CITATION: C.G. v. J.A.G., 2015 ONSC 2786
COURT FILE NO.: FS-14-5723-00
DATE: 20150428
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
C.G.
Erin Lepine, for the Applicant
Applicant
- and -
J.A.G.
Alison Pengelley, for the Respondent
Respondent
HEARD: April 20, 2015
D E C I S I O N O N M O T I O N
WILCOX, J.
[1] The Applicant brought a motion for several heads of relief, returnable on April 20, 2015, at the resumption of trial.
[2] The motion documents included the affidavit of Paula Lester, sworn April 16, 2015. The Respondent delivered the affidavit of Kelly McEvoy, sworn April 19, 2015, in response.
[3] We are dealing here with the Applicant’s request for
an order that the Respondent’s expert evidence of Dr. Peter Jaffe be ruled inadmissible on the grounds that: a) the expert evidence of Dr. Peter Jaffe is not relevant or reliable and the evidence is highly prejudicial. The prejudice cannot be cured by an adjournment or costs; b) the Respondent has not complied with the obligation to serve an expert report at least 90 days before the start of trial, pursuant to Rule 23(23) of the Family Law Rules; c) the report provided by Dr. Peter Jaffe does not satisfy the requirements set out in Rule 20.01(1), 20.01(9), and 20.01(10) of the Family Law Rules.
an order refusing leave to the Respondent under Rule 23(27) of the Family Law Rules to submit the expert report of Dr. Peter Jaffe into evidence, pursuant to Rule 2(2), 2(3), 2(4) and 2(5) of the Family Law Rules; and
an order refusing leave to the Respondent under Rule 23(27) of the Family Law Rules to call Dr. Peter Jaffe as a witness to provide viva voce evidence in this trial pursuant to Rule 2(2), 2(3), 2(4) and 2(5) of the Family Law Rules.
[4] In her affidavit, Kelly McEvoy states:
- she is a law clerk in the Respondent’s counsel’s law firm
- the expert report of Dr. Peter Jaffe has been completed. A copy was served on the Applicant’s counsel on April 8, 2015. Another copy is attached as an exhibit to her affidavit.
- she has been advised by the Respondent’s counsel and believes that the report is very relevant to the issue of the best interests of the child among other, unspecified, things and it explains the effect that an abusive relationship has on a child.
- Dr. Jaffe is a well know expert specializing in violence against women and children.
[5] Ms. Lester’s affidavit notes that:
- Respondent’s counsel first advised of their intention to retain Dr. Peter Jaffe as an expert in the area of domestic violence to testify at the trial of this matter in their trial management conference brief of January 9, 2015.
- Dr. Jaffe did not meet with the Respondent until March 25, 2015, seven months after Respondent’s counsel were retained to represent the Respondent and nearly one year after the Respondent became aware that this matter would be proceeding to trial. The report of Dr. Jaffe was not delivered to the Applicant’s counsel until April 8, 2015, nearly two months after this trial commenced.
- The only individual with whom Dr. Jaffe met in order to prepare his report was the Respondent and their interaction appears to be limited to one meeting on March 25, 2015. Otherwise, Dr. Jaffe relied generally on documents created with a mind to litigation. Dr. Jaffe did not meet with the Applicant, nor did he seek any information about the Applicant or the circumstances being alleged by the Respondent.
[6] At the point that this motion is being decided, we have heard from the witnesses that each side intends to call, except for Dr. Jaffe and any expert that the Applicant would call in response. There are no allegations of physical abuse. The Respondent has alleged emotional or psychological abuse. There were also allegations to the police of the Applicant’s sexual abuse of the Respondent and child, which did not result in charges.
[7] The order in question is that of Erb J. of April 25, 2013 in the Court of Queen’s Bench in Alberta. It required the child, J.G.1, born […], 2012, to be returned to Fairview, Alberta, where the family was living before the Respondent left with the child. The Applicant was to have equal shared parenting time. Both parties were restrained from removing the child from Alberta without the prior written consent of the other party.
[8] Dr. Jaffe’s report is Exhibit A to Ms. McEvoy’s affidavit. In it, he addresses its limitations.
-This report has several significant limitations. I have not met or completed any assessment of Mr. C.G. or the couple’s son, J.G. and therefore I can offer no opinion on the issue of child custody, access or any parenting plan. This report is not a child custody assessment. I limit myself to the nature of Ms. J.A.G.’ history, her allegation and the extent to which it is consistent with what is known about domestic violence based on my knowledge and expertise on child custody disputes in the context of domestic violence and child abuse. I am limited to my interviews and assessment of Ms. J.A.G. and the legal documents that are received from (Respondent’s counsel) primarily in the form of sworn affidavits of Mr. C.G., Ms. J.A.G., and Ms. J.A.G.’ parents, Mr. M.G. and Mrs. J.G.2.
Subject to these, he provides an opinion on whether a return to Alberta would be in the child’s best interests.
[9] It must be kept in mind that this trial is about whether this court should recognize an existing order from Alberta. We are not dealing here with custody and access. Those issues have to wait until the jurisdictional issue is resolved. This involves ss. 22, 23, 25, 41, 42 and 43 of the Children’s Law Reform Act, keeping in mind the purposes of that Act, listed in s. 19. In the application of these sections, whether the child would, on the balance of probability, suffer serious harm in various circumstances is explicitly made an overriding consideration.
[10] Ms. Lester’s affidavit rightly raises concern about delay in this matter. The order of Justice Erb is already over two years old. If the Respondent is allowed to call Dr. Jaffe’s evidence, the Applicant will want to engage another expert, which will take time. Continued delay does not assist in the proper determination of this case.
[11] The Applicant’s position in submissions was that Dr. Jaffe’s report and evidence should not be admitted because it was not relevant, it was not reliable, and it did not meet the requirements of the rules for notice. Delay was also raised.
[12] I have reviewed the submissions of and the case law provided by each side.
[13] R. v. Mohan (1994), 1994 CanLII 80 (SCC), 29 C.R. (4th) 243 set out four criteria which must be met by a party which seeks to introduce expert evidence:
- relevance
- necessity
- the lack of any exclusionary rule, and
- a properly qualified expert.
[14] On the matter of relevance, the issues for this trial are jurisdictional. Therefore there is an argument to be made that evidence which goes to the issues of custody and access is irrelevant. However, it is not possible to entirely separate the two sets of issues. A decision with respect to the Alberta order will impact on the custody of and access to the child. The purposes of the CLRA set out in s. 19, include a consideration of the best interests of the child. Ss. 23 and 43 make prevention of serious harm to a child an overriding consideration when deciding whether to exercise jurisdiction in Ontario to make custody or access orders, and when dealing with recognition of extra-provincial orders. In that light, evidence such as Dr. Jaffe offers with respect to the effect of returning to Alberta on the child is relevant.
[15] As for necessity, there has been little evidence received about the best interests of the child and the effect on him of recognizing and enforcing the Alberta order. That order did not result from a trial on the merits. Much of the focus of the present trial so far has been on the history of the matter. The evidence about the child indicates that he is quite attached to his mother and has some challenges in being without her and in dealing with others. Forward-looking evidence of the type offered via Dr. Jaffe and possibly another expert will be more than merely helpful to the court. It could be decisive, given the relevant legislative provisions.
[16] As for exclusionary rules, s-ss. (23), (24) and (26) of Family Law Rule 23 provide for the scheduling of production of experts’ reports. These timelines were not met in this case. Indeed, the case has unfolded somewhat unusually, due at least in part to the time pressure. It appears that the Respondent’s counsel were retained in the late summer or early fall of 2014. At a settlement conference held on October 15, 2014, the trial was ordered to commence on February 9, 2015, peremptory. The trial management conference was held on January 21, 2015. There was recognition that some evidence would not be available by the trial date, and that a continuation would be necessary. At that point, the earliest time that was open after the initial week commencing February 9 was in early July, 2015. Only the collapse of other matters ahead of this on running lists in April and May has allowed it to proceed sooner. There is disagreement among counsel over much of what was discussed or decided at the trial management conference. There is no transcript available. The record that is available is the endorsement made at the conference in the presence of counsel. It says nothing explicitly of the proposed expert evidence. Counsel’s contrary views of what was discussed or decided are beyond resolving at this point. Dr. Jaffe’s report was not served until April 8, 2015, weeks after the first week of trial. Clearly, the 90 day requirement for serving the report before trial has not been met. Counsel wanted this decision to be delivered within days of the motion so as to be able to plan for the continuation of this matter in the time available in May. The Applicant, understandably, was not planning to go to the expense of retaining a responding expert unless and until there was a decision allowing Dr. Jaffe’s evidence in.
[17] There is concern about further delay in this matter. Indeed, the problem with timely service might be attributed to the efforts to move the matter to and through trial, starting at the settlement conference. Nevertheless, the matter has remained unresolved for too long and undue delay is not, in my view, in the best interests of the child, at least. However, while I suspect that delay favours the Respondent, it appears from the litigation history of this matter that the Application could have been brought and dealt with sooner. Ultimately, Family Law Rule 23(27) gives authority to the court to allow the expert witness. The failure to meet the timelines is not fatal.
[18] Finally, the Applicant does not dispute Dr. Jaffe’s expertise. There is a concern expressed about the reliability of his evidence, given the limited sources of information that he had. This is an issue that, I think, is better dealt with in cross-examination and submissions as to the weight to be given the evidence.
[19] In the result, I find Dr. Jaffe’s evidence to be admissible and will allow his report to be entered in evidence and him to testify. The motion is, therefore, dismissed.
[20] The issue of costs is left to after the end of the trial.
[21] Number 5 of the Notice of Motion, the request for an Order refusing to hear the evidence of seven other proposed witnesses, has been dealt with previously. The balance of the motion is adjourned to a date to be named on ten days’ notice.
Justice J.A.S. Wilcox
Released: April 28, 2015