NEWMARKET COURT FILE NO.: FC-10-035725-00
DATE: 20131114
CORRIGENDA: 20140917
SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: Joshua Sera, Applicant
and
Jennifer Ambroise, Respondent
BEFORE: The Honourable Madam Justice C.A. Gilmore
COUNSEL:
Joan M. Irwin, for the Applicant
Gary E. Shortliffe, for the Respondent
HEARD: November 12 and 13, 2013
revised ENDORSEMENT
The text of the original endorsement has been corrected with the text of the corrigendum (released today’s date)
Overview
[1] This matter was scheduled for a fixed date trial commencing November 12, 2013. The respondent mother has brought a motion to adjourn the trial for a period of two to three months or at the latest the May 2014 sittings. She seeks appointment of the Office of the Children’s Lawyer (OCL) to investigate and report or to represent the children. In the interim, she seeks unsupervised access to the children. She does not seek to change the children’s residence pending trial if an adjournment is granted.
[2] The mother is francophone. She was born in Haiti and immigrated to Quebec when she was a child. She was educated in and her first language is French. She works in French and is integrally connected to the francophone community in Toronto and the surrounding area. She requested that this trial be heard as a bilingual matter. While that request was accommodated, she submits that previous requests to exercise her French language rights were not. As a result, she seeks to set aside all of the previous interim orders in this proceeding on the grounds that her right to a bilingual hearing of those matters was breached. She therefore seeks to have the issues of custody and access heard de novo first by way of an interim motion, assuming the trial is adjourned and then at the subsequent trial on a final basis. She also seeks the right to file documents in French.
[3] The applicant father is frustrated with the mother’s request. The matter has been in litigation for three years and the trial was adjourned on a previous occasion. A fixed date was set for this trial in January 2013. Special judicial and court staff as well as an interpreter were arranged to ensure the matter could proceed as a bilingual hearing. The father’s counsel even brought her own 14B motion to ensure that a bilingual court reporter was made available for the trial dates scheduled in November 2013.
[4] The father submits that the children are not doing well and need the finality of understanding what contact, if any, they will have with their mother on an ongoing basis. On only three occasions have the children visited with their mother for the full two hour supervised access visit. He also submits that the mother is competent in English, had two English speaking lawyers in the past and has pursued post secondary education as a registered practical nurse since coming to Ontario. Her proficiency in English is far better than she would lead the court to believe. While acknowledging her right to a bilingual hearing, the father submits that her request to set aside three years’ worth of interim orders is simply a way of undoing the litigation history without having appealed any of the relevant orders.
[5] The father opposes the filing of documents in French. He argues that the section 126(2) parts 6 and 7 of the Courts of Justice Act (CJA) specify that documents may only be filed in French (except with the consent of the parties) in designated Schedule 2 areas. Newmarket is not a designated Schedule 2 area.
Background Facts and History of the Litigation
[6] The parties were married in 2004. They separated in the summer of 2010. There are two children of the marriage, namely J.S., born September 6, 2004 (now aged 9) and H.S., born June 21, 2007 (now aged 6).
[7] The parties signed two separation agreements, one on June 7, 2010 and a supplementary agreement, dated June 10, 2010. Both parties had legal advice before signing the agreements. The agreements resolved all issues between them pertaining to custody, access, child support, section 7 expenses, spousal support and property.
[8] The agreements stipulated that the parties would have joint custody of the children and they would live equally with both parties. The mother paid the father $120,000 in exchange for retaining his interest in the matrimonial home. The father agreed to pay the cost of Jewish day school for J.S. and the mother agreed to share childcare costs for H.S. Her share of such costs was agreed to be $271 per month. The mother has not paid this amount since the date of the agreements.
[9] The separation agreements stipulated that neither party would pay child support to the other despite the fact that the mother’s stated income was somewhat higher than that of the father.
[10] Matters moved along to the fall of 2010 when, by chance, each party was out on a date and saw the other at the same location. According to the father, the mother’s attitude changed and she became aggressive, abusive and unreasonable towards the father. Her behaviour towards the father and the children became erratic. By January 2011 she was not seeing the children at all. The mother does not agree with this allegation. She maintained that she was always mistreated by the father, who was controlling, abusive and refused to allow French to be spoken in their home. Further, his parents were intrusive and overbearing with respect to the children. The mother maintains that her heritage and religious background were belittled by the father and his parents who insisted that only Jewish customs be recognized in the home. She maintains she was manoeuvred and bullied into reducing time with the children. The children were then alienated from her by the father and his parents.
[11] The litigation began when the father commenced a divorce application in July 2010. He sought no other relief. The mother was not represented by counsel at the time of being served with the divorce application. She did not understand what it was and hired counsel, namely Eric Sadvari of the Martha McCarthy firm. He requested an extension of time to file an answer to the application but the father did not consent.
[12] Mr. Sadvari, on behalf of the mother, brought a motion requesting an extension of time to file her answer. On December 1, 2010, the mother filed a notice of change of representation indicating that she had chosen to represent herself. She was given until January 8, 2011 to file her answer. The answer, for various reasons, was not ultimately filed until October 2011.
[13] The mother prepared (in French) a case conference notice for a case conference on December 19, 2011. According to the father, he never received this notice. Nevertheless, the conference was held on December 19, 2011 before Rogers J. Certain disclosure orders were made at the case conference and a settlement conference date of March 15, 2012 and a trial management conference date of April 24, 2012 were set. A motion date was also set for January 18, 2012. Rogers, J. made a notation that if the mother wished a bilingual hearing she should file a 14B motion. The mother did not do so.
[14] The motion on January 18, 2012 was heard by McGee J. An order was made for interim custody to the father as the mother had not seen the children in over a year at that point. She filed no material at the motion but made it clear she would rather not see her children than see them in a supervised setting. As such, access was suspended except on agreement of the parties. McGee J. referred to Rogers J.’s endorsement concerning the request for a bilingual hearing and noted that no request had been made to that point.
[15] At the settlement conference on March 15, 2012, the parties agreed the mother would have telephone access twice a week. The calls could be monitored by the father and he could terminate them if he felt they were becoming inappropriate. The parties also agreed to supervised access up to two hours per week. The trial management conference date was changed to May 2, 2012.
[16] At the trial management conference on May 2, 2012, discussions were held regarding the orientation and registration of the parties and children for supervised access. The mother was ordered to pay child support of $1,098 per month child support based on an income of $74,484. A further trial management conference was set for October 19, 2012, as a trial could not proceed in the May 2012 sittings with supervised access barely underway. A case conference was scheduled for July 6, 2012 to discuss a possible section 30 assessment.
[17] At the July 6, 2012 conference, Dr. Sutton was ordered to conduct a section 30 assessment on the issue of the needs of the children, the abilities of the parents to meet their needs and on the issue of access by the mother. The order was subject to the consent of Dr. Sutton and the mother providing one half of Dr. Sutton’s retainer ($7,500) to him by July 11, 2012. The mother did not provide the retainer and the assessment did not proceed. It should be noted that the father retained Dr. Sutton to prepare an assessment in relation to the issue of telephone access. That assessment was completed on November 27, 2012. The father does not intend to rely upon that assessment for trial.
[18] The October 19, 2012 trial management conference was held in front of a bilingual judge with an interpreter. The mother was given another opportunity to involve an assessor with respect to the child related issues. The conference was ordered to be continued on January 25, 2013. At the January 25, 2013 conference, the matter was adjourned to a fixed date trial with a bilingual judge and interpreter to commence November 12, 2013.
[19] The mother brought a pre-trial motion returnable November 5, 2013 before me. She requested an adjournment of the trial and the relief set out above. The father sought an adjournment of that motion in order to file proper material. The motion was ordered to be heard prior to trial and commencing November 12, 2013 in order to allow both parties to file proper material.
The Issues
(a) The Adjournment
The Position of the Mother
[20] The mother seeks an adjournment to allow her to pursue either an assessment or the services of the OCL. Quite rightly, she seeks to have some objective evidence concerning the children before the court.
[21] The mother argues that there is no harm or prejudice in granting an adjournment of the trial. She is not seeking, in the interim, to change the children’s residence nor their school. She is seeking unsupervised access but understands, I believe, that that also may have to wait a short while until a formal interim motion is scheduled or some input is received from a third party.
[22] She is not seeking to delay matters. She is agreeable to the trial being adjourned for only a few months in order to allow her to be better positioned for trial.
[23] The current situation, she argues, is untenable. The children do not like the access centre. The conditions are not conducive to developing a bond with them. No French is spoken there. Indeed no language other than English CAN be spoken there as the supervisors must be able to monitor the conversation between the access parent and the children.
[24] Finally, there is no evidence that she is violent, has harmed the children or is in any way a danger to them. Supervision is meant to be temporary and it is long past the time where she must prove in some way that she is an adequate parent. There is no reason not to move forward in a manner that is not prejudicial to her. To this point, the children’s right of access and her right to be heard properly in French have both been affected. It is time that her rights and those of the children are properly recognized. Forcing her to proceed at this point without any objective evidence concerning the children would be prejudicial to her and not in the children’s best interests.
The Position of the Father
[25] The father is clearly frustrated by what he perceives to be yet another delay tactic on the part of the mother.
[26] With respect to the involvement of the OCL, the father submits that that issue has been addressed many times before this court. The mother has asked for this involvement on at least four occasions. Rogers J. dealt with it in her endorsements of May 3, 2012 and July 6, 2012. McCarthy J. also addressed this in his trial management conference endorsements and gave her the opportunity to pursue her own assessment. Again, she took no steps.
[27] The court did not feel that the OCL did not have the expertise to deal with this case. A more extensive report was required. An opportunity was given to the mother on several occasions to become involved in an assessment. She took no steps and chose not to participate in the process. For her to now say that she wants to proceed with an assessment is concerning given her past lack of interest and participation.
[28] The mother chose not to see the children between January 2011 and January 2013. She cannot now visit her poor judgment and decisions on the father by asking for another adjournment. The father would have been ready to proceed in the spring of 2012 but supervised access had just been ordered and it was felt that some access needed to take place before trial. The father was prepared to proceed during the fall sittings in 2012, but again there was delay in order to ensure that a bilingual hearing could be accommodated. This trial date was fixed in January 2013.
[29] The father strenuously objects to any unsupervised access taking place. The mother has failed to provide any evidence that such a change is in the children’s best interests. She has no assessment report, nor even any notes from the access centre. The father will call the children’s therapist as a witness at trial to give evidence concerning how the children are doing in his care.
[30] The father’s position at trial will be that all access should be terminated at this time. The children are not doing well with supervised access. They refuse to remain for the entire two hour visit. They complain about the visits. The children deserve to know what type of contact, if any, they can expect to have with their mother in the future. The current arrangement is not tenable and delaying matters for a few months or until the May 2014 trial sittings is not in their best interests.
Analysis and Ruling
[31] I decline to adjourn the trial of this matter. I set out my reasons below as well as the terms I intend to impose with respect to commencing the trial at this time.
(a) I accept that, while any delay may not, on its face, be prejudicial to the status quo, I am concerned about the effect of any delay on the children. I sense from reading the entire record and hearing submissions that they having been living in a state of limbo with respect to their contact with their mother and need some clarity and finality.
(b) The mother’s right to a bilingual hearing is fully protected and all aspects are in place including a bilingual judge, report and interpreter. The timing of when such resources may again be available is unknown, although I expect at the earliest it would be May 2014. A delay of such length is not acceptable in this case.
(c) The mother has had opportunities to pursue and participate in a section 30 assessment. She has declined involvement. There is of course a concern about having objective evidence in relation to the children without an assessment or involvement of the OCL. I am concerned that even if involvement of the OCL was ordered and they accepted the appointment (and it is not clear to me given the circumstances of this case that they would), it is not realistic to expect that they would be able to give any useful information to the court any sooner than four months, at the earliest. As such and as a court ordered term of proceeding with the trial at this time, this court will take the somewhat unusual step of requiring that the supervisors of the children at the access centre be summonsed to court for this trial with their access notes so that I may have some objective evidence as to what occurred during supervised access visits. The information for those summonses is to be given to the registrar so that she may prepare them and arrange for immediate service. The supervisors shall be the court’s witnesses and both parties will therefore have an opportunity to cross examine them on their notes. As the supervisors will be the court’s witnesses they can attend at any time during the trial to give their evidence and every effort will be made to accommodate them.
(d) Finally, I keep in mind the primary objective of the Family Court Rules in declining this request for an adjournment. This court has a duty to ensure that the procedure is fair to ALL parties while ensuring that cases are dealt with in a manner appropriate to their importance and complexity. In this case in particular I am mindful of Rule 2(3)(d), which requires the court to give appropriate court resources to a case while taking account of the need to give resources to other cases. This case was given a fixed date in January 2013. Special and important resources have been devoted to it. There are not to be put aside lightly, especially when it is unknown how long it would take for such resources to align again in future.
(b) Have the Mother’s Rights to a Bilingual Hearing been Infringed?
The Position of the Mother
[32] The mother argues that she has been denied her rights to a proper bilingual hearing pursuant to section 125 of the CJA. She argues that even though a bilingual judge was provided as of the October 19, 2012 conference, she was denied the right to file documents in French and to be heard in French prior to that. She has always been denied the right to file documents in French. As such, she seeks to set aside the previous interim orders made in this case.
[33] While it is conceded that the mother has some proficiency in English, her native tongue is French. She has been extremely prejudiced by having to prepare court documents in English. Because she could not afford a lawyer at some points in the litigation she has had to represent herself. She has felt intimidated, overwhelmed, confused and extremely prejudiced by the results of the English hearings.
[34] When she tried to file a conference notice in French for the December 19, 2011 case conference, court staff refused to accept her document in French. She was told that in order to request a bilingual hearing she had to file a 14B motion. It is inequitable that she should have had to do so in English.
[35] While she did not actually make her formal request for a bilingual hearing until July 2012, the delay was solely attributable to her fear and misunderstanding of the proper process and not any waiver of rights on her part.
[36] Even as recently as this motion, the father’s lawyer refused to accept her reply affidavit in French.
[37] The most egregious breach of her rights occurred at the January 2012 motion when interim custody of the children was awarded to the father. She did not have an opportunity to address the court in French or file documents in her native language. The endorsement of the court is confusing in that it refers to her ability in English as eloquent, while at the same time putting her mental health in question. The court then ordered her to pay $2,500 in costs.
[38] The mother has been deprived of a substantive right – the right to be heard in and file documents in French. The proper remedy is to adjourn the trial and set aside the previous interim orders. New motion dates should be set for the interim issues to be considered pending trial.
The Position of the Father
[39] The father submits that the mother’s rights have in no way been breached. First, the mother has had a bilingual judge for every hearing since October 19, 2012. The trial for November 2013 was scheduled in January 2013 in order to ensure a bilingual judge, court reporter and interpreter were available. The father has never denied that the mother has the right to have a bilingual hearing; however, it does not fall on him to make the request. The fact that the mother delayed in doing so should not entitle her to rewrite the last three years of the litigation history of this file.
[40] The mother does not have the right to file documents in French without the father’s consent as Newmarket is not a designated schedule 2 area. The father does not consent to documents being filed in French as he does not speak French nor does his lawyer. That rule pertains to the Superior Court of Justice and any so called exception in section 126(4) of the CJA does not apply as it would otherwise completely contradict the intention of section 126(2)(6) of the CJA.
[41] The mother cannot complain about the results of the January 2012 motion in which interim custody was awarded to the father. She came to the motion without materials and having already been informed at the case conference on December 19, 2011 about the process for requesting a bilingual hearing. The fact that she had not seen the children in over a year cannot be ignored in terms of the results of that motion.
[42] The mother engaged two Anglophone lawyers – Mr. Sadvari and Ms. DiBattista before retaining Mr. Shortliffe. While Mr. Shortliffe is bilingual, neither Mr. Sadvari nor Ms. DiBattista were. Further, the mother is continuing her education to become a registered practical nurse. That education is in English. Her email correspondence with Ms. Irwin and her correspondence to the court indicate a fluency in English which is far better than she would have the court believe.
[43] Finally, the father argues that setting aside the previous interim orders achieves little. The status quo of the last two years cannot be deleted. A trial will effectively consider the issues of custody and access de novo in any event.
The Law and Analysis
[44] The law with respect to French language rights in court hearings in Ontario is found in sections 125 and 126 of the CJA and accompanying regulation 53/01.
[45] Without setting out all of the sections in detail (as the parties are well aware of them), in short the relevant parts of the legislation may be summarized as follows:
(a) The official languages of the courts in Ontario is French and English;
(b) While English is the default language of all proceedings, a party may request that a proceeding be conducted as a bilingual proceeding;
(c) Such a request may be in writing or orally;
(d) A bilingual proceeding will be conducted by a bilingual judge;
(e) Evidence shall be recorded and transcribed in the language in which it is given;
(f) Pleadings and documents may be filed in French as of right in all schedule 2 areas. In all other areas they may be filed in French on the consent of the parties;
(g) In the Ontario Court of Justice, Small Claims Court or the Family Court of the Superior Court of Justice an originating process may be written in French and documents may be filed in French. Any originating process or document filed in English or French may be translated into the other language at a party’s request.
[46] While the father’s counsel has no issue with the mother having a bilingual hearing, she objects to documents being filed in French. She argues that since Newmarket is not a designated schedule 2 area, French documents may not be filed without her consent. In contrast, the mother’s counsel submits that sections 126(4) and (5) of the CJA are essentially exceptions to the schedule 2 requirement. It would not make sense that one could file an originating process in French and then not be able to file further documents in French.
[47] The mother’s counsel relies on Belende v. Greenspoon, an endorsement of the Court of Appeal, dated May 6, 2004. In that case the appellant filed his notice of appeal in French. As such all future proceedings were deemed to be bilingual. The registrar struck the appeal. The registrar was not bilingual, and as such, the order was set aside. In that case, however, the mortgage had already been redeemed so the appeal was effectively moot.
[48] In Belende v. Patel, a Court of Appeal decision dated February 29, 2008, the appellant sought to set aside an order for summary judgment made against him on the grounds that the judge hearing the matter denied the appellant his right to a bilingual proceeding. The court held that such a right is not qualified by judicial discretion and that the right is more than purely procedural. It is a substantive right and the appropriate remedy where there has been a breach is to set aside the order.
[49] In Tremblay v. Piquet, the wife sought a bilingual proceeding and the right to file documents in French. As the matter proceeded in Simcoe, Ontario, which is a non-schedule 2 area, she was precluded from filing her documents in French without the husband’s consent which was not given. The court transferred the matter to the Unified Family Court in Hamilton to allow the wife to file her documents in French.
[50] Finally, the mother relies on the case of Wittenberg v. Fred Geisweiller/Locomotive Investments Inc. 1999 14805(SCJ) for the proposition that a waiver to the right of a bilingual proceeding must be clear and informed. The fact that a litigant goes forward with a proceeding in English at the judge’s insistence is not sufficient.
[51] The father’s counsel points out that other than the Tremblay case, the cases cited by the mother’s counsel are appeals or cases involving final orders. She could not find any law on the appropriate remedy for interim orders. I do not doubt that little or no law exists in that area.
[52] Turning first in my analysis to the issue of filing French documents, I respectfully disagree with the father’s counsel. While it is clear that Newmarket is not a designated schedule 2 area, that does not mean that section 126(4) of the CJA can be ignored. The Family Court of the Superior Court of Justice is clearly recognized as a court which will accept documents in French. While this may seem inconsistent with section 126(2) (in particular subsections (6) and (7)) of the CJA, I do not see it this way. I see it as the natural expansion of the right to a bilingual proceeding. This follows the reasoning in the Tremblay case above. In short, how is one’s right to a truly bilingual proceeding to be properly effected if one is not allowed to file documents in French? The rights of the opposing party are protected by the ability to have any French documents translated into English on consent.
[53] As such, I find that the mother may file any future documents in this proceeding in French. If requested by the father, a translation into English may be requested.
[54] Turning now to the issue of the whether the previous orders should be set aside I find that they should not be for the following reasons:
(a) The mother, while being aware as far back as December 19, 2011 of the process to request a bilingual hearing, did not pursue it. I accept that at least at that point she was fully aware of her right to a bilingual hearing as the court adverted on several occasions to the process of requesting one.
(b) While the mother claims that she was fearful or did not understand what she had to do to request a bilingual hearing, her letters and emails to Ms. Irwin demonstrate that she was perfectly capable of making herself understood about her position in relation to access and her criticism of the father. It is, therefore, difficult to accept that she did not understand the court’s recommendations in this regard at both the December 19, 2011 hearing and the January 2012 motion. It is true that the fact that she has a certain proficiency in English is not relevant to her right to a bilingual hearing. At the same time it must be relevant in terms of her understanding what steps were open to her in terms of requesting that hearing.
(c) While I do not ascribe much weight to this fact, it is true that the mother hired two Anglophone lawyers and was apparently able to properly instruct them. She did not make any complaints (that I am aware of) regarding the services of Mr. Sadvari or Ms. Di Battista. A quick view on the internet would no doubt have afforded her a choice of francophone counsel in Toronto and the Greater Toronto Area.
(d) The status quo in this matter cannot be erased. The trial has not been adjourned and the mother will have an opportunity to have this court consider all of the evidence afresh. As well, it cannot be ignored that even if the mother had had a bilingual hearing at the January 2012 motion, there would likely have been some order made changing the arrangements in the separation agreement as she had not seen the children in over a year. That situation did not arise because of any language difficulties.
(e) The case law cited by the mother does not relate directly to the issue that is before this court, i.e. the setting aside of interim orders. Further, in those cases there was either a refusal to conduct a bilingual hearing (Balende v. Patel) or a substantive step taken in English in a hearing that was already deemed bilingual (Balende v. Greenspoon). Neither of those fact situations are on all fours with this case.
(f) With respect to the Wittenberg case, there was no insistence by any judge in this case thus far that a proceeding go forward in English contrary to the wishes of the mother. Indeed the mother was encouraged to take steps to make a request for a bilingual hearing, but did not do so. This is not a case like Wittenberg where the court pushed ahead in the face of the mother saying she did not understand or was uncomfortable. I do not accept that she was fearful or that it was “risky” as she puts it. It was simply a poor decision on her part whose consequences, unfortunately, cannot now be undone.
(g) There are no transcripts of the various hearings which are impugned by the mother. As such, the court has only the contradictory affidavit evidence of the parties and the judges’ endorsements with respect to what happened at those hearings. Accordingly, the court must proceed cautiously in terms of making any findings of fact about what was or was not said to the mother in terms of any waiver of her rights.
(h) The mother is now in a position where her rights have been fully recognized. The current motion as well as the upcoming trial will be presided over by a bilingual judge with the assistance of an interpreter and bilingual court reporter. Every possible step has been taken to ensure the mother will be able to express herself in her native language both personally in the course of her own evidence and through her lawyer, who is extremely competent in both languages.
[55] Given all of the above, I decline to vacate any of the previous orders and do not find that there has been any breach of the mother’s right to a bilingual hearing. If such a breach has occurred, it has since been remedied by steps which have been in place since the October 2012 trial management conference.
[56] As to any argument concerning the effect and potential prejudice resulting from the interim orders made in January 2012, the response is as follows: first, a trial is pending to address all outstanding issues; and second, given the change in circumstances that had been in place for some period of time by January 2012, it is this court’s view that some change to the custody and access arrangement would have been ordered in any event no matter the language in which that hearing took place.
Orders
[57] Given all of the above I make the following orders:
a. The request for an adjournment of the trial is dismissed. The trial will proceed immediately following the delivery of this ruling.
b. The supervisors of the children at their current access centre (those who have made notes) are to be summonsed as witnesses of the court. The summonses are to be completed and served as soon as possible.
c. The mother’s request to have all previous interim orders set aside on the grounds that her right to a bilingual hearing (both oral and written) have been infringed is dismissed.
d. The mother has the right to file any future documents in this proceeding in French. Upon the request of the father those documents may be translated into English.
e. Although, not specifically addressed in this ruling but based on discussions and submissions made in court on November 13, 2013, the mother confirms that she does not intend to attack the validity of the separation agreement or supplementary separation agreement at trial. I order therefore, that the mother is precluded from eliciting evidence or making submissions in that regard in order that the father may fairly understand the case he must meet.
Justice C.A. Gilmore
Released: September 17, 2014
CORRIGENDA
The spelling of the respondent’s surname in the citation and in the style of cause has been corrected to read: Ambroise
The original release date has been corrected to read: 20131114