SUPERIOR COURT OF JUSTICE

FAMILY COURT

Fielding v. Fielding, 2013 ONSC 2109

Court File No. FS- 12-00375231-0000

IN THE MATTER OF: The Family Law Act, RSO. 1990, c. F.3, s.44

B E T W E E N:

VICTORIA FIELDING

Applicant

• and -

JOHN CRAIG FIELDING

Respondent

R U L I N G

RE: DR. IRVING’S FILE

BEFORE THE HONOURABLE JUSTICE V. J. MACKINNON

on April 2, 2013, at TORONTO, Ontario

APPEARANCES:

Mr. G. S. Joseph, Ms. C. Marchetti

Counsel for the Applicant

Ms. I. Zylberman, Mr. M. Zalev

Counsel for the Respondent

R U L I N G

MACKINNON, J. (Orally):

Dr. Irving, Ph.D. is a therapist who provided services to the applicant mother, and to Sean and Natalie. At the trial management conference, Mr. Joseph stated that he was considering calling Dr. Irving as a witness. At the opening of trial on February 26, Mr. Joseph stated that he did intend to lead evidence from Dr. Irving. He had prepared an affidavit for Dr. Irving because he was going to be out of the country for the two weeks scheduled for the trial. The affidavit was included in the brief of affidavits Mr. Joseph tendered as an exhibit.

I ruled that Dr. Irving could provide his testimony in-chief by affidavit, but only if he were tendered for cross-examination. I also ruled that Dr. Irving could appear for cross-examination by video conference or Skype.

The next day, Mr. Joseph confirmed that Dr. Irving would be unavailable for the two weeks scheduled for the trial, including for cross-examination. Ms. Zylberman agreed that Dr. Irving could testify out of order at a date to be set upon his return to Toronto. The affidavit was withdrawn with the understanding that Dr. Irving would testify in chief and cross in the usual fashion in open court. There was never any question but that his file would be delivered to Ms. Zylberman.

On February 27th, I granted Mr. Joseph's request for the production of Dr. Driver's file. Dr. Driver is the father's therapist. The order was made pursuant to a mutual undertaking given at questioning that each party would produce his or her client's doctors’ files if the other party also did so. The mutual undertaking was not dependent on calling the doctor as a witness at trial.

When I made this ruling, Mr. Joseph had clearly stated that Dr. Irving would be a witness. He had decided not to tender his evidence in chief by affidavit, and Ms. Zylberman had consented to Dr. Irving testifying out of order at a later date to be scheduled. There would have been no doubt when I ordered Dr. Driver's files to be produced that the respondent was also going to receive Dr. Irving's file at a later date.

The trial did not complete during the two weeks for which it had been scheduled, and additional dates were set.

On the first of these dates, Ms. Zylberman asked whether Mr. Joseph had Dr. Irving's file. Mr. Joseph stated that he did not have it yet. For the first time, he advised Court and opposing counsel that he was considering not calling Dr. Irving, and did not want to produce the file until he made his final decision. Ms. Zylberman objected to this, but I deferred making a ruling. The next day, Mr. Joseph advised that he was not going to call Dr. Irving. He objected to producing the file, since Dr. Irving was not going to be a witness. Ms. Zylberman sought an order that Mr. Joseph provide the file to her so that she could review it and consider whether she herself would call Dr. Irving as a witness. Her position was that she had relied on Mr. Joseph's statements throughout the trial that Dr. Irving would be produced; and, as a matter of course, so would his complete file.

I have directed myself to R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751. In that case, the Crown told the jury it would tender a witness to corroborate the testimony of its main witness, an informant. The corroborating witness was not called; yet the trial judge refused to allow defence counsel to comment on this omission in his jury address. On appeal, the Supreme Court ruled this refusal had been an error. The Crown was not obliged to call the witness and was entitled to modify his trial strategy during trial, as long as so doing did not result in unfairness to the accused. In Jolivet, the Supreme Court held there had been an element of prejudice to the defence; and so, remedial action was appropriate.

Mr. Joseph is not obliged to call Dr. Irving as a witness. His decision not to do so was a clear change in the position he had taken since the opening of trial. This was not a witness that he might or might not call; special arrangements were being made to accommodate Dr. Irving's schedule. Ms. Zylberman agreed that he could be called after the applicant's case was otherwise complete, and even after she had commenced calling the respondent's case. There was never any question but that Dr. Irving's file was going to be produced to her. Mr. Joseph says that was because he was going to be a witness; but, until March 27th, over a month after the trial started, there was never any doubt that he was going to be a witness.

There is also the matter of the mutual undertaking to produce doctors' files whether or not the doctor was going to be called to testify. This was never raised in connection to Dr. Irving's file, presumably because it was known that he would be a witness; and that, accordingly, his file was always going to be produced.

I find that in these circumstances, there was a commitment by Mr. Joseph that he was calling Dr. Irving and would be producing his file to opposing counsel. As in Jolivet, there has been an element of unfairness to the respondent. He has proceeded with his case in the belief that he would receive Dr. Irving's file and be able to examine him at trial. The respondent should not be required to summons Dr. Irving to the stand as his witness at trial in order to obtain his file in these circumstances.

In my view, the request by respondent's counsel that the applicant should now be obliged to produce the file so that she may decide whether to call Dr. Irving as a part of the respondent's case is reasonable, and is an appropriate remedy in the circumstances. For these reasons, I order the applicant to obtain and produce Dr. Irving's file to the respondent forthwith.

Form 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))

Evidence Act

I,

Haley Zalesky

(Name of Authorized Person)

certify that this document is a true and accurate transcript of the recording of

Fielding v. Fielding

in the

902

(Name of Case)

(Name of Court)

held at

393 University Avenue, Toronto

(Court Address)

taken from Recording

4899_902_20130402_094525__10_MACKINJE.dcr

, which has been certified in Form 1.

April 2, 2013

(Date)

(Signature of Authorized Person(s))