Court File and Parties
COURT FILE NO.: FS-16-20713 DATE: 20181217 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: AMY JEAN BENSON, Applicant AND: MICHAEL KITT and TAMSEN KITT, Respondents
BEFORE: P. J. Monahan J.
COUNSEL: P.D. Schmidt and M. Larock, for the Applicant H. Niman and C. Van Wirdum for the Respondent Michael Kitt
HEARD: December 6, 2018
Endorsement
[1] The Respondent, Michael Kitt (“Kitt”), moves to have the Applicant, Amy Benson (“Benson”) answer four questions that were refused on her Questioning.
[2] For reasons that follow, I would dismiss the motion.
Background Facts
[3] Benson and Kitt were married in November 2002, separated on February 14, 2007 and were divorced on February 17, 2009. They have one child of the marriage, WK, born May 4, 2005.
[4] At the time the parties separated, they entered into a comprehensive separation agreement dated August 23, 2007 (the “Separation Agreement”) resolving all issues arising from their marriage, including custody of WK, child and spousal support, and equalization. With respect to child support, the Separation Agreement provided that Kitt would pay Benson $4000 per month (which was changed by the parties shortly thereafter to $4250 per month) and the parties would share equally the costs of WK’s s. 7 expenses.
[5] In 2013 the parties undertook mediation with Elizabeth Hyde (“Mediator Hyde”) to address issues of child support, as a result of which they entered into minutes of settlement (the “Minutes”). The Minutes increased table child support to $8500 per month, as well as providing for a lump-sum payment of $100,000 on account of retroactive child support. In addition, commencing January 1, 2013, Kitt would pay 75% of certain s. 7 expenses and Benson would pay 25%. The Minutes provided that the child support terms were fixed and non-variable until WK completed grade 8. The parties also agreed to sign an amending separation agreement incorporating the terms of the Minutes.
[6] No such amending separation agreement was ever signed. In fact, on June 28, 2013, Benson sent Kitt an email indicating that she had “grave concerns relating to the circumstances surrounding the minutes, the representations made and whether the minutes are fair, reasonable and appropriate.” Benson indicated that she was “considering my position and seeking advice in that regard.”
[7] A further complicating factor relates to the fact that between April 2012 and May 2015, Benson received a series of anonymous letters relating in part to custody and access issues relating to WK. The letters purported to be from a group which was supposedly monitoring these issues between Benson and Kitt. Benson indicates that these letters caused her to suffer considerable stress, anxiety and fears for the safety of herself and WK. Benson further states that the anonymous letters were tested and traces of the DNA of Kitt’s then wife, Tamsen Kitt (“TK”), were found on two of the letters. Charges of criminal harassment were laid against TK but were later withdrawn by the Crown.
[8] On March 7, 2016, Benson commenced the present proceeding seeking a determination of the terms of an appropriate parenting plan for WK. On December 13, 2016, Benson filed an amended application seeking a substantial increase in child support, on both a retroactive and going forward basis. She does not seek a declaration that the Minutes are invalid or should be set aside. Rather, she argues that this Court has jurisdiction to intervene and determine the appropriate amount of child support regardless of any agreement reached by the parties.
[9] In her amended application, Benson pleads that she did not pursue amendments to the Minutes as her efforts were focused on the investigation of the anonymous letters, which investigation commenced in the summer of 2013. Benson also pleads that she believed that Kitt was involved in the creation and transmittal of the anonymous letters and she therefore feared that any conflict with Kitt over child support would impact the harassing effect of the letters and his treatment of WK.
[10] A long motion was argued before Stewart J. in November 2017, resulting in an Endorsement dated December 22, 2017. Stewart J.’s Endorsement dealt with a variety of matters, including a motion seeking production of the file of Benson’s former solicitor, Herschel Fogelman (“Fogelman”), who had represented her in the discussions that led to the Minutes. Stewart J. dismissed the application for production of Fogelman’s file on the basis that it was subject to solicitor client privilege, which had not been waived. Moreover, Stewart J. held that the solicitor’s file was not relevant to the proceeding, since Benson had not put in issue her state of mind, her degree of understanding, or the quality of advice received in relation to the negotiation of the Minutes.
[11] Benson sought leave to appeal the decision of Stewart J but the application for leave was dismissed on May 25, 2018.
Benson’s Refusals at Questioning
[12] At issue on this motion are Benson’s refusals to answer the following questions, to which Kitt seeks answers or productions:
a. to advise if Fogelman wrote a reporting letter to Benson after the Minutes were signed; b. to assist in obtaining the file of Mediator Hyde from the February 2013 mediation, including Mediator Hyde’s screening report; c. to obtain and produce the file of Dr. Joe Goodman, who has been Benson’s therapist since September 2014; and d. to produce the file of Tom Klatt, a private investigator who was retained by Benson in 2014 to investigate the anonymous letters.
[13] I consider each of these claims in turn.
Fogelman Reporting Letter
[14] As noted above, Stewart J. dismissed Kitt’s previous request for production of Fogelman’s file on the basis that it was not relevant to an issue in dispute in the litigation. Fogelman’s file would have included any reporting letter. As such, in my view this request was previously considered and determined by Stewart J. and is res judicata.
[15] Even if that were not the case, the reporting letter would be subject to solicitor-client privilege. Where privilege has been established, the party seeking to set aside bears the onus of demonstrating why the communications ought to be disclosed. [1]
[16] A party will be deemed to have waived privilege when he or she makes their communication with a lawyer an issue in the proceeding. There is no express waiver in this case. A deemed waiver and an obligation to disclose a privileged communication requires two elements: (i) the presence or absence of legal advice must be relevant and material to a claim or defence; and (ii) the party who received the legal advice must make the receipt of it an issue in the claim or defence. [2]
[17] Benson does not seek to challenge the validity of the Minutes or have them set aside. As such, any legal advice she may have received from Fogelman in relation to the Minutes is not relevant or material to any claim she is making in the current proceeding. There is no basis to conclude that Benson has waived privilege over Fogelman’s advice, including any reporting letter she may have received.
[18] Accordingly, Benson is not required to disclose any reporting letter she may have received from Fogelman.
Mediator Hyde’s File
[19] Settlement privilege is a common law rule of evidence that protects communications exchanged by parties as they try to settle a dispute. It enables parties to participate in settlement negotiations without fear that information they disclose will be used against them in litigation, thereby promoting honest and frank discussions and the possibility of achieving settlement. [3] Settlement privilege applies even in the absence of contractual provisions providing for confidentiality.
[20] In this case, there were in fact contractual provisions expressly providing that the mediation represented “without prejudice settlement discussions” and that any disclosures, including the mediator’s file, would be inadmissible in any subsequent litigation. The relevant provisions in the Family Agreement to Mediate include the following:
The parties agree that the mediation sessions are settlement negotiations and that any disclosures, including the mediator’s file, are inadmissible in any litigation, arbitration or other proceedings to the extent permitted by law. The parties agree to not summons or otherwise require the mediator to testify or produce records or notes in any proceedings. No transcripts or recordings shall be made of the mediation sessions.
In particular, the parties agree that they shall not rely on or introduce as evidence in any arbitral or judicial proceedings:
(e) any information provided or intake form completed by a party and provided to the mediator in the course of the intake/screening meetings, and (f) any contents of the mediator’s file including her notes.
[21] I find no ambiguity in these provisions, which clearly provide that all discussions conducted and documents disclosed during the course of the mediation are subject to settlement privilege and are inadmissible in any subsequent proceedings. Counsel for Kitt attempted to argue that the words “to the extent permitted by law” in the first sentence of paragraph 15 above suggested that the parties contemplated the use of disclosure obtained in the course of the mediation in subsequent judicial proceedings. In my view, the words “to the extent permitted by law” suggest precisely the opposite, namely, that disclosure obtained during the mediation shall be inadmissible unless there is some positive legal requirement for disclosure. Kitt has not identified any such positive legal obligation to disclose the settlement negotiations with Mediator Hyde. It is therefore clear that the mediation discussions, as well as Mediator Hyde’s file, are subject to settlement privilege.
[22] Although there are certain recognized exceptions to settlement privilege, none of these exceptions applies in this case. To come within an exception to settlement privilege, it must be shown on a balance of probabilities that a competing public interest in disclosure outweighs the public interest in encouraging settlement. [4] Benson has not alleged that she was under duress, undue influence or that unconscionable circumstances existed at the time of the Minutes. Further, the existence or interpretation of the Minutes is not in dispute. On this basis, the contents of the mediator’s file are not relevant to any issue in dispute in the litigation. There is no basis to displace settlement privilege with respect to Mediator Hyde’s file, including her screening notes.
Dr. Goodman’s File
[23] At the time of the negotiation of the Minutes, Benson had been receiving counselling services from a counsellor by the name of Joanne Greenham. In September 2014, after Greenham had passed away, she began seeing Dr. Goodman (“Goodman”). At her Questioning on June 21, 2018, she was asked about her discussions with Goodman, as follows:
Q. Is he the only therapist? A. Yeah. Q. Are you honest with him? A. Very. Q. You talked to him about your case? A. For sure. Q. Do you talk to him about the letters? A. Yes. Q. And you talk to him about how those letters affected you? A. Definitely Q. Will you produce Dr. Goodman’s file? Ms. Larock: I will take that under advisement.
[24] In a November 28, 2018 letter from Benson’s counsel, Goodman is described as a “litigation consultant”. However counsel subsequently advised that this description was in error and that Goodman has been a therapist and not a litigation consultant.
[25] Kitt argues that disclosure of Goodman’s file is relevant to Benson’s claim that she delayed commencing her application for increased child support because of the anonymous letters. As noted above, Benson has pleaded that she did not pursue amendments to the Minutes following their negotiation in February 2013 because her efforts were focused on the investigation of the anonymous letters, which investigation commenced in the summer of 2013.
[26] Rules 19 and 20 require a party to disclose documents within their control that are “relevant to any issue in the case.” Relevance depends on the facts in issue. For evidence to be relevant, it must tend to “increase or diminish the probability of the existence of a fact in issue”, although there is “… no minimum probative value required for evidence to be relevant.” [5] The standard of “relevant to any issue in the case” is a slight narrowing of the former rule, which provided for questioning “relating to any matter in issue”. [6]
[27] Neither party proposes to call Goodman as a witness in the case and it is unclear how any of his notes could either prove or disprove Benson’s claim that she did not pursue amendments to the Minutes because of her concerns over the anonymous letters. Although Benson acknowledged on her Questioning that she had discussed the anonymous letters as well as the litigation with Goodman, there is no indication that Benson discussed her claims for child support with him. Goodman’s notes would appear to have little or no probative value in relation to matters at issue in this litigation.
[28] On the other hand, courts have noted that the disclosure of counselling records is highly intrusive and there are compelling reasons for preserving the confidentiality of communications between patient and therapist. The Supreme Court of Canada in M. (A). v. Ryan, 1997 SCC 403, [1997] 1 SCR 157 at paragraph 20 relied upon the well-known “Wigmore” test to determine whether counselling records sought to be produced in litigation are subject to a case-by-case privilege. [7]
[29] The first three elements of the test require that the communication must originate in a confidence; that the confidence must be essential to the relationship in which the communication arises; and the relationship must be one which should be “sedulously fostered” in the public good. In the event that these first three elements of the test are satisfied, the court must then consider whether the interest served by protecting the communications from disclosure outweighs the interest in getting at the truth and disposing correctly of the litigation. McLachlan J. (as she then was) made the following observations with respect to this balancing required under the fourth element of the test: [8]
[D]ocuments of questionable relevance or which contain information available from other sources may be declared privileged. The result depends on the balance of the competing interests of disclosure and privacy in each case. It must be borne in mind that in most cases, the majority of the communications between a psychiatrist and her patient will have little or no bearing on the case at bar and can safely be excluded from production. Fishing expeditions are not appropriate where there is a compelling privacy interest at stake, even at the discovery stage.
[30] I find that Goodman’s counselling records meet the first three elements of the Wigmore test, since communications between Benson and her therapist originated in a confidence, that confidence is essential to the patient/therapist relationship, and this is a relationship which should be fostered in the public good. With respect to the fourth element of the Wigmore test, the Goodman file is of, at best, marginal relevance to the issues in dispute in this litigation and is extremely doubtful that it will provide any assistance at trial. I am also mindful of the comments of McDermot J. in Kaplan v. Kaplan, 2015 ONSC 1277 at paragraph 132 to the effect that courts should not countenance as a “fishing expedition” designed to “overturn a rock which would provide some ammunition in [his] coming battle.” [9] As McDermot J. noted, absent a prima facie case of relevance, which I find is not been established in the present circumstances, extensive and intrusive disclosure of therapeutic records should not be ordered.
[31] I therefore decline to order the production of Goodman’s file.
Investigator Klatt’s File
[32] In 2014, Benson retained a private investigator, Tom Klatt, to investigate the anonymous letters. Benson claims that Klatt was retained in contemplation of the criminal proceeding against TK as well as of other litigation. However, the DNA reports which led to the criminal charges against TK were not prepared by Klatt or his investigative firm.
[33] Kitt claims that Klatt’s file is relevant to Benson’s belief that Kitt was involved with the creation and transmittal of the anonymous letters and therefore should be produced. Benson denies that Klatt’s file is relevant to any issue in the litigation and, in any event, argues that the file is subject to litigation privilege.
[34] In my view, Kitt has not explained how the contents of the private investigator’s file are or could be relevant to any issue in dispute in the litigation. Kitt does not dispute the fact that Benson received anonymous letters and retained Klatt to investigate. (In any event, even if the nature of Klatt’s retainer were in issue, it could be resolved without requiring the production of his file.) Given these agreed facts, I see no basis for concluding that the manner in which Klatt carried out his investigations is or could be relevant to Benson’s claim for retroactive child support. There is no suggestion that Benson discussed her claim for child support with Klatt. Kitt has failed to identify any materials that might be in Klatt’s file that could tend to support or undermine Benson’s claim to retroactive child support. Requiring production of Klatt’s file would also lengthen, complicate and add to the cost of these proceedings, which would be inconsistent with the principle of proportionality that underlies the Family Law Rules.
[35] I therefore conclude that Benson is not required to produce Klatt’s file.
[36] Given this conclusion, it is unnecessary for me to consider whether Klatt’s file is subject to litigation privilege.
Disposition
[37] The Respondent’s motion is dismissed.
[38] I encourage the parties to attempt to settle the matter of costs. In the event that they are unable to do so, the Applicant may make written cost submissions of up to three pages (excluding Bills of Costs and Offers to Settle) by January 7, 2019, and the Respondent may make costs submissions on the same basis by January 21, 2019.
P. J. Monahan J. Date: December 17, 2018
[1] Spicer v. Spicer, 2015 ONSC 937 (SCJ) at paragraph 21. [2] Creative Career Systems Inc. v. Ontario, 2012 ONSC 649 (SCJ) at paragraph 30. [3] Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35, [2014] 1 S.C.R. 800 at paragraph 31. [4] Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, [2013] 2 SCR 623 at paragraph 19. [5] R. v. Arp, 1998 SCC 769, [1998] 3 SCR 339 at paragraph 38; Korn v. Korn, 2017 ONSC 4934 at paragraph 32. [6] Ontario v. Rothman's Inc., 2011 ONSC 2504 at paragraph 29. [7] M. (A). v. Ryan, 1997 SCC 403, [1997] 1 SCR 157 at paragraph 20. [8] Ryan at paragraph 35. [9] Kaplan v. Kaplan, 2015 ONSC 1277 at paragraph 132.