Court File and Parties

Court File No.: FS-14-19405 Date: 20170327 Superior Court of Justice - Ontario

Re: A.S., Applicant And: K.L.H., Respondent

Before: Kiteley J.

Counsel: Colin C. Lyle, for the Applicant Philip Viater, for the Respondent

Heard: in writing

Endorsement

[1] In an endorsement dated June 14, 2016 [ONSC 3915] I outlined the events leading up to the motions I had heard. The parties both thought that they had settled all of the parenting issues and that the Minutes of Settlement dated March 3, 2016 (subsequently incorporated into a form 14B consent order dated May 9, 2016) resolved the parenting issues on a final basis that included joint custody and a 2-2-5 schedule starting in September 2016. That left the controversial financial issues outstanding including the Applicant’s claim for a constructive trust interest in properties owned by the Respondent and his claim for spousal support.

[2] As indicated at paragraph 54 of the June 14 endorsement, I dismissed the motion to change final order that had been brought within days of the signing of the May 9 consent order and I directed that the May 9 final order be re-issued as a temporary order.

[3] Since then, I have severed the parenting issues from the financial issues and I have scheduled a trial on the parenting issues to start the week of May 8, 2017.

[4] On April 2, 2016 the Applicant was charged with two counts of sexual assault and one count of assault involving the Respondent as complainant. He was subject to a recognizance of bail that prohibited him from contacting the Respondent. At the case conference on January 6, 2017, the Applicant indicated that the trial of those alleged offences was scheduled for February 14, 2017 and I set the Trial Management Conference immediately after that date expecting that the parties would know the outcome.

[5] At the TMC on March 8, 2017 Mr. Lyle and his client explained why the hearing was adjourned to May 9. I need not detail those circumstances but I note that the charges remain outstanding. I did direct Mr. A.S. to contact his counsel in the Ontario Court of Justice proceeding and immediately take steps to change the hearing from May 9 – the second day of the Superior Court trial – to some other date, ideally before the Superior Court trial so that the outcome of the OCJ proceedings would be known. I do not know whether that has occurred and whether the date of that hearing is before or after the trial in this court on the parenting issues.

[6] Immediately after the settlement in March 2016, the lawyers began making requests for financial disclosure. After my endorsement dated June 14, 2016, the lawyers began making requests for disclosure in connection with the parenting issues. I had made an order that Mr. Lyle could bring his motion for disclosure with respect to the parenting issues at the TMC on March 8, 2017. However, the motion and affidavit had been served just 4 days in advance. Although allowed by the Family Law Rules, it arrived when the Respondent did not have the ability to respond as a result of work commitments and her counsel asked for an adjournment. I adjourned it and directed that it be done in writing.

[7] In support of the requested disclosure the Applicant provided affidavits dated March 2 and March 8. The Respondent provided an affidavit sworn March 5, largely in connection with her request to adjourn, and a responding affidavit sworn March 16. The confirmation form indicates that both parties rely on prior affidavits and exhibits.

[8] In her affidavit, the Respondent provided a letter from her family physician of 16 years and from a physician who has provided supportive psychotherapy since March 2016 with respect to marital separation and custody issues. The Respondent also provided extensive evidence addressing the allegations contained in the Applicant’s affidavits.

[9] The Respondent raises many reasons why the order for disclosure as requested ought not to be made including these: most of what is sought does not exist; the records sought are irrelevant to her parenting capacity; some of the records are privileged and contain confidential information; production of some of the records will be injurious to the public interest; the Applicant is on a fishing expedition to get his hands on personal information unrelated to the case; while information about the two leaves of absence since separation might be relevant, she has explained that they were related to family and workplace stress and she has disclosed the necessary information; she has never been diagnosed with mental health issues; her parenting has not been put into question by CAS, Yorktown, police or the s. 30 assessor. The Yorktown records arise from counseling that began in late 2016 in the context of serious conflict in parenting issues. To the extent that the children and the Respondent are involved with Yorktown, the Respondent takes the position that the court ought not to order disclosure of records related to the children and their mother and father so as to protect the importance of what is happening in that context. The Respondent asserts that the person who she alleges has been abusive to her ought not to have access to the records requested.

[10] The Respondent acknowledges that the OCL did terminate its attempt to write a s.112 report because she refused to consent to what she considered to be overbroad and intrusive access to historical irrelevant records.

[11] Before dealing with the individual requests, I draw the following conclusions:

(a) I agree that the evidence on which the Applicant relies does not demonstrate that the Respondent has any mental health issues. Just because he thinks that some of her behaviour before and after the separation is “odd” or that he believes she was secretive does not make it so, particularly in light of her responding affidavit.

(b) I do not consider the allegation that some of the records sought are confidential and ought not to be disclosed. In family law cases, that is often the response to such requests and I would not want to embark upon the analysis without a factum. Because of the view I take of the requested disclosure, I need not address the confidentiality issue.

(c) I do not accept and rely on the Respondent’s allegation that her “abuser” ought not to have access to records because to do so would mean I accept the allegation. As I indicated at paragraph 32 of the June 14 endorsement, the Applicant is entitled to the presumption of innocence. And until her allegations of abuse are considered by this court, they remain allegations. That does not mean she might not be able to prove the allegations. It does mean it would not be appropriate for the court to make such findings on an interim disclosure motion.

(d) As indicated, the OCL terminated its efforts to write a report based on the refusal by the Respondent to provide disclosure. The OCL routinely requests parents to sign broad consents to release of information. Parents almost invariably sign the consents. But the fact that that occurs does not mean that in a motion for disclosure, I ought to rely on the routine request as a basis to grant the motion.

(e) There is no attempt in the evidence on behalf of the Applicant, and no factum that identifies the legal bases for making the requests. Requests for disclosure must be informed by the allegations contained in the Application and in the Answer and Claim. There is no allegation in his Application that justifies the requests in this motion.

(f) The parties signed Minutes of Settlement dated March 3, 2016 at which time they agreed to share joint custody. There was no issue raised in the context of those Minutes of Settlement that the Respondent had any mental health issues.

(g) On April 2, 2016 the Applicant was charged with two counts of sexual assault and one count of assault. The Applicant starting making allegations as to the Respondent’s mental health after that occurred from which I infer there is an element of retaliation.

(h) The breadth of the requests, including the lack of a time frame on some of them, demonstrates that this is an enormous fishing expedition.

[12] On the basis of those conclusions I will review each of the requests in the notice of motion:

(a) the names and clinical notes of all doctors, psychiatrists, psychologists, therapists, counselors or other medical practitioners from August 3, 2013 and onwards. Not relevant or do not exist.

(b) list of all hospitals, including their clinical records where the Respondent has been a patient from August 3, 2013 and onwards. Do not exist.

(c) the clinical notes and records of the Respondent’s Dr. CJR. Sufficient information has been provided. Further disclosure not relevant.

(d) copies of claim statements from Manulife Financial Group Benefits from August 3, 2013 and onwards. Not relevant.

(e) OHIP records, without a defined time frame Not relevant.

(f) clinical notes from Yorktown Family Services and Yorktown Child and Family Centre, without a defined time. Not to be produced because they relate to counseling with respect to the children during the litigation.

(g) disclosure about the Respondent’s leaves of absences from work since separation. Sufficient information has been provided. Further disclosure not relevant.

[13] The notice of motion contains a request for alternative relief which I need not address.

Costs of this motion

[14] This is a motion that should not have been brought. To respond, it absorbed significant time and therefor legal expenses. It was a distraction at a time when the parents should have been focused on settlement or preparation for trial. I am confident that there are no offers to settle and hence I need not afford an opportunity for submissions. The motion was not successful and the Respondent is presumed to be entitled to costs. Furthermore, I find that it was unreasonable for the Applicant to have brought this motion and, pursuant to rule 24 of the Family Law Rules, O. Reg. 114/99 he is required to pay costs.

[15] I am conscious that the lawyers have to devote time to preparation for trial and requiring Mr. Viater to prepare a costs outline as well as Mr. Lyle for comparison purposes, is to be avoided. The comprehensiveness of the responding affidavit and its 18 exhibits allows me to arrive at an amount of costs that is proportionate to the work required and the importance of the motion.

[16] I will not require the Applicant to make the payment forthwith. Once the parenting issues are resolved by trial or settlement, there will be another round of activity in which the Applicant makes significant claims. I have concentrated on the parenting issues and have not explored the strengths and weaknesses of those financial claims. However, I will leave payment of the costs of this motion to a future date.

ORDER TO GO AS FOLLOWS:

[17] The motion returnable March 8, 2017 and heard in writing is dismissed.

[18] The Applicant shall pay costs of this motion to the Respondent in the amount of $5000.00 to be paid on the following terms: (a) subtracted from any amount the Respondent is required by settlement or trial to pay to the Applicant on account of his property claims or his claims for spousal support; and (b) in any event, no later than September 30, 2017.

Kiteley J. Date: March 27, 2017