Court File and Parties

COURT FILE NO.: 12-3056-0

DATE: 2018/04/11

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: N.H., Applicant

AND

J.H., Respondent

BEFORE: Madam Justice J. Audet

COUNSEL: Brian Ludmer, for the Applicant

Richard P. Bowles, for the Respondent

HEARD: April 6, 2018

ENDORSEMENT

[1] This is a motion for disclosure brought by the father (“the disclosure motion”) in the context of the mother’s motion to suspend the equal time-sharing provisions of Justice Mackinnon’s final order of August 2017 with regards to A.H., the parties’ 13 year old daughter (“the main motion”).

[2] The father seeks the following orders:

1. The production by Telus Communications Inc. of un-redacted copies of all text message transmission data records and multimedia transmission data records, call detail records, and bill reprints from the mother’s phone number between December 2017 to the present;
2. That the cost of obtaining the Telus records be shared between the parties; and
3. That the child’s and the mother’s cell phones and tablets be produced for examination pending the release of the Telus Corporation records.

[3] These requests stem from the following allegations by the father, made in the context of the main motion:

• That on January 22, 2018, the school principal\staff and the police officers who attended A.H.’s school to deal with her alleged refusal to go to her father’s home, noted to the father that she was “texting furiously” with someone for the entire period of their involvement on that day. It is the father’s assertion that A.H. was texting her mother who was directing her on what to do and what to say. The father believes that she was not encouraging A.H. to go to her father’s.
• The father believes that the mother continued to call the police that night alleging that A.H. was in danger in her father’s care.
• That on February 2, 2018, A.H. did not return to her father’s home as she was supposed to do. The father challenges the mother’s assertion that A.H. contacted her to request that she be picked up at a friend because she was afraid to go back to her father’s. He believes that the mother influenced\convinced A.H. to not return to her father’s home as planned.
• That on February 5, 2018, A.H. left the school grounds prior to being picked up by her father. The father challenges the mother’s assertion that A.H. contacted her requesting to be picked up from the local mall. He believes that the mother influenced\convinced A.H. to not return to her father’s home as planned. He believes that this was pre-planned.
• On February 6, 2018, A.H. once again left the school before being picked up by her father. The father believes that the mother influenced\encouraged her to do so.

[4] More generally, the father asserts that the mother, throughout the period of time preceding February 9, 2018 (the last day A.H. saw her father), was not encouraging A.H. to go to her father’s. Rather, he alleges that the mother was “purposefully, maliciously and intentionally” sabotaging each and every visit and interaction he was to have with A.H., that she did this through her physical actions of picking her up from school on his parenting days and encouraging her to leave the school grounds so that she could pick her up before he had a chance to do so at school.

[5] He further believes that, further to my order of January 25, 2018, whereby I directed the mother to preserve and prohibit the deletion, destruction or amendment of all text messages and emails between her and A.H. from January 1^st^, 2018 onward, the mother did delete some of the text messages between her and A.H. and\or encouraged A.H. to do so.

[6] Thus, the father wishes to inspect A.H.’s and the mother’s cell phones and tablets to prove his assertions. He states that the detailed Telus records are also necessary to verify that A.H. and\or the mother have not deleted messages from their electronic devices, against my clear order. He wishes to access all records from December 2017 to present so as to be able to show an increasing pattern of calls and texts between A.H. and her mother, which would support his assertion that the mother was encouraging A.H. not to go to her father’s, as well as his assertion that the mother breached Justice Mackinnon’s order which limited the frequency of contacts between A.H. and the non-residential parent to two electronic messages a day, unless it became necessary to respond to an inquiry from the child.

[7] The parties have framed this disclosure motion mainly as a third party disclosure motion under Rule 19(11) of the FLR. I do not see this as a third party disclosure motion. The mother’s cell phone, tablet and cell phone records are the mother’s or within her control. A.H.’s cell phone and cell phone records are also within the control of the mother. Telus is not opposing the father’s request for disclosure. With the mother’s consent (and a consent court order), Telus will release the records. I do not see this as a situation where the document is in a non-party’s control, or available only to the non-party. The records are available to the mother, with her consent. She is simply not consenting.

[8] This disclosure request is properly framed as a request for disclosure under Rule 20(5) of the FLR, which states:

ORDER FOR QUESTIONING OR DISCLOSURE

20 (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:

1. It would be unfair to the party who wants the questioning or disclosure to carry on with the case without it.
2. The information is not easily available by any other method.
3. The questioning or disclosure will not cause unacceptable delay or undue expense.

[9] Parts 2 and 3 of the test are clearly met here. The issue is whether or not it would be unfair for the father to carry on the case without the disclosure sought.

[10] I am of the view that it would be unfair to the father to carry on his case without part of the disclosure requested. There is limited ability for the father to independently verify whether or not the mother was, in fact, “purposefully, maliciously and intentionally” sabotaging each and every visit and interaction he was to have with A.H. during the relevant period of time without seeing the text messages. While I agree with the mother that the evidence and records of the Children’s Aid Society and of the police, coupled with the principal’s evidence will likely shed the necessary light on what the mother did or did not do during the relevant period of time, without the need for invading her privacy in the manner sought by the father, she may still have presented herself in a certain way with these third parties but have acted differently in the background in her interactions with A.H.

[11] I am also of the view that looking closely into the mother’s behaviour during those events, in light of Justice Mackinnon’s earlier findings about her ability and willingness to promote the relationship between A.H. and her father, is relevant to my assessment of her request to suspend Justice Mackinnon’s residential order.

[12] This said, I am of the view that the scope of the father’s disclosure request is much too wide, and wholly disproportionate to the narrow issues identified above.

[13] First of all, I decline making an order that any of A.H.’s devices, including her cell phone and tablets, be produced to the father. Not only would such an order be a significant violation of A.H.’s privacy as a 13 year old teenager, it would have the effect of personally involving her into her parents’ dispute and cause her unnecessary harm. This child has been subjected to more interviews, questioning, probing, inquiries and scrutiny than most human being will likely ever be in a life time. Her mental health has continued to decline over the past months, and I have absolutely no intention to involve her more than she already is in her parents’ conflict and dysfunction.

[14] With regards to the mother’s electronic devices, there is no evidence before me that would support a finding that she ever used any electronic devices, other than her cell phone, to communicate with A.H. Therefore, the father’s request that her tablets be produced for inspection is denied.

[15] With regards to the mother’s cell phone and Telus records, I see no justification to providing the father with an unrestrained, blanket permission to poke into the mother’s privacy for a period of over four months, when the allegations of the father relate specifically to her communications with A.H., and on certain very specific dates.

[16] With regards to the Telus records, the following order will therefore issue:

1. Telus Communications Inc. (“Telus”) is hereby permitted and authorized to produce copies of all text message transmission data records and multimedia transmission data records (hereinafter “Data Records”), Call Details Records (hereinafter “CDR”) and Bill Reprints (hereinafter “Bill Reprints”) from phone number 613-899-8059 for the following dates:
   1. January 22, 2018;
   2. February 2, 5 and 6, 2018.
2. A hard copy of the Data Records, CDR and Bill Reprints shall be provided to the parties via regular mail to the care of their lawyers, Brian Ludmer (Applicant) and Richard P. Bowles (Respondent), at their respective business addresses, within 30 business days from the date of this order.
3. Telus shall be reimbursed for its reasonable administrative costs to comply with this Order. Telus shall provide the invoice directly to the Applicant. The Applicant shall be solely responsible for the costs of obtaining the Data Records, CDR and Bill Reprints from Telus.
4. The Respondent’s approval of this Order as to form and content is hereby dispensed with. The draft order shall be forwarded to me through Trial Coordination for signature by me personally.

[17] With regards to the mother’s cell phone, what is relevant is the content of her text messages to and from A.H. on the specific days noted above. During the trial before Justice Mackinnon, both parties produced into evidence a significant amount of text messages (see par. 648 of her decision). The mother therefore has the ability to download the text messages from her phone into a paper format. As a result, I make the following order:

1. The mother shall, on or before April 13, 2018, provide the father with a copy of all text messages exchanged between her and A.H. on the following dates:
   1. January 22, 2018;
   2. February 2, 5 and 6, 2018.
2. If requested by the father, the mother shall make her cell phone available for inspection by counsel for the father, or a person acting as his agent (who must be a lawyer or a person working in a law firm), at her counsel’s office and under the supervision of her counsel, for a period of no more than one hour. Such inspection shall occur on or before April 30, 2018, at the latest.
3. The inspection shall be restricted to verifying that the paper copy of the text exchanges between the mother and A.H. on the dates identified above properly reflect the integrality of the text exchanges contained in the mother’s cell phone itself, on the days specified above.
4. The father shall not attend or be present for the inspection meeting.
5. The mother shall not discuss or share in any way, directly or indirectly, with A.H. the fact that her text exchanges with her mother on the days identified above will be shared with the father.

Costs

[18] Costs of this disclosure motion are reserved to the main motion.

Madam Justice J. Audet

Released: April 11, 2017

COURT FILE NO.: 12-3056-0

DATE: 2018/04/11

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: N.H., Applicant

AND

J.H., Respondent

BEFORE: Madam Justice J. Audet

COUNSEL: Brian Ludmer, for the Applicant

Richard P. Bowles, for the Respondent

ENDORSEMENT

Madam Justice J. Audet

Released: April 11, 2018