Court File and Parties

COURT FILE NO.: 451/15 DATE: 2016/09/27

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

M.D. Harold Niman and Stephanie Yuen, for the Applicant Applicant

- and -

N.J. Judith Nicoll, for the Respondent Respondent

HEARD: September 20 and 21, 2016

Second Corrected Decision: The initials for the respondent are changed to N.J. on November 30, 2016. The balance of the endorsement remains unchanged.

The Honourable Justice J. R. Henderson

ENDORSEMENT ON MOTION

INTRODUCTION

[1] This case has been a lengthy, acrimonious dispute between the applicant (hereinafter called “the father”) and the respondent (hereinafter called “the mother”). The primary issues between the parties revolve around the extent and nature of the father’s parenting time with the parties’ child (hereinafter called “C.D.J.”), who was born on […], 2013. There are also complex financial issues between the parties. The case is scheduled to be tried at the November sittings of this court.

[2] The father and the mother lived in Toronto at the time of C.D.J.’s birth, but the mother and C.D.J. moved to St. Catharines in the spring of 2013, and the father moved to the Niagara Region a few months later. The mother and C.D.J. have lived with the mother’s parents in St. Catharines since the spring of 2013. The father now lives in his own three-bedroom home in Niagara-on-the-Lake.

[3] In this interlocutory proceeding, I heard several interrelated motions from both parties. The father initiated this round of motions by bringing a motion to change the existing temporary order so as to increase his parenting time with C.D.J. and to include overnight access. Then, the father brought a motion to adjourn the trial from the November 2016 sittings.

[4] Depending upon my decision on the adjournment motion, both the father and the mother have motions for certain specific orders regarding custody, access, questioning, and disclosure. All motions were heard together.

THE ADJOURNMENT MOTION

[5] The father submits two reasons for an adjournment of the trial, namely (1) that the father’s counsel is no longer available to conduct the trial at the November sittings, and (2) that the father requires some time to retain an expert to respond to the expert income report that the mother delivered in August of this year.

[6] By way of background, I note that the trial of this action was initially scheduled for the April 2016 sittings. At the request of the mother and with the consent of the father, by order dated March 24, 2016, the trial was adjourned to the November sittings so that the mother could obtain an income report from an accountant. That report was for the purpose of providing expert evidence as to the father’s ability to earn income.

[7] The father is a licensed dentist who is qualified as an Oral Medicine Specialist. The father practices through a corporation known as M.D. Dentistry Professional Corporation. In this proceeding the mother alleges that the father has deliberately limited his practice so as to intentionally reduce his income.

[8] Accordingly, the mother retained Durward, Jones, Barkwell LLP to analyze the father’s ability to earn an income and to prepare an expert income report (hereinafter called “the DJB Report”). The DJB Report, dated August 5, 2016, was served on the father’s counsel in early August 2016. Thereafter, upon request by the father’s counsel, the documents referenced in the DJB Report were provided to the father’s counsel on August 31, 2016.

[9] Regarding the father’s counsel’s unavailability for trial, as of the date of the mother’s motion to adjourn the initial trial in March 2016, the father’s trial counsel was expected to be Mr. Niman or Ms. Wouk, both of whom work in the offices of Niman Gelgoot and Associates. The mother’s counsel correctly submits that as of March 2016, all parties believed that one or both of Mr. Niman or Ms. Wouk would be available to conduct the trial in November 2016.

[10] I accept that the trial schedules of the father’s counsel have changed since March 2016. Specifically, I accept that both counsel, Mr. Niman and Ms. Wouk, find themselves committed to other courts for most of the month of November 2016, and neither one of them would be available to conduct this trial. If the trial were to proceed in November 2016, the father would have to retain other counsel either inside or outside of the offices of Niman Gelgoot and Associates.

[11] In my view, generally, a litigant is entitled to be represented by counsel of his/her choice provided that the litigant does not abuse that privilege and provided that there is no compelling reason to force the litigant to proceed without counsel of choice.

[12] I find that the present case is quite complex and is a high conflict case. The history of the case is exemplified by the six-volume Continuing Record, as well as a multitude of interlocutory orders. In my view, it would be an onerous task for a new counsel to familiarize himself/herself with this file prior to November 2016.

[13] I acknowledge that this proceeding is now more than three years old and that the primary issues involve custody and access of a very young child. Both of those factors support the view that this matter should be tried as quickly as possible. However, I find that a short adjournment so that Mr. Niman or Ms. Wouk may represent the father at trial is warranted.

[14] Regarding the father’s request for time to retain an expert to respond to the DJB Report, if this had been the only reason for the adjournment I would have considered abridging the time for the father to deliver a responding report. The father should have the opportunity to engage an expert and deliver a responding report, considering that there is a contentious issue regarding the father’s ability to earn an income. An abridgment of the time for delivering an expert report would have given the father that opportunity and would have avoided an adjournment of the trial. Now, because the trial will be adjourned in any event, there is no need for me to make any order to abridge the time for a responding expert report.

[15] For these reasons, this trial will be removed from the November 2016 trial sittings list. It will be placed on the assignment court list of October 20, 2016 at 2:30 p.m. so that a new date for trial can be set.

[16] At the assignment court, a new trial date will be set on the first available dates after January 1, 2017. A fixed trial date would be preferable. If the court schedule and counsels’ schedules cannot accommodate a fixed trial date prior to the spring sittings, at the latest this trial will be placed on the spring trial sittings list.

PARENTING TIME

[17] The current temporary order with respect to parenting issues is the order of Katarynych J. dated March 10, 2014, as modified by a further order of Katarynych J. dated June 30, 2014. Both orders contain an extraordinary amount of detail and specificity, such that the orders provide a complete code for parenting C.D.J. on a temporary basis.

[18] In summary, C.D.J. resides primarily with the mother, and the father has parenting time every Tuesday from 9:00 a.m. to 3:00 p.m., every Thursday from 1:30 p.m. to 7:30 p.m., and every Saturday from 10:00 a.m. to 4:00 p.m.

[19] On this motion, given the adjournment, the father asks this court to increase his time with C.D.J. so that by October 2016 the father would have five overnights with C.D.J. in every two-week cycle.

[20] The mother requests that the existing parenting orders remain unchanged. In the alternative, if I choose to change the existing orders, the mother requests that I grant temporary custody of C.D.J. to the mother, and then implement the recommendations of Dr. Peter Jaffe, an expert who prepared a s. 30 assessment, so that the father’s parenting time would initially be reduced and then progressively and gradually increased, subject to periodic reviews.

[21] Counsel for the mother submits that the father must show a material change in circumstances as a prerequisite to any change in the temporary parenting order. I disagree. As I wrote in the case of Calabrese v. Calabrese, 2016 ONSC 3077, at para. 27:

… I find that there must be some compelling reasons for a court to change an existing temporary custody/access/parenting order prior to the trial. However, unlike other types of motions to change, it is not a prerequisite in a motion to change a temporary custody/access/parenting order for a motion’s judge to adhere to a strict material change in circumstances test. The overriding principle in all custody/access/parenting proceedings, whether final or temporary, is that a court should make an order that is in the best interests of the child.

[22] I add that those comments are more pertinent in cases, such as the present case, in which the existing order was made on a “without prejudice” basis. I note that in the case of Musheyev v. Gilkarov, 2016 ONSC 4120, Charney J. granted leave to appeal to Divisional Court on the issue of whether the motions judge correctly found that a material change in circumstance was a prerequisite.

[23] Therefore, in the present case, I find that it is open to this court to consider a motion to change the existing temporary order regardless of whether there is a material change in circumstances.

[24] However, there is a significant body of law that suggests that it is not in a child’s best interests, in most cases, to change an existing temporary parenting order prior to trial. By necessity, any change prior to trial must be founded on affidavit evidence only. A full vetting of the evidence will not be possible until the trial, at which time the trial judge will have the benefit of oral evidence from, and cross-examination of, all witnesses. Temporary changes to temporary orders that will again be changed after a full trial cannot, in most cases, be in the best interests of a child.

[25] Several of my colleagues have made similar comments as follows:

In McEachern v. McEachern, [1994] O.J. No. 1544, Sheppard J. wrote at para. 13:

Surely, it is not in the best interests of the children nor in the interests of the litigants and the court system to watch court files grow thick with one motion after another for interim orders. The parties should be urged to seek a final order.

In Grgurich v. Del Ben, [1997] O.J. No. 5134, Kozak J. wrote at para. 8:

Interim orders are temporary orders which are intended to remain in effect until final disposition of the issues at trial. Interim orders should not be tinkered with or varied save in appropriate circumstances.

In Kimpton v. Kimpton, [2002] O.J. No. 5367, Wright J. wrote at para. 2:

Unless the courts insist that they will not disturb the existing arrangements for children on interim motions except in those cases where it is clear that the children are being exposed to danger or there is some other compelling reason, the courts will continue to be confronted with litigants demanding that the court embark upon the impossible task of attempting to assess the relative merits of parties who have filed numerous affidavits contradicting the affidavits of the other.

In the case of Shotton v. Switzer, [2014] O.J. No. 566, Van Melle J. wrote at para. 15:

Courts do not like to disturb a status quo on a temporary basis because they do not want to give one parent an advantage in the litigation and because it is disruptive for children to go back and forth between different parenting regimes.

[26] In the present case, counsel for the father submits that an appropriate parenting regime for a one-year-old, as set out in the existing 2014 orders, is not necessarily an appropriate parenting regime for a three-and-a-half-year-old. It is submitted that, at this point, it would be appropriate for the father to have some overnight access with C.D.J., who is now three-and-a-half years old.

[27] I accept that the evidence supports the view that the father is a capable, loving, and responsible parent. I also accept that it may be appropriate for the father to have some overnight access. However, those facts do not change my view that a temporary parenting order should remain in effect until changed at trial unless there is some compelling reason to justify a temporary change.

[28] The father currently has the child in his care for 18 hours per week. Most of those hours are “prime time” hours during the day. I find that the father has ample time with C.D.J. to develop and foster a good bond. Moreover, the evidence suggests that C.D.J. is thriving under the present regime. C.D.J. is happy, bright, and well-adjusted. I find that there is no compelling reason to change the existing temporary parenting order.

[29] For these reasons, I decline to make any changes to the existing temporary orders. The parenting regime as set out in the orders of March 10, 2014, and June 30, 2014, will remain in effect.

[30] For the same reasons, I will not make any change to the manner in which access exchanges are conducted. Access exchanges will continue to be governed by the terms of the aforementioned orders.

OTHER MATTERS

[31] The father’s counsel makes a request for questioning of the mother. In my view, that request must be denied for two reasons. First, the order of Braid J., dated December 2, 2015, reads at para. 2:

Parties are permitted to conduct questioning of the other party. Such questioning is not to exceed one day per party. The questioning shall take place before February 1, 2016.

Neither party took any steps to schedule or conduct questioning of the other within the timelines set out in that order.

[32] Second, it is not apparent that there would be any significant value in the questioning of the mother. Given the multiple court appearances, multiple affidavits, and the obligation for ongoing disclosure, at this point the father’s counsel must be well aware of the mother’s case. Any questioning would likely only cause unnecessary further expense and possible further delay.

[33] Next, the mother’s counsel requests that this court order an update of Dr. Jaffe’s s. 30 assessment as the initial assessment report, dated May 28, 2015, is no longer current. Given C.D.J.’s age, the mother’s counsel suggests that Dr. Jaffe’s updated assessment would be beneficial.

[34] I find that Dr. Jaffe conducted a thorough investigation, provided a detailed report, and made specific recommendations. However, I note that the mother supports Dr. Jaffe’s recommendations, whereas the father has been very critical of Dr. Jaffe. The father alleges that Dr. Jaffe’s report is fatally flawed and he points to several alleged errors in the report. Moreover, the father submits that Dr. Jaffe developed a dislike for him, which has tainted Dr. Jaffe’s views of the parenting issues.

[35] Under these circumstances, I find that it is not appropriate to order these parties to participate in an update to Dr. Jaffe’s report. The relationship between the father and Dr. Jaffe is irretrievably broken. Any update by Dr. Jaffe will only be perceived by the father as a furtherance of the initial injustice to him.

[36] Dr. Jaffe’s report as it now stands is thorough and will be very useful to the court. Any further s. 30 assessment by Dr. Jaffe can only serve to increase the hostility between the parties. Therefore, the request for an update of the s. 30 assessment is denied.

[37] Finally, both the father and the mother ask this court to make orders for the other party to provide further disclosure. For the most part, both parties refer me to the detailed disclosure orders made by Katarynych J. and by Braid J., and ask me to repeat those orders. I decline to do so.

[38] The orders of Katarynych J. and Braid J. continue to be effective orders of this court. The parties are required to comply with those orders. In the motions before me, neither party asks for any sanctions for failure to provide disclosure as ordered. In summary, there is no need for me to repeat the existing orders, and there is no basis on which to order any sanctions.

[39] That being said, the parties appear to agree that there should be a further disclosure order with respect to certain specific documents. On that basis, I make the following orders:

(i) The father shall produce the general ledger for M.D. Dentistry Professional Corporation from the date of incorporation to the present; (ii) The father shall produce a copy of the 30-page BMO Investorline document dated January 20, 2014; (iii) The mother shall produce all correspondence and notes exchanged between the mother and Brock University, including the Rosalind Bauer Centre for Child Care; and (iv) Both parties shall produce a list of all documents upon which they intend to rely at trial.

CONCLUSION

[40] In summary, I order that the trial of this case be removed from the November sittings list, and that the case be placed on the assignment court list for October 20, 2016 at 2:30 p.m. to set a new date. In addition, there will be the disclosure order as set out above.

[41] If there are any issues, including costs, which arise out of this decision, I direct that the party seeking relief shall deliver written submissions to the trial co-ordinator at St. Catharines within 20 days of the release of this decision with responding submissions to be delivered within 10 days thereafter. If no submissions are received within this timeframe, the parties will be deemed to have settled all of the remaining issues as between themselves.

Henderson J. Released: September 27, 2016

COURT FILE NO.: 451/15 DATE: 2016/09/27 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: M.D. Applicant - and – N.J. Respondent ENDORSEMENT ON MOTION Henderson J. Released: September 27, 2016