CITATION: Birdi v. Birdi, 2015 ONSC 1974
COURT FILE NO.: FS-14-00080929
DATE: 2015 03 26
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: GURINDER SINGH BIRDI v. RAMINDER BIRDI
BEFORE: EMERY J.
COUNSEL: Salvatore Mannella, for the Applicant
Melanie Sager, for the Respondent
HEARD: January 30, 2015
ENDORSEMENT
[1] The respondent father, Gurinder Singh Birdi, was first to serve a motion to permit questioning of the respondent mother, Raminder Birdi. The respondent mother then served a cross-motion seeking an order for interim custody of their son, Gian. In that cross-motion, the respondent mother also requested orders for disclosure of information from the applicant father, the recovery of her personal property, and other orders.
[2] Based on the time estimates given for the hearing of each motion, to hear them together would have exceeded the time permitted on a standard motions court day in Brampton. Even if there was the time available to the court that day, hearing motions of a non-urgent nature that take greater than the time permitted would not be fair to other litigants and counsel in other cases who have followed the practice direction and are waiting their turn to be heard.
[3] I make specific reference to the sequence in which the motions were served because the respondent’s cross-motion would have pushed the time estimate into overtime if all issues were heard. Out of fairness and because of the particular nature of the motions, I therefore agreed to hear the applicant father’s motion first as the time estimated for that motion was properly within the time limits for a standard motion. I also heard parts of the respondent’s cross-motion that were in some way compatible with the motion of the applicant father.
[4] Otherwise, the remaining issues on the motion of the respondent mother are adjourned for hearing on a long motions date when it can be accommodated by the court calendar.
[5] I propose to deal first with the issue of whether questioning should be permitted, as the order I make in respect of questioning will likely inform the rest of the issues dealt with in this endorsement.
Questioning
[6] The parties were married on October 24, 2004. They separated on May 26 2014.
[7] Their son, Gian, was born on September 20, 2011. Gian is currently three and half years old.
[8] The applicant father and the respondent mother lived with the applicant father’s parents (“Gian’s grandparents”) in Brampton throughout their marriage. Therefore, Gian lived with his parents in the home of his grandparents for his entire life until the date the applicant father and the respondent mother separated.
[9] The respondent mother has deposed in her affidavits filed on the motions before the court that the applicant father and Gian’s grandparents emotionally abused her throughout the marriage. She has deposed that they created a “poisonous environment” in the home where Gian was raised until the date of separation. It is her evidence that they controlled the environment within the home, restricted contact with her own family and controlled her access to friends and social contacts.
[10] It is also the respondent mother’s evidence that the applicant father restricted her contact with Gian after he was born, and that Gian’s grandparents engaged in a campaign to minimize her role in Gian’s life.
[11] The respondent mother has also deposed that the applicant father and Gian’s grandparents dominated the manner in which Gian has been raised. She alleges they curtailed his ability to spend time with cousins on the respondent mother’s side of the family.
[12] Increasingly, the relationship between the applicant father and the respondent mother became strained because of their conflicting values and competing views on how to raise Gian. There is evidence that they would also argue about the applicant father’s drinking, and their respective levels of religious adherence.
[13] The parties separated on May 26, 2014 after an altercation between them. There is evidence that the altercation arose because of the applicant father’s mistrust of the respondent mother after she had spent an evening outside the home with one of her sisters on May 24, 2014, and her misstatement of how and where that time was spent. The applicant was charged with two counts of assault arising from this altercation. Terms of his bail prevented the applicant father from having contact with the respondent mother. The father’s criminal trial was scheduled to take place in March, 2015.
[14] Each of the parties has a different view on how to care for Gian. The respondent mother has given evidence that she has always been Gian’s primary caregiver. Since birth, she states that she has tended to his emotional and physical needs. She cared for him for a full year while she was home on maternity leave after he was born. Even after she returned to work, the respondent mother would make decisions about Gian’s health, religion, education and general well-being.
[15] On July 7, 2014, Justice Tzimas made an order requesting the Office of the Children’s Lawyer to conduct an investigation into the issues of custody and access to Gian, and to report to the court. The clinical investigator assigned to the case, Wendy MacKenzie, has conducted interviews and delivered a report dated January 16, 2015. The applicant father takes issue with statements of collateral information, terms of discussion and recommendations made by Ms. MacKenzie in the report. His counsel has filed a dispute to that report under Family Law Rule 21 (e).
[16] Gian has lived with his mother since the date of separation. The applicant father has been given temporary access to Gian on a completely without prejudice basis that takes place on alternate weekends, and overnight access each week on Wednesday from 5 pm until Thursday morning at 8:15.
Discussion
[17] The examination of parties and other persons, known as questioning in family law cases, is not permitted as of right under the Family Law Rules, except in a child protection case. Under Family Law Rule 20 (4), in any other case a party is entitled to obtain information from another party through an oral examination under oath about any issue in the case if it is conducted with the consent of the other party, or permitted by an order. Family Law Rule 20(5) provides the court with the authority on motion to order that a person (whether a party or not) can be questioned or ordered to disclose information by affidavit or by another method about any issue in the case if the following conditions are met:
It would be unfair to the party who wants the questioning or disclosure to carry on with the case without it.
The information is not easily available by any other method.
The questioning or disclosure will not cause unacceptable delay or undue expense.
[16] It is customarily thought that an order for questioning, generally requested as a procedural order at a case conference, will be granted on consent. However, the cases filed by counsel on the motion before me show a divergence in the authorities to permit questioning, if contested. I therefore propose to review the apparent difference in the cases as I think it would be helpful to understand the two philosophies reflected by the caselaw, with a view to reconciling the principles between them.
[18] The traditional approach to allow questioning was discussed in Lewis v. Oriji, [2009] O. J. No. 281. Justice Blishen, after recognizing that without viva voce evidence, cross examination or questioning it is virtually impossible to make findings as to the credibility between parties, identifies the value of questioning as follows:
The issue of questioning or cross examination is a procedural matter normally dealt with at a case conference. Given the diametrically opposed positions of the parties on the facts surrounding their relationship and on their respective financial and other contributions, it would be difficult for the Court to proceed without some form of questioning. Therefore, leave is given for each party to question the other for not longer than two hours each. The parties are to bear their own costs and the questioning is to take place by March 6, 2009, after which a further case conference is to be held by March 27, 2009 before Master MacLeod, if possible, on the issues of:
Mr. Oriji vacating the premises;
a contribution by Mr. Oriji to the monthly household expenses;
spousal support; and,
other issues raised in the pleadings as amended.
[19] Questioning is particularly important where there are competing affidavits that set out the conflicting evidence of the parties before the court. Justice Taylor in Lucas v. Lucas, [2009] O.J. No. 5012 describes the utility of questioning when dealing with “dueling affidavits” this way:
Motion heard November 28, 2008
13 I heard motions brought by both parties to this proceeding on November 28, 2008. The following is an excerpt from my endorsement at that time:
As I commented during the course of the argument, this proceeding is marked by far too much in the way of "dueling affidavits". It is important that the parties move beyond what I consider to be wasteful steps in proceeding with a series of motions based on contradictory affidavits. In my view the parties should complete production of documents and proceed to questioning without delay. Once those steps are completed the case can be placed on a trial list so that there can be decisions made with respect to credibility and final orders can be made. Therefore, there will be an order for questioning by both parties to be completed by the end of February 2009.
[20] The threshold to meet for the court to make an order to permit questioning is very low. Bringing a motion to seek an order for questioning is often a matter of prudence for counsel in a case given the fractious nature of family law in today’s world. Justice J.W. Quinn in Gordon v. Starr, 2007 CanLII 19137 (ON SC), [2007] O.J. No. 2062 describes not only the prudence of questioning, but also the cost benefit analysis for an order permitting questioning in these terms:
21 Compliance with clause 20(8)(b) is objectively determinable. Subrule 20(5) is more vague and it sets out a very low threshold for obtaining an order permitting questioning. In most instances, I think that it is folly for parties (at least those represented by counsel) "to carry on with the case without" questioning. When one considers the fluff and pap that comprise so much of the affidavit material in family litigation, an hour, perhaps two, of well-prepared questioning will likely be all that is needed to precisely inform astute counsel of the case that he or she has to meet and to end the posturing. As well, bearing in mind the delay and cost involved in the "to-ing" and "fro-ing" of navigating family court at the best of times, it is difficult to imagine how questioning could amount to "unacceptable delay" or an "undue expense," as stipulated in paragraph 3 of subrule 20(5).7 To so conclude underestimates the amount of time involved and how quickly costs can mount, when: lawyer A writes to lawyer B and requests certain information; lawyer B contacts or meets with his client or otherwise obtains instructions and responds to lawyer A; lawyer A then contacts or meets with his or her client or otherwise obtains instructions; no doubt to be followed by a merry-go-round of further correspondence and communications. I respectfully disagree with those who suggest that court-ordered questioning should be viewed as a last-resort method of obtaining information.
[21] A more restrained approach to questioning is shown by those cases that do not consider questioning to be a productive tool in family law cases unless very good reason is shown. In Boisvert v. Boisvert, 2006 CarswellOnt. 4352, Justice Whitten of this court dealt with a motion seeking an order for questioning on an application for the production of documents from third parties. Justice Whitten correctly identified that the use of the word “may” in Family Law Rule 20(5) connotes a discretion given to the court to grant such remedies for questioning or for the making of disclosure.
[22] Justice Whitten was concerned about the prospect of “unacceptable delay” and “undue expense” if questioning were permitted without addressing the utility of questioning to the issues in the case. He therefore examined the application of proportionality to questioning on the issues before the court, having regard to the three conditions under Family Law Rule 20(5). Justice Whitten was quite properly concerned that the discovery process could take on a life of its own, and grow in magnitude to resemble a “trial within a trial”.
[23] In the final analysis, Justice Whitten ordered that the third-party produce the documents requested without questioning, subject to the conditions he placed upon gathering information about those documents. The result in Boisvert can be distinguished on its facts because the principals of the third-party agreed to field questions about those productions, making an order for questioning under Family Law Rule 20(5) unnecessary.
[24] In Durban v. Medina, 2012 ONSC 640, the applicant father was a 56-year-old lawyer who had brought a motion that did not meet any of the three criteria under Family Law Rule 20(5). Justice McGee found that the primary purpose of the questioning sought was to test the credibility of the respondent spouse. Justice McGee summed up the principles to govern motions for questioning in a manner consistent with the Family Law Rules as follows:
14 The enactment of the Family Law Rules O. Reg. 383/11 was an elegant and deliberate departure from the Rules of Civil Procedure. I am indebted to Justice Reilly for his fitting statement in Matthews v. Matthews, [2008] O.J. No. 2025, 2008 CarswellOnt 2893, that the object of the Family Law Rules, "is to obtain information in the least litigious way possible."
19 It is not the purpose of questioning to diminish, intimidate or attempt to embarrass a former spouse - particular a former spouse with whom one hopes to parent cooperatively. Neither ought the court permit questioning to add undue expense and delay to a proceeding, which at this stage, in this matter, is certain to follow.
[25] In Fischer v. Milo, 2007 CarswellOnt 6144, Justice D.M. Brown (as he then was) specifically addressed the right of a respondent against whom a contempt motion had been brought to cross-examine the opposite party who had sworn the affidavit in support of the motion for contempt. Justice Brown concluded that the alleged contemnor was not entitled to cross-examine that affiant under the circumstances. It is my reading of Fischer v. Milo that Justice Brown decided the issue upon a careful consideration of Family Law Rule 31 and its procedure concerning motions for contempt in family law proceedings. Justice Brown concluded that the alleged contemnor would have the opportunity in any event to cross-examine the affiant on his affidavit during the one-day hearing Justice Brown had ordered to determine whether the alleged contemnor should be found in contempt. Although Justice Brown referred to Family Law Rule 20 (5) in Fischer, he specifically framed the decision in a manner consistent with the broader common law and constitutional principles governing contempt motions. That is not the case before this court.
[26] On a closer look at the cases cited by counsel, it would appear that the authorities are not so divided after all. The cases that reflect a less adversarial approach each turn on a significant element to merit an order against questioning. Those cases that have found questioning a useful, if not an essential tool generally involve facts where no mitigating reason stands out against the utility of questioning.
[27] Although the Family Law Rules requires that all three conditions under Family Law Rule 20(5) must be met for the court to grant an order for questioning, the reality is that family law in Ontario is currently an adversarial process. On motions, the court is invariably met with “dueling affidavits” that contain contradictory evidence on which no finding of credibility can be made because those affidavits have not been tested. It is sometimes the case that an affidavit omits certain information in the affiant’s possession or knowledge critical to the issues. In others, affidavits do not provide the necessary information about other sources of evidence that would be beneficial to the fact-gathering process.
[28] In family law, the adversarial process often relies on a party’s discovery of evidence in the hands of the other party, and on giving each party a fair opportunity to gather evidence to optimize positions they take on a motion or at trial. There can be no greater testament to the veracity of the adversarial process in family law than to look at how costs may be awarded in a family law proceeding under Family Law Rule 24 to understand how serious and expensive family law litigation can be.
[29] It is helpful, if not constructive to consider the issue of questioning in terms of the functions it should provide. In my view, the purpose of questioning includes, but is certainly not limited to:
find new facts;
test the facts of the other party, including matters of credibility;
narrow the issues in the case; and
in all respects, assist the trier of fact and the adjudicative process generally.
[30] It is often the case that questioning will reveal the truth behind statements given in an affidavit that would otherwise be accepted or rejected on their face. If there is a statement of fact that raises a question of credibility between one affidavit and another, the statement of fact goes untested and becomes an impediment to the orderly advancement of the litigation or the issue to which the evidence relates. Questioning supplements the evidence given by each party and other affiants who swear affidavits in support of or in response to a family law motion. Such evidence often assists the court in making appropriate temporary orders pending trial. It is often the temporary orders that are made that ultimately determine what issues remain left for the parties to litigate or to seek as a final order.
[31] In this case, I consider it necessary to permit questioning for various reasons. First, the respondent mother left the home of Gians grandparents with Gian and has established an artificial status quo outside of the home where Gian has spent his entire life. Whether this artificial status quo is the true status quo is a question for another day. However, it is an issue raised on the motions before the court to be explored on questioning. The new status quo or the status quo prior to the separation of the parties on May 26, 2014 is in the best interests of Gian is an important issue because, generally speaking, courts are often reluctant to change the status quo that is working for the benefit of the child. A stable and secure status quo is often a factor considered in deciding what is in the best interests of a child for custody: Porter v. Hamilton, 2011 ONSC 5792, at paragraph 34.
[32] Second, I consider questioning necessary where, as here, the Office of the Children`s Lawyer has delivered a report with which the applicant father takes issue. That report, while it may have been prepared with care and the best of intentions, is not a sworn document. The applicant father may have an interest in exploring the factual basis for some of the assumptions and collateral information derived from interview subjects on which the report is based through questioning the respondent mother as to her knowledge.
[33] Third, the applicant father has set out specific matters at issue in paragraph 10 of his affidavit sworn in support of the motion for questioning that relate to Gian`s custody. These matters include how they each functioned as parents before the date of separation, their mutual regard for each other as parents, and how their parenting abilities has or may impact on how they parent Gian on a going forward basis. Questions like these will require evidence from the parties on the balance of the motion of the respondent mother for interim custody, and at trial.
[34] Accordingly, I conclude that the applicant father has met each of the three parts of the test under Family Law Rule 20 (5) to permit questioning. It would be unfair to require him to carry on the case without giving him the ability to acquire evidence as to the issues pleaded, including the matters discussed above. Given the breakdown of the relationship with the respondent mother and the evidence she has given through her affidavit material on the present motions, the information the applicant father seeks is not easily available by any other method.
[35] Last, I have no evidence before me that questioning will cause unacceptable delay or undue expense. The orderly conduct of prudent questioning that may cost $1,200 could save the parties on this application tenfold that amount they could easily incur by proceeding with the present and subsequent motions without seeking information in advance, to say nothing of the attendant risk of having to pay costs if unsuccessful. Questioning will allow counsel to advise the parties about their strengths and weaknesses so that they are better informed to decide whether to proceed with motions or to prepare with that evidence for trial.
[36] I view questioning as a valuable tool to explore the factors set out in the case law under section 16 of the Divorce Act, and the factors for the court to consider when determining the best interests of a child under section 24 (2) of the Children’s Law Reform Act. The court would benefit on the motion seeking a temporary order for interim custody of Gian and at trial from evidence to which those principles and factors may apply.
[37] It is an important part of questioning that an order provide a mutual opportunity for questioning of a party by the other party. It is up to that other party whether to exercise that order permitting questioning or not.
[38] Where a party exercises the ability to question, the court has the further discretion to limit questioning in terms of time and subject matter. In Wilson v. Tiernay, 2014 ONCJ 152, Justice M. P. O’Dea of the Ontario Court of Justice ordered the applicant mother to submit to questioning for the purposes of discovery only. Justice O’Dea further limited that discovery to 60 minutes and the father’s entitlement to seek particulars with respect to her custody claim and the names of any witnesses she intends to call to support her version of the facts.
[39] In the same manner, I propose to limit the entitlement of each of the parties to question the other to no more than two hours. I further limit the subject matter on which the parties can examine each other to those issues on the balance of the motion before the court and to those pleaded in the applicant father’s application and the respondent mother’s answer, except in the following areas:
The circumstances between May 24 and May 26, 2014 leading up to the separation;
In the event that the applicant father’s criminal trial has not yet taken place, any facts surrounding the alleged assault and the resulting criminal charges he faces; and
Any issue on which extensive questioning can be demonstrated as bullying by one party against another.
[40] The above order is intended only to permit discovery in respect of the issues raised by the pleadings and on the balance of the motion before the court, except for those topics that have been ordered off limits. Even though I expect the parties to conduct the permitted questioning in a constructive and civil manner, my order does not preclude the cross- examination of each party during his or her questioning. I say this because Family Law Rule 20 (2) specifically recognizes that the right to question a person includes the right to cross-examine. Therefore, each party shall have the right to cross-examine the other party in the course of questioning on the issues, except where limited by this order.
Other orders
[41] I am also make the following orders, on consent, requested in the respondent mother’s notice of motion:
a) an order that Gian shall attend PLASP child care services during the day while the respondent mother is at work.
b) an order requiring the applicant father to pay his proportionate share of the after-tax cost of Gian’s day care in proportion to the respective incomes of the parties on a without prejudice basis as follows:
(i) from June 2014 to December 2014, fixed at $1044; and
(ii) commencing January 1, 2015 and on a go forward basis, fixed at $422 per month.
c) An order that the applicant father provide to the respondent mother the following financial disclosure so that as much of it as possible is available when questioning is done:
(i) complete copies of his income tax returns including statements of business earnings for the years of 2011, 2012 and 2013 within 21 days;
(ii) a copy of his 2014 income tax return filed with Canada revenue agency, to be filed by June 1, 2015
(iii) a copy of his 2014 notice of assessment forth with upon receipt from revenue Canada agency
(iv) proof of expenses incurred by his sole proprietorship, Connect-Sys Automation for 2013 and 2014 (when available);
(v) proof of the value of his assets and debts as of the date of marriage and the date of separation;
(vi) an updated and corrected sworn financial statement accurately setting out his self-employment income; and,
(vii) proof of his current employment income for 2015.
d) Unless counsel can otherwise agree in writing, the applicant father shall bring any and all of the personal belongings of the respondent mother listed in Exhibit M of her affidavit sworn on January 22, 2015 in his possession or control to the office of the lawyer for the respondent mother, or to the place where the respondent mother shall be questioned, at least one hour before that questioning takes place. Each party shall have a copy of the list marked as Exhibit M to check against delivery of those personal belongings. The respondent mother shall initial beside those items delivered and sign the copy of that list for the applicant father before taking possession of the personal belongings delivered at that time. Any suitcases or bags shall be opened by the respondent mother in the presence of the applicant father and both lawyers or their representatives, who shall take photographs of all contents and, if possible, inventory those contents and add that inventory as schedules to the list of returned items. Any items not returned shall be an issue on the return of the motion, or at trial.
e) The lawyer for the respondent mother shall have the choice of place and time before the questioning of the respondent mother for the return of personal property to her.
f) The balance of the respondent mother’s motion is adjourned to be heard by me after questioning has taken place on a date to be fixed by the trial coordinator.
g) Costs are reserved to the ultimate disposition of both motions.
Emery J
DATE: March 26, 2015
CITATION: Birdi v. Birdi, 2015 ONSC 1974
COURT FILE NO.: FS-14-00080929
DATE: 2015 03 26
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: GURINDER SINGH BIRDI v. RAMINDER BIRDI
COUNSEL: Salvatore Mannella, for the Applicant
Melanie Sager, for the Respondent
ENDORSEMENT
EMERY J
DATE: March 26, 2015