Lewis v. Schuck, 2018 ONSC 3887

COURT FILE NO.: FS-17-21801

DATE: 20180621

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CANDICE LAURIE DIANE LEWIS

Applicant

– and –

ANDREW JOHN SCHUCK

Respondent

Melanie Larock, for the Applicant

Kevin B. Peires, for the Respondent

HEARD: March 13, 2018

M. D. FAIETA j.

REASONS FOR DECISION

INTRODUCTION

1The Applicant, Candice Laurie Diane Lewis, and the Respondent, Andrew John Schuck, are the parents of a 2 ½ year old daughter, Veronica Joy Schuck, who was born in late 2015. The parties met in September, 2014 and cohabited from October 1, 2016 until January, 2017 when their relationship ended.

2In her Application, dated October 3, 2017, the Applicant seeks several orders including the following: (1) that Veronica reside primarily with the Applicant; (2) custody of Veronica; (3) that the Respondent be restrained from removing Veronica from Ontario without the Applicant’s or the Court’s approval; (4) that the Respondent be restrained from harassing or annoying the Applicant; (5) that the Respondent pay child support, including his proportionate share of section 7 expenses, effective as of the date of separation.

3In her Application, the Applicant states:

• She has assumed primary care and responsibility for Veronica since her birth in 2015;
• The Applicant works as a personal trainer;
• Veronica attends full-time day care from 7:30 am to 5:00 pm. These costs have been subsidized;
• The Respondent is alcohol dependent and has long-standing substance abuse problems;
• The Respondent was admitted to hospital in 2015 for a psychiatric evaluation as a result of an alcohol and drug overdose;
• The Respondent has mental health issues, including suicidal ideations, which result in outbursts of anger toward the Applicant;
• Since Veronica’s birth, with the exception of a brief period of sobriety from October 2016 to June 2017, the Respondent has regularly engaged in binge drinking for extended periods of time, without any notice or communication with the applicant;
• Until April 2017, the Respondent had sporadic access with Veronica;
• In April 2017, the Applicant agreed to a shared parenting plan with the Respondent as the Respondent had been sober since October 2016. Under that plan, the Respondent had three overnights per week (Tuesday, Wednesday and Saturday) with Veronica;
• On June 5, 2017, the police attended the Applicant’s home in the middle of the night after the Respondent made false allegations against the Applicant. Those allegations were dismissed by police;
• On June 24, 2017 the Respondent grabbed Veronica out of the Applicant’s arms and refused to return the child to the Applicant. Police were also involved.
• On August 24, 2017, the Applicant’s lawyer sent a letter which stated that in order for the Respondent to have access to Veronica, he would have to agreed: (a) not to consume alcohol or drugs before or during any access visits; (b) participate in the SCRAM remote breath alcohol monitoring program; (c) receive regular therapy related to alcoholism and mental health issues; (d) copies of any medical records in relation to those matters. The Respondent agreed to the first demand but not to the other demands;

4The Applicant’s Financial Statement shows that she earned about $60,000 per year in employment and self-employment income.

5In his Answer, dated November 20, 2017, the Respondent denies the allegations made by the Applicant and asks that the Applicant’s claim be dismissed. The Respondent seeks several orders including the following: (1) that Veronica reside primarily with the Respondent; (2) custody of Veronica; (3) that the Respondent shall custody of Veronica; (3) that the Applicant shall not remove Veronica from the City of Toronto; (4) that the Applicant be restrained from molesting, harassing or annoying the Respondent; (5) that the Applicant pay child support, including her proportionate share of section 7 expenses, effective as of the date of separation.

6The Respondent, amongst other things, states:

• The Respondent does not deny his alcohol dependency and denies that it has affected his ability to care for Veronica. He states that he has received regular treatment for 20 years in various ways such as participation in the Alcoholics Anonymous program and programs offered through the Centre for Addictions and Mental Health;
• Since 2011, the Respondent has attended weekly sessions with a psychiatrist, Dr. Kalam Sutandar, at the Toronto General Hospital. She has advised that the Respondent’s mental health condition is stable, that he has abstained from alcohol and that the Respondent has complied with all treatment recommendations. Dr. Sutandar has no concerns about Veronica’s safety while in the Respondent’s care;
• The Respondent states that the status quo has been in existence for almost one full year during which the Applicant has depended on the Respondent to care for Veronica about one-half of the time;
• The Respondent states that he is employed as a Site Superintendent and earns an annual income of $70,000;

7The Applicant has brought a motion for an order requiring the Respondent to produce his medical records related to his alcohol dependency and mental health issues. As well, the Respondent has brought a motion for an order requiring the Applicant to disclose her monthly bank statements from January, 2014 and other financial documents.

ANALYSIS

8The Family Law Rules require a party to provide another party to an Application, if requested, any document relevant to any issue in the Application that is in the party’s control or available to the party unless it is protected from disclosure by privilege.

9The principles related to the disclosure of documents are more particularly described in subrules 19(1) – (4) and subsections 19(8)-(10) of the Family Law Rules:

AFFIDAVIT LISTING DOCUMENTS

19. (1) Subject to subrule (1.1), every party shall, within 10 days after another party’s request, give the other party an affidavit listing every document that is,

(a) relevant to any issue in the case; and

(b) in the party’s control, or available to the party on request.

EXCEPTIONS

(1.1) Subrule (1) does not apply,

(a) to the Office of the Children’s Lawyer or to children’s aid societies; and

(b) in respect of documents required to be served under rule 13 (financial disclosure).

ACCESS TO LISTED DOCUMENTS

(2) The other party is entitled, on request,

(a) to examine any document listed in the affidavit, unless it is protected by a legal privilege; and

(b) to receive, at the party’s own expense at the legal aid rate, a copy of any document that the party is entitled to examine under clause (a).

ACCESS TO DOCUMENTS MENTIONED IN COURT PAPERS

(3) Subrule (2) also applies, with necessary changes, to a document mentioned in a party’s application, answer, reply, notice of motion or affidavit. O. Reg. 69/15, s. 7 (2).

DOCUMENTS PROTECTED BY LEGAL PRIVILEGE

(4) If a party claims that a document is protected by a legal privilege, the court may, on motion, examine it and decide the issue. …

DOCUMENTS OMITTED FROM AFFIDAVIT OR FOUND LATER

(8) A party who, after serving an affidavit required under subrule (1), (6) or (6.1), finds a document that should have been listed in it, or finds that the list is not correct or not complete, shall immediately serve on the other party a new affidavit listing the correct information.

ACCESS TO ADDITIONAL DOCUMENTS

(9) The other party is entitled, on request,

(a) to examine any document listed in an affidavit served under subrule (8), unless it is protected by a legal privilege; and

(b) to receive, free of charge, a copy of any document that the party is entitled to examine under clause (a).

FAILURE TO FOLLOW RULE 19 OR OBEY ORDER

(10) If a party does not follow this rule or obey an order made under this rule, the court may, in addition to any power to make an order under subrule 1 (8) or (8.1),

(a) order the party to give another party an affidavit, let the other party examine a document or supply the other party with a copy free of charge;

(b) order that a document favourable to the party’s case may not be used except with the court’s permission; or

(c) order that the party is not entitled to obtain disclosure under these rules until the party follows the rule or obeys the order.

10A court’s exercise of discretion under the Rules is informed by Subrules 2(2) – 2(4) of the Family Law Rules which state:

PRIMARY OBJECTIVE

(2) The primary objective of these rules is to enable the court to deal with cases justly.

DEALING WITH CASES JUSTLY

(3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

DUTY TO PROMOTE PRIMARY OBJECTIVE

(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.

11An order for the disclosure of documents must be fair and appropriate. Consideration must be given to the burden of the requested disclosure on the disclosing party, the relevance of the requested disclosure to the issues raised by the Application and the cost and time required to provide disclosure as compared to its importance: Kovachis v. Kovachis, 2013 ONCA 663, 311 O.A.C. 228, para. 34.

ISSUE #1: SHOULD THE RESPONDENT BE COMPELLED TO PROVIDE HIS MEDICAL RECORDS TO THE APPLICANT?

12The Applicant seeks the following orders:

(a) Copies of the Respondent’s medical records, including records from his family physician, psychiatrist (Dr. Kalam Sutandar), and any other medical, psychiatric or health professional and any hospital and addiction treatment facility in relation to the Respondent’s mental health and/or alcohol dependency issues from January 1, 2015 to date;

(b) A decoded OHIP summary for the period from January 1, 2015 to date.

13Dr. Kalam Sutandar’s letter dated October 6, 2017 states:

To Whom It May Concern:

Mr.Schuck is an outpatient under my care. He is being treated for major depressive disorder and alcohol use disorder. I have been his treating psychiatrist on and off for a number of years from 2011-2015, and we recently resumed weekly appointments in August 2017.

Mr. Schuck’s general mental health condition is stable. He is abstinent from alcohol use and has been fully compliant with all treatment recommendations. He is receiving care in the form of medication treatment and weekly psychotherapy with myself, and will start weekly individual addictions counselling with a counsellor in the addictions program at Toronto Western Hospital next week.

I have known Mr. Schuck for a number of years. I do not have, nor have I ever had, any concerns about the safety of Mr. Schuck’s children while under his care.

14It appears that the Respondent did not receive any treatment from Dr. Sutandar during the period from November 2015 (one month prior to Veronica’s birth) until August 2017 (when the Applicant’s counsel notified the Respondent that this proceeding would be commenced).

15A further letter from Dr. Sutandar dated November 30, 2017 states:

To Whom It May Concern:

This is to confirm that Mr. Schuck’s bloodwork results support the clinical finding that he has been abstinent from alcohol use.

16However, the Respondent states that Dr. Sutandar “has never deemed it necessary for me to take regular blood tests, or testing or monitoring of any kind, but in this instance suggested I do so to provide comfort to [the Applicant]”.

17A further letter dated February 26, 2018 from Dr. Sutandar, states:

To Whom It May Concern:

I am the outpatient treating psychiatrist for Andrew Schuck. I have been working with him in weekly psychotherapy from 2011 until the present time. There was a break in our sessions from November 2015 until August 2017. We initially started in Interpersonal Psychotherapy, and now are engaged in integrative psychotherapy with a supportive and insight-oriented focus.

I have significant concerns about his psychotherapy records being released to third parties in his present custody dispute regarding his youngest daughter. The effectiveness of psychotherapy rests on a multitude of factors, and one important factor is the expectation of confidentiality of the therapy sessions. In order for patients to feel comfortable exploring difficult affects that impact their functioning, it is imperative that they know that what they expose in session will be kept confidential (within the limits of confidentiality with respect to safety of self and others). When there is a threat that one’s private therapy sessions can be exposed to third parties, the effectiveness of the treatment will be compromised.

I maintain that I have never had any concerns about the care and well-being of Mr. Schuck’s children when under his care.

18The three above letters were appended to an affidavit that Dr. Sutandar dated March 1, 2018 delivered by the Respondent. A Notice of Questioning for March 7, 2018 was served on counsel for the Respondent by letter dated March 5, 2018. By letter dated March 6, 2018, counsel for the Respondent advised counsel for the Applicant that he does not represent Dr. Sutandar nor can his client consent to questioning on behalf of Dr. Sutandar. Dr. Sutandar did not attend. Despite the fact that Dr. Sutandar was not served with a Notice of Examination, a Certificate of Non-Attendance was issued.

19In my view, relevance has been established. Both parents seek custody of Veronica. The Respondent’s mental health and alcohol dependency are central concerns raised in the Application regarding custody and access. The same concerns are addressed by the Respondent in his Answer. Such concerns are also relevant under s. 24(2)(g) of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12, in assessing the merits of an application for custody and access. In this regard, the Respondent has disclosed and relies upon the views of Dr. Sutandar, referenced above, to address the Applicant’s concerns. I find that the records sought by the Applicant are relevant. Such records are important to the issues raised by the parties.

20There is ample evidence in the record of the Respondent’s anger towards the Applicant only some of which is reflected in the following emails sent by the Respondent to the Applicant:

November 22, 2017 at 6:38 am

No you didn’t pay me my fucking money asshole.

I always step up Candice youre the one thatvdrops ball. Im the one that takes to and books every appt and buys all her meds your the fucking dead beat. Im the one that asked about her cough at appt remember not you and doctor said it was fine thay day which we knew …

Candice is a fail. CANDICE ALWAYS FAILS WITH V AND ITS OVER

She deserves someone that puts her first and makes good choices which you consistently don’t

Mire over youve still as always yet to say maybe I did fuck up and mayne I could have done something better. No you defend you inaction to the end.

Good luck with that. You’re a serious joke.

November 22, 2017 at 6:42 am

Youre a complete selfish asshole to her last night and put your self furst seberal times while I took care of like I always do.

PERIOD

December 18, 2017 at 7:11 am

Then give me half the money YOU FUCKING THIEF I SWESR YO GOD IM GOING TO SUE YOU FOR EVERY CENT …

January 13, 2018 at 8:22 am

Well done Candace you’re an ass to her and me. This is just another drama filled cluster fuck that should be straight forward that you complicate and take over. …

January 13, 2018 at 7:28 pm

Yourre a run and a coward pure and simple and v shouldn’t be anywhere fn you. You have zero coping or skills to handle anythimg difficult.

January 13, 2018 at 7:38 pm

Don’t worry. She will be with me full time soon enough and will be able to do extra curricular full time and be great at something. By far the stupidest most coward thing to come out of your mouth I think.

Im amazed how each day my opinion of you can get even less then the day before but it does I feel so fucking bad for her having a completely selfish mother. [Spelling as in original]

21The next issue is whether the requested documents are protected by privilege.

22In M. (A.) v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157, para. 20, a majority of the Supreme Court of Canada held that a document is privileged if:

(1) The communication must originate in a confidence;

(2) The confidence must be essential to the relationship in which the communication arises;

(3) The relationship must be one which should be “sedulously fostered” in the public good;

(4) The interests served by protecting the communications from disclosure must outweigh the interest in getting at the truth and disposing correctly of the litigation.

23The Applicant does not dispute that the first three criteria are satisfied.

24In my view, a parent’s privacy concerns take a back seat to assessing the best interests of a child.

25The Respondent’s disclosure of communications from Dr. Satandar, described above, reflects the Respondent’s willingness, on his own terms, to put his privacy concerns second to his children’s interests of having information to assess appropriate terms for custody and access.

26Further, the fact that the Respondent has authorized the release of such information to the Office of the Children’s Lawyer supports the view that the interests of getting information regarding his mental health and alcohol dependency issues in order to better determine the custody and access in this case, outweighs his privacy concerns. His affidavit sworn February 16, 2018 states:

The request for extensive medical records from me is premature, given that the OCL has agreed to assist us and a clinical investigator has already begun her work.

Candice requested assistance from the OCL and I consented. …

I met with Ms. Majewski on February 8. She explained that any and all medical related concerns that have been put forward will be fully investigated and appropriately addressed by her in her report. She had me sign numerous consents for the release of information, including but not limited to information from the police, children’s aid societies and medical professionals. I signed those releases and assume that Candice has cooperated in a similar fashion.

Ms. Majewski is cognizant of the privacy concerns related to the release of medical information and has explained to me that she does her utmost to only obtain information that is directly relevant and necessary.

It is my understanding that after completing her investigation, Ms. Majewski will put together a report containing her findings and recommendations. I assume that significant medical information will likely be contained in the report, including names of any treatment programs and dates of any treatment. It is my hope, that with such a report in hand, that perhaps Candice and I will be able to resolve the parenting issues that we are addressing through this litigation.

27In these circumstances the fourth branch of the test described in Ryan favours the release of the documents sought by the Applicant.

28The last step is to determine whether the scope of the disclosure is fair and appropriate. There is no evidence regarding the burden or cost of making the disclosure sought by the Applicant. In any event, the medical records disclosed to the Applicant shall be limited to only records related to the Respondent’s mental health and alcohol dependency issues and shall include any medical records referenced in the report prepared for the OCL. The Applicant and the Applicant’s counsel shall not share or otherwise communicate any information pertaining to these records with any person other than for the purpose of this litigation as it pertains to their daughter, Veronica. A decoded OHIP summary shall not be produced as it would amount to a fishing expedition in light of the Order that I have made.

ISSUE#2: SHOULD THE APPLICANT BE COMPELLED TO PRODUCE HER FINANCIAL AND EMPLOYMENT RECORDS TO THE RESPONDENT?

29The Respondent seeks the following orders:

(a) Copies of the Applicant’s monthly statements for her TD bank accounts, ending in 935 and 639;

(b) Copies of the Applicant’s monthly statements for her TD credit card, ending in 999, from January 1, 2014 to date;

(c) A letter from TD Bank setting out all accounts held by the Applicant since January 1, 2014;

(d) A letter from the Applicant’s employer setting out her work schedule.

30In her Application, the Applicant claims child support, both the table amount and section 7 expenses. As a result, the Applicant is required under Rule 13 of the Family Law Rules to serve and file a financial statement. In particular, Rule 13(3.3)5. requires that:

If the party had an interest in a sole proprietorship or was self-employed on the valuation date, for each of the three years preceding that date,

i. the financial statements of the party’s business or professional practice, other than a partnership, and

ii. a copy of every personal income tax return filed by the party, including any materials that were filed with the return.

31The Applicant has delivered a Financial Statement, dated October 3, 2017. Attached to that Financial Statement are the Applicant’s tax returns for 2014, 2015 and 2016. The tax return for 2014 shows business income of $725.38 (net) and attaches a supporting “Statement of Business or Professional Activities” which describes the expenses claimed. The tax returns for 2015 and 2016 do not report employment income nor business income.

32The Respondent’s affidavit evidence is that the Applicant has been employed as a personal trainer for about ten years and is self-employed as a personal trainer. He states:

Despite operating a business, Candice failed to list any interest in a business on her sworn Financial Statement. She has also failed to provide financial statements for the business, as required by the Family Law Rules. Her Income Tax Returns reveal that she has not declared any self-employment income for the years 2016 and 2015, when I know that she worked many hours those years. Further, Candice has advised that she does not issue invoices to her private clients and a handwritten accounting of monies she allegedly received in 2017 reveals that her business operated largely in cash. Operating in cash is no surprise to me as she has always told me that is how she is mostly paid. …

It is my strongly held belief that Candice is not accurately disclosing the self-employment income she earns and the information she has provided to date is not sufficient. Her annual income is relevant to the issue of child support, including the amounts we will each contribute toward any special or extraordinary expense. I am therefore requesting additional financial disclosure that will assist in confirming the amounts she receives and that her spending is commensurate with her purported income.

33The Applicant provided the Respondent with a list of the payments that she received from her clients (predominately in the form of cash) from January, 2017 until October, 2017. This statement is unsworn. The amount earned by the Applicant over these months averages about $2,100 per month.

34By letter dated February 20, 2018, counsel for the Applicant advised the Respondent as follows:

I can advise that my client is agreeable to producing the following:

1. Monthly statements for TD Account No. ending 935 from one year prior to separation, January 1, 2016 to date; and

2. Monthly statements for TD Account No. ending 639 from January 1, 2016 to date.

You are not entitled to the relief sought in subparagraphs 3(c), (d) and (e) of your motion. My client is prepared, however, to consent to an order for questioning of both parties.

35By letter dated February 27, 2018, counsel for the Applicant sent the following letter:

… Further to my letter to you dated February 20, 2018, enclosed please find copies of the following:

1. Monthly statements for our client’s TD Account No. ending 935 for the period from January 1, 2016 to date;

2. Monthly statements for our client’s TD Account No. ending 639 for the period from January 1, 2016 to date.

36The Applicant has denied that she was self-employed during 2015 and 2016. She has not provided a statement of income and expenses for 2015 and 2016. It is not too late to do so. In any event, the Applicant has provided her monthly bank statements for two bank accounts for 2016 but not 2015. There is no rational basis for providing 2016 but not 2015 given her obligation to disclose her self-employed income.

37I find the balance of the financial relief sought by the Respondent to be over-reaching if its purpose is to determine the Applicant’s income from self-employment in the years (2015 and 2016) for which the Applicant did not provide a financial statement for her business.

38Accordingly, I order that the Applicant provide the monthly statements for her TD bank accounts ending in 935 and ending in 639 for the year 2015.

CONCLUSIONS

39For the reasons given, I order that:

(1) The Respondent deliver to the Applicant a copy of the Respondent’s medical records, including records from his family physician, psychiatrist (Dr. Kalam Sutandar), and any other medical, psychiatric or health professional and any hospital and addiction treatment facility solely in relation to the Respondent’s mental health and alcohol dependency issues from January 1, 2015 to date. The Applicant and the Applicant’s counsel shall not share or otherwise communicate any information pertaining to these records with any person other than for the purpose of this litigation as it pertains to their daughter, Veronica Schuck.

(2) The Applicant deliver to the Respondent monthly statements for her TD bank accounts ending in 935 and ending in 639 for the year 2015.

40If the parties cannot agree on costs of this motion given their divided success, then the parties shall exchange written submissions (three pages maximum) within two weeks of today and the issue of costs shall be addressed in person at 9:30 am for 15 minutes on a date that is to be arranged by the parties with the Registrar.