Court File and Parties

CITATION: Rabley v Rabley, 2017 ONSC 5356

COURT FILE NO.: FD366-16

DATE: 20170908

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: Akeela Elizabeth Rabley, Applicant

AND:

Wayne Gould Rabley, Respondent

BEFORE: Aston J.

COUNSEL: William R. Clayton, counsel for the applicant, Akeela Elizabeth Rabley

Denis E. Burns, counsel for the respondent, Wayne Gould Rabley

HEARD: September 8, 2017

ENDORSEMENT

[1] This case is on the trial list which starts next week. At the trial management conference June 27, 2017 an order was made that “no witnesses shall be called other than those listed [in the Trial Scheduling Endorsement Form] unless a court order is obtained from the case management judge or the trial judge”. It was also ordered that any request to expand the estimated trial time (6-7 days) “must be authorized by Henderson J. or his designate”. At the trial readiness appearance earlier this week Henderson J. was advised of the applicant’s proposal to add witnesses not named at the trial management conference. He directed the dispute on that issue to me. I am familiar with the case, having conducted the case conference August 15, 2016 and the trial management conference June 27, 2017.

[2] By letter of August 14, 2017 counsel for the applicant identified ten additional witnesses. By letter of August 28, 2017 he reduced that number to six. The tenor of their evidence would speak to their observations of the applicant’s “physical and emotional condition” at or shortly after the separation of the spouses in November 2014 and later when the applicant was training to be a chef.

[3] In no particular order of importance, these are the considerations I am taking into account:

• the impact on the length of the trial or the possibility that the trial will need to be bifurcated or adjourned

• the explanation for the delay in discovering or disclosing the additional witnesses

• the nature of the evidence, including its importance to the applicant’s case and its probative value

• any prejudice to the respondent that cannot be compensated for by costs

• the integrity of the Family Law Rules and the court process

• finally, and most importantly, the authority and discretion of the trial judge

[4] On this last consideration, it is important to begin by recognizing that I cannot usurp the function of the trial judge. A refusal of permission now does not prevent counsel for the applicant from attempting to call these witnesses or any of them. Neither does permission to call the witnesses necessary prevent counsel for the respondent from objecting at trial to the evidence tendered or any part of it. However it may prove helpful to the trial judge to have the benefit of this decision and reasons for that decision. In that vein I offer the following background and observations.

[5] Mr. Clayton submits that these additional witnesses will only add one day or less to the estimated length of the trial. He states that the witnesses will not be asked about conversations with the applicant except in the context of what they did to assist or accommodate her. They will be asked about their “observations” of the applicant’s “physical and emotional condition”. One witness would relate a conversation she says she had with the respondent shortly after the separation more than two and a half years ago. The purported purpose of all this evidence is to corroborate or reinforce the applicant’s own evidence and her position that the traumatic effect of the separation impinges upon her efforts and ability to contribute to her own self-sufficiency.

[6] Mr. Burns submits that this kind of evidence, aimed at portraying the applicant as an innocent victim in the breakdown of the marriage opens the door to “conduct” as an issue at trial. He asserts that the respondent is prejudiced by the evidence unless he is able to adduce evidence of the applicant’s contribution to, or blame for, the breakdown of the relationship. That responding evidence could add very substantially to the length of the trial.

[7] Mr. Burns points out a real danger. However I tend to agree with Mr. Clayton that a tight focus on the purpose of the evidence and limits on its boundaries will not necessarily add significantly to the length of the trial.

[8] There is no reasonable explanation for the delay in discovering or disclosing these witnesses. The explanation that their names only came up in discussion between the applicant and her counsel after the trial management conference is not an acceptable excuse. The rules and the integrity of the court process require parties to identify witnesses, the nature of their evidence and their availability before certifying readiness for trial at the trial management conference. These proposed witnesses would testify about facts that occurred long before the trial management conference, not about recent or recently discovered facts.

[9] The nature of the evidence is mainly corroborative of the expected evidence of the applicant. It is difficult to characterize it as important or highly probative at this stage. However the trial judge will be in a better position to determine that after hearing the applicant’s evidence, including cross-examination.

[10] The Application does not plead as a fact that the applicant’s ability to work, retrain or re-educate herself has been negatively affected by the “traumatic effect” of the marriage breakdown as she now claims. Pleadings are important to the definition of issues. However, in this case it is not prejudicial to the respondent because there were clear references to her position early on in the litigation process. The respondent’s first request for clinical notes from two treating physicians in relation to “mental health issues” predates the case conference more than a year ago in August 2016. It was a topic raised and explored on the oral questioning of the applicant.

[11] It is also significant, in my view, that the applicant has only provided a very terse indication of what these witnesses will say. There is nothing that can properly be characterized as a “will say” statement. I cannot assume that this evidence will not be prejudicial to the respondent. There may be some surprises. There may be responding evidence that he cannot adduce at the last minute during the trial.

[12] With these considerations in mind I am not prepared to grant permission at this time to call the witnesses not listed at the trial management conference.

[13] Another issue raised today concerns the admissibility of certain medical reports and opinions. Mr. Clayton says that these witnesses are only “participant experts”. They were named in the trial management conference endorsement and each of them will be available for cross-examination at trial. It is going to be up to the trial judge to determine whether their evidence crosses the line reserved for “litigation experts” and Family Law Rule 20.1.

“Justice D. R Aston”

Justice D. R. Aston

Released: September 8, 2017

Justice _____________________

Date: [Click and Type Date]