SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-09-00016061
DATE: 20141209
RE: Enas Amin, Applicant
AND:
Fadil Al Saidy, Respondent
BEFORE: KITELEY J.
COUNSEL:
Elissa H. Gamus, for the Applicant
Self-represented, Respondent
HEARD: November 28, 2014
ENDORSEMENT AT TRIAL MANAGEMENT CONFERENCE
[1] This was the continuation of the Trial Management Conference for the trial scheduled to commence the week of February 2, 2015. At the conclusion of the TMC, I made a brief endorsement that the TMC would continue before me on Friday December 19 at 10:00 for the primary purpose of confirming the trial date. I indicated at that time that a more detailed endorsement would follow; this is the more detailed endorsement.
[2] At the outset of this TMC, I reviewed the status of orders made at the preceding Trial Management Conference held on October 22, 2014, as follows:
Paragraph 4: By November 17, 2014, Mr. Al Saidy had served an Amended Answer and Claim but he had not attended at the Family Law Office to have it formally amended as I directed. As indicated below, I extended the time for doing so until December 5, 2014.
Paragraph 5: The Applicant could not serve and file an amended Reply in the absence of a formally amended Answer and Claim. As indicated below, I extended the time for doing so until December 29, 2014.
Paragraph 6: I had reinstated the existing access order effective immediately but access did not occur.
Paragraph 8: Ms. Gamus has or is in the process of complying with the payment arrangements. She will provide a copy of the cheques to Mr. Al Saidy.
Paragraph 9: Dr. Olga Henderson had conducted psychological evaluations. I had made an order that Dr. Henderson provide a copy of her handwritten notes to Ms. Gamus who would provide a copy to Mr. Al Saidy. Dr. Henderson has made inquiries of the testing company whether she is permitted to send MMPI results to a non-professional.
Ms. Gamus reported that she understood from Dr. Henderson that during the process of her assessment, she had received emails from Mr. Al Saidy. Ms. Gamus now asked for an order that Dr. Henderson provide disclosure of her entire file because she understood that Dr. Henderson had modified her report after receiving an email or emails from Mr. Al Saidy. In view of this information, Dr. Henderson must produce her entire file as indicated below.
Paragraph 10: Dr. Kim did provide copies of notes of his interviews and a copy of his MMPI test results to Mr. Al Saidy who had provided them to Ms. Gamus.
Ms. Gamus had written to Mr. Al Saidy asking him to ask Dr. Kim to confirm in writing that his entire file had been produced. I declined to make that order but pointed out to Mr. Al Saidy that if Dr. Kim attended as a witness, he should tell him that he must bring his entire file with him.
Paragraph 11: I had directed the C.A.S. to provide copies of any of its records not previously disclosed to Ms. Gamus who would provide a copy to Mr. Al Saidy. Ms. Gamus explained why she had not retrieved the copies. The C.A.S. had forwarded the documents to me and, during the TMC, I provided them to Ms. Gamus. By December 5, she will provide a copy to Mr. Al Saidy.
Paragraph 12: C.A.M.H. confirmed in writing that the only clinical notes and records available were those found in Tab 6.
[3] The key issue for this Trial Management Conference was to assess the duration of the trial which is a reflection of the number and complexity of the issues for trial. What follows is a compilation of previous endorsements and the information provided at this Trial Management Conference.
[4] The following are not issues for this trial:
(a) final custody of Walid Alsaidy born March 8, 2008: granted to the Applicant pursuant to the order of Horkins J. dated May 5, 2014;
(b) s. 7 expenses: Applicant abandoned her claim as indicated in the endorsement dated October 22, 2014. Respondent agreed that that was on a without costs basis. As a result, Applicant is not required to provide further Form 13;
(c) divorce: In paragraph 100 of the reasons for decision released by Horkins J. dated May 5, 2014, the divorce was severed from the corollary relief. It does not appear that a motion for divorce judgment was brought. The uncontested ground for divorce is separation for more than one year;
(d) spousal support: Pursuant to the endorsement of Horkins J. dated June 18, 2014, the Applicant has withdrawn her claim for spousal support on a without costs basis;
(e) contempt motion: Mr. Al Saidy was under the impression that a motion for contempt that he had brought had been adjourned to the Trial Judge. I reviewed the endorsements brief and I located several references to such a motion but no endorsement that the motion had been adjourned to the Trial Judge.
[5] Based on my review of the endorsements and the TMC briefs filed for this conference, the status of the claim for an equalization of net family property is uncertain. The endorsement of June 18, 2014 by Horkins J. contains the following:
There are some property/equalization issues for trial that deal primarily with jewellery that the Respondent gave to the Applicant. (He estimates a value of about $12,000), bank accounts and cash. All items are subject to proof.
The matrimonial home has been dealt with and is not an issue for trial except in regards to para 99 of my reasons for judgment re custody dated May 5, 2014.
The Respondent takes the position that the marriage was a fraud and that it was used by the Applicant and her parents to move to Canada. The issue of the alleged fraud is pursued by the Respondent not because he seeks an annulment of the marriage but because he takes the position that he has been unfairly denied access and alleged fraud is relevant to the access issues.
Parties shall exchange up to date sworn Financial statements, net family property calculations and Form 35.1 affidavits by August 15, 2014.
[6] At the next TMC, Ms. Gamus and Mr. Al Saidy will clarify what aspects of the net family property will be addressed at the trial. It may be that it is no longer necessary for either of them to provide Form 13.1 financial statements or a net family property statement.
[7] The following are the issues for trial:
(a) access to Walid: Applicant’s position is no access; or if access is ordered, that it be supervised. Respondent’s position is unsupervised access;
(b) if the Respondent has unsupervised access, an order that his passport be secured whenever he has access;
(c) an order prohibiting the Respondent from removing the child from Ontario;
(d) an order permitting the Applicant to travel with the child without consent of the Respondent;
(e) an order that the Applicant may apply for a passport (and renewals) without the signature or consent of the Respondent;
(f) an order that the police be directed to locate and apprehend the child if removed by the Respondent;
(g) table amount of child support: the issue is the income of the Respondent. The Applicant asks that income be imputed to him;
(h) restraining order: the Applicant asks for a permanent restraining order given that the Respondent’s probation order (which prohibited contact with her) ended on November 18, 2014.
[8] In paragraph 95 of her reasons for decision dated May 5, 2014, Horkins J. referred to the Trial Judge the relief requested in paragraphs 14, 15, 16, 17 and 18 of the Applicant’s Notice of Motion. That notice of motion is not available. Ms. Gamus should provide that information at the continuation of the TMC on December 19, 2014.
[9] Based on the list of issues, Ms. Gamus and Mr. Al Saidy provided the names of witnesses that each intended to call which are found in the tables set out below. The list that each has provided exceeds the time available to the court and on the next occasion will be reviewed in order to reduce the time anticipated for this trial. Based on their estimates, this could be a 5 week trial. That is not proportionate to what is involved which is primarily access by the Respondent to the child.
[10] Mr. Al Saidy was under the impression that affidavits that had been previously filed could be used at the trial. In particular, he wanted to rely on affidavits of Joanne Lagoudis (former lawyer for the Applicant) dated May 13, 2010 and May 19, 2010. He also wanted to rely on an affidavit of the mediator Sadiq Hasan. As indicated below, that will not be permitted at trial.
[11] As indicated above, Mr. Al Saidy’s probation ended November 18, 2014. Ms. Gamus asked that I issue a restraining order at the TMC. Mr. Al Saidy opposed such an order. I declined to issue such an order at the Trial Management Conference and I indicated that, since the matter is on the trial list, no motions could be brought.
ORDER TO GO AS FOLLOWS:
[12] Unless already signed and entered, Ms. Gamus shall use best efforts to provide to me at the continuation of the Trial Management Conference, a draft order consistent with the reasons for decision dated May 5, 2014 and the endorsement dated June 18, 2014, both of which must be included in the Trial Record.
[13] No later than January 5, 2015, Dr. Henderson shall provide to Ms. Gamus a copy of the entirety of her file, including emails received from and sent to Mr. Al Saidy. The Applicant is responsible for any fee Dr. Henderson may charge for doing so.
[14] By January 5, 2015, Mr. Al Saidy shall serve and file a sworn financial statement Form 13. Ms. Amin is not required to serve and file a sworn financial statement Form 13 because she has withdrawn her claim for s. 7 special and extraordinary expenses.
[15] By January 12, 2015, counsel for the Applicant shall ensure that the final Trial Record has been served and filed in accordance with Rule 23, provided that it contain all endorsements and orders.
[16] The witnesses that counsel for the Applicant intends to call are as follows:
Witness
Exam in chief
Cross-exam
Applicant
2 days
1 day
Walid Jaddoue*
(Applicant’s father)
1 day
½ day
Asmaa Al Juboori*
(Applicant’s mother)
½ day
½ day
Genghiz Khan*
(mediator who granted Islamic divorce; threats of harm by Respondent)
½ day
1 day
Dr. Hurowitz
s. 30 assessment. See para. 102(2) Horkins J. May 5, 2014 as amended June 18, 2014 para 10: Report to be filed as evidence in chief. Both parties may conduct cross-examination. Applicant’s counsel will ensure attendance.
Cross-exam
1 day
1 day
Dr. Olga Henderson
See para. 102(2) Horkins J. May 5, 2014 as amended June 18, 2014 para 10: Report to be filed as evidence in chief. Both parties may conduct cross-examination. Applicant’s counsel will ensure attendance.
½ day – ¾ day
½ day
Sherry Moore
C.A.S. worker. File has been produced
1 hour
½ day
Dr. Singha
Expert report has been served on Respondent
2 hours
Est. 2 hours
Supervised Access Centre
See para. 102(3) Horkins J. May 5, 2014: notes shall be filed as evidence on behalf of both parties. If either party requires the author of the notes to attend for cross-examination, that party shall arrange for the witness to attend. At this TMC Ms. Gamus agreed to arrange for their attendance
Vanessa D’Souza
Charlene (surname?)
Michelle Daye
total
½ day
total
½ day
TOTAL TIME ESTIMATED 12 – 13 DAYS
[17] By January 19, 2015, Ms. Gamus shall serve on Mr. Al Saidy a written summary of the evidence that the witnesses whose name have an asterisk will give.
[18] The witnesses that the Respondent intends to call are as follows:
Witness
Exam in Chief
Cross-exam
Respondent
1 day
2 days
Joanne Lagoudis (former lawyer for the Applicant). Will only be permitted to testify if the Trial Judge rules that her evidence is not subject to litigation privilege or solicitor client privilege.
Allocation of time for that ruling: ½ day
No time allocated for giving evidence
Sadiq Hasan Al Badr* (Respondent’s surety)
½ day
½ day
Ali Al Habbobi* (Respondent’s friend and surety)
½ day
½ day
Sundus Al Hassani* (Respondent’s friend)
½ day
½ - ¾ day
Dr. Kim
Conducted an assessment of Respondent. His report will only be admitted into evidence with permission of the Trial Judge and that will not likely be given if he is not called as a witness. No time is allocated because Respondent has not arranged for his attendance at the trial.
Dr. Kurdyak
Psychiatrist at C.A.M.H. Respondent attended to obtain an assessment. Respondent produced clinical notes and records from C.A.M.H. Respondent understands that Dr. Kurdyak refuses to attend as a witness. The clinical notes and records will likely only be admitted into evidence with permission of the Trial Judge and that will not likely be given if he is not called as a witness. No time is allocated because Respondent has not arranged for his attendance.
TOTAL TIME ESTIMATED 6 – 7 DAYS
[19] By January 26, 2015, Mr. Al Saidy shall serve on Ms. Gamus a written summary of the evidence that the witnesses whose names have an asterisk will give.
[20] Estimated duration of the trial, subject to revision at the next Trial Management Conference:
Evidence on behalf of Applicant
12 – 13 days
Evidence on behalf of Respondent
6 – 7 days
Submissions: ½ day each
1 day
DURATION OF THE TRIAL
19 – 21 days
[21] No time has been allocated for re-examination of any witness which shall only occur with permission of the Trial Judge.
[22] No time has been allocated for Reply evidence which shall only occur with permission of the Trial Judge.
[23] By including the names on the lists above, it does not mean that each will be permitted to give evidence; the Trial Judge will make rulings as to relevance and admissibility. The Respondent will need direction as to the relevance and admissibility of some evidence for example, relating to what he refers to as “marriage fraud” and “immigration fraud” which, based on the Amended Application and proposed amended Answer and Claim, are not relevant to any issue before the court.
[24] Neither party shall call any person as a witness not named above without permission of the Trial Judge.
[25] By December 5, 2014, the Respondent shall attend at the Family Law Office on the 10th floor at 393 University Avenue and formally amend his Answer and immediately serve it again on Ms. Gamus.
[26] By December 5, 2014 Ms. Gamus shall provide to Mr. Al Saidy a copy of the contents of the C.A.S. file that had been sent to me pursuant to an earlier order.
[27] By December 29, 2014, the Applicant shall serve a Reply or Amended Reply.
[28] Neither party may bring any motion prior to the commencement of the trial.
[29] Without permission of the Trial Judge, neither party may rely on any affidavit filed by any party or witness in this proceeding except for purposes of cross-examination of the deponent of such affidavit if the deponent is called as a witness at trial.
[30] As directed by Horkins J. in her endorsement dated May 5, 2014 at para. 102(7) (adjusted to reflect the postponement of the trial) by January 19, 2015, each party shall serve and file a document brief that:
(a) includes every document, photograph or other exhibit which that party intends to introduce at trial;
(b) is tabbed and paginated.
[31] Without permission of the trial judge, neither party may introduce any document, photograph or other exhibit not included in the briefs delivered by January 17, 2015.
[32] The Trial Management Conference will continue before me on Friday December 19, 2014 at 10:00 a.m. for:
(a) the primary purpose of reviewing the lists of issues and witnesses above and confirming the duration of the trial and therefore the trial date;
(b) whether any of the witnesses will require interpreters or have other special needs;
(c) unless delivered by August 15, 2014 as ordered by Horkins J. In her endorsement dated June 18, 2014, timetable for the delivery of up-to-date form 35.1;
(d) whether the continuing record (which appears to include 24 volumes) and the index to the continuing record must be brought up to date in advance of the trial.
[33] The Respondent’s probation ended on November 18, 2014. Trial Judge will consider whether police security is required during the trial.
KITELEY J.