ONTARIO COURT OF JUSTICE

DATE: 2022 06 13 COURT FILE No.: Windsor 351/16

BETWEEN:

Eric Lee Angione Applicant (responding party on Motion to Change)

— AND —

Cassandra Anne Warren Respondent (moving party on Motion to Change)

Before: Justice M. Vickerd

Heard on: May 30, 2022 Reasons for Judgment released on: June 13, 2022

Counsel: Jerrod D. Patterson....................................................................... counsel for the applicant Rayleen Cantin.......................................................................... counsel for the respondent No appearance by or on behalf of Office of the Children’s Lawyer, even though served with notice.

Vickerd J.:

Overview

[1] The Respondent advances a motion seeking an order compelling the OCL clinician Luisa Tula to attend for Questioning and to produce her records relating to the OCL Report dated March 15, 2022.

[2] The OCL Legal Department was served with the motion on May 19, 2022, by fax. No one attends on behalf of the OCL.

[3] The Applicant takes no position on the motion.

Background

[4] This is a Motion to Change proceeding commenced by the Respondent seeking a variation of the current order relating to decision-making responsibility and parenting time.

[5] The subject child of this proceeding is Ericson Gaetano Paul Angione born October 14, 2015.

[6] The Applicant is the father of the child. The Respondent is the mother of the child.

[7] A Case Conference was convened in this matter on December 4, 2020. On consent, an order was made appointing the Office of the Children’s Lawyer to represent the subject child. A recommendation was made for a section 112 investigation.

[8] Luisa Tula was appointed by the Office of the Children’s Lawyer to conduct a section 112 investigation. Her report dated March 15, 2022 was filed in the Continuing Record.

[9] No party has filed a dispute to the report of the Office of the Children’s Lawyer.

[10] Questioning of the OCL clinical investigator has been scheduled to occur June 20, 2022.

[11] Questioning of the parties has been scheduled to occur June 23, 2022.

[12] Despite the relief requested in the current motion, counsel have agreed to maintain the Settlement Conference scheduled for June 16, 2022, at 10:00a.m. as they believe there is benefit to early settlement discussions.

The Law

[13] Respondent’s counsel relies upon Family Law Rule 20 in support of her request. Respondent’s counsel did not provide the court with any case law for this issue.

[14] The OCL clinical investigator was appointed pursuant to section 112 of the Courts of Justice Act R.S.O. 1990 Chapter C. 43 which provides:

Report of Children’s Lawyer

Investigation

112 (1) In a proceeding under the Divorce Act (Canada) or the Children’s Law Reform Act in which a question concerning decision-making responsibility, parenting time or contact with respect to a child is before the court, the Children’s Lawyer may,

(a) cause an investigation to be made on all matters concerning decision-making responsibility, parenting time or contact with respect to the child;

(b) cause an investigation to be made on matters specified by the court related to decision-making responsibility, parenting time or contact with respect to the child; or

(c) meet with the child to determine the child’s views and preferences with respect to matters that may include decision-making responsibility, parenting time or contact. 2021, c. 4 , Sched. 3, s. 14.

Report

(2) The Children’s Lawyer may report and make recommendations to the court on the results of an investigation or meeting conducted under subsection (1). 2021, c. 4 , Sched. 3, s. 14.

Authority to act

(3) The Children’s Lawyer may act under subsection (1) or (2) on his or her own initiative, at the request of a court or at the request of any person. 2021, c. 4 , Sched. 3, s. 14.

Affidavit

(4) The person who prepares a report under subsection (2) shall execute an affidavit verifying the facts in the report that are within the person’s knowledge and setting out the source of the person’s information and belief respecting facts that are not within their knowledge. 2021, c. 4 , Sched. 3, s. 14.

Service

(5) The person who prepares a report under subsection (2) shall serve the affidavit, along with a copy of the report attached as an exhibit, on the parties and file the affidavit and report with the court. 2021, c. 4 , Sched. 3, s. 14.

Evidence

(6) The filed affidavit and report shall form part of the evidence at the hearing of the proceeding. 2021, c. 4 , Sched. 3, s. 14.

Attendance on report

(7) Where a party to the proceeding disputes the facts set out in the report, the Children’s Lawyer shall if directed by the court, and may when not so directed, attend the hearing on behalf of the child and cause the person who conducted the investigation or meeting under subsection (1) to attend as a witness. 2021, c. 4 , Sched. 3, s. 14.

[15] The Family Law Rules also apply (Family Law Rule 1).

[16] Family Law Rule 21 addresses the treatment of the report of the Office of the Children’s Lawyer:

21. When the Children’s Lawyer investigates and reports on decision-making responsibility, parenting time or contact with respect to a child under section 112 of the Courts of Justice Act,

(a) the Children’s Lawyer shall first serve notice on the parties and file it;

(b) the parties shall, from the time they are served with the notice, serve the Children’s Lawyer with every document in the case that involves issues of decision-making responsibility, parenting time, contact, support or education in relation to the child, as if the Children’s Lawyer were a party in the case;

(c) the Children’s Lawyer has the same rights as a party to document disclosure (rule 19) and questioning witnesses (rule 20) about any matter involving issues of decision-making responsibility, parenting time, contact, support or education in relation to the child;

(d) within 90 days after serving the notice under clause (a), the Children’s Lawyer shall serve a report on the parties and file it;

(e) within 30 days after being served with the report, a party may serve and file a statement disputing anything in it ; and

(f) the trial shall not be held and the court shall not make a final order in the case until the 30 days referred to in clause (e) expire or the parties file a statement giving up their right to that time. O. Reg. 114/99, r. 21 ; O. Reg. 42/21, s. 12; O. Reg. 522/21, s. 7

[17] Family Law Rule 20 governs the Questioning of parties and non-parties. Family Law Rule 20(5) provides that

20 (5) The court may, on motion, order that a person (whether a party or not) be questioned by a party or disclose information by affidavit or by another method about any issue in the case, if the following conditions are met:

1. It would be unfair to the party who wants the questioning or disclosure to carry on with the case without it.

2. The information is not easily available by any other method.

3. The questioning or disclosure will not cause unacceptable delay or undue expense. O. Reg. 114/99, r. 20 (5) .

Analysis

[18] It is clear in the case law that when a request is made for questioning of an OCL clinical investigator, a court must decide the issue on a case by case basis (Copeland v. Perreault, [2006] O.J. No. 5672, 44 R.F.L. (6th) 225, 2006 CarswellOnt 9305; Peters v. Rodway, [2006] O.J. No. 3557, 2006 ONCJ 329, 30 R.F.L. (6th) 451, 2006 CarswellOnt 5386).

[19] In Norton v. Norton, a decision of Master Douglas A. Peppiatt, (1990), 27 R.F.L. (3d) 179, [1990] O.J. No. 3096, a decision of the Ontario High Court, it was held that under the Rules of Civil Procedure, there was no right to examine or cross-examine the clinical investigator presenting a section 112 report before the hearing. In that proceeding, involving the Official Guardian's appointment under what was then subsection 125(1) of the Courts of Justice Act, 1984, S.O. 1984, c. 11, and the Rules of Civil Procedure, O. Reg. 560/84, Master Peppiatt found that "There is no right to examine the investigator before the hearing pursuant to RR.39.02 and 39.03".

[20] As noted by Justice Baldock in Peters v. Rodway, above:

Master Peppiatt modified his view somewhat in Jolly v. Jolly, a 1992 (unreported) endorsement in which he concluded that the definition of the word "hearing" in subsection 125(1) of the Courts of Justice Act, 1984 as "including" a trial should be taken to mean that it may also include a motion. In that case, he ordered that the author of the Official Guardian's report attend the hearing of the pending motion to give evidence as a witness. He also granted leave for the giving of evidence to take place before an official examiner if both parties consented.

[21] Notably both decisions of Master Peppiatt predate amendments made to the Courts of Justice Act, the transition from the Office of the Official Guardian to the Office of the Children's Lawyer. His decisions also predate the inception of the Family Law Rules, which replace Rule 39 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended, with Rule 20 of the Family Law Rules.

[22] In a more recent decision, Davis v. Davis (2002), 115 A.C.W.S. (3d) 1015, [2002] O.J. No. 3201, 2002 CarswellOnt 2717 (Ont. Fam. Ct.), Justice David M. Steinberg wrote, at paragraph 40:

... Once the assessment report is submitted and filed with the clerk of the court under subsection 7, it is admissible as evidence and the report becomes the court's evidence. It is for that reason either party in the case may require the assessor to attend as a witness at the trial for examination under subsection 10. The examination in question will necessarily include cross-examination as the party or parties disputing the report must have the opportunity to properly challenge the approach of the assessor and his or her findings and conclusions.

[23] Justice Steinberg comments were made in the context of a trial and not pre-trial cross-examinations.

[24] Justice Baldock in Peters v. Rodway above found that reference to the word “hearing” in subsection 112(4) of the Courts of Justice Act is singular and solely refers to the trial of an application. But Justice Baldock also found that Family Law Rule 20 allows for the examination of parties and non-parties under certain conditions, which may include an assessor or a clinical investigator of the Office of the Children’s Lawyer.

[25] Family Law Rule 20 allows a party to question a non-party. A clinical investigator is a non-party to an action but is also appointed by the court.

[26] Having confirmed that the court has discretion to order the clinical investigator to attend for questioning, I must query whether the test in Rule 20(5) has been met in this case. There are three questions which the court must ask:

1. First, is it unfair to the Respondent to carry on the case without an opportunity to question the investigator?
2. Second, is the information easily available by any other method?
3. Third, will the Questioning cause unacceptable delay?

[27] Respondent’s counsel made very brief submissions. Counsel made no reference to the test set out in Family Law Rule 20(5) in her submissions. There are no facts in the Respondent’s Affidavit addressing the legal test to be met other than the Respondent’s statement at paragraph 7 of the Affidavit sworn May 18, 2022, that:

I need to have Ms. Tula questioned because she is the only person with the information regarding the matter before the court and I believe that the information is important to the court who is being asked to deal with child parenting issues.”

[28] This very general statement made by the Respondent has little value for the court. She does not specify what information the clinical investigator has “regarding the matter before the court.” Obviously, the parties have information about their own personal histories, their experiences with each other and the parenting of their child. If the Respondent refers to third party collateral information, those collaterals are identified in the appendix to the investigators report. The respondent’s very brief, very general statement does not satisfy the three prongs of the test as necessary for an order to be made compelling the clinical investigator to attend for Questioning.

[29] Family Law Rule 20 must be considered in the context of the special status that a clinical investigator of the Office of the Children’s Lawyer holds in a family court proceeding. Family Law Rule 21(e) should be referenced as it addresses procedure surrounding a section 112 report. More specifically, Family Law Rule 21(e) provides that “within 30 days after being served with the report, a party may serve and file a statement disputing anything in it .” Justice Magda of the Superior Court of Justice in Mason v. Belle, 2010 ONSC 4325 found that because the Applicant did not “serve and file a statement disputing anything in it [the OCL report] as required by Rule 21 … He is hardly in a position now at trial to dispute any of its findings or conclusions.”

[30] Therefore, I add to the analysis of whether a party should be entitled to examine a clinical investigator prior to the hearing of a trial, the pre-requisite that a party must file a statement disputing the report (FLR 21(e)) to engage an out of court examination of the clinical investigator. The Respondent has not filed a dispute within the timelines set out in the Family Law Rules and therefore the report enters into evidence uncontested.

[31] In considering the Respondent’s request to question the clinical investigator, I also considered the primary objective of the Family Law Rules. It is the court’s obligation to ensure that cases are dealt with justly. Dealing with a case justly includes ensuring that procedure is fair to all parties; saving expense and time and dealing with cases in ways that are appropriate to its importance and complexity (Family Law Rule 2). I conclude that the Respondent has not identified specifically the information she needs from the clinical investigator and how the request for questioning can be justified in the face of the time, expense and inconvenience which may be visited upon the clinical investigator and the Applicant. Further, the Respondent has not met the prerequisite of filing a dispute to the report and therefore, the report remains uncontested evidence at this time.

Order

[32] Given the foregoing, the Respondent’s Motion dated May 18, 2022 is dismissed.

Released: June 13, 2022 Signed: Justice M. Vickerd