Endorsement
COURT FILE NO.: FS-12-00375231
DATE: 2013/04/03
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Victoria Fielding - Applicant v. 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: April 2, 2013
ENDORSEMENT
[1] The applicant proposes to call a case in reply. A preliminary ruling is required as to whether the proposed testimony of two witnesses who have not yet testified in the trial is proper reply. In the alternative, the applicant seeks leave to re-open her case in chief in order to call these witnesses.
[2] The proposed witnesses are Bonnie Gibbons-Fahey and Jennifer Stumborg. Ms. Gibbons-Fahey is the oldest child’s therapist and has been since October 2010. Ms. Stumborg is this child’s guidance counsellor at her present school. Issues of privilege and confidentiality will be raised in relation to the testimony of both witnesses. Those will be dealt with subsequently.
[3] On March 1, 2013 the applicant received the file of Dr. Driver pursuant to my order. Dr. Driver is the respondent’s therapist. The file contained a note that on July 7, 2011 the father reported to Dr. Driver that Katie was distraught, she had run away, engaged in self-harm, and was psychotic. This was the first time that the applicant learned of these events. At this point in the proceedings the applicant’s case in chief was still underway. Dr. Driver’s notes were received as an exhibit on consent without requiring her to attend for examination.
[4] The respondent was cross-examined about this event. He added that he, Katie and Sean had been in Ottawa, Katie had run out of a restaurant and he had retrieved her in a matter of seconds. They returned to their hotel. Katie was picking at her calf and moaning for about an hour. He father had to hold her hands to keep her from hurting herself.
[5] The respondent did not convey this information to either the applicant or to Dr Sutton even when he commenced his reassessment of the family in 2012. The respondent described the event as insignificant.
[6] On March 4 the applicant’s case was closed. The respondent began his testimony in chief. That evening his counsel delivered an additional 600 or so emails to the applicant’s counsel. I gather that many emails had already been produced pursuant to an undertaking given but that for reasons of technology the respondent’s counsel had been able to retrieve additional emails from their client’s computer than he himself had, and they were produced as soon as they counsel had them.
[7] A selection of twenty of these emails was entered as Exhibit 23.
[8] Three of these twenty are from the father to Ms. Gibbons-Fahey. They describe Katie as:
• stressed out and needing to see Gibbons-Fahey on May 10, 2011,
• “upset as I have ever seen her” on June 28, 2011, and asking “should I take her to hospital?”
• going shopping with Bonnie on a Sunday in July 2011.
[9] In addition there is an email from the respondent to a prescribing physician for Katie, dated November 5, 2012 stating that he has spoken to Ms. Gibbons-Fahey and “Katie isn’t really getting any better”.
[10] Respondent’s counsel submit that the first and last of these emails were delivered before the applicant closed her case in chief. I have not been able to determine whether or not that is so.
[11] Two of the twenty emails are from the respondent to Ms. Stumborg. In June 2011 he conveys to her Katie’s strongly held view that her mother should have no involvement in ordering her books or talking to her teachers. On November 24 the respondent emailed Ms. Stumborg to say that Katie was getting discouraged at school, and asking the guidance counsellor to remind the teachers that Katie is not well and cannot complete the work expected of her.
[12] It is conceded that there had been earlier evidence that Katie was having some problems in November and that her medications were being adjusted over the fall months.
[13] The applicant’s submission is that she should be entitled to explore certain issues with these witnesses as part of her case in reply:
• Were they aware of the events in Ottawa? If so, from whom?
• Were instructions given by the respondent not to convey this information to the applicant?
• What information did each have about what happened in June and July 2011 to cause Katie’s’ difficulties at that time, were they resolved, and if so, how?
• What information did each have about the nature and extent of Katie’s difficulties in the fall of 2012?
• Does the witness know, or was she told, that they were related to those of the previous summer?
• Were they resolved to the witnesses knowledge and if so, how?
• What instructions might each witness have received form the respondent on the issue of keeping or not keeping the applicant informed about Katie’s situation.
[14] The applicant also wishes to question Ms. Gibbons-Fahey about an alleged relationship with the respondent and Katie that may go beyond what would be considered appropriate having regard to her role as Katie’s therapist. She wishes to explore whether there has been an exchange of information between Ms. Gibbons-Fahey and the guidance counsellor and whether they are party to the respondent’s alleged pattern of denying information to the mother about Katie. She also wishes to explore whether Katie has had continuous, ongoing problems noted at school and in therapy since July 2011 right up to the fall of 2012.
[15] The purpose of reply evidence is to allow a party to respond to new matters raised by the defence. A new matter is considered to be one that could not reasonably have been anticipated or that the moving party had no opportunity to deal with in chief. A matter may also be considered new if it took on added significance during the defence case. A key limitation to reply evidence is that a party may not split her case thereby denying the other party the ability to hear and respond to the full case he must meet.
[16] Katie’s distress in Ottawa was known to the applicant prior to the close of her case, through the description of it in Dr. Driver’s note. The issue took on added importance after the applicant’s case was closed. The respondent provided more details about it in cross examination. Although he described it as insignificant, the late coming emails to Bonnie Gibbons-Fahey suggest that a problem may have been developing in May and June. In particular the information is new that on June 28, just days before the Ottawa incident, the father was seeking advice about taking Katie to hospital.
[17] I do not agree with respondent’s counsel that this is a collateral or immaterial issue.
[18] The applicant was quite aware of Katie’s medical situation as of November 2012. She testified she knew Katie had seen four psychiatrists by then. She knew who they were. She knew that the family doctor, Dr. Mehta had referred Katie to Dr. Gabbour for depression. Dr. Mehta had told her that Katie was still anxious and not sleeping well. Katie’s wellbeing is a major issue in this case. In my view I would be allowing the applicant to split her case if I were to allow her to delve into Katie’s emotional and mental health over the period from summer 2011 to and including the fall of 2012.
[19] The applicant knew or could easily have confirmed that Katie was still in therapy with Ms. Gibbons-Fahey and in attendance at Branksome Hall in the fall of 2012. Accordingly she would have known whether she was receiving any information about Katie from either source and had the ability to pursue that issue through either of these witnesses in her case in chief. Her counsel says that there are other emails I have not have seen that may show that the efforts to block the applicant from information were even greater than she knew. In my view that does not change the fact that the issue was live in the applicant’s case in chief, and both witnesses were available to be called by her in chief.
[20] I express no opinion here as to the ability of the applicant herself to testify in reply with respect to her knowledge or lack of same of any of the late coming emails that maybe relevant and material to these issues.
[21] Finally I reject the submission that Ms. Gibbons-Fahey be questioned as a reply witness about an alleged inappropriate relationship with either the respondent and/or Katie. The only piece of evidence that I have seen that might support this is the email referring to her going shopping with Katie on a Sunday. I appreciate that counsel has not referred me to every single email that might form the basis of his examination. However, we know that confidentiality privilege will be raised with respect to Ms. Gibbons-Fahey testimony. One of the considerations will be whether the evidence was available through another source. In this case, it was. The applicant could have cross examined the respondent upon any emails he sent or received, or events described in them of which he had knowledge, touching on this allegation. He was not asked any questions about it.
[22] In my view, as far as the respondent is concerned the failure to question also brings the rule in Browne v. Dunn into play. I disagree with applicant’s counsel that the rule is not engaged because he only proposes to question Ms. Gibbons-Fahey about her relationship with the respondent and with Katie, not about the respondent’s relationship with her. This is clearly a matter on which the respondent would have had testimony to give and he was not afforded the opportunity. It is not persuasive to say that he could have brought it up himself in chief; how was he to know the applicant intended to make this an issue?
[23] For these reasons my ruling is that some of the proposed areas of testimony from Ms. Gibbons-Fahey are proper for reply. These relate to the events in Ottawa in late June or early July 2011, to the emails with respect to May 10 and June 28, 2011, and to the questions set out in paragraph 13 related to that period of time only. In addition the applicant may ask Ms. Gibbons-Fahey about whether the shopping trip described in the July 28, 2011 email is part of her usual practise as a therapist.
[24] The proposed testimony from Ms. Stumborg does not in my view constitute permissible evidence in reply. In addition to my comments at para. 19, there is nothing to suggest that she had or would be likely to have any knowledge of the Ottawa incident.
[25] The request to reopen the applicant’s case in order to call these two witnesses for the purposes stated above is denied.
[26] There is a difference between calling a case in reply and reopening a case in chief. The former is designed to allow a response to new or unexpected matters that came up in the defence. The latter is to enable a party to adduce evidence which could have been recognized from the outset as relevant to the moving party’s case, but was not adduced in the case in chief. There needs to be a compelling reason why the court would allow this especially at this late stage where subject to deciding whether to call one final witness, the respondent’s evidentiary case is complete.
The explanation here is the late coming emails. Those relate more properly to the case in reply and my limiting the scope of reply is not a reason to allow the applicant to reopen her case in chief.
J. Mackinnon J
Date: April 3, 2013
COURT FILE NO.: FS-12-00375231
DATE: 2013/04/03
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: April 3, 2013