SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-12-00375231
DATE: 20130307
RE: Victoria Fielding, Applicant
AND
John Craig Fielding, Respondent
BEFORE: J. Mackinnon J
COUNSEL: Gary S. Joseph and Christine Marchetti, for the Applicant
Ilana I. Zylberman and Michael Zalev, for the Respondent
HEARD: March 6, 2013
ENDORSEMENT
[1] The applicant moves to redact portions of Dr. Sutton’s notes, records and assessment report that derive from closed mediation conducted by Dr. Fidler. The motion is heard during trial. The applicant provided her testimony with respect to the motion as part of her trial testimony. Dr. Sutton has been examined with respect to the motion in voir dire.
[2] Dr. Fidler conducted a closed mediation between these parents in the months between July to September 2011 and in December 2012. At the time of her retainer, both parents signed her Standard Retainer Agreement. As relevant to this motion, it provided:
- Confidentiality
e) The mediation may disclose information with the written consent of the parties.
- Reporting
b) If the parents fail to agree on one or more issues it is understood that:
i. anything said or any admission or communication in the course of the mediation is not admissible in any legal proceeding;
ii. the Mediator will not be called as a witness by or on behalf of either parent in any legal proceeding;
iii. the Mediator may be required by the court to testify despite this agreement to the contrary, in the event there are criminal matters pending;
iv. if the parents do not reach an agreement through mediation on any specified issue, that will be so reported by the Mediator.
[3] By the time the mediation started, the parties had already commenced the custody and access assessment with Dr. Sutton. He was jointly retained in December 2010. Both signed his Retainer Agreement which contained a number of clauses making it clear that the process of assessment was very much an open one:
This signed agreement serves as the parents’ informed consent for Dr. Peter Sutton to obtain information from the Court, counsel and both parents AND for Dr. Peter Sutton to provide information received from all sources to the Court, counsel and the other parent.
There is no confidentiality or privilege in a custody/access assessment. Any and all of the information provided by each parent, however it is provided, may be shared with the other parent and with others in the assessment (including where necessary and appropriate, children and collateral sources).
Your signature below indicates: (1) that you have received, read, understand and will abide by my policies and procedures; (2) that you are waiving privilege (i.e. that you consent to the appropriate disclosure of the information contained in my file concerning this matter); and, (3) that you are authorizing the release by me of information, including my comprehensive report, Parenting Plan recommendations and any other written reports, to the Court, the lawyers for both parties, and the children’s lawyer if appointed.
[4] The assessment process fell into two time periods. Dr. Sutton made recommendations in June 2011 which have been described in the trial as interim recommendations. It appears that the referral to mediation may have been in order to consider these recommendations with the assistance of the mediator. In any event, the parenting issues were not resolved at mediation. Dr. Sutton was subsequently asked to do what has been termed the reassessment and to complete his report.
[5] In the course of so doing, he determined that he would be helped by receiving information from the mediator. He discussed this with both parties’ counsel on March 20, 2012. The applicant’s counsel, Ms. Lam, already knew about the request for the consent. She expressed concern about it because the mediation had been closed. Dr. Sutton explained that he felt that it would be very helpful for him to hear from Dr. Fidler about what had happened because she had started out in the role of parenting coordinator for the parties and when that proved impractical, her role changed to mediator. He reported that both counsel were willing to agree.
[6] Dr. Sutton subsequently discussed his request for the Fidler release with the applicant. This took place on March 22, 2012. The applicant was alive to the issue. She told Dr. Sutton that if she signed the release, it would negate the contract she had signed with Dr. Fidler for closed mediation. Dr. Sutton’s evidence was that he acknowledged this as a serious consideration and explained that he wanted the information so that he could develop his own ideas about what had gone wrong and what to do in the future. He further advised that it was up to the applicant as to whether or not she gave the consent. In fact, the applicant signed the consent on March 29 and delivered it to Dr. Sutton on March 30.
[7] The applicant testified that she did not sign the consent right away because of her concern about opening up the closed mediation. She testified that, in her mind, “closed” meant it could not be used in court. She said that she knew that if she discussed it with Dr. Sutton, the mediation would be opened up. The applicant also testified that she had discussed the issue with her counsel. The applicant’s description of her discussion with Dr. Sutton was different from his. She testified that he had told her that signing the consent was so that he could get information from Dr. Fidler but that it would not open up the mediation. The applicant says that, on this basis, she signed the consent to allow him to speak to Dr. Fidler but not to allow him to use the information in court.
[8] Dr. Sutton testified that it was impossible that he would have told the applicant that he would receive the information from the mediator but that the mediation would remain closed or that the information he received would not be used in court. I accept his testimony.
[9] I find that Dr. Sutton did not tell the applicant that signing the release would not open up the mediation. I also find he did not tell her that the information was for his use only and the mediation would remain closed. So doing would be completely contradictory of his own Retainer Agreement which clearly spelled out that any information he received was not confidential and could be disclosed in his report and to the court. This is an essential aspect of an assessment and I do not believe that Dr. Sutton made these statements attributed to him by the applicant.
[10] The primary submission of applicant’s counsel is that the onus is on the respondent to establish that the applicant waived the privilege and that the court should only find waiver in the most clear cut cases. I agree. Her counsel invites the court to conclude that despite the applicant’s initial reservations about opening the mediation, she was in fact persuaded to sign the consent by Dr. Sutton’s statement to her and to counsel that the information “would be helpful information for him to have”. As well, the consent signed was prepared by Dr. Sutton and it refers to releasing information to him and does not go on to stipulate that the mediation was thereby opened or that the information he received could be disclosed in court. On this basis, the applicant submits that the consent to disclose is not a clear cut waiver of her privilege and the respondent has not met the burden upon him.
[11] In order to accept this submission, one would have to extract Dr. Sutton’s comment that the information would be helpful to him from the rest of the discussions that he had with the applicant and with counsel, and to treat it as a stand-alone representation. Taken in context, it is clear, and I so find, that Dr. Sutton explained why he was making an admittedly unusual request, (so that he could find out from a neutral source what had gone wrong and try to account for that in future) and that the applicant knew that the effect of agreeing to this would be to open up the mediation and not merely to inform Dr. Sutton. I find that the applicant was well aware that by signing the release, the mediation would be opened and could be disclosed in court in the same way as could any other information disclosed to Dr. Sutton. She signed the document with advice and after consideration. This was not a hurried or impulsive step on her part.
[12] Accordingly, I find that the respondent has established that the applicant waived the privilege attaching to the communications made in mediation.
[13] I note that the applicant also sent lengthy written submissions to Dr. Sutton in July 2012 which contained, amongst other things, several pages giving her own perspective on the mediation. She knew and intended that he would consider this information as part of his assessment process. I find that, in so doing, she also impliedly waived the mediation privilege.
[14] Dr. Sutton’s final report was released at the end of July 2012. There is no evidence that the applicant promptly objected to its inclusion of references to mediation communications. Notice of this motion to redact was given only in the weeks leading up to trial.
[15] I accept that there are strong policy reasons to sedulously foster the use of closed mediation in custody cases as an alternative to litigation. These are well known and need not be repeated here. I also agree that it should be a very rare case indeed where an assessor may properly consider asking parties to closed mediation to agree to open it up after the fact. In this case, after an extensive assessment with detailed recommendations including parenting co‑ordination and family therapy, progress had not been made. Dr. Sutton was then asked to take up the case again. In this very complicated case, he determined that departing from his normal practice of not seeking any information pertaining to a closed mediation would assist him by providing information from a neutral third party who had engaged with both parents about what had gone wrong, rather than receiving only each parent’s version of events.
[16] The applicant’s counsel identified more than one hundred proposed redactions related to references by Dr. Sutton to mediation communications in his notes and records. Dr. Sutton also referred to mediation communications in nine places in his assessment report. These references form part of the foundation to his 220 page report in what is undoubtedly a complex, high conflict custody case. To allow the proposed redactions now would potentially undermine an important part of the foundation to the opinions, conclusions and recommendations of the assessor. In my view, the potential prejudice arising to the integrity of the assessment outweighs the policy reasons favouring closed mediation in this case, given that the mediation was opened with the consent of both parties.
[17] For these reasons, the motion to redact is denied.
[18] Counsel for the respondent has advised the court of her intention to call Dr. Fidler as a witness depending upon the outcome of this motion. Should she do so, it must be borne in mind that Dr. Fidler will not be permitted to provide expert opinion evidence; rather she would be a “fact” witness whose testimony must meet the requirements of relevance for admissibility.
J. Mackinnon J
Date: March 7, 2013
COURT FILE NO.: FS-12-00375231
DATE: 20130307
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Victoria Fielding, Applicant
AND
John Craig Fielding, Respondent
BEFORE: J. Mackinnon J
COUNSEL: Gary S. Joseph and Christine Marchetti, for the Applicant
Ilana I. Zylberman and Michael Zalev, for the Respondent
ENDORSEMENT
J. Mackinnon J
Released: March 7, 2013