Court File and Parties

Court File No.: FC-18-610 Date: 2019-03-27 Superior Court of Justice - Ontario

Re: Gayle Devaney, Applicant -and- Patrick James Devaney, Respondent

Before: Madam Justice Julie Audet

Counsel: Ron Paritzky, for the Applicant John Summers, for the Respondent

Heard: March 26, 2019

Endorsement

[1] This motion was brought by the Applicant, Ms. Devaney, seeking an order that the Respondent, Mr. Devaney, be required to attend in Ottawa at the office of Catana Reporting Services (“Catana”) within 21 days to be questioned. Mr. Devaney seeks an order allowing him to be questioned via Skype.

[2] The issues in this case are support and property. At the time of the parties’ separation, they lived in Carp, Ontario, where Ms. Devaney still resides. In April 2018, Mr. Devaney moved to Virginia, U.S.A., where he currently works. In November 2018, the parties’ then counsel (Mr. Paritzky for Ms. Devaney and Mr. Delaney for Mr. Devaney) agreed to the questioning taking place in Ottawa on December 7, 2018, at Catana. I have reviewed the email exchanges between counsel and there appears to have been no specific discussion around whether questioning could/should take place in Virginia. Everybody simply assumed that it would take place in Ottawa, and that is what was agreed to.

[3] On November 27, 2018, Mr. Delaney wrote to Mr. Paritzky the following:

My client is concerned about his emotional ability to attend at examinations for discovery – hopefully our negotiations bear fruit. If not that may be a challenging issue to deal with.

[4] In his responding email that followed the next day, Mr. Paritzky did not address the issue of Mr. Devaney’s potential inability to attend. On December 6, 2018, the day prior to the scheduled date for questioning, Mr. Delaney wrote to Mr. Paritzky to advise that Mr. Devaney would be unable to complete the examination personally, and he offered to handle the IT set up to allow for questioning to take place via Skype. Mr. Paritzky voiced his objections to proceeding in this matter and advised that he would attend at Catana the next day to obtain a certificate of non-attendance. Mr. Delaney reiterated his previous offer to take care of the IT set up for questioning to take place via Skype. Mr. Devaney did not come to Ottawa and the questioning did not proceed as planned on December 7, 2018.

[5] In his affidavit sworn February 28, 2019 for the purpose of this motion, Mr. Devaney (now represented by Mr. Summers) explains his inability to attend on December 7th, 2018 as follows:

The Applicant served a Notice of Questioning on my previous counsel for me to attend in Ottawa on December 7th, 2018. At the time that the Applicant was attempting to schedule Questioning, I thought that I might be coming to Ottawa and so I agreed, at that time only, to be examined in Ottawa. Unfortunately, my plans changed and I could not come to Ottawa. My previous lawyer advised the Applicant’s lawyer in advance that I would not be attending on December 7th.

[6] Mr. Devaney further explains that he suffers from anxiety and bi-polar disorder, which impede on his ability to travel. He indicates that he traveled to Ottawa in June of 2018 to attend mediation but that the stress and anxiety associated with the experience caused him to have an emotional “break” and the mediation had to be discontinued.

[7] Following the failed mediation, Mr. Devaney was assessed for mental health disorders. A lengthy psychological assessment prepared by Dr. Ling, a psychologist, was completed in the summer of 2018 to address Mr. Devaney’s demonstrated issues with emotional volatility and social relationship issues. Testing data indicated a significant level of emotional dyscontrol and dysregulation as well as a heightened emotional reactivity to circumstances, with Mr. Devaney tending to respond to small changes in the situation demand or immediate circumstances. He was ultimately diagnosed with Bipolar II Disorder, Anxious Distress, Attention Deficit and Hyperactivity Disorder, Unspecified Neurodevelopmental Disorder and Alcohol Use Disorder. There were several recommendations made to assist him in overcoming his mental health challenges.

[8] Rule 20(11) of the Family Law Rules, O. Reg. 114/99 provides that questioning is to take place in the municipality in which the person to be questioned lives, unless that person and the party who wants to do the questioning agree to hold it in another location. Ms. Devaney takes the position that Mr. Devaney, through his previous counsel, had agreed to hold the questioning in Ottawa and that he should not be permitted to renege on this agreement at this time.

[9] I disagree. Mr. Devaney’s potential inability to come to Ottawa to attend questioning as a result of his mental health challenges was raised by his counsel as early as November 27, 2018, ten days prior to the scheduled date for questioning. While Mr. Devaney does not provide much details about why his plans to travel to Ottawa changed, his affidavit as a whole leads me to the clear conclusion that his mental health issues were the cause of his change of plans.

[10] Further, I am of the view that Mr. Devaney proposed a reasonable alternative to his personal attendance by offering to be questioned via Skype. Counsel for Ms. Devaney argues that questioning through Skype is less effective and more problematic than in-person questioning, particularly when there are many documents that need to be explored with the witness. He argues that there is nothing like looking a person in the eye while asking questions to get at the bottom of the truth.

[11] While I appreciate that in-person questioning is preferable in most cases, and may be more efficient when there is an important number of documents to review with the deponent, this is not sufficient to force in-person attendance when the circumstances as a whole justify a different method of examination.

[12] As stated in Rule 2(2) of the Family Law Rules, the primary objective of the Rules is to deal with cases justly. Dealing with cases justly includes ensuring that the procedure is fair to all parties and leads to reduced time and expenses allowing cases to be dealt with in ways that are appropriate to their importance and complexity. Rule 1(7.2) gives the court a wide variety of powers to make procedural orders aimed at achieving this objective; it specifically allows the court to direct that questioning be conducted in accordance with a plan established by the court or that a witness give all or part of his or her evidence by a method that does not require the witness to attend in person. Rule 20(14) allows the court to determine the parameters around questioning when a person lives outside of Ontario and will not come to Ontario to be questioned.

[13] Several court facilities now offer videoconferencing in civil and criminal proceedings to increase access to justice to litigants, and meet the objectives of dealing with cases justly. I am advised by counsel for Mr. Devaney that questioning via videoconferencing is available at Catana and that this service provider has the necessary technology to facilitate this type of examination. Counsel for Mr. Devaney confirms that all of the documents that counsel for Ms. Devaney intends to question Mr. Devaney on will be made available to him well ahead of time, and if produced in an organized fashion (in tabbed binders), they will be easy to refer to during questioning. I am also advised that any additional documents not already produced can be faxed or emailed to Mr. Devaney by Catana staff within a matter of minutes.

[14] In the circumstances of this case, I find that the questioning of Mr. Devaney through videoconferencing is an appropriate and efficient way to achieve a fair and just result. While I do not accept Mr. Devaney’s claim that he does not have the financial means to travel to Ottawa to attend questioning (he earns over $100,000 U.S.), I do accept that forcing him to travel to Ottawa to be questioned presents important challenges for him at this time in light of his recently diagnosed mental health challenges. I also accept that requiring him to attend to questioning in Ottawa will result in additional time missed at work, and unnecessary costs.

[15] My only remaining concern is to insure that this method of questioning will not be used by Mr. Devaney as a means to delay or frustrate this process. Without going into all of the details, the history of this case suggests to me that Mr. Devaney has not always cooperated in the due resolution of this matter, and it is important that parameters be put into place to ensure that questioning proceeds in a fair and effective manner. As a result, the following temporary order shall issue:

1. Questioning of Mr. Devaney shall proceed via teleconferencing, to be arranged through Catana Reporting Services.
2. Mr. Devaney shall attend a court reporting services facility in Virginia from where he will be questioned via teleconferencing. His questioning shall also be recorded by the court reporting services facility in Virginia to avoid disagreements over the answers given by Mr. Devaney from that location. There shall be nobody else in the conference room other than Mr. Devaney himself and the reporter.
3. The cost associated with the court reporting in Virginia shall be assumed by Mr. Devaney.
4. The parties shall, within ten days, agree on the date at which Mr. Devaney will be questioned.
5. I shall remain seized of any motions or conferences pertaining to issues or disputes related to the parties’ questioning, including issues or disputes related to the implementation of this order.

[16] While Ms. Devaney is the successful party in this motion, it was made necessary as a result of Mr. Devaney’s failure to attend questioning in Ottawa as scheduled and agreed upon. As such, success was divided and I am not inclined to make any award of costs. If there are circumstances unknown to me which, in the parties’ view, would support a costs award being made, I will accept brief written submissions on costs not exceeding two pages (exclusive of Offers and Bills of Costs). Ms. Devaney shall provide her submissions within 15 days and Mr. Devaney within 15 days thereafter, with a right of reply (not exceeding one page) to be provided within 5 days thereafter.

Madam Justice Julie Audet Date: March 27, 2019