate. Regarding her statement that there are no medical or mental health concerns that should "limit her from having full access to her child", upon further reflection even that is not problematic, provided it is constrained to a statement made in a medical context. In other words, while Dr. Henrikson is not qualified to give opinion evidence about what the mother's parenting capacity is, I take no issue with her saying that there are no medical conditions that would impact her parenting capacity. This is similar to the approach taken by Justice Sherr, in his treatment of Dr. Goldstein's evidence in G.S.W. v. C.S., 2018 ONCJ 286 ¶ 156-159.

[99] Regardless, even if I had found this statement of Dr. Henrikson to be more problematic, excluding or including a report in its entirety, is not the only option. See again G.S.W. v. C.S. ¶ 144-159.

[100] If I am wrong and Dr. Henrikson encroached into the terrain of a litigation expert, then she did so in only a minor way, and in my view, not deliberately. The Court will just treat her evidence accordingly, rely on it for its medical value, and not rely on it otherwise as a statement of the mother's parenting capacity more broadly.

[101] There is also some suggestion in the father's factum that Dr. Henrikson has taken on the role of an advocate. The father cites a number of cases, which discuss this issue in the context of a litigation expert, who has particular duties enunciated in the rules. But once again, on the face of rule 20.1 and 20.2, the expert's duties apply to litigation experts, but not participants experts.

[102] Nevertheless, a court might still find it to be inappropriate for a participant expert to take on the role of an advocate. But despite its inclusion in the factum, this argument was not really pursued in oral argument. I heard no submissions about whether and how this problem of the expert as an advocate should be considered vis a vis a participant expert. In any event, based on the submissions that I did hear, and based on my review of her reports, it is my view that Dr. Henrikson's minor encroachment, if it is even an encroachment at all, is adequately addressed as set out above. It does not, on its face, make her an advocate. So I need not address this any further at this point.

(8) Dr. Henrikson's Reports Are Practitioner's Reports

[103] Not only is Dr. Henrikson a participant expert, but I find that her reports are practitioner's report under section 52 of the Evidence Act. I will explain why.

[104] First Dr. Henrikson must be a "practitioner". As defined in section 52 of the Evidence Act, a practitioner means a member of a College as defined in subsection 1(1) of the Regulated Health Professions Act, 1991, among other things. Again, it is not seriously disputed that she is a medical doctor, who would be a member of the College of Physicians and Surgeons of Ontario. But as I have said, this will be addressed properly when this matter returns before me.

[105] Second, section 52 requires that the reports must be signed. Dr. Henrikson has signed her reports, so there is no issue there.

[106] Third, the mother must also give 10 days notice of her intention to rely on section 52 of the Evidence Act. Unfortunately, the mother has not given formal notice, as far as I am aware. She just attached Dr. Henrikson's reports to her affidavit. She ought to have articulated the basis upon which the reports were being entered into evidence.

[107] But when the reports were challenged by Mr. Gottlieb, the submissions and questions from the Court included whether section 52 was engaged.

[108] Nevertheless, in effect, the father has had well over 10 days notice, prior to July 16, 2020 when this matter first came before me, and he will have had even more time, by the time this matter returns in August. As a matter of best practice, I am directing Mr. Gillissie to serve the required Evidence Act notice.

[109] Had the father not insisted on an adjournment of the main motions on July 16, 2020, then I may have had to consider whether the failure to serve formal Evidence Act notice was fatal to the admissibility of the reports. Fortunately, I do not have to consider this now.

(9) The Father's Other Objections to Dr. Henrikson's Reports

[110] This leaves the father's two remaining objections, that Dr. Henrikson is "making psychiatric diagnosis but has not sworn as to her qualifications to do so", and that the father is unable to question her if her reports go in to evidence for the custody and access motions. These two objections are related to one another, so I deal with them together.

[111] It is my view that a physician is competent to diagnose and treat mental illness. That said, I accept that the father may wish to question Dr. Henrikson about her expertise, and perhaps about other matters discussed in her report. I also accept that nothing has been said about any special expertise of Dr. Henrikson.

[112] But contrary to Mr. Gottlieb's submission, he is able to question her. Were this case at the trial stage and had mother sought to introduce Dr. Henrikson's reports pursuant to section 52 of the Evidence Act, "… the trial judge must, at the request of a party, oblige the practitioner to testify in order to permit cross-examination". See Girao v. Cunningham ¶ 45.

[113] I did not hear any submissions as to whether this rule does, or should differently apply when a practitioner's report is filed for an interim motion. I note that rule 14(17)(3.) makes provision for oral evidence on a motion, with leave. Rather than have another argument about procedure, whether she should be questioned, and whether the Court can refuse to allow her to be questioned, I will simply make provision for Dr. Henrikson to be questioned, if either side wants it. I do so in the interest of fairness and efficiency.

[114] That said, below, I am also granting the father's motion for production of some of the mother's health records. It may very well be that this will be sufficient for the motion to proceed without the need for viva voce evidence, from the father's perspective. Nevertheless, I am prepared to allow for Dr. Henrikson to give viva voce evidence if either side wants it. If so, she should be served with a summons. I must be notified by 14B Motion well in advance of the week of August 10, and I will schedule a further conference call that week, to deal with how that will proceed. And I expect the parties to have Dr. Henrikson available for the August 27, 2020 return date.

[115] At this point, I do not see any reason for there to be another adjournment request of August 27, 2020. Her evidence, and submissions that day, can be accommodated.

[116] In deciding how they wish to proceed, I would also caution the parties to be mindful of proportionality and Rule 2. And I specifically direct the father to consider the costs consequences in section 52(5) of the Evidence Act, when deciding whether he thinks this is necessary.

C. Production of the Mother's Health Records

(1) The Parties' Positions

[117] At paragraph 16 of his Notice of Motion dated June 29, 2020, the father makes a broad request for "the Applicant, her family doctor and the Toronto Police" to produce all clinical notes, records and all other relevant documentation in their files. There is a long list of documents that he says he wants, listed in the Notice of Motion. The motion was drafted as a request for documents in a non-party's control, under rule 19(11) of the Family Law Rules. However, during the motion, counsel for the father made submissions only about the health records, and confirmed that he was not moving under rule 19(11) at all.

[118] In support of the request for production, the father relies on the mother's admissions about her mental health. He also relies on his and his mother's own observations of the mother's mental health during the relationship. According to the father, without the notes and records, the court record is incomplete to decide issues about the children's best interests.

[119] There was some inconsistency in the father's position concerning Dr. Henrikson's reports. While on the one hand, the father asked that they be stricken from the record or ignored, he simultaneously relies on the reports of Dr. Henrikson as part of the evidentiary basis for his production motion, too. In particular, the father submits that he needs the clinical notes and records to ascertain the accuracy of Dr. Henrikson's statements in the reports, which he otherwise wanted excluded. As I am not excluding the reports, there is merit to this submission, in that he needs notes to test the reports.

[120] The father additionally relies on Dr. Henrikson's reports, in pursuing the notes and records, to challenge the mother's credibility. He says that the mother failed to fully discuss her mental health in her material, only to then file the two reports, which reveal more information about her mental health. He wants to test this, too.

[121] The mother's position is that production of the notes and records are not necessary. She says the father has exaggerated concerns about her mental health. The father's motion is a fishing expedition, and a delay tactic. She asserts a privacy interest in the records. She has provided the reports of Dr. Henrikson. That is sufficient. Additional questions of the doctor may be asked, but they should go through her counsel.

(2) The Applicable Family Law Rules

[122] Pursuant to rule 19(1), a party is required to produce, upon request, an affidavit listing documents that are relevant to any issue in the case and in the party's control, or available to the party on request.

[123] Pursuant to rule 19(2), the other side is entitled, upon request, to examine any document listed in the affidavit, unless it is protected by privilege and to receive a copy of the document at the legal aid rate. A party is also entitled to access to documents mentioned in a party's application, answer, reply, notice of motion or affidavit. See rule 19(3).

[124] Pursuant to rule 19(4), if a party claims that a document is protected by a legal privilege, the court may, on motion, examine it and decide the issue.

[125] In this case, neither side prepared an affidavit of documents, something which in practice, is not routinely done by litigants in this Court. Rather, the issue of the mother's health records just proceeded as a disclosure request, and then a disclosure motion.

[126] Despite the wording of the Notice of Motion, the father does not need to resort to rule 19(11). The mother's health records are available to her, on request. See the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sch. A, as amended. I agree that this motion can be dealt with as a regular disclosure motion for records that available to the mother on request to her doctor.

(3) The Test On A Disclosure Motion

[127] Full, early and frank disclosure is a well-established principle in family law. There is no question that the Family Law Rules mandate broad disclosure in family law proceedings. By the same token, in Rule 2, there are notions of common sense, proportionality and fairness that must apply to constrain overly broad exercises in pursuing disclosure. See Boyd v. Fields, [2006] O.J. 5762 (S.C.J.), and Chernyahovsky v. Chernyakhovsky, [2005] O.J. No. 944 (S.C.J.).

[128] In R. v. Stichcombe, [1991] 3 S.C.R. 326, the Supreme Court discussed the test for disclosure at the discovery stage of a criminal case, not only with reference to the material upon which the Crown intended to rely, but also with reference to what might potentially be used by the other side. This "semblance of relevance" test has been applied in the civil and family law context, too. However, in D. v. H., a case which concerned requests for production of a children's aid society's records and the mother's drug treatment files for use in a parenting case, MacKinnon J. held that while the test for production is normally the "semblance of relevance", where privacy in the records is asserted, the test may be elevated to one of "likely relevance".

[129] Regardless, many family law cases take a fairly broad approach to the question of what will be relevant at the disclosure stage of a parenting case. See for example B.A. v. D.M.A., [1995] O.J. No. 4196 (rev'd on other ground, [1995] O.J. No. 4197 (Gen. Div.)); see Black v. Black; and see also Porter v. Porter.

(4) The Mother's Privacy Interest In Her Health Records

[130] The mother asserts a privacy interest in her health records. As such, it is necessary to consider the Supreme Court's analysis in M. (A.) v. Ryan.

[131] In M.(A.) v. Ryan, the Supreme Court set out a framework for determining whether a person's clinical notes and records should be produced. There is no blanket privilege attaching to such records. Rather, this must be determined on a case by case basis according to the four-part Wigmore test.

[132] It is not seriously contested in this case that the first three elements of the Wigmore test are met. Namely, that any communications between the mother and Dr. Henrickson originated in confidence, that confidentiality is essential to the maintenance of the doctor-patient relationship, and that the doctor-patient relationship is of the kind that must be sedulously fostered in the community. Therefore, I find that the mother has made out a prima facie case for protection of the records.

[133] However, the Court must nevertheless balance and consider the father's right to a fair process and a fair trial (or motion) in this case, against the mother's privacy interest in the records. And, because this is a parenting case, the children's best interests, including the need to ensure that all available relevant evidence is considered, pulls to some degree against the mother's privacy claims.

[134] M. (A.) v. Ryan has been widely applied in family law cases. In parenting cases, the Court's mandate to make orders in the best interests of children does militate in favour of disclosure. In addition, courts have ordered production of clinical notes and records where such records were relevant to the issue of credibility, where the records contained information material to other issues in the action, and where one party sought to rely upon a physician's report, such that the notes and records are necessary for cross-examination. See Hughson v. MacDonald, 2009 CarswellOnt 7491; see also Porter v. Porter.

[135] In Hughson v. MacDonald, the central issue before the Court was custody. The father alleged that the mother suffered from a significant history of depression, there had been hospitalizations, suicide threats, and alcohol misuse, too. Although the allegations were more extreme in Hughson v. MacDonald that in this case before me, just like in this case, the mother had filed a practitioner's report before the Court, which the father sought to challenge.

Although Kane J. held there was inadequate evidence to satisfy the confidentiality branch of the Wigmore test, he nevertheless determined that had it been met, he would have ordered production anyway. Issues about the mother's mental health had been raised in the pleadings, they were relevant issues to the parenting claims, and the mother had already made some partial productions, including the practitioner's report.

(5) Whether a Production Order Should Be Made In This Case

[136] In this case before me, there are some concerning allegations about the mother's mental health. Tempering those concerns, are Dr. Henrikson's reports.

[137] Even though the Court has Dr. Henrickson's reports, it must be remembered that the mother's mental health is not just relevant to the competing requests about the child's residence, but it also is likely relevant to custody and decision making, to various permutations of the parenting schedule, and to many of the other issues raised in the proceeding. Likewise, I agree with the father that there may be entries in the clinical notes and records, which may be relevant to the mother's credibility. And I agree that production is necessary for the father to consider, to test and even to challenge Dr. Henrikson's reports, should he decide to pursue that.

[138] On the other hand, the father should also not lose sight of the fact that just because a parent has a mental health diagnosis, does not mean that she cannot parent.

[139] Balancing all of these factors, I am satisfied that there should be some disclosure in this case. That said, the Court need not make an "all or nothing" Order. The Court may attach terms to the Order, to balance the competing interests. I intend to do that.

(6) Terms and Conditions

[140] Mother would have me make no order as to disclosure, and require Mr. Gottlieb to submit his questions of Dr. Henrickson, through her lawyer, Mr. Gillissie. Above, I said I did not find this approach to be a persuasive alternative. That is because Mr. Gottlieb would have no way of knowing whether he is asking the right questions. There may be information that he would miss. The answers might depend, to some degree, on opposing counsel's interpretation of the notes and records. And Mr. Gottlieb has the right to cross-examine Dr. Henrickson in light of section 52 of the Evidence Act anyway.

[141] Moreover, in light of the mother's submission that the father's production motion is just a delay tactic, I fail to see how requiring this process of letter writing, vetted by counsel, would be efficient and not cause additional delay. To the contrary, I find it will cause more delay and potentially lead to more arguments before the Court about what is and is not a proper question, or about the sufficiency of any answers received.

[142] A different option would be for the Court to review the records before deciding what to produce. But the Supreme Court was clear in M. (A.) v. Ryan, that this need not always be done. This is a time-consuming exercise for the Court to embark upon. And at this point, there would be some delay inherent in that process too, by the time the records are delivered to my chambers. For example, would the Court then have to set up another hearing to deal with further submissions, after the review? I am not confident that such a process would not lead to a further delay of the motion, either.

[143] In Hughson v. MacDonald, Kane J. was able to delve into the records, in more detail, in order to craft the disclosure order. But in that case, the records had already been summonsed and were before the Court when the motion was argued. Back at the case conference in this case before me, I suggested to counsel for the mother that he obtain the records and engage in some level of vetting before July 16, 2020. I did not hear any submissions as to whether that was done. I therefore do not know how long it would take to get the records to me, or whether any effort had been made to narrow the scope of this.

[144] In any case, now that I have heard the submissions, rather than reviewing all the records myself, I intend instead to set out the parameters for the disclosure. I will limit the extent of the productions by subject matter, and by date. Mr. Gillissie must now obtain the records and produce them according to the Court's directions. There will be a process to deal with any disputed records not produced. I hope it will not be necessary for me to settle any disputes.

[145] In terms of the parameters then, it must be remembered that Dr. Henrikson was not always the mother's family doctor. Dr. Henrikson cared for the mother from birth until the age of 7, then again between the ages of 11 and 13, and then again since the mother was 19. The mother has just turned 21 years old.

[146] The father concedes that he only seeks notes and records concerning the mother's mental health. Further, the evidence before me, not only from Dr. Henrikson but also from the father himself, is that the principal concern about the mother's mental health arose around the time of N.D.M.A.'s birth. While the report of Dr. Henrickson dated June 15, 2020 says that the mother also had a history of depressed mood in her teens (which improved), I do note that Dr. Henrikson was not the mother's treating doctor for most of her teen years. I understand why the father might want to test the foundation of Dr. Henrikson's statement about the mother's mental health during her teens, since she was not always the treating doctor, and to explore whether that difficulty during her teens is connected to her current mental health.

[147] I fail to see any relevance of Dr. Henrikson's clinical notes and records of the mother, when she was a child (before age 7), or even between the ages of 11 and 13, when she started her teen years. So I intend to order production of notes and records in Dr. Henrikson's chart from 2017 to present, insofar as they concern the mother's mental health only. And there will also be an order requiring any production of notes and records that Dr. Henrikson may have made herself, or that she gathered from other practitioners, that pertain to the mother's mental health during her "teens", as described in the report dated June 15, 2020.

[148] To further protect the mother's privacy, the records will be produced to counsel only. The father may review the records in his counsel's office, but he may not have a copy. Copies are not to be given to, or reviewed by anyone else, including the paternal grandmother. And if the records are filed with the Court, then counsel should seek a sealing order.

D. Other Objections to the July 6, 2020 Reply Affidavit

[149] Finally, although not specifically raised in his Supplementary Notice of Motion dated July 13, 2020, I do notice that the father takes issue with paragraphs 5 and 34 of the mother's July 6, 2020 affidavit, in his July 13, 2020 affidavit. Despite that, I did not hear submissions about these two paragraphs of the July 6, 2020 affidavit, nor was I asked to strike them.

[150] Therefore, these paragraphs are remaining in the material. However, the father's statements in the July 13, 2020 affidavit about these two paragraphs are really in the nature of argument, anyway. When the main motions are heard, Mr. Gottlieb is free to make submissions about the weight that should attach to these paragraphs, if he feels it is important to do so.

E. Other Comments

[151] It appears that this case has already started off with both parents having acted unilaterally. The case has quickly spiralled into hotly contested litigation. Both sides are represented. The Court expects both parents to take all steps necessary to ensure that the main motions can proceed on their merits on August 27, 2020.

[152] If the father intends upon reviving his motion for an order under section 105 of the Courts of Justice Act, this should not be raised as a basis for an adjournment of the main motions on August 27, 2020. He should be prepared to make submissions about what parenting order should be put in place concurrently with any order for an assessment being made, if it is ordered. The father must assess whether to seek an order under section 105 of the Courts of Justice Act, based on his review of the disclosure that I have now ordered, and which will be provided. If he is pursuing an order under section 105 of the Courts of Justice Act, then his counsel is to notify Mr. Gillissie as soon as possible, and both counsel should file supplementary written submissions and fresh Books of Authorities on this issue.

[153] Counsel may also wish to consider whether the Court should appoint the Children's Lawyer pursuant to section 112 of the Courts of Justice Act. Nevertheless, if that request is made, counsel should also be prepared to make submissions about what parenting order should be put in place now pending any involvement of the Children's Lawyer.

PART IV: ORDERS

[154] I make the following orders:

(a) The mother's affidavit of July 15, 2020 shall be sworn in advance of the August 27, 2020 return date, or alternatively it may be sworn by telephone next time;

(b) Counsel may make brief oral submissions about the admissibility of paragraph 30 of the June 15, 2020 affidavit next time if they wish. I encourage counsel to resolve this issue before hand, however;

(c) The Court finds that Dr. Donna Henrikson is the mother's treating physician. She is a participant expert;

(d) The Court finds that Dr. Henrikson's reports of June 15 and 30, 2020 are practitioner's reports. They are admitted into evidence in their unsworn form, including for the purpose of the custody and access motions, under rule 20.2(15) of the Family Law Rules and pursuant to section 52 of the Evidence Act;

(e) The mother's counsel shall forthwith serve Mr. Gottlieb with formal Notice under the Evidence Act of the mother's intention to rely on these two reports forthwith, since she is already relying upon them;

(f) If either party, and specifically the father requires Dr. Henrickson to be examined on August 27, 2020, then either counsel may serve Dr. Henrickson with a summons. I am then to be contacted by 14B Motion, no later than by August 10, 2020, to be informed as to what the plan is with respect to Dr. Henrickson. I will then schedule a telephone conference for later in the week of August 10, 2020 to give further directions about this, and to sort out with counsel the logistics of that will proceed;

(g) The mother or her counsel shall forthwith obtain and produce to counsel for the father, the clinical notes and records of Dr. Henrickson concerning the mother's mental health from 2017 to present. In addition, if Dr. Henrickson has any other notes and records in her possession prepared either by herself, or by other practitioners concerning the mother's mental health during her "teens", then those notes and records are to be produced also;

(h) When he provides the above productions, Mr. Gillissie is also to provide a summary letter to Mr. Gottlieb explaining what is not being produced, much like would go in an affidavit of documents. The letter shall have sufficient detail for Mr. Gottlieb to understand why what is being withheld does not fall within the parameters of (g) above, but without disclosing the contents of any record withheld. If Mr. Gottlieb takes issue with anything in Mr. Gillissie's letter, then he is to respond right away. And ultimately, if counsel are unable to resolve this, then I am to be sent only the disputed record(s) and the relevant correspondence, by courier. I will deal with the dispute in chambers. Any such dispute and the supporting documentation should be brought to my attention, no later than August 10, 2020;

(i) Any records that are produced, are to be produced to counsel only. The father is not to be given a copy of the records. He may review the records in his counsel's office. No copies shall be provided to the paternal grandmother, or to anyone else, by Mr. Gottlieb's office. No one else is to review the records;

(j) If either side seeks to file any of the records with the Court for use on the motions or otherwise, then a sealing order should be sought from the Court;

(k) Each side shall be at liberty to file an updating affidavit. Because the records are being ordered on the father's production motion, I direct that the father shall file his updating affidavit first, on or before August 17, 2020. The updating affidavit may include any notes and records upon which he wishes to rely, but subject to (j) above, and other updating information since July 16, 2020;

(l) The mother's updating affidavit shall be served and filed by August 24, 2020. The updating affidavit may include any notes and records upon which he wishes to rely, but also subject to (j) above, and other updating information since July 16, 2020. Out of an abundance of caution, the mother's updating affidavit should also include some confirmation, which should be available on the College of Physician and Surgeons website, that Dr. Henrickson is a physician and a member in good standing. The mother may also wish to obtain and provide more complete information about Dr. Henrickson's experience with mental health, such as a curriculum vitae or some other statement of her experience;

(m) Each side is directed not to include any inadmissible evidence in the updating affidavits. Additional notices under the Evidence Act may be required respecting any notes upon which the other intends to rely. I leave that to counsel to sort out;

(n) If the father intends on pursuing an order for an assessment under section 105 of the Courts of Justice Act, then his lawyer shall advise counsel for the mother by August 10, 2020. Each side is to then file a supplementary factum and a Book of Authorities concerning this issue. Hard copies are required.

[155] I thank counsel for their assistance with these preliminary issues.

Released: July 22, 2020

Signed: Justice Alex Finlayson