CITATION: Evans v Evans, 2017 ONSC 5232
COURT FILE NO.: 02-FL-978-A
DATE: 2017/09/08
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: David Bradley Evans, Applicant
AND
Debra Lynne Evans, Respondent
BEFORE: Justice A. Doyle
COUNSEL: Gary Blaney, for the Applicant
Carol Craig, for the Respondent
HEARD: August 22, 2017
ENDORSEMENT
Overview
[1] The Respondent moves for an order declaring her a “special party” as defined in the Family Law Rules, O. Reg. 114/99 (“FLRs”) and appointing Mr. Jacques Desjardins as her litigation guardian.
[2] On July 17, 2017, the Court adjourned the motion to permit the Respondent to file further materials (Evans v. Evans, 2017 ONSC 4345).
[3] The Respondent then filed affidavits from Mr. Jacques Desjardins, a friend and previous partner, and Ms. Elie Wieschollek Lyall, a friend. Both individuals have observed the Respondent in meetings with her lawyer and outside the office.
[4] At the hearing, the Respondent wished to rely on her solicitor’s affidavit on the condition that it is sealed and that it would not form part of the court record. She indicated that it contained communications protected by solicitor-client privilege. The matter was adjourned to allow the parties to prepare their respective submissions.
[5] The Applicant requests the following:
− an order requiring the Respondent to attend a medical examination to address the issue of her medical circumstances impacting on her ability to instruct counsel. He seeks an adjournment of the Respondent’s motion to appoint a litigation guardian until the completion of the medical examination;
− a ruling denying the sealing of the Respondent’s counsel’s affidavit or, in the alternative, the opportunity to review it, to respond to it and the right to question the affiant;
− an order preventing the Respondent’s counsel from appearing and arguing on her own affidavit;
− an order permitting the questioning of Dr. Tammie Marie Ricci; and
− an order requesting disclosure and requiring the Respondent to produce the material requested relating to her Long Term Disability (LTD) claim together with ongoing disclosure of the claim including ongoing steps in the litigation and negotiations of any settlement.
Issues
(1) Should the Respondent’s counsel’s affidavit be sealed and not form part of the public court record?
(2) Should the Respondent be declared a “special party” and should Mr. Desjardins be appointed as litigation guardian at this time? Or, before doing so:
(i) Should the Respondent be required to submit to an independent medical examination by a medical expert to provide an opinion as to the Respondent’s capacity to instruct counsel or deal with the issue of spousal support?
(ii) Should the Court permit the questioning of Dr. Tammie Marie Ricci, the psychologist who prepared an extensive report regarding the Respondent’s mental capacity and/or the Respondent’s mental and emotional state?
(3) Should the Respondent provide the requested disclosure, including details of the Respondent’s LTD file with her solicitor, Mr. Eric Williams?
Analysis
- Should the Respondent’s affidavit be sealed and not form part of the public court record?
Preliminary issues
[6] The Applicant objected to the Respondent’s counsel arguing the motion as she was an affiant of an affidavit filed in support of the motion.
[7] Generally, this is not good practice. However, in the circumstances of this case, the Court finds that it must deal with this case justly, which includes allowing the Respondent’s counsel, who is most familiar with the file, to argue this motion. This issue was only raised by the Applicant at the return of the motion. An adjournment will cause expense and delay (see FLR 2(2)).
[8] In addition, the Court is guided by Murphy v. Carmelite Order of Nuns, 2004 CarswellOnt 9965 (Ont. Sup. Ct.) [Murphy], where Master Kelly relaxed the rule when he found that the lawyer was not only of the opinion that the client was under a disability, but that she had a professional duty not to abandon the client and to continue the action until the issue of the client’s capacity was determined. He stated at para. 5:
This is not a case where Ms. Dorrett is placing her credibility in issue on contentious matters affecting the other parties. Her role is more akin to that of an officer of the Court fulfilling a responsibility to apprise the Court of requisite information necessary to the Court to enable an appropriate decision to be made.
[9] The Applicant did not proceed with his request to cross-examine the Respondent’s counsel on her affidavit and therefore, the Court will not deal with that issue.
Sealing order to issue
[10] For the reasons set out below, the Court will review the Respondent’s counsel’s affidavit and seal the affidavit until further Order of this Court.
[11] The legal authority is found under section 137(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”):
A court may order that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record.
[12] The Respondent submits that the affidavit is proffered for the sole purpose of providing observations, interactions with the client, and a conclusion with respect to client’s ability to instruct counsel and counsel’s ability to obtain instructions.
[13] In Histed v. Law Society (Manitoba), 2005 MBCA 106, 18 C.P.C. (6th) 230, the Manitoba Court of Appeal spoke of the importance of the open court principle to the administration of justice. The Law Society of Manitoba brought a motion before the Court of Appeal for an order sealing part of the court file that pertained to communications covered by solicitor-client privilege that had not been waived. Other documents contained information that was covered by a confidentiality agreement.
[14] The Court noted at paras. 22-24:
Exceptions to the open court principle, where the possibility of serious harm or injustice to a person justifies a departure, includes situations where courts have identified social values of superordinate importance to society that justify curtailment of public accessibility. Solicitor-client privilege is one of those exceptions.
The importance of solicitor-client privilege to the administration of justice cannot be doubted. See R. v. Gruenke, 1991 SCC 40, [1991] 3 S.C.R. 263 at 289. Although it was originally a rule of evidence protecting communications only to the extent that a lawyer could not be forced to testify, it has now evolved into a substantive rule of law. See Solosky v. The Queen, 1979 SCC 9, [1980] 1 S.C.R. 821 at 836.
In Smith v. Jones, 1999 SCC 674, [1999] 1 S.C.R. 455, Cory J. wrote that solicitor-client privilege is “the highest privilege recognized by the courts” (at para. 44) and that “[q]uite simply it is a principle of fundamental importance to the administration of justice” (at para. 50). Indeed, the court indicated that disclosure of privileged communications should occur only where there was a clear, serious and imminent danger.
[15] The Respondent has not waived her solicitor-client privilege as she has not demonstrated that she knows the existence of the privilege and she has not shown a clear intention to forego the privilege.
[16] Under the FLRs, the Court is permitted to view a solicitor’s affidavit for removal from the record to protect solicitor-client privilege. Rule 4(13) states:
Notice of a motion to remove a lawyer shall also be served on the other parties to the case, but the evidence in support of the motion shall not be served on them, shall not be put into the continuing record and shall not be kept in the court file after the motion is heard.
[17] This procedure has been followed in other proceedings: R. v. Okafor, 69 W.C.B. (2d) 233, 2006 CarswellOnt 2781 (Ont. Sup. Ct.), where the Court sealed a motion record dealing with the removal of solicitors from the record; Travascio v. Woodbridge Co. (2005), 139 A.C.W.S. (3d) 189, [2005] O.J. No. 1872 (Ont. Sup. Ct.), where the Court ordered the affidavits of the solicitors to remove themselves from the record sealed; and DiPaolo v. Valeriote, 2011 ONSC 338, 196 A.C.W.S. (3d) 1163, where Justice Murray accepted affidavit evidence from the plaintiff’s counsel and from the Ontario Public Guardian and Trustee’s counsel to allow the Court to make a determination regarding the plaintiff’s capacity. The Court sealed the affidavits in order to protect solicitor-client privilege.
[18] As stated in Murphy at para. 6:
Capacity of a party is fundamental to civil justice. If during the conduct of litigation communications between solicitor and client impact the issue of the client’s capacity (as defined below), counsel is duty-bound to seek appointment of a litigation guardian. On a motion for relief, one can expect that the requisite disclosure to the Court could involve privileged information. The client’s confidentiality can be reserved by the sealing process.
[19] As discussed on numerous occasions, solicitor-client privilege is a fundamental civil right and “a cornerstone of our system of law” (Re Palamarek, 2010 BCSC 1894, 196 A.C.W.S. (3d) 410).
[20] As stated by Justice Jennings in Soriano v. Laberakis (2006), 2006 ON SCDC 3973, 80 O.R. (3d) 303, 145 A.C.W.S. (3d) 927 (Ont. Div. Ct.) at para. 7: “A client so disabled cannot properly instruct his counsel and his counsel accordingly had no proper authority to release information protected by a solicitor and client privilege.”
[21] This is to be distinguished from Barnes v. Kirk (1968), 1968 ONCA 389, [1968] 2 O.R. 213, 1968 CarswellOnt 711, where the Ontario Court of Appeal was dealing with an appeal of an order compelling a plaintiff to attend discovery. The plaintiff’s counsel filed an affidavit with his information and belief regarding his client’s condition. The Court found it to be hearsay. No medical evidence was filed. The court found: “The party’s unsoundness of mind constitutes such a valid reason [for non-attendance at discovery], but the onus of rests on the party alleging it. The question essentially is one to be decided upon medical evidence; without direct cogent evidence from a person duly qualified to speak with authority upon the subject, it is difficult to perceive how the court could pass upon the question judicially”.
[22] The legal system is based on the right of a client to be protected by solicitor-client privilege. A lawyer is under a professional duty not to disclose information arising out of a solicitor-client relationship. This professional duty must be protected to ensure the proper administration of justice. On the other hand, the litigation here will be at a standstill given the current state of the Respondent. The evidence to date clearly demonstrates that this litigant is in a serious anxious state that prevents her from engaging in the litigation. In order to ensure that the process and the parties’ interests are protected, the Court must make a determination of whether this litigant should have a litigation guardian and in doing so, the Court would benefit from the review of her counsel’s affidavit.
[23] Accordingly, the importance of determining if the Respondent has the capacity to continue on her own with this litigation or whether she requires a litigation guardian to represent her dictates that the Court review the evidence that may assist in this analysis. Clearly, the lawyer’s evidence, which includes her observations and views, is of some significance in this analysis as per Costantino v. Costantino, 2016 ONSC 7279, 273 A.C.W.S. (3d) 282 [Costantino].
[24] The Respondent has met the burden of showing that the sealing order is necessary to prevent the serious risk to the administration of justice of a breach of solicitor-client privilege and that there are no reasonable alternatives that will avoid the risks. Secondly, she has shown that the beneficial effects of the sealing order outweigh the deleterious effects on the rights and interests of the public (R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442; Edmonton Police Service v. Alberta (Law Enforcement Review Branch), 2013 ABCA 236, 553 A.R. 389).
[25] The Court finds that the affidavit of the Respondent’s counsel could be of assistance to the Court. Counsel’s observations and interactions with her client will shed light on whether she “is not able to appreciate the reasonably foreseeable consequences of a decision or lack thereof” as set out in the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”).
[26] The Court rejects the motion by the Applicant to review the affidavit on the basis that it contains solicitor-client information; accordingly, his request to review a redacted version of the affidavit is denied. In addition, the redaction of this two-page affidavit will not provide the gist and essence of the affidavit to the Applicant and will serve no proper purpose.
[27] Therefore, the Court orders that the affidavit of Carol Jane Craig dated August 1, 2017, shall be hereby sealed pending further Order of this Court. The affidavit is not to form part of the Continuing Record.
- Should the Respondent be declared a “special party” and should Mr. Desjardins be appointed as litigation guardian at this time? Or, before doing so:
(i) Should the Respondent be required to submit to an independent medical examination by a medical expert to provide an opinion as to the Respondent’s capacity to instruct counsel?
(ii) Should the Court permit the questioning of Dr. Tammie Marie Ricci, the psychologist who prepared an extensive report regarding the Respondent’s mental and emotional state?
[28] For the reasons set out below,
− the Court finds that the Respondent is a “special party” and Jacques Desjardins is appointed as her litigation guardian;
− the Court dismisses the Applicant’s request for an independent medical examination to determine if the Respondent has the requisite mental capacity and his request to question Dr. Ricci regarding the Respondent’s mental capacity; and
− the Court grants the Applicant the right to question Dr. Ricci with respect to her report as it pertains to the main issue of spousal support.
Finding of special party and appointment of Jacques Desjardins as litigation guardian
[29] In my decision released on July 17, 2017, the Court found that the Respondent had serious mental health issues and suffered from severe depression and anxiety. She is particularly distraught with the litigation and the Court accepted that the litigation could cause emotional damage to her mental health. However, the reports did not address the issue of whether she could make decisions regarding the issues and instruct counsel.
[30] The affidavits of her two friends outline the deterioration of the Respondent’s mental health condition and her inability to deal with the litigation and instruct counsel.
[31] Elie Wieschollek Lyall’s affidavit of July 30, 2017, confirms that she has known the Respondent for 34 years. She is a close friend and she observed that the Respondent appeared to cope with the ongoing issues with her ex-husband. In the past two to three years, she has witnessed the Respondent becoming more depressed and anxious. She witnessed how the questioning of her by the Applicant’s counsel traumatized her.
[32] Ms. Lyall was present during a meeting on July 19, 2017, with the Respondent and her lawyer. She was “so dizzy, anxious, and nauseous that she was unable to drive herself. Debra cried non-stop throughout the entire appointment and wasn’t able to concentrate on anything Ms. Craig was saying. Ms. Craig was trying to explain recent events to Debra. Debra looked at her hands the entire time and did not engage with Ms. Craig. Debra wouldn’t respond to any questions Ms. Craig asked. The meeting only lasted about 20 minutes as there was no point in continuing” and “Debra is no longer the person I have known for decades... Her utter despair is very obvious to me and I don’t think she can take much more of this”.
[33] In his affidavit dated July 31, 2017, Jacques Desjardins states that he has known the Applicant since 2005. He was in a relationship with her at the time of the first litigation in 2009 and noted that, although the matter was difficult for her and upsetting at times, the Applicant “managed to cope”. He states: “She used logic and common sense when analysing the issues and made sound decisions. She was more than ready to testify at court”.
[34] He testifies that she is now a different person and that he has observed significant changes in her over the past few months.
[35] He states the following:
− Her mood is up and down and she cannot focus on conversations and/or discussions and she cries often.
− Debra does not have the ability to analyse the issues and take the proper decisions and directions. Her mind is not organized and she is very unstable in her thinking. Her anxiety cripples her ability to act. I have noticed that any stressor increases her incapacity to deal with her legal case and take action accordingly.
− I have observed similar behaviour when I have attended meetings with Debra at her lawyer’s office. Debra has difficulty processing the information being discussed as she almost shuts down when issues relating to her relationship and this litigation are raised. Her anxiety about her current state and her future interfere with her ability to make decisions and give instructions to her counsel. After meetings, when I have tried to address discussions she had with her counsel, Debra cannot remember the conversations and has expressed surprise at what was discussed at the meetings.
− Debra is not the lady that I used to know. I am concerned for her mental well-being and sincerely believe that Debra is a high suicide risk.
[36] In 626381 Ontario Ltd. v. Kagan, Shastri, 2013 ONSC 4114, 116 O.R. (3d) 202 [626381 Ontario Ltd.] at paras. 25-26, the Court stated:
[25] Put another way, the question is whether the person is able to understand information that is relevant to making a decision in respect of an issue in the proceeding or able to appreciate the reasonably foreseeable consequences of a decision or lack of decision in respect of an issue in the proceeding. As stated in Torok v. Toronto Transit Commission, at para. 40:
The ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision in the litigation includes the ability to consider a reasonable range of possible outcomes, including those that are unfavourable. This ability is essentially the capacity to assess risk, which requires consideration of a variety of results, both positive and negative.
[26] While the decision to appoint a litigation guardian ultimately rests with the court, it is a question to be decided largely on recent medical evidence: see Lico v. Griffiths, at para. 30. While the court will certainly consider other evidence, such as evidence from those who know the party well, and also the court's impression of the party from his or her demeanour and testimony in court (see C. (C.), at para. 34), recent medical evidence as to the party's ability to understand and appreciate the impact and consequences of litigation decisions is of great importance. In Lico v. Griffiths, for example, Lofchik J. decided to appoint the PGT as litigation guardian because the medical and other evidence indicated that Mr. Lico was unable to understand that a resolution without trial was a "once and for all thing", and he failed to understand that his claim would likely be dismissed if he dismissed counsel.
[37] According to Costantino, the test of incapacity is on the balance of probabilities. The Court can consider evidence other than medical evidence. See para. 58:
Issues of mental capacity generally are to be decided on medical evidence. Courts have, in some circumstances, considered various types of evidence in determining whether a Litigation Guardian should be appointed:
a) Medical or psychological evidence as to capacity;
b) Evidence from persons who know the litigant well;
c) The appearance and demeanour of the litigant;
d) The testimony of the litigant; and,
e) The opinion of the litigant’s own counsel.
[38] Ms. Craig’s affidavit assists the Court but it is not the determinative factor in the Court granting the order. The medical reports, Dr. Ricci’s expert report and the two friends’ affidavits have met the burden.
[39] The Court finds that the Respondent has satisfied the Court that she is not mentally capable in accordance with the SDA with respect to an issue in the case and as a result of being mentally incapable, she requires legal representation to be appointed by the Court. As set out in the previous decision and above, the Respondent is not in a position to appreciate the consequences of her decision. The evidence demonstrates that she is or appears to be mentally incapable for the purposes of SDA in respect of an issue in the case.
[40] I have considered the following factors in concluding that the Respondent is a special party:
− her lack of ability to focus, know or understand the choices and decisions that are required of her due to her mental health issues;
− her inability to understand and appreciate her choices and the decisions she must make;
− her inability to concentrate on the decisions that she must make; and
− her inability to instruct counsel.
[41] The Court finds that the cause of the Respondent’s incapacity stems from her mental illness as stated in Dr. Ricci’s report at pp. 10-11, which are summarized in my earlier decision, but are worth repeating here. She suffers from a major depressive disorder with anxious distress, moderate to severe, and post-traumatic stress disorder features.
[42] Mr. Desjardins is hereby appointed to act as her litigation guardian pursuant to FLR 4(2).
Medical examination
[43] Given that the Respondent was afforded the opportunity to submit further medical evidence and instead is relying on affidavit evidence only, the Applicant requests an order to require the Respondent to be examined by a medical examiner of his choice.
[44] Section 105 of the CJA states:
(1) In this section,
“health practitioner” means a person licensed to practise medicine or dentistry in Ontario or any other jurisdiction, a member of the College of Psychologists of Ontario or a person certified or registered as a psychologist by another jurisdiction.
(2) Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.
(3) Where the question of a party’s physical or mental condition is first raised by another party, an order under this section shall not be made unless the allegation is relevant to a material issue in the proceeding and there is good reason to believe that there is substance to the allegation.
(4)The court may, on motion, order further physical or mental examinations.
(5) Where an order is made under this section, the party examined shall answer the questions of the examining health practitioner relevant to the examination and the answers given are admissible in evidence.
[45] The Applicant requests that the Respondent submit to a medical examination to provide an opinion as to the Respondent’s capacity to instruct counsel. He indicates that the first expert available is in January 2018.
[46] In 626381 Ontario Ltd., the plaintiff was represented by the Public Guardian and Trustee (“PGT”) as her litigation guardian. When the PGT indicated that it would seek Court approval of settlement, the plaintiff moved to have it removed as her litigation guardian and filed a new capacity assessment. The plaintiff refused to attend an assessment conducted by the examiner selected by the defendants.
[47] See para. 40 of 626381 Ontario Ltd.:
That is not to say that on either a motion to appoint or remove a litigation guardian, a mental examination should be the norm, and if not forthcoming should automatically be ordered under s. 105 of the CJA. To the contrary: ordinarily the evidence on such a motion should be presented by way of affidavits from persons who already possess the relevant information, without need for a court-ordered mental examination. A s. 105 order to obtain the required evidence should be the rare exception and not the rule. Moreover, such an order is discretionary and should not be granted lightly or without good reason. Due consideration must be given to the autonomy of the individual, having regard to the intrusive nature of a mental examination. See the comments of Wilton-Siegal J. in Zheng v. Zheng, 2013 ONSC 4217, [2013] O.J. No. 2957 (S.C.) at para. 24. Where the issue of the need for a litigation guardian is raised by the adverse party and a s. 105 examination is sought, the particular requirements of s. 105(3) will need to be satisfied.
[48] The assessment obtained by the plaintiff to support her claim that she had recovered from her mental health issues was over two years old and the defendants raised concerns about its scope. The plaintiff agreed to an independent examination so a s. 105 order did not have to be made.
[49] Justice Stinson in that case determined that the Court has jurisdiction to order a party to attend a mental examination to determine whether she is a party under legal disability. A s. 105 independent medical examination must not be made lightly.
[50] Justice Stinson repeats the purpose of Rule 7 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, that is “designed to protect not only the person under a disability, but also ‘to protect the integrity of the judicial process for all participants in the litigation, include the Court’” (para. 17). Also see Lico v. Griffiths (2008), 2008 ONSC 11047, 165 A.C.W.S. (3d) 815, 38 E.T.R. (3d) 151 (Ont. Sup. Ct.).
[51] Here, the Court refuses this request for the following reasons:
− The evidence at this point is overwhelming that the Respondent has serious mental health issues that preclude her from making decisions on the issues in this case and as such, she is unable to instruct counsel.
− I accept the uncontradicted evidence of the Respondent that the Applicant’s lawyer suggested a litigation guardian in December 2016 when the trial was adjourned to September 2017 sittings. The request for a medical examination is a late request. The Applicant has had Dr. Ricci’s report since June. If the Order is granted, the earliest a medical expert would be available is in January 2018. It is now 10 months later and the evidence is compelling that this party needs a spokesperson and litigation guardian.
− This Motion to Change was commenced by the Applicant in 2012 and the unnecessary delay should be avoided. The FLRs state that cases must be dealt with justly.
Questioning of Dr. Ricci
[52] FLRs 20(4) and (5) permit the questioning of a third party provided that the conditions in (5) have been met:
(4) In a case other than a child protection case, a party is entitled to obtain information from another party about any issue in the case,
(a) with the other party’s consent; or
(b) by an order under subrule (5).
(5) The court may, on motion, order that a person (whether a party or not) be questioned by a party or 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.
Would it be unfair to proceed without questioning?
[53] To test unfairness, the Court must review the materiality of the information sought by questioning. Here, the relevant and material evidence that can be sought from Dr. Ricci deals with the allegations of abuse by the Applicant during the marriage.
[54] Regarding “unfairness”, Justice Brown stated in Tsakiris v. Tsakiris (2007), 2007 ONSC 44184, 161 A.C.W.S. (3d) 221, 45 R.F.L. (6th) 186 (Ont. Sup. Ct.) at paras. 14-15:
[14] I see this as permitting questioning of non-parties in a potentially broader range of circumstances than obtaining their evidence for trial, including securing evidence for use on a motion.
[15] How should the court assess “unfairness”? At least in the context of a motion seeking leave to examine a non-party, I think the starting point must be a consideration of the materiality of the information sought to an issue or issues in the proceeding. If questioning were not permitted, would the party be deprived of the opportunity to secure material evidence relating to an issue in the proceeding or that could have a material effect on the determination of an issue in the proceeding, be it on a motion or at the trial? Put another way, without the information from the non-party would the party lack material evidence lying outside his or her control that would be required to establish an element of its claim, whether on a motion or at trial?
[55] Given that the Respondent cannot be examined as she is a special party, the questioning of Dr. Ricci, who met with her for five hours, prepared an extensive report, and reviewed numerous documents in reaching her conclusion, would allow the Applicant to further explore the Respondent’s allegations. FLR 20(6) of course is also available for questioning of the litigation guardian as well.
- The information is not easily available by any other method.
[56] The Applicant can explore and probe how Dr. Ricci came to her conclusions regarding post-traumatic stress disorder resulting from abuse during the marriage and childhood issues.
[57] The Applicant can certainly explore the evidence that Dr. Ricci relied on in reaching her conclusions in the report as they relate to the main issue in the case, i.e. the issue of entitlement and quantum and duration of spousal support. In Dr. Ricci’s report at p. 10, she states: “In my opinion, Ms. Evans’ PTSD features date back to early childhood experiences and have been fuelled by her emotionally abusive marriage, ongoing litigation procedures and workplace stressors”.
[58] The Applicant argues that these conclusions demand some probing on what material she relied on, and to what extent they are self-reporting.
[59] Given that the Court is granting a litigation guardian, the Applicant is not going to be in a position to complete his questioning of the Respondent. Questioning Dr. Ricci will afford the Applicant the opportunity to explore the allegations made in Dr. Ricci’s report.
- The questioning or disclosure will not cause unacceptable delay or undue expense.
[60] As will be discussed below, the trial will not be proceeding in the September 2017 trial sittings. Hence the questioning of Dr. Ricci should not cause a delay. It is also not an undue expense. The Respondent’s questioning had not been completed and the questioning of Dr. Ricci will not delay matters as she is available in the fall.
- Should the Respondent provide the requested disclosure, including details of the Respondent’s LTD file with her solicitor, Mr. Eric Williams?
[61] The Applicant requests the following:
− compliance by the Respondent with the financial disclosure orders of Master Champagne and Justice Johnston;
− complete access to all material relating to the Respondent’s claims against her LTD insurers;
− production of ongoing material relating to her treatment by her attending psychologist and general practitioner; and
− disclosure relating to the report of Dr. Ricci.
[62] The Applicant’s concerns rest on the lateness of receipt of documents, the new developments regarding the Respondent’s medical condition, the impact that it has on the motion to change and his concern that he does not have full disclosure. For example, he discovered through new counsel on April 28, 2017, that a statement of claim regarding the LTD denial was issued six months earlier in November 2016.
[63] On July 19, 2017, the Applicant received from the Respondent’s new counsel 84 pages of the Respondent’s performance reviews from Human Resources (“HR”).
[64] These delays may have been caused by previous counsel’s illness, change of counsel and LTD counsel was away on vacation. Nevertheless, disclosure is a cornerstone of family law and should be respected and enforced.
[65] The November 9, 2015, consent order provided that the Respondent supply the following:
A complete copy of her HR file through work evidencing her application for disability and all related documents including all medical reports used for the application and any third party examinations undertaken of the Respondent at the behest of the insurer.
[66] The Applicant is insisting on production of the entire HR file.
[67] The Court orders that the Respondent follow up with the HR office and ask them to confirm that all documentation has been forwarded to her counsel. The Court orders that any further developments or documentation that may become available in the HR office shall be produced to the Applicant.
[68] The Applicant received Dr. Ricci’s report on June 14, 2017, received some materials from her file on July 19, 2017, and on July 19, 2017, the Respondent’s counsel sent notes and raw data from Dr. Ricci to the Applicant’s counsel.
[69] Given my decision to allow questioning of Dr. Ricci, any further materials can be requested at the questioning.
[70] The Applicant’s concern regarding the LTD file is that the Respondent is purposely delaying the LTD procedure so she can buttress the family law file and secondly, to probe why Mr. Williams is not applying for a litigation guardian for her in the case.
[71] On July 4, 2017, the Applicant received a copy of Eric Williams’ letter dealing with the LTD action. He brought the parties’ counsel up to date regarding the LTD litigation.
[72] The Applicant’s letter dated July 13, 2017, requested more information from Mr. Williams.
[73] The Respondent indicates that they have forwarded all information that was received by her LTD counsel. The mandatory mediation session was cancelled as the Respondent was unable to participate. The documents provided include correspondence from Mr. Williams, a letter from him addressing the status of the LTD litigation and confirming that he will provide any non-privileged documents from her file.
[74] The Court makes the following orders with respect to his requests:
- Regarding why the LTD Statement of claim was not served until months later it was issued:
The Court finds this is not relevant to the family law matter.
- Regarding why there has not been an application for a litigation guardian in the LTD file:
The Court finds this is not relevant to the family law matter. According to the FLRs, “special party” is with respect to an issue in the case dealing with her ex-husband. It is not relevant and material what her ability is to deal with her LTD insurer in a separate action dealing with other issues.
Regarding updates on the LTD action: The LTD litigation is a different process with different timelines and different parties. It is in early stages whereas this case has been ongoing for five years. The Court orders that the Applicant be kept abreast with respect to the progress that is being made because the results are relevant to this action as if the Court finds that she is still entitled to support, quantum will be an issue. The Applicant is entitled to regular updates but is not in a position to demand information protected by solicitor-client privilege nor to control the speed of how the litigation proceeds. The Applicant is entitled to be informed if the LTD matter settles. The negotiations and offers to settle are protected by settlement privilege. The updates can include: copies of the documents in Mr. Williams’ file if they are non-privileged, motion materials, court endorsements, updated medical information and changes in medical status.
The correspondence between Mr. Max and Mr. Williams in the summer of 2016 and the material provided by Mr. Max need not be disclosed on the basis of solicitor-client privilege and also because they have no relevance to the family law litigation.
A copy of the retainer agreement between Mr. Williams and the Respondent will not be provided as it is subject to solicitor-client privilege and is not relevant to the family law litigation.
A copy of the communication between Mr. Williams and Industrial Alliance and its agents regarding service of the material was not provided as it is not relevant to the family law litigation.
With respect to the Respondent’s refusal to provide documentary evidence relating to the issue of the Respondent refusing to be examined by Dr. Cattan: The answer was provided that Dr. Cattan “was unable to act independently including the body of evidence that he was biased will not be provided as it has no relevance to the family law litigation”. The Court finds that further information indicating why the Respondent did not agree to be seen by Dr. Cattan is not relevant or material to the family law file.
Next Step
[75] The matter was originally scheduled to proceed to trial in January 2017. The Respondent changed counsel and that, combined with the medical evidence that indicated that she would be unable to participate in the trial, resulted in the adjournment of the trial to the September 2017 trial sittings.
[76] The appointment of the litigation guardian is a significant event and questioning has not yet been completed. Despite the vehement objections by the Respondent to proceed with the trial in September 2017, the matter is not trial ready.
[77] The Settlement Conference / Trial Management Conference scheduled for September 8, 2017, was cancelled by me due to the necessity of rendering this decision.
[78] This conference must be held before the matter is to be tried.
[79] Accordingly, the matter is adjourned to the January 2018 trial sittings. The parties must schedule a Settlement Conference / Trial Management Conference for two hours, which must be held within 90 days. If the parties encounter any issues regarding questioning, disclosure, or other procedural issues, the parties are to arrange a conference before me through the Trial Coordinator’s office. I will continue to case manage this matter.
Conclusion
[80] The Court orders that the affidavit of Carol Jane Craig dated August 1, 2017, shall be hereby sealed pending further Order of this Court. The affidavit is not to form part of the Continuing Record.
[81] The Court finds that the Respondent is a “special party” and Jacques Desjardins is appointed as her litigation guardian.
[82] The Court dismisses the Applicant’s request for an independent medical examination to determine if the Respondent has the requisite mental capacity and his request to question Dr. Ricci regarding the Respondent’s mental capacity.
[83] The Court grants the Applicant the right to question Dr. Ricci with respect to her report as it pertains the main issue of spousal support.
[84] The Court orders that the Applicant be kept abreast with respect to the progress on the LTD file. The Applicant is entitled to regular updates but is not in a position to demand information protected by solicitor-client privilege nor to control the speed of how the litigation proceeds. The Applicant is entitled to be informed if the LTD matter settles.
[85] The Court orders that the Respondent follow up with the HR office and ask them to confirm that all documentation has been forwarded to her counsel. The Court orders that any further developments or documentation that may become available in the HR office shall be produced to the Applicant.
[86] The Court finds that there has been divided success and no costs should be awarded. However, if the parties wish to claim costs, they must provide their two-page written submissions along with offers to settle and bill of costs by September 29, 2017.
Justice A. Doyle
Date: 2017/09/08
CITATION: Evans v Evans, 2017 ONSC 5232
COURT FILE NO.: 02-FL-978-A
DATE: 2017/09/08
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: David Bradley Evans, Applicant
AND
Debra Lynne Evans, Respondent
BEFORE: Justice A. Doyle
COUNSEL: Gary Blaney, Counsel, for the Applicant
Carol Craig, Counsel, for the Respondent
HEARD: August 22, 2017
ENDORSEMENT
Justice A. Doyle
Released: 2017/09/08