COURT FILE NO.: F1781/11

DATE: November 16, 2012

SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT

RE: Robert Arthur Meola, applicant

AND:

Nancy Alaine Griffiths, respondent

BEFORE: MARSHMAN J.

COUNSEL:
Michael Nyhof for the applicant
Peter Eberlie for the respondent

HEARD: October 26, 2012

ENDORSEMENT

[ 1 ] On October 24, 2012 I reserved my decision and on October 26 th I made an order as follows:

1. the request for relief in paragraph 2 of the motion at tab 40 was dismissed;

2. the request to adjourn the trial for reasons other than the criminal proceedings was adjourned to the justice hearing the trial management conference.

[ 2 ] As the trial management conference was scheduled for November, there was some urgency and I therefore made a decision “for written reasons to follow.” These are those reasons.

[ 3 ] The applicant sought to adjourn the trial to a date to be scheduled following his trial in respect of certain criminal charges. He also sought an adjournment of the trial for reasons I felt were best left to the trial management judge, mainly because he or she would be in a better position to determine whether the trial could go ahead or be adjourned because productions and undertakings were incomplete or refusals had to be dealt with. That would include the question of timing to produce police records and whether or not further steps related to the assessment report would be necessary. The trial management conference judge would be free to determine whether or not the trial should be adjourned for any other reason.

[ 4 ] The more interesting question is whether or not the custody and access matters should be adjourned pending the criminal trial. In essence, the applicant’s position is as outlined in paragraph 16 of his affidavit sworn October 18, 2012, which reads as follows:

I have been charged with two criminal offences. Frances Brennan is my criminal counsel and she has filed an affidavit in support of my motion to adjourn the civil trial. She has advised me and I verily believe that there is a high probability that I will be acquitted, but that I may be significantly prejudiced in that criminal trial if the Respondent becomes aware of my defence, particularly if she tailors her evidence following disclosure of my recollection of the related facts. I will be required to disclose facts which are relevant to my criminal defence in the course of the civil trial, as the false allegations by the Respondent resulted in effective exclusive possession (and, absent her false allegations, there may not have been grounds for exclusive possession), limitations on my ability to see our son or see mutual friends and they are relevant to our son’s best interests and each of the parties perspectives on that.

[ 5 ] In response, the respondent says that she is well aware of the applicant’s defence to the criminal charges and that she was cross-examined by his criminal counsel for three and a half hours at the preliminary hearing. She does not believe that there is any prejudice to the applicant in having the family law proceedings tried prior to the criminal law proceedings and that any delay in the proceeding would prejudice herself and the parties’ son Nolan.

[ 6 ] Francis Brennan, the applicant’s criminal lawyer, has sworn an affidavit in which she deposes to the following:

a) The applicant did not invoke Charter or Evidence Act protection to limit her testimony.

b) The allegations which form the basis for the criminal charges may be relevant to the family law proceedings.

c) She says that the applicant will be significantly prejudiced for the following reasons:

a. If Ms. Griffiths hears Mr. Meola’s evidence in respect of the criminal allegations she will be in a position to tailor her testimony in the criminal proceedings and increase the risk to Mr. Meola of conviction(s);

b. Any findings made in the Family Court trial which relate to credibility of the parties may be prejudicial to Mr. Meola in the criminal proceedings;

c. Any findings of fact in the Family Court which relate to the allegations made in the criminal proceedings may be prejudicial to Mr. Meola in the criminal proceedings; and

d. Mr. Meola is not required to disclose his defence to criminal charges (absent alibi, which is not alleged here). I understand that the allegations which underly the criminal charges are relevant to the Family Court proceedings so that, in effect, if the civil trial precedes the criminal trial Mr. Meola will be required to disclose his intended defence in the criminal proceedings.

[ 7 ] Surprisingly, there is apparently no case law dealing with this matter. Ms. Brennan deposes that in her six years of practice, she has never been involved in or heard of a case where the Family Court trial preceded the criminal trial where there is an overlap and/or crossover of facts.

[ 8 ] In my opinion, this matter must be decided having regard to the best interests of the child.

[ 9 ] The Ontario Evidence Act , RSO 1990, c E.23 , the Canada Evidence Act , RSC 1985, c C-5 and the Charter of Rights all give protection to the applicant in this situation.

[ 10 ] Section 9 of the Ontario Evidence Act reads as follows:

Witness not excused from answering questions tending to criminate

9(1) A witness shall not be excused from answering any question upon the ground that the answer may tend to criminate the witness or may tend to establish his or her liability to a civil proceeding at the instance of the Crown or of any person or to a prosecution under any Act of the Legislature.

Answer not to be used in evidence against witness

(2) If, with respect to a question, a witness objects to answer upon any of the grounds mentioned in subsection (1) and if, but for this section or any Act of the Parliament of Canada, he or she would therefore be excused from answering such question, then, although the witness is by reason of this section or by reason of any Act of the Parliament of Canada compelled to answer, the answer so given shall not be used or receivable in evidence against him or her in any civil proceeding or in any proceeding under any Act of the Legislature.

[ 11 ] Section 5 of the Canada Evidence Act reads as follows:

Incriminating questions

5(1) No witness shall be excused from answering any question on the ground that the answer to the question may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person.

Answer not admissible against witness

(2) Where with respect to any question a witness objects to answer on the ground that his answer may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person, and if but for this Act, or the Act of any provincial legislature, the witness would therefore have been excused from answering the question, then although the witness is by reason of this Act or the provincial Act compelled to answer, the answer so given shall not be used or admissible in evidence against him in any criminal trial or other criminal proceeding against him thereafter taking place, other than a prosecution for perjury in the giving of that evidence or for the giving of contradictory evidence.

[ 12 ] Section 13 of the Charter reads as follows:

A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

[ 13 ] Unlike the provisions of the Evidence Acts , the Charter does not require the witness to claim immunity under subsection 2.

[ 14 ] In discussing the applicable legal principles to apply when determining whether an adjournment ought to be granted, the Ontario Court of Appeal in Graham v. Vandersloot et al. , 108 O.R. (3d) 641, 2012 ONCA 60 , set out the following principles:

5. Adjournment decisions are highly discretionary and appellate courts are rightly reluctant to interfere with them. Laskin J.A. succinctly summarized the operative legal principles in Khimji v. Dhanani (2004), 69 O.R. (3d) 790, [2004] O.J. No. 320 (C.A.). Although he was in dissent, the majority accepted his articulation of the statement of principles. At paras. 14 and 18, he said:

A trial judge enjoys wide latitude in deciding whether to grant or refuse the adjournment of a scheduled civil trial. The decision is discretionary and the scope for appellate intervention is correspondingly limited. In exercising this discretion, however, the trial judge should balance the interests of the plaintiff, the interests of the defendant and the interests of the administration of justice in the orderly processing of civil trials on their merits. In any particular case several considerations may bear on these interests. A trial judge who fails to take account of relevant considerations may exercise his or her discretion unreasonably and if, as a result, the decision is contrary to the interests of justice, an appellate court is justified in intervening. In my opinion, that is the case here.

I begin with the overriding goal of our modern Rules of Civil Procedure : to ensure as far as possible that cases are resolved on their merits. This goal is expressly set out in Rule 2.01(1)(a), which gives a judge power to grant any relief necessary "to secure the just determination of the real matters in dispute". Courts should not be too quick to deprive litigants of a decision on the merits. The trial judge does not appear to have sufficiently taken into account that his order deprived the parties, especially the appellant, of a determination of "the real matters in dispute."

(Emphasis added) [page645]

See, also, Ariston Realty Corp. v. Elcarim Inc. , 2007 13360 (ON SC) , [2007] O.J. No. 1497, 51 C.P.C. (6th) 326 (S.C.J.), at paras. 33 , 36 and 38.

[ 15 ] It will be up to the trial management justice to determine whether or not an adjournment ought to be granted for any of the usual reasons. However, when dealing with the issue of whether or not the trial ought to be adjourned for a lengthy period of time in order to permit the criminal case to wend its way through another court must be determined by a review of the best interests of the child. Although she was dealing with a trial welfare case, Elder J., in Children’s Aid Society of the District of Thunder Bay v. S.D. and C.D., 2010 ONCJ 721 () , refused to postpone the scheduling of the trial of the Children’s Aid matter until criminal proceedings were completed. In the context of a proceeding under the Child and Family Services Act , R.S.O. 1990, c. C.11 [as amended] and the Family Law Rules , O. Reg. 114/99 which set out a timetable for the case, she held that it was not in the best interests of the children to delay the trial.

[ 16 ] This case involves custody of and access to Nolan, who was born April 14, 2005 and is therefore now seven and a half years old. His parents have been separated for more than a year. While it may be in everyone’s best interests to delay the trial for a month or two, if productions and other pre-trial matters are not completed, it is not in Nolan’s best interest to delay the trial indefinitely until the criminal proceedings have been completed.

[ 17 ] In my opinion, the costs of this matter ought to be left to the justice hearing the trial. I am aware that this is a rare order but so are the circumstances. I have adjourned part of the motion, essentially dealing with an adjournment as well to the trial management justice, and only retained to myself that part of the motion dealing with a longer adjournment, which would take the parties beyond the criminal trial. In those circumstances, it seems to me best to leave the costs of the entire motion up to the judge hearing the trial.

“Justice Mary Marshman”

Justice Mary Marshman

Date: November 16, 2012