Court File and Parties

COURT FILE NO.: 766/16 DATE: 2019-05-16

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

D.D. Applicant

F.D. Applicant

• and -

H.G. Respondent

BEFORE: The Honourable Mr. Justice A. Pazaratz

COUNSEL: Mr. Angelo P. Fazari, for the Applicants H.G., Self-Represented Respondent

HEARD: May 3, 2019

Addendum

1. In paragraphs 110(c) and 110(d) of the judgment issued May 13, 2019, the reference to “the father” should be replaced with “F.D.” (i.e. the paternal grandmother).

Judgment

1. Every trial that starts should finish.
2. You’d think that goes without saying.
3. But what do we do when the end isn’t even remotely in sight?
4. What do we do when a trial starts, and then gets bogged down? And each side asks a judge who has only heard part of the evidence to make really tough decisions pending the unknown date – or even year – when the trial will finally end.
5. That was the issue on this mid-trial motion within an incredibly complex and nasty family trial.
6. The following is a very quick overview of the personalities, dynamics and issues: a. For ease of reference I will refer to D.D. as “the father”; H.G. as “the mother”; and the paternal grandmother F.D. as “F.D." b. The father and mother were married on […], 2008. c. They have two sons now ages 12 and 8. d. They initially separated in 2011. There were criminal charges against the father. He eventually pleaded guilty to a charge and received a discharge. e. They may or may not have reconciled, depending on who you believe. f. They consented to a final order in August 2012. That order included custody to the mother, with the father to pay spousal and child support. g. There was a further period when they may or may not have reconciled, depending on who you believe. h. There was another criminal charge against the father in October 2012. He eventually pleaded not guilty, but was found guilty of assaulting the mother. He received another discharge. i. The children remained with the mother. j. The father fell out of touch with the children. k. Then in the spring of 2013 the father discovered that the mother had taken the children to Alberta. l. Then the father received information that the mother had fled to Alberta because she had been bouncing around from shelter to shelter with the children here in Ontario. The father’s information was that the mother was basically homeless; that the mother kept leaving shelters because staff expressed concern about her parenting; and that the mother fled Ontario with the children to escape several children’s aid societies which were about to swoop in. m. The mother denies that background information, but admits she took the children to Alberta without telling the father. She says they were all doing fine in Alberta. n. The father then started court proceedings in Ontario to have the children returned (a) to this Province, and (b) to him. o. The mother then started court proceedings in Alberta to allow the children to remain there. p. The court in St. Catharines prevailed, and a series of orders were made requiring the mother to return the children. q. But the mother refused to return the children. The mother was found in contempt and imprisoned. r. Child protection authorities eventually arranged for the children to be returned to Ontario. s. But upon their return to Ontario, Family and Children’s Services (FACS) apprehended the children and commenced a child protection application in Welland. t. In December 2013, FACS placed the children with F.D.. They have been living in her home ever since. Early in 2014 the father was allowed to move into that home as well. Accordingly the children have been living with the father and F.D. for more than five years. u. Meanwhile, the mother successfully appealed the St. Catharines order requiring that the children be returned to Ontario and placed in the father’s custody. But, as stated, even though the Court of Appeal determined that the mother’s custody order should be reinstated, the intervening child protection proceeding precluded the children from ever being returned to the mother. v. For a period of time the mother’s access to the children was supervised. Then it became unsupervised. Then there were problems so it became supervised again. Eventually it became unsupervised again. But even though the most recent order allows the mother unsupervised access on alternate weekends, she rarely sees them. On one occasion she had to call the police because she says she was attacked by her younger son. So clearly there have been problems with access. w. There were a couple of adult assessments which didn’t resolve very much. x. The Office of the Children’s Lawyer (OCL) then prepared a detailed s.112 report which recommended custody to the father, with an alternate recommendation of custody to F.D.. In either event, the OCL report noted that the mother wasn’t visiting the children regularly, so there were specific recommendations about trying to improve the frequency and quality of the relationship between the mother and the children. y. The mother disputes most of the OCL’s findings and recommendations. z. Eventually, FACS withdrew with respect to the Welland child protection proceeding, and the family dispute was then left to be determined by this court in St. Catharines. aa. Technically this is a motion to change that August 2012 final order which looks like ancient history at this point. With all the complexity and credibility determinations, everyone agreed this “motion to change” would proceed as a (very long) oral hearing.
7. That’s the short version. a. Sadly, it’s much more complicated than that. b. The level of conflict has been compounded by the fact that even by family court standards there is an unusually high level of animosity on this file. c. And to make matters worse, the self-represented mother and counsel for the father and F.D. don’t get along (either in or out of the courtroom). I mention this, not to blame either one of them, but simply to provide additional insight as to why nothing seems to go easily on this file.
8. So this has been a very difficult trial. And as stated, it’s not nearly over.

The Current Motion

9. Before I review the chronology of this trial, it will help if I briefly summarize the nature of the mid-trial motion brought by the father: a. One of the main issues is spousal support. b. The father has been paying spousal support since separation. He currently pays $2,000.00 per month. This includes $240.00 per month towards arrears currently listed by the Family Responsibility Office (FRO) as more than $62,000.00. The father insists that arrears figure is mathematically incorrect. He says after the court makes all necessary adjustments, it will be clear that there are no arrears. c. He notes that the existing spousal support order was made at a time when both children were living with the mother. But for more than five years both children have been living with the father and F.D.. He says he’s already paid spousal support longer than the period suggested by the Spousal Support Advisory Guidelines, even if the children had remained in the mother’s care. He says he can’t and shouldn’t be sending money to the mother, while she makes no contribution toward the children. d. At trial, the father seeks a retroactive termination of spousal support and a refund of what he characterizes as a significant overpayment. e. At trial, the mother wants spousal support to continue, with an increase both retroactively and prospectively. f. This trial was scheduled to commence in October 2018 and to be completed by November 2018. g. But within days, the trial was derailed because the mother keeps calling in sick. h. In the eight months since the trial started, we have only managed 21 days of trial time – an average of less than 3 days per month. i. The father submits that to make matters worse, we’re not just missing a lot of trial days – but those days when we sit for trial are not very productive, because the self-represented mother wastes a lot of time with inefficiencies. That’s why after 21 days of trial we’re still on only the fourth witness, and we appear to be less than half-way through what was originally expected to be a five week trial. j. The father submits the mother is deliberately stalling – repeatedly calling in sick, and trying to drag out the trial – because she wants to keep receiving those $2,000.00 per month spousal support payments as long as possible. k. The father says the mother is impecunious so money only flows in her direction. He pays her spousal support. But she isn’t paying the $220.00 per month child support ordered against her. She hasn’t paid costs previously ordered against her. Any future costs order will be uncollectable. And she’ll never be able to reimburse him if the court orders her to refund any overpayment of spousal support. l. Basically, the father is asking the court to suspend spousal support – on a without prejudice basis, pending completion of the trial – to remove the mother’s incentive to cause further delay. m. The father insists his motivation to speed up the trial is not just financial. He says there are important children’s issues which need to be resolved. Neither party is saying the current parenting arrangement should continue. For this reason it is imperative that the trial be completed as quickly as possible. n. The father says the mother keeps coming up with excuses to delay completion of the trial, because she has good reason to anticipate that the outcome of the trial will be unfavourable for her on just about every topic. o. He says the mother realizes her custody claim has little merit, because the children have been with the father and the paternal grandmother since December 2013. FACS has no concerns about that arrangement, and the OCL has actually recommended that it continue. p. He says if the mother was serious about pursuing custody, she’d be the one in a hurry to undo the status quo. He notes that the mother hardly ever even visits the children, so the mother’s “custody” claim is really somewhat phantom. q. The father says the mother is not only unconcerned about legal fees – because she is not incurring any – but she is recklessly and deliberately causing the father’s legal fees to mount, by making the trial process as inefficient and protracted as possible. He says he can’t afford to keep paying a lawyer for an endless trial with countless unproductive adjournments. r. The father rejects the idea that he is being insensitive to the mother’s health issues. An important part of the father’s narrative on the parenting issues is that the mother constantly uses vague and uncorroborated health issues as her “excuse” for cancelling most of her visits with the children. s. He feels very strongly that the mother is using “health issues” as a strategic device, to avoid all of her responsibilities. t. In the father’s view, the mother has been saying for years that she is too sick to work; too sick to visit the children; and now she’s saying she’s too sick to consistently participate in the trial. u. But he notes that the mother rarely provides any particulars (let alone corroboration) of the details of her illness. v. The father’s counsel Mr. Fazari notes that at the same time that the mother keeps saying she is too sick to participate in this family trial, she is aggressively pursuing two separate civil actions: One against the father in Newmarket for $1,000,000.00 in damages. And a separate damages claim against FACS.
10. The mother disputes the entirety of the father’s theory and request. a. She denies stalling. b. She denies having any incentive to stall, because she expresses confidence that at the end of the trial she will be awarded increased spousal support. c. She says she is legitimately sick, and that she too regrets that the trial has been prolonged. d. And she says it is the father who is being strategic, by seeking to strip her of the financial resources she requires to keep pursuing her claims.
11. In that context, here’s how the trial has unfolded.

Jan. 2018: Trial Scheduled

12. This file has consumed so many judicial resources that it was ultimately case managed by Regional Senior Justice Arrell.
13. In January 2018, with the participation of all parties, the matter was set for a five week trial on the long trial sittings in October 2018.

July 2018: Trial Confirmed

14. In July 2018, Justice Arrell dealt with a number of matters including disclosure. The court reaffirmed that the trial would have to proceed in October 2018 as it was in the best interests of the children to resolve their situation, after more than six years of bitter litigation and disruption.

Oct. 11/18: Trial Day 1

15. The trial commenced in St. Catharines on October 11, 2018. a. It was scheduled to proceed for five consecutive weeks, possibly subject to a couple of missed days as a result of scheduling issues. b. It was anticipated that even with a few brief interruptions, the five weeks of trial time which had been set aside would be sufficient to allow the entire trial to be completed by November 2018.
16. At the opening of the trial the mother immediately requested an indefinite adjournment of the trial, citing a number of reasons. a. She generally described health issues interfering with her ability to focus on the trial. She said she needs to focus on her health. b. She said she was in therapy for Post-Traumatic Stress Disorder (PTSD) as a result of the father’s abusive behavior prior to separation in 2011 and a further assault in 2012. c. She said she had “a filing cabinet full of doctors’ notes” but did not present any medical or professional evidence or reports. She provided no professional or independent corroboration of any impediment to her participating in the trial. d. She also wanted an adjournment so that she could attempt to retain a lawyer through Legal Aid. e. She said she was having difficulty dealing with an “avalanche” of materials filed by the father. f. She said FRO had suspended her driver’s licence as a result of her non-payment of child support. She said she wasn’t sending child support to FRO because she wasn’t consistently receiving spousal support through FRO. g. She complained about a general lack of financial resources to attend in St. Catharines to participate in the trial, noting that she resides north of Toronto.
17. Mr. Fazari, on behalf of the father and F.D., strenuously opposed the adjournment request. He submitted: a. The mother had previously attempted to delay the trial without success. She was simply repeating submissions which had already been rejected by other judges. b. Despite the mother’s request that the trial be delayed, in both January and July 2018, Justice Arrell specifically ordered that this long-outstanding matter needed to be finalized, for the sake of the children. c. The court had set aside a significant block of trial time, and Mr. Fazari had cleared his schedule to be available to proceed with this multi-week trial. d. Multiple witnesses had been arranged and were on stand-by to testify, including professional witnesses. e. One of the primary issues is the custody/access dispute which has been ongoing and intensively litigated since 2012. f. As recently as August 17, 2018, in denying the mother’s request for an adjournment with respect to an aspect of this file under appeal, the Ontario Court of Appeal noted that “the parental conflict must end.” g. A major issue relates to the findings and recommendations of the detailed section 112 report prepared by the OCL. The father and F.D. adopt the report and recommendations, virtually in their entirety. The mother challenges many of the report’s findings and recommendations. The comprehensive section 112 report was issued April 27, 2017, and it was important for the court to determine parenting issues while the report was still relatively current. Mr. Fazari submitted that by intentionally delaying the trial, the mother was seeking to water down the relevance of the report. If the trial came to be further delayed by even months (let alone indefinitely), at a certain point most of the detailed work done by the OCL social worker would become out of date. This could predictably give rise to a request for an updating report, which would not only create even further delay – but it would also needlessly subject the children to yet another round of professional intervention and intrusion in their lives. h. While the mother claims that as a self-represented litigant she is too overwhelmed to represent herself at this trial, the mother has a history of skillfully preparing materials and detailed motions, without any counsel appearing on record. He suggested the mother is actually a skilled and relentless litigator, and that she is seeking any possible excuse to delay a trial where she fears the outcome will be unfavourable. i. Similarly, Mr. Fazari noted that the mother’s complaint about an inability to come to St. Catharines for the trial had already been considered and rejected. She previously brought a motion for a change of venue, and that motion was dismissed by Justice Arrell. j. Mr. Fazari denied that there was any unfairness with respect to the timing or volume of trial documents the mother had been presented with. The disclosure issue had been thoroughly canvassed in case management. The father had been given a deadline of September 8, 2018 to serve his trial documents, and the mother was actually served on September 6, 2018. Most of those documents were simply copies of FACS records and previous pleadings in the Ontario Court of Justice child protection proceeding in Welland. The mother was already well acquainted with by far the majority of the documents assembled by the father in document briefs. k. Mr. Fazari also submitted that while adjournments are sometimes granted if the prejudice can be compensated in costs, in this case the prejudice to his clients could not realistically be compensated by any costs order. The mother has failed to pay previous costs orders, and she is impecunious. So the financial prejudice of a delayed trial could not realistically be addressed or alleviated. l. Beyond potential financial prejudice, Mr. Fazari focused on actual prejudice to the children. There was a significant dispute as to appropriate parenting arrangements, both in terms of the custody designation; primary residence; and timesharing. These issues needed to be resolved, for the emotional well-being and security of the children.
18. I dismissed the mother’s opening-of-trial request for a potentially lengthy adjournment. a. I accepted most of Mr. Fazari’s submissions, including especially that this long trial had been scheduled many months earlier with the specific objective of bringing some resolution to the lives of two young children who desperately require (and deserve) resolution and stability. b. The mother has at various times been represented by counsel. She has always been aware of the benefits and potential availability of counsel. She has always been aware of the option to apply for Legal Aid. c. Most of the mother’s reasons for requesting an adjournment had previously been considered and rejected by other judges. This included her general (and recurring) complaint about pre-occupying medical issues in her life. But the mother provided no specific information or corroboration about the nature or anticipated duration of any medical limitations. d. The mother was well aware that a great deal of coordination goes into scheduling a long trial. If the parties squandered the five weeks which had been set aside for them eight months earlier, it would inevitably be many more months before a similar block of trial time could be arranged. Further lengthy delay would be unfair to everyone – especially the children.
19. Once it was determined that the trial would proceed, a somewhat related issue arose when Mr. Fazari attempted to file a Request to Admit which had been served upon the mother – which she had not responded to. a. The mother acknowledged that she had been served with the Request to Admit on September 7, 2018. b. She acknowledged that as of the first day of trial October 11, 2018, she had not filed a response to the Request to Admit. c. However she requested an order that her non-reply did not constitute an admission, or alternatively for an order extending time to file her Response to Request to Admit.
20. The mother’s explanation for her failure to respond mirrored her submissions in support of her unsuccessful request for an adjournment of the trial. She said: a. She felt overwhelmed as an self-represented litigant. b. She said she had health problems which resulted in her being hospitalized between September 27 and October 4, 2018 (the father’s counsel noted that her hospitalization didn’t commence until the 20 days for responding to the Request to Admit had already elapsed). The mother provided no specifics or documentation in relation to that hospitalization. c. She said that since receiving the Request to Admit on September 7, 2018 she had “browsed through it”, but she needed more time to review it. She anticipated she could file a response within a week (which would be of limited assistance since, at that point, it was anticipated the father would already be well into his evidence on topics which could have been narrowed pursuant to the Request to Admit).
21. I declined the mother’s request for an extension of time to respond to the Request to Admit while the trial proceeds. A mid-trial response to a Request to Admit largely defeats the purpose.
22. But as an accommodation, I granted the mother’s motion that her failure to respond to the numbered paragraphs in the Request to Admit would not be deemed to constitute an admission. a. This, of course, was subject to very specific costs considerations which might apply if it turned out that needless trial time would be spent establishing facts which should not have been disputed. b. I mentioned those costs consequences, being mindful of Mr. Fazari’s recurring submission that costs consequences are meaningless for impecunious litigants who don’t pay costs orders. c. As it turns out, the mother’s refusal to acknowledge some of the evidence and documentation referred to in the father’s Request to Admit did in fact result in significant extra time being spent during the first 21 days of trial, formally presenting certain evidence which could easily have gone in on consent.
23. After those time-consuming preliminary issues, the trial finally commenced.

Oct. 12/18: Trial Day 2

24. On the second day of trial, October 12, 2018: a. Court opened as usual at 10:00 a.m. b. However the mother had telephoned court staff at 9:30 a.m. to advise that she was running late as a result of traffic, and she expected to arrive by 10:30 a.m. c. Everyone else – including the OCL social worker as the first witness – was present in the courtroom at 10:00 a.m. We stood down waiting for the mother. d. As it happens, the mother did not arrive in the courtroom until 11:20 a.m. e. I explained to the mother that while it was understandable that delays might occur in exceptional circumstances, it was very important that everyone arrive on time for court, so that limited trial time is used efficiently.
25. The OCL social worker gave evidence for the balance of the day.

Oct. 15/18: Trial Day 3

26. Day Three of the trial proceeded on October 15, 2018.

Oct. 16/18: Trial Day 4

27. On Day Four of the trial, October 16, 2018, the mother again arrived late and court was not able to start until 10:35 a.m. a. She had e-mailed the court earlier in the morning to advise that she was running late as a result of transportation problems. She said she would arrive at 10:30 a.m. b. I again advised the mother that it was essential that all parties make all necessary arrangements to arrive on time for 10:00 a.m. court.
28. On Day Four, the father commenced his evidence as the second witness.
29. After the lunch break on Tuesday October 16, 2018 the mother advised that she was not feeling well and could not remain in court for the balance of the day. There had already been agreement that we would not be sitting on October 17, 2018 (as a result of my court commitment in another city). I adjourned the trial to resume Thursday October 18, 2018 at 10:00 a.m.
30. After I left the courtroom I was advised that the mother had fainted and that she had been taken to hospital by ambulance.
31. On Wednesday October 17, 2018, the mother e-mailed to the court a note from a doctor at Hamilton General Hospital. The note indicated the mother couldn’t “return to work” until Friday October 19, 2018. Based on that note, I had court staff notify the parties that the trial would not be resuming on Thursday October 18, 2018, but that instead we would resume Friday October 19, 2018.

Oct. 19/18: Trial Day 5

32. On Friday October 19, 2018 everyone except the mother attended court in St. Catharines for the anticipated continuation of the trial. a. Shortly before court started at 10:00 a.m., I was advised that the mother had telephoned the St. Catharines Trial Coordinator, and she also sent an e-mail advising that she had suffered a concussion when she fainted in court earlier in the week. b. Later in the morning, the court was able to arrange for the mother to participate in the courtroom discussion by teleconference. c. Over the phone, the mother reaffirmed that she had a concussion and she was under doctor’s care. d. She said she could not come to court on October 19. She could not come to court the following week. She was unsure exactly when she’d be able to resume the trial. e. She said she would be seeing her doctor again October 26, 2018. She expressed hope she would be able to resume the trial after that date.
33. On behalf of the father and F.D., Mr. Fazari expressed concern that the trial was off to an inefficient start. a. He expressed frustration that the brief medical note the mother sent on October 17, 2018 – advising that she “couldn’t return to work” until October 19, 2018 – made no sense because the mother is not employed and she has not “worked” for many years. b. He expressed concern that his client had paid him to attend for the continuation of the trial on October 19, 2018 – a date selected because the mother had sent in a note indicating she would be available October 19 – and once again time was being wasted and the trial was being delayed. c. Mr. Fazari noted that one of the themes in the parenting dispute – as noted in the OCL report – is that the mother has an admitted history of cancelling and missing access to the children on the basis of purported medical issues. But he said the mother never provides medical corroboration as to why she misses most of her visits – and now she is not providing medical corroboration as to why she is missing the trial. d. He requested that in light of the threadbare and inaccurate medical note provided thus far, the mother should be required to re-attend on the next court date with her family doctor so that the doctor could be cross-examined about whether the mother was really too sick to participate in the trial.
34. While I understood Mr. Fazari’s frustration and suspicion, I did not accede to his request that the mother be required to bring her family doctor to court to be cross-examined.
35. I explained that to a large extent our court system must work on an “honour system” in terms of respecting the privacy and dignity of any participant who may suddenly be unable to attend a proceeding as a result of health issues.
36. By the same token, I advised the mother that since it appeared we would be forfeiting most of the first three of the five weeks set aside for trial – and since she was providing no reassurance as to when she would be well enough to return to court – it was reasonable to require that the mother provide medical corroboration of her situation and limitations.
37. To minimize the waste of court resources and Mr Fazari’s time/fees, rather than target a specific resumption date for the trial, I directed that we would have a conference call at 2:00 p.m. on Monday, October 29, 2018 for an update as to when we could resume the trial. a. I directed that the mother was to provide medical corroboration in advance of the October 29, 2018 teleconference, to explain why she was unable to attend court on October 18, 19, 22, 23, 24, 25, and 26. b. The hope was that as of October 29, 2018 the mother would report that she was ready to return to court, in which case we would resume the trial on October 30. c. I directed that in the event that the mother was taking the position she would have to miss more court days beyond October 29, 2018 she would have to provide medical corroboration explaining her limitations, and providing a realistic estimate as to when the trial could resume.
38. During the court attendance on October 19, 2018, Mr. Fazari raised what would become a recurring theme on behalf of the father. a. He predicted the mother will keep calling in sick to delay the trial, and to prolong unwarranted (and unrecoverable) monthly $2,000.00 spousal support payments. b. He submitted that while the mother portrays herself as an unsophisticated abuse victim struggling without a lawyer, in reality she has skillfully learned how to use a collection of buzzwords and generic excuses to repeatedly manipulate the system. c. He pointedly suggested that the mother has become masterful at exploiting our court system’s almost limitless commitment to showing compassion and affording the benefit of the doubt. d. He said as a result the mother has learned that all you have to do is say “you’re sick and you don’t have a lawyer” and special – endless – accommodation is almost guaranteed. e. He expressed frustration that on the one hand the court keeps telling the mother that this trial is not going to be adjourned – and on the other hand, the court keeps adjourning based on the flimsiest of medical excuses.
39. The mother categorically denied this characterization. a. She insisted that any skepticism or scrutiny of her medical complaints reflects a lack of compassion and understanding of the long-term impact of domestic violence and PTSD. b. She said the father was the one who initially abused her, and now the father was trying to use the court system to “punish” her for being sick. c. The mother urged the court to be aware of the power imbalance “between the abuser and the victim” and “between a self-represented litigant and an experienced lawyer.”
40. In response, Mr. Fazari noted that the mother appears to have had mental health issues even before she met the father.
41. I did not accede to the father’s request for an immediate suspension of spousal support. I advised that this issue might have to be revisited, if there were further significant delays in relation to the trial.

Oct. 29/18: Teleconference

42. At 2:00 p.m. on October 29, 2018 I convened a teleconference with the mother and Mr. Fazari. a. Earlier that day the mother e-mailed in some very brief medical information. b. The mother advised that she was still unable to resume the trial. She wasn’t sure when she’d be medically able. c. Mr. Fazari took the position that the minimal medical information provided by the mother – which was heavily redacted -- did not explain either her past or future unavailability for trial. An unnamed doctor merely stated that the mother required a further two weeks off of “work”. d. Ultimately I adjourned the matter to November 16, 2018 for a further teleconference in order to update the mother’s situation and availability to continue the trial.

43. My October 29, 2018 endorsement attempted to summarize the discussion; the priority to be given to completing the trial; and the necessity for the mother to provide more informative medical corroboration in light of the significant and potentially indefinite delay. My endorsement:

    1 Mr. Fazari and the Respondent participated by teleconference. 2 The context herein is important. 3 This is an extremely high conflict file, primarily in relation to custody and access regarding two children, but also in relation to spousal and child support. 4 The file has been extensively case managed, and significant time was set aside for a lengthy trial to take place in October 2018. 5 I note that on Day 1 of the trial the self-represented Respondent mother requested an adjournment for various reasons, including problems with Legal Aid and for unspecified health reasons, but no medical disclosure was provided. I dismissed the Respondent’s request for an adjournment, noting that the Respondent had previously expressed to a case management judge that she wanted an adjournment, but the case management judge determined that the matter must be brought to a conclusion. 6 On October 16, 2018 after the lunch break the Respondent indicated that she was not feeling well and couldn’t proceed in the afternoon. I immediately agreed to adjourn the matter. We were not scheduled to resume until October 18. As court was to conclude for the day, and as I was leaving the courtroom, I heard some commotion. I was later advised that the Respondent had fainted, and that she was taken to hospital. 7 On October 17, 2018 the mother sent in a note from an emergency room doctor advising that the mother could not “return to work” until October 19, 2018. This was curious because the mother’s position has been clear that she is not working and that she is not able to work. I presumed that the doctor might simply have been imprecise about whether the mother’s delay was in relation to “work” or “court”. Nothing much turned on it at the time. 8 On October 19, 2018 the Respondent e-mailed and contacted the trial co-ordinator to advise that she would not be attending court that day because of ongoing problems relating to a concussion. She participated by teleconference, at which time it was agreed that the trial would be adjourned until today’s date for the parties to participate by teleconference, to determine when the trial could resume. The Respondent was to provide medical disclosure confirming her past unavailability for court and any future unavailability (if she would be requesting a further adjournment of the trial). 9 This morning Mr. Fazari and I received some very brief medical documents from the Respondent. All of the identifying information for the authors of the documents were obliterated as were other relevant sections. One note is threadbare and simply checks off a box that says the mother is unable to attend “work” until October 26, 2018. There was a box for “other” so “court” could have been set out. In any event, it suggested the disability extends to October 26, 2018 which has obviously past. 10 Another note refers to an unnamed medical professional having seen the Respondent on October 25, 2018. The note summarizes the Respondent’s reports of symptoms and sets out that the author recommends that the mother “remain off of work for 2 weeks to recover.” The note also says “she cannot be expected to work at the capacity that she previously did…” Again, it is curious that these reports keep talking about the mother being unable to work, in circumstances where the mother is not working. It is impossible to know what limitation the author is talking about, if we don’t know what the author thought the Respondent was previously doing. 11 I made it clear to the Respondent that requests to adjourn a trial are discretionary and if a person is asking for an adjournment for medical reasons, the onus is on the person requesting the adjournment to provide satisfactory medical information to explain why the adjournment is necessary. The reports so far are not very helpful, given the fact that so much information was obliterated, and given the fact that the various references to “work” raise important questions about what limitations are really being described. 12 For clarity: The court is able to resume the trial immediately. Mr. Fazari says he is ready to resume the trial immediately. 13 The Respondent says she is not currently able to resume the trial, and I have no reason to doubt her when she says she fainted in court, that she hit her head, and that she has unresolved medical issues. While the Respondent does not seem to perceive that she is being treated sympathetically, I would note that Mr. Fazari immediately consented to the matter being adjourned on the afternoon of October 16; on October 18; and on October 19. Even today, he is not insisting that the trial proceed tomorrow. He is simply requesting that proper medical disclosure be provided if the Respondent is going to be seeking a further delay in the trial, and I do not believe requesting proper medical information is unreasonable. 14 The Respondent indicated she sees a specialist on November 15, 2018 and she believes she will know at that stage whether she is able to proceed with the trial. 15 I am adjourning this matter to Friday November 16, 2018 at 2:00 p.m. again for a teleconference like this one. Once again the primary issue will be scheduling of the resumption of the trial. Hopefully we will be able to resume the trial on Monday November 19, 2018. If the Respondent is unable to do so, I am fully prepared to consider whatever updated medical information the Respondent may wish to submit prior to the teleconference. But the Respondent should understand that any medical information should not be redacted, and should specifically address her availability to participate in a “trial” and not some unspecified “work”. 16 Given the generalized health issues the Respondent has spoken of, I alerted the parties that if she will be taking the position that she cannot resume the trial for the foreseeable future as of November 16, 2018, and if the court accepts that a long-term or significant adjournment of the trial is necessary, then I would anticipate there may be need to address some issues on a temporary without prejudice basis. a. The mother currently has access on a schedule she was having some difficulty maintaining even before the injury she has described. If her health affects her ability to attend for access, and if scheduling needs to be changed, she should advise Mr. Fazari and the court on the return date. b. Similarly, the Respondent is not paying any child support for children not in her care. The Applicant continues to pay spousal support and one of the very real issues in the trial is whether the Respondent should be paying child support and whether the Applicant should no longer be paying spousal support. If a long-term adjournment is inevitable, I anticipate that continuation of the above noted spousal support may have to be reviewed pending completion of the trial, and I would anticipate that --- in the absence of any better information – ongoing spousal support might be suspended effective December 1, 2018. Again, hopefully we will be able to resume the trial and no temporary determination will have to be made, but the court has an obligation to be sensitive not only to the Respondent’s health issues but also to the realities of the Applicant’s financial circumstances, since he is assuming financial responsibility for the children without assistance from the Respondent.

Nov. 16/18: Teleconference

44. A further teleconference was held on November 16, 2018. a. The mother did not provide any further medical documentation corroborating why she was unavailable to proceed with the trial during the last half of October and the first half of November. b. Had the mother not called in sick, the trial would most likely have been completed by the date of this conference call. c. In any event, as of Friday November 16, 2018 the mother said she was ready to resume the trial. I endorsed that we would return to court on Tuesday November 21, 2018. d. I advised the mother that while it was encouraging that the trial could resume, she still had an outstanding obligation to provide proper medical corroboration for all of the trial time we had missed. I made it clear that the very limited medical documentation she had provided thus far was not sufficient.

Nov. 20/18: Trial Day 6

45. On November 20, 2018 when the trial resumed, I reminded the mother of her obligation to provide proper medical corroboration with respect to all of the trial time which had been missed. a. The mother stated that she felt she had provided sufficient medical information. b. I advised the mother that I agreed with Mr. Fazari that she had not provided sufficient medical information. c. We resumed the trial. But I clearly identified that I would be expecting the mother to provide the previously ordered medical disclosure.

Nov. 21/18: Trial Day 7

46. Day Seven of the trial proceeded on November 21, 2018.

Nov. 22/18: Trial Day 8

47. Day Eight of the trial proceeded on November 22, 2018.

Nov. 23/18: Trial Day 9

48. Day Nine of the trial proceeded on November 23, 2018.

Jan. 21/19: Trial Day 10

49. As a result of my scheduling commitments; Mr. Fazari’s professional commitments; and, the availability of court time, the trial was not able to resume until January 21, 2019. We were unable to find courtroom space in St. Catharines, so we arranged a week of trial days in Hamilton.
50. Day 10 proceeded as scheduled. At that point – three months after the commencement of the trial – we were only on our second witness, the father.

Jan 22/19: Trial Day 11

51. Day 11 of the trial proceeded on January 22, 2019.

Jan 23/19: Trial Day 12

52. However, on January 23, 2019 (Day 12) the mother did not attend for the trial. Instead, at 8:53 a.m. she sent the following e-mail to Mr. Fazari and St. Catharines court staff:

    WITHOUT PREJUDICE

    [ NOTE : While I have had some assistance with this email, the words and thoughts expressed herein are mine, H.G., and mine alone .]

    PLEASE NOTE : Until further notice, for all email correspondence with me, please use this email: [...]@icloud.com .

    I am writing to notify and inform everyone involved in the 766/16 proceedings scheduled to resume again today that, until further notice, I am not emotionally or physically able to attend the court proceeding. I will be seeking medical assistance and support as soon as practically possible and will provide the court and Mr. Fazari with an update on these unfortunate and unavoidable circumstances, as well as why the extreme symptoms I am currently experiencing are so severe that it would make me absent for court.

    I am suffering from extreme trauma following the proceedings this week on January 21 and 22, 2019, during which I had to directly confront my convicted domestic abuser, Mr. D.D., and during which I had no choice but to cross-examine him myself.

    The trauma that I have suffered and continue to suffer at the hands of my abuser and my physical health condition has been well documented.

    As you are aware I had to seek the assistance of Duty Counsel on January 21, 2019 who then immediately attempted to contact lawyers to assist me given the unique dynamics of this case and severe domestic violence. I am awaiting call backs.

    At present, I am simply not able to attend the proceedings nor do I have any agent who is able to represent me at present.

    If you require any further information please advise me at this email and I will respond.

    Please confirm receipt of this email and that the court is aware of my absence. Thank you.

53. (That was the first of a number of e-mails from the mother which I will refer to. Without getting into specifics, on a number of occasions I had to request that the mother refrain from inaccurately quoting either Mr. Fazari or myself, in a self-serving and misleading manner.)

54. When court opened at 10:00 a.m. on January 23, 2019, Mr. Fazari expressed disappointment and frustration at this further delay, which he described as completely unexpected and highly suspicious. a. He recalled that earlier in the month, when the court was making efforts to arrange trial time during the week of January 21, he alerted everyone that he had a possible criminal trial commitment for the same week. He said when the mother learned Mr. Fazari might have a scheduling conflict, she sent a stern e-mail to the Trial Coordinator urging this court to insist that Mr. Fazari make himself available for this trial during this week, because of the urgency of the children’s issues. b. He noted that the mother had now called in sick on a Wednesday, but she had given no indication on the Monday or Tuesday that she was experiencing any difficulties or health problems. c. He accused the mother of abusing the court process and again requested that I temporarily suspend ongoing spousal support, to remove the mother’s incentive to prolong the trial.

55. I did not accede to Mr. Fazari’s request. But I addressed it in my lengthy endorsement of January 23, 2019:

    1 I am preparing this endorsement on what would have been day 12 of this protracted trial. 2 This morning at 8:53 a.m. the self-represented Respondent mother sent the following e-mail to the Applicant’s counsel, Mr. Fazari, and to court administrators: (Mother’s e-mail inserted) 3 Whenever a party identifies a health issue impacting upon their ability to attend court or participate in the process, the court must take a very sensitive and patient approach. This is particularly the case where a party involved in family litigation identifies an emotional response to the court process, and/or the historical issues between spouses which led to these proceedings. 4 I have very little information about the Respondent’s situation today. As always, she must be given the benefit of the doubt, and she should have an opportunity to give priority to her health needs. For that reason, I have no alternative but to adjourn the trial, and to give the Respondent an opportunity to provide the Applicant’s counsel and this court with more comprehensive information about her situation, and her availability to continue. 5 Having identified the need for sensitivity with respect to the Respondent’s situation, I also have an obligation to ensure equal fairness and consideration with respect to the Applicants herein (and I say this primarily in relation to the Applicant father, as the real issues herein are primarily between the father and Respondent mother – the co-Applicant paternal grandmother’s position is allied with the father.) 6 As always, context is important. 7 This is primarily a custody/access dispute in relation to two children currently ages 12 and 7. 8 There has been an extremely complicated history, but looking it things from the children’s perspective, they have been residing continuously with the paternal grandmother since December 2013. The Applicant father has been residing continuously in that same home with the paternal grandmother and the two children since approximately January 2014. 9 The mother’s access has been limited: a. Starting in late 2013 she had fully supervised access. b. In late 2015 it became unsupervised. c. In early 2016 supervision was reinstated by the court. d. Later in 2016 the supervision requirement was lifted. e. Soon after a temporary order provided that the mother is to have access essentially on alternate weekends, together with telephone access. 10 But it is common ground that the mother has not been fully exercising her access. She misses visits entirely or abbreviates her weekends. There is disagreement as to why she has not been fully exercising the barebones access currently in place. She has identified health issues, but to my knowledge she has not provided any medical corroboration to explain why – by her own admission – she has not maintained consistent in-person access to her children. (It also appears to be common ground that she consistently has telephone access three times per week.) 11 The Office of the Children’s Lawyer prepared a detailed 43 page s.112 report which was issued on April 26, 2017. The report included many recommendations including sole custody and primary residence to the father; the mother to have reasonable access to the children to include alternate weekends from Saturday at 12:00 p.m. to Sunday at 4:00 p.m.; and a recommendation that the mother obtain a mental health assessment. The father accepts those recommendations. The mother disputes them and still seeks custody. 12 Courts are reluctant to implement professional reports until there has been an opportunity to test the evidence at trial. While this trial has not been completed, the social worker’s evidence and cross-examination was completed in October 2018. So I have some additional perspective. I also have to be concerned that with the OCL report soon to be almost two years old, the longer it takes to complete this trial, the more dated the report will be – and this could lead to even more delay while a suggestion arises that perhaps updated information about the children’s perspective needs to be assembled. It is vitally important that custody/access matters be determined as quickly as possible, particularly where significant third party and professional information has been assembled. 13 This matter has been extensively case managed. Prior to my involvement the mother had objected to the matter proceeding in the fall of 2018 (a scheduling determination made at the beginning of that year). But Justice Arrell’s endorsement of July 24, 2018 confirmed that after all this time, and having regard to the needs of the children, the matter had to proceed to trial. 14 On the first day of trial October 11, 2018 the mother requested an adjournment for a number of reasons – including an assertion that during the period leading up to the trial she had been experiencing medical issues. However, the mother provided little specification as to the nature of those medical issues, and no corroborating information. 15 More generally, she referred to unspecified medical issues as precluding her from seeking or maintaining employment, but again she provided few specifications and no corroborating materials. 16 I did not grant the request for the adjournment and the trial proceeded. 17 However, after the lunch break on the fourth day of trial, October 16, 2018, the mother stated that she felt unwell and we agreed to adjourn to the morning of October 18, 2018 (it had previously been arranged that as a result of my schedule, we would not be sitting on October 17). I was later informed that as I exited the courtroom on October 16, 2018 the mother fainted and was taken to hospital. 18 On October 17, 2018 the mother e-mailed the court a note from a doctor at Hamilton General Hospital saying she couldn’t “return to work” until Friday October 19, 2018. It was unclear why the brief note referenced the mother being unable to “return to work” since the mother’s position is that she hasn’t held employment for a very long time. In any event we cancelled court on October 18. 19 However the mother e-mailed the court on the morning of October 19, 2018 to advise that she had suffered a concussion and couldn’t resume the trial that day. When court convened on the morning of October 19, 2018 the mother participated by teleconference. She advised she was still under doctor’s care and would need to take a break from the trial. We agreed to adjourn until October 29, 2018 at which time the parties would participate in a teleconference to update the mother’s situation, and address resumption of the trial. The mother was directed to provide medical corroboration explaining any trial time missed prior to October 29, 2018, and explaining any request for an adjournment beyond October 29, 2018. 20 Shortly prior to the October 29, 2018 teleconference the mother e-mailed some brief heavily redacted medical notes, one of which recommended that the mother “remain off of work for two weeks to recover.” It went on to say “she cannot be expected to work at the capacity that she previously did…” Again, this was curious because the author was describing her medical situation as a temporary inability to return to employment …but the mother didn’t have employment. 21 As of October 29, 2018 Mr. Fazari’s clients were prepared to resume the trial immediately, and the court was able to schedule a resumption of the trial immediately. But the mother indicated she still needed more time to recover from vaguely described (and minimally corroborated) health issues. 22 I agreed to give the mother more time. We adjourned to have a further teleconference on November 16, 2018, to update the mother’s situation. Once again, I advised the mother that she would have to provide better medical information to explain the time already being missed. And if she would be asking for a further delay as of November 16, 2018 we would require comprehensive medical disclosure on that topic. 23 The mother did not file any additional medical disclosure in relation to the November 16, 2018 teleconference. She advised that medically she was ready to resume the trial, and we agreed to proceed on November 20, 2018. 24 During that teleconference and also when the trial resumed on November 20, 2018 the mother expressed confusion about Mr. Fazari’s request for more medical disclosure. She felt that she had provided all of the medical disclosure required of her. 25 On November 20, 2018 I explained to the mother that it was legitimate for Mr. Fazari to request better medical disclosure to explain the mother’s unavailability for trial during the period October 18, 2018 to November 16, 2018. The reports she had provided were redacted, uninformative, and perpetuated a mystery about why doctors were saying the mother was briefly unable to return to work – when she wasn’t working. 26 Ultimately on November 20, 2018 Mr. Fazari indicated he didn’t want to waste any more time dealing with the medical disclosure issue on that date. But he reserved the right to further address the issue later. On that basis we resumed the trial on November 20, 21, 22 and 23, 2018. During those days the mother continued to represent herself. She expressed no issue about her physical or emotional health or her ability or comfort level with respect to proceeding. She made no further mention of wanting an adjournment for any reason including retaining counsel. Clearly, with the unexpected delays since day one of the trial on October 11, 2018 she would have had ample opportunity to follow up on retaining counsel if that was her desire. 27 Unfortunately as a result of the court’s scheduling limitations, almost two months went by before we could find trial time compatible with everyone’s schedules. 28 In early January 2019 I identified that I could make myself available to proceed during the week of January 21, 2019 even though I was not scheduled to sit during that week. E-mails were exchanged through the St. Catharines trial co-ordinator attempting to co-ordinate those arrangements. When the Applicant’s counsel Mr. Fazari expressed some uncertainty about whether he could rearrange other court commitments to resume this trial, the mother sent a forceful e-mail requesting that Mr. Fazari make himself available to proceed during the week of January 21, 2019 because the issues were important and needed to be resolved. The mother was aware that on that last previous day of trial November 23, 2018 she was in the middle of cross-examining the father, and that her cross-examination would continue when the trial resumed. 29 The trial did indeed resume on Monday January 21, 2019 (in Hamilton because no courtrooms were available this week in St. Catharines). 30 At the outset, the mother indicated she was prepared to proceed. Early in the morning a legal issue arose. I reminded the mother that we have a duty counsel program in this building and if at any stage she wanted to take a break (to see duty counsel or for any other reason) she should ask. Soon after, the mother requested a break to see duty counsel. As it happens, it ended up being a break of about an hour. In any event, the mother returned from seeing duty counsel and the trial continued. 31 During part of Monday January 21, 2019 and all of Tuesday January 22, 2019 the mother cross-examined the father. The exchange was unremarkable. At times I had to remind the parties not to interrupt one another or speak at the same time. But the mother expressed no specific discomfort with anything that was happening, and she appeared to be quite well-prepared and able to make her points. 32 At around 4:30 p.m. the mother said she needed a few minutes to further consider some additional questions. I suggested that in light of the hour we would adjourn until Wednesday morning, and everyone agreed. At that point she expressed no discomfort, or health problem of any sort. 33 As an aside, I would note that before the lunch break on Tuesday January 22, 2019 I invited Mr. Fazari and the mother to see whether they could have discussions over the lunch hour to determine whether they could reach agreement on certain income levels to be applied in relation to support issues. Both parties agreed that such an agreement on at least some of the facts would be beneficial in that it would shorten the trial. After the lunch break Mr. Fazari and the mother both advised that they had had a very productive discussion, and they each intended to further consider their positions. They would advise Wednesday morning if they had reached a partial agreement in relation to income levels. 34 In that context, this morning’s e-mail from the mother expressing such profound emotional and physical limitations came as somewhat of a surprise. As stated, there was nothing about the mother’s presentation or the dynamics during two full days in court on January 21 and January 22, 2019 which would have suggested that the mother was experiencing any difficulties. 35 As stated, whenever a party expresses health problems, the court’s first response must be to be patient and accommodating. 36 But Mr. Fazari is quite correct in identifying that on previous occasions the mother has asserted that she had health problems impacting on her ability to participate in this trial. She provided no medical corroboration in support of her request for an adjournment in October. And the threadbare (and heavily redacted) medical disclosure she provided in relation to the hiatus in proceedings between October 16, 2018 and November 20, 2018 did not adequately explain why the mother was unavailable for trial for about a month. 37 Mr. Fazari submits that the mother’s intention throughout has been to delay this matter indefinitely, because she is still on the receiving end of spousal support payments in the sum of $2,000.00 per month. To put it bluntly, Mr. Fazari submits that with the mother never having provided either evidence of job search efforts or medical limitations, her claim for ongoing spousal support is dubious, and she’s simply trying to drag this court case out as long as possible because (a) she’s not paying any legal fees; (b) she’s ignored costs orders and is impecunious; and (c) the longer this trial drags on, the longer she will keep receiving temporary support. 38 The court must be alive to all possible dynamics. I had previously indicated back in October 2018 that if the mother would be proposing an indefinite adjournment of the trial, it might be necessary and appropriate to suspend temporary spousal support payments. It is entirely possible that ongoing spousal support may not continue. In the meantime the father is assuming full financial responsibility for both children, and the mother is not paying temporary child support ordered against her, based upon imputed income. 39 Adjourned to February 4, 2019 2 p.m. for a teleconference, for the mother to provide an update as to her situation and availability to continue the trial. No later than February 4, 2019 at 10 a.m. the mother shall provide Mr. Fazari and the court with a medical report setting out her situation and specifically addressing her availability to continue with the trial. 40 Once again, I would alert the mother that her past medical disclosure has been inadequate. 41 If it appears that the continuation and completion of the trial cannot occur in a very timely manner, I will consider suspending temporary spousal support. In this respect, if the mother will be taking the position that she cannot proceed with the trial at this time, but that she is seeking a continuation of temporary spousal support, she should ensure that her medical documentation specifically addresses any limitations with respect to employability. 42 The mother left belongings in Courtroom 1 in anticipation of returning to court today. She or an agent on her behalf may attend at the court to retrieve those belongings. 43 A copy of this endorsement is to be e-mailed to the mother at the address she provided to.

56. Basically: a. I set up another teleconference for February 4, 2019 to get an update as to when the mother would be ready. b. I reminded the mother that she required medical corroboration in relation to all past (and any future) missed trial days. c. I reminded the mother that her previous medical disclosure was insufficient. d. I reminded the mother that if the trial continued to be delayed, I would have to re-visit Mr. Fazari’s request that spousal support be suspended on a temporary basis.

Feb. 4/19: Teleconference

57. On February 4, 2019 I made the following endorsement following the scheduled teleconference:

    1 This matter was scheduled to proceed as a teleconference, but as it happens the mother advised the court that she would be attending the Hamilton court house in any event today, so she wished to attend in person rather than by teleconference. Mr. Fazari participated by teleconference as originally contemplated. 2 The primary purpose of today’s discussion was to ascertain when the trial could resume. The court offered the two weeks starting Tuesday February 19 (February 18 is Family Day) in St. Catharines. The mother indicated she is available to resume the trial as of February 19, 2019. Mr. Fazari indicated that he is available for most of the days of those 2 weeks, but as a result of other commitments he cannot make himself available on certain dates. Ordinarily the court expects counsel to be ready to continue a trial once it starts. But in the circumstances, the Respondent mother has caused sufficient unexpected changes to the schedule that I must respect the reality that Mr. Fazari is doing his best to make himself available, and I accept that certain days he will not be available. 3 On consent, the trial will resume as follows in St. Catharines: a. February 19, 2019 all day b. February 20, 2019 morning only til 1 p.m. c. February 21, 2019 all day d. February 26, 2019 all day e. February 27, 2019 all day f. February 28, 2019 all day 4 I doubt that this will be enough time for the trial to be completed. I would anticipate that as of February 19, 2019 we should be able to continue our discussions about scheduling beyond February 28, 2019. I am hoping we can complete this trial in March. 5 In the meantime, it is important to clarify a number of issues. 6 In my detailed endorsement of January 23, 2019 I set out that the trial could not proceed on that date because the Respondent mother had e-mailed that morning saying that she was unwell. She was unclear as to when she would be able to resume the trial, so I set this date for an update. 7 In my January 23, 2019 endorsement I specifically directed that in time for today’s attendance, the mother was to provide a medical report setting out her situation and specifically addressing her availability to continue with the trial. 8 This morning the Respondent sent 4 separate e-mails to the St. Catharines trial co-ordinator, each with attachments. However, having reviewed the attachments, none of them provide the medical corroboration required by the court. 9 As noted in my January 23, 2019 endorsement, the same sort of situation arose in October 2018 when the trial had to be halted because the mother collapsed in court. She indicated she would be unable to proceed with the trial for a period of time. I directed that she should provide medical corroboration not only with respect to any future inability to participate in the trial, but also to confirm her inability to participate since the day the trial was interrupted in October. 10 We ended up having another teleconference on October 29, 2018, similar to today. Once again, the Respondent mother indicated her health issues had stabilized and she would be able to resume the trial. But the mother never did provide satisfactory medical corroboration with respect to the several weeks she said she was unable to proceed in October 2018. 11 For clarity: my previous endorsements requiring medical corroboration with respect to each of the two periods when the Respondent required the trial to be interrupted (i.e., October 2018 and January 2019) remain outstanding. The Respondent seems to be under the impression that she provided adequate disclosure in relation to October 2018 but I agree with Mr. Fazari that she did not. The mother is still required to produce medical disclosure for both of those periods. 12 On both of the occasions that the Respondent interrupted the trial for medical reasons, Mr. Fazari advanced the theory that the mother is stalling the completion of the trial, because she wants to gain the ongoing benefit of a temporary spousal support order. On both occasions I have identified that the court has to do a balancing act, and that while strategic advantage is always something that the court must be mindful of, on balance the court must always give people the benefit of the doubt, especially when it comes to health issues. Courts are loathe to second-guess litigants or lawyers, because sadly health issues can arise in anyone’s life. 13 But part of my reassurance to Mr. Fazari was that the court would require that the Respondent mother would eventually justify interruptions and delays, by providing the necessary medical corroboration to confirm that such interruptions and delays were unavoidable. 14 However, twice now, the Respondent has been directed to provide medical corroboration and she has failed to adequately respond. 15 It would be unfair if this sequence of events (interruptions with no medical corroboration) would be allowed to be repeated. 16 Accordingly, if in the future the Respondent mother takes the position that she is not able to proceed with the trial for medical reasons, there will likely be a presumption that the spousal support should be suspended on a without prejudice basis, until the Respondent is able to provide medical corroboration to justify her position.

Feb. 19/19: Trial Day 13

58. Day 13 of the trial proceeded (back in St. Catharines) on February 19, 2019. We were still on our second witness: the father. The mother had been cross-examining him since Day 8.

Feb. 20/19: Trial Day 14

59. Day 14 of the trial proceeded on February 20, 2019. The mother continued her cross-examination of the father for the whole day.

Feb. 21/19: Trial Day 15

60. Day 15 of the trial proceeded on February 21, 2019.

Feb. 26/19: Trial Day 16

61. Day 16 of the trial proceeded on February 26, 2019. We started our third witness, F.D..
62. (We had to cancel court on February 27, 2019 as a result of a weather conditions.)

Feb. 28/19: Trial Day 17

63. Day 17 of the trial proceeded on February 28, 2019.

March 4/19: Trial Day 18

64. Day 18 of the trial proceeded on March 4, 2019.

March 5/19: Trial Day 19

65. Day 19 of the trial proceeded on March 5, 2019. A fourth witness, the father’s fiancé, gave brief evidence in chief, and was then cross-examined by the mother for most of the afternoon.

March 6/19: Trial Day 20

66. March 6, 2019 was Day 20 of the trial. a. The mother cross-examined the father’s fiancé for the entire morning. Before the lunch break she advised that she intended to continue her cross-examination for at least the balance of the day. b. Given the fact that it was five months since the trial had started, and on Day 20 we were only on our fourth witness, I urged the mother to utilize the lunch hour to attempt to organize the balance of her cross-examination, for the sake of efficiency and to avoid repetitive questions. c. I had not interfered with the mother’s multi-day cross-examinations of each of the OCL social worker; the father; or F.D.. But the father’s fiancé was a relatively minor witness, and prolonged cross-examination was yielding diminishing returns. d. We had also been taking shorter lunch breaks, to try to pick up the pace. e. However, when we reconvened at 2:00 p.m. the mother advised that she could not confirm that she would be able to complete her cross-examination on that day. In fact, she indicated that she was not prepared to even resume her cross-examination of the fiancé because she was not feeling well. f. At the mother’s request, we once again adjourned the trial.

March 25/19: Trial Day 21

67. Court was to resume on March 25, 2019 (Day 21 of the trial). However, prior to the commencement of court that morning, the mother sent an e-mail (and a photograph of herself), advising that she was ill and unable to attend for medical reasons. The mother’s e-mail:

    WITHOUT PREJUDICE

    I am writing to inform the Court and the opposing parties that I will be unable to attend court when the trial resumes on Monday, March 25, 2019.

    There are two (2) primary reasons for this.

    First, as I have previously mentioned, when Mr. D.D. does not comply with his court ordered support payment obligations (as has happened yet again for the month of March), it becomes extremely difficult, if not impossible, to afford even the basic necessities of life. As everyone knows, and as Justice Reid found, my only source of income is Mr. D.D.’s support payments; without these payments, I cannot afford basic and important things such as medicine, access visit costs with the children, let alone afford the costs of child support, or being able to participate in a trial (which would include costs such as costs for witnesses, printing/copying, and transportation, to name only a few). If there is no support, there is no money, and if there is no money, there is no ability to participate in trial (especially one that is far away from me, but mere minutes from the Applicants’ front doorsteps).

    Second, my health. I was in hospital on approximately February 25, 2019 and March 2, 2019 for severe migraine, and again on March 10, 2019 for severe migraine. That is also in part what caused me to have to leave court early on March 6, 2019. I am still awaiting a referral to a neurologist. Furthermore, I have developed another health condition over the past couple of days, and, in addition to migraines, I am simply not well enough to attend court (even if the support payment was to suddenly and magically appear). I have always provided the most up to date medical information that I have available.

    Given how the Court and the Applicants have dismissed my previous medical documentation, out of an abundance of caution, I am attaching a picture of me that was taken on Sunday, March 24, 2019, which should be self-explanatory regarding my current physical health condition. I am having extreme difficulty speaking as well.

    PLEASE: if the Applicants could please resist the urge to either blame me for being sick and not being able to attend, it would be greatly appreciated. Furthermore, especially given the fact that I was denied a sealing order from Justice Pazaratz for my very personal medical information, if the Applicants could please practice discretion with the attached image as it is very personal and confidential in nature.

    I am forced to not attend court as I symptoms have drastically changed within the previous mere hours, enough so that I was forced to cancel the phone call with the children on Sunday night for the above reasons. I was attempting to send this out in the late evening hours last night/early this morning, and I have been in the past scolded by Mr. Fazari’s office for sending emails outside of business hours (so I was hesitant to send this at that time). And I understand that Ms. Leigh Foster is would be in this morning.

    While I am needing to seek further medical advice today, the foremost priority for me right now is my health. Can you please confirm and provide the Court’s Endorsement from whatever transpires today via email to this email address. I know that Justice Pazaratz said that any type of teleconference for a trial day would be unacceptable. I am doing my very best today, but I simply cannot attend or address any matters that were to be addressed today in my current physical condition.

    H.G.

68. After court opened at 10:00 a.m. the mother participated by teleconference. It was a very brief discussion because it was clear the mother was having difficulty speaking as a result of a medical condition affecting her mouth.

69. Once again I adjourned the trial and issued the following endorsement:

    1 This morning Ms. H.G. sent an e-mail advising that she was unavailable to attend for the continuation of the trial today as a result of medical issues. 2 Her e-mail was ambiguous as to whether she anticipated she would be available to attend at all this week (the matter was scheduled to continue Monday to Friday). 3 To clarify her situation and availability I arranged for Ms. H.G. to participate by teleconference. She indicated she was in some distress and on her way to the hospital, so I tried to keep the discussion brief and focussed on scheduling issues. 4 Ms. H.G. was unable to speculate as to her availability this week, but it was clear that she was in some distress and having difficulty speaking. Given the fact that there are some non-party witnesses who were going to be testifying this week – including a medical doctor who was scheduled to attend with her own lawyer on Wednesday March 27, 2019 – to minimize cost and inconvenience for everyone, I concluded that it is safer to presume the trial cannot proceed for the balance of this week. 5 I advised Mr. Fazari and Ms. H.G. that the matter is adjourned to Friday March 29, 2019 at 2:30 p.m. for a conference call to address scheduling and any other issues the parties wish to discuss. 6 Mr. Fazari again requested that ongoing spousal support be suspended. I was not prepared to deal with that or other issues today as I didn’t feel it was appropriate for Ms. H.G. to have to address those issues while she is in medical distress. 7 However, I reminded Ms. H.G. that I have previously directed that she is to provide medical reports corroborating her past unavailability for court (resulting in a number of adjournments or delays with respect to this trial). I will require up to date medical disclosure dealing with this week’s missed court as well. I advised Ms. H.G. that any medical reports she intends to rely upon should be e-mailed to the trial co-ordinator in St. Catharines and to Mr. Fazari’s office by Friday March 29, 2019 at 11 a.m. 8 I have prepared this endorsement after leaving the courtroom. I will ask the Trial Co-ordinator to e-mail a copy to Mr. Fazari and Ms. H.G..

March 29/19: Teleconference

70. Prior to our March 29, 2019 teleconference the mother sent in the following e-mail:

    WITHOUT PREJUDICE

    March 29, 2019

    RE: 766/16 - MEDICAL UPDATE (H.G.)

    [PLEASE NOTE: while I have had some assistance with this email, the words and thoughts expressed herein are those of mine, H.G., and mine alone.]

    H.G. attended the hospital on March 25, 2019 to address a medical issue that arose over the weekend of March 24, 2019. She was diagnosed with a skin infection, and was referred to an infectious disease specialist (for which she has an appointment upcoming on April 5, 2019). She was given urgent treatment of antibiotics at the hospital, and was provided with a prescription to take over seven (7) days.

    The pain in her mouth greatly intensified during the week following her hospital visit, prompting her to seek medical attention on March 28, 2019. A note from the doctor from this visit is attached hereto .

    Due to the difficulty speaking, breathing, eating, and drinking, and due to the high and consistent degree of pain, H.G. has been unable to focus on anything else other than her health since her hospital visit.

    If it is deemed necessary by the Court, H.G. will attempt to attend the teleconference scheduled for today for as brief a time as possible. She must continue to attend to her health by resting as best she can, however, and following doctor's instructions. Please note however, that H.G. is barely even able to open her mouth at all, and has not been able to eat solid foods for days. The doctor says that she may be on the wrong antibiotic and that until she has cultures back she may not show any improvement until she gets more information at her upcoming April 5, 2019 appointment with infectious disease specialist.

    Written on behalf of H.G.

71. The mother participated in the teleconference on March 29, 2019. a. The purpose was to ascertain when the mother would be able to resume the trial. Again, the teleconference was brief as the mother was having difficulty speaking. b. At that point we had lost the trial days set aside for March 25 to March 29. c. Our next scheduled trial days were April 9 and 10. We agreed to leave those trial days scheduled, but to have a further conference call on April 5, 2019.

April 5/19 Teleconference

72. Shortly prior to our teleconference on April 5, 2019 the mother sent Mr. Fazari and the court a very long e-mail:

    RE: 766/16 - UPDATE AND FOLLOW-UP (H.G.)

    [ PLEASE NOTE : while I have had some assistance with this email, the words and thoughts expressed herein are those of mine, H.G., and mine alone .]

    This email is a (non-exhaustive) follow-up to the previous Endorsement of Justice A. Pazaratz dated March 25, 2019, as well as to provide a medical update, and is also further to the teleconference to be held on Friday April 5, 2019 with Justice A. Pazaratz moderating the teleconference.

    1. H.G. provided an email to the trial coordinators in St. Catharines on March 25, 2019 in the early morning hours. This was the date of the continuation of the trial for the week block and other dates are also scheduled for April 9, 10 and again the last week of April 2019.
    2. H.G. clearly knew something was medically wrong with her on Sunday, March 24, 2019. It came on suddenly and affected her ability to speak properly, and included severe swelling in her face, lips, and chin. She also developed a fever. The illness was so aggressive that H.G. had to decline even speaking to her children on Sunday, March 24, 2019 in the evening. She was hopeful for a make-up call.
    3. H.G.’s understanding is that the Maternal Grandmother advised both boys (M. and D.) about H.G.’s illness, considering she had another regular call scheduled for the next night on Monday, March 25, 2019. Both children understood the best they could and were assured what the circumstances were. Aside from what H.G. was able to communicate to the children herself when she did speak to them, H.G. verily believes the Maternal Grandmother was the only other person to ever express the true nature of H.G.’s illnesses.
    4. When H.G. did speak to the children on Monday, March 25, 2019, she was horrified when D. came to the phone and abruptly and in a very stern and adult voice said: “ What the FUCK is this? You are sick again…yeah right you are…you are not sick .” D. left the phone and was cursing and swearing in the background until he was taken away from being near the phone.
    5. M. spoke and was shocked at his brother’s behaviour and stated “ he gets like that sometimes ,” and also said that he has “ been out with [his father] before the phone call ”. M. apologized for D.’s behavior, which he should never have to do, or feel like he has to.
    6. Justice Pazaratz’s stated in his March 25, 2019 Endorsement that H.G.’s email that was sent on March 25, 2019 was ambiguous as to whether she would be able to attend at all the week block of March 25, 2019. H.G. is not a doctor, and, as such, would have no idea about diagnosis, prognosis, let alone time frame for recovery. Therefore, H.G. was clearly not intending to be in any way “ambiguous.”
    7. H.G. was very sick, disoriented, with fever, and had the greatest difficulty even speaking let alone swallowing properly.
    8. As such, when the Trial Coordinator Ms. Leigh Foster contacted H.G. on Monday, March 25, 2019 at approximately shortly after 10:00 am, she answered and spoke the best she could, which was very difficult and painful, and advised Ms. Foster of this and the fact that H.G. was on the way to the hospital. Considering H.G.’s medical situation, it was quite upsetting when Ms. Foster indicated that Justice Pazaratz insisted that H.G. speak to the matter that morning.
    9. Ms. Foster could barely hear or even understand H.G. most times. H.G. advised Ms. Foster that she (H.G.) was in no position to speak and that her health was certainly paramount and quickly realized she needed to seek emergency medical assistance. Ms. Foster again stated the judge wished for H.G. to be on teleconference and Ms. Foster insisted that the judge said it would only take a few minutes (less than five (5) minutes), and that it would be for scheduling. H.G. agreed to hold off being taken to hospital to accommodate this request.
    10. Ms. Foster required less than 10 minutes and asked if H.G. could call back within that timeframe and to call her extension. Ms. Foster advised H.G. that she would be now speaking with Justice Pazaratz regarding H.G.’s inability to actually speak properly and her overall concern of her health. H.G. indeed called back ten (10) minutes to the number and extension provided and received no response. Approximately another twenty (20) minutes went by before H.G. reached someone. H.G. believes it was Ms. Samantha Allcock (Assistant Trial Coordinator). H.G. could not recite what she said to Ms. Foster but attempted to advise that she was not well and with the unnecessary delays she may have to forego the teleconference at that time. H.G. was told to be patient and that they would be ready in mere minutes.
    11. Suffice it to say the teleconference was delayed. And contrary to what H.G. was told by the Trial Coordinator per what the judge apparently told the Trial Coordinator, the teleconference was longer than five (5) minutes. Justice Pazaratz states in paragraph 3 of his March 25, 2019 Endorsement that he “ tried to keep the discussion brief and focused on scheduling issues .” This is simply incorrect as he permitted Mr. Fazari to make substantial submissions, including seeking multiple, various orders that were serious and potentially life-changing with H.G. being unable to adduce any evidence on those issues. In H.G.’s estimation there were no fewer than six (6) issues raised by Mr. Fazari. This was when Mr. Fazari was clearly aware and informed about H.G.’s serious medical condition. In H.G.’s vulnerable and weakened state, it was profoundly traumatic for her to have to even hear Mr. Fazari’s requested relief knowing that she would never have been in any position to even attempt to respond to Mr. Fazari’s very serious submissions that day.
    12. During the call, H.G. was even having difficulty speaking and swallowing, but tried her very best to respond; this was alluded to by the judge in paragraph 4 of his Endorsement.
    13. As best as H.G. can remember, she recalls that Mr. Fazari was suspect of the letter from H.G. the morning of March 25, 2019 and of the attached picture sent to him and the court that morning. Mr. Fazari concluded that the picture of H.G. in a very vulnerable state of illness was not dated, so he appeared to take some issue regarding the veracity of it (if he was not taking issue with the veracity of it, H.G. is not certain why he brought it up).
    14. During the teleconference, H.G. made it clear that she had to end the teleconference as it was approximately 11:00 am (if she recalls correctly) and with her physical ailments she was told to seek emergency medical attention. After the call that is exactly what she did, attending at the hospital; with her departure being delayed for a considerable amount of time when Ms. Foster called earlier in the morning requesting that H.G. attend as per the direction of Justice Pazaratz.
    15. A follow up teleconference happened on March 29, 2019 wherein H.G. sent in medical documentation as instructed to do so prior to the teleconference. H.G. was still very ill and was in no position to compile and scan and email all the medical documentation.
    16. It should be noted that H.G. made a previous attempt to inform the court in February 2019 about a medical note regarding her migraines. The judge, however, did not understand the need or purpose of said medical note and asked H.G. what she wanted him to do with it. In that context, the judge did not appear to wish to see it. Mr. Fazari also did not express any interest in seeing it. H.G. had brought copies for everyone that day in court. The medical letter was advising that H.G. was suffering from migraines and did advise against going back to court until a re-referral was made to a neurologist. Due to the very real fear of reprisal, including the possibility of termination of spousal support, H.G. did not seek an adjournment on resuming the trial in February 2019 and simply wished to advise the judge of the circumstances and she did not wish to delay this matter or a resolution for her children (especially given how her children and she have been prejudiced by this long, protracted, and torturous litigation, both pre- and post- 2015 ONCA 409 ), and was hopeful that medication and fluids would help.
    17. H.G. has hardly any recollection of the teleconference on March 29, 2019. She knows she provided a medical note that she would have to be off from court proceedings and would be re-assessed in 2 weeks.
    18. H.G. also provided information that she had an appointment for an Infection Disease Specialist and it was booked fairly quickly and the following week she would be attending that appointment to see and follow up on this medical ailment.
    19. Although, if H.G.’s recollection is correct, Mr. Fazari stated that he never received that referral page indicating the specialist and appointment. H.G. recalls that she advised during the call that she did have it and if he never received it then it was inadvertently not scanned. In any event, the appointment was noted with details. Again, at the time H.G. advised Justice Pazaratz that she was having difficulty speaking, feeling unwell and dealing with fevers and she provided the most up to date medical information that she could in her fragile condition.
    20. H.G. did not receive an endorsement for this March 29, 2019 teleconference. She was just recently provided the call-in directives for a teleconference being moderated by Justice Pazaratz on April 5, 2019 at 2:30 pm from the trial coordinator.
    21. H.G. saw the specialist this week being Wednesday April 3, 2019. The infectious disease specialist saw her, and observed her face, mouth and lips. The doctor then had the microbiology result cultures from the hospital and the report clearly shows growing bacteria of staphylococcus aureus with the initial IV antibiotic given being Clindamycin being resistant to this strain of infection. Since that time H.G. has been on another antibiotic which was finished the day before the Infectious Disease Specialist. Despite the large amounts of antibiotics given and the lab results the doctor concurred there was definitely some improvement, maybe 60 percent (after the Doctor asked H.G. if she had any pictures of herself from earlier in her illness). Although H.G.’s mouth is so raw and infected the concern was not being able to eat any solid food in almost two (2) full weeks. Even liquid diet and calories have been, and continue to be, a huge challenge.
    22. The specialist ordered more antibiotics to continue for another week, and wants to see H.G. next week for further follow-up to this infection.
    23. H.G. mentioned that it was a struggle to even attend the Doctor appointment. The Doctor said that H.G.’s physical symptoms were obvious with the evidence of the bacteria in her mouth and lips and the fact that she could barely swallow even liquid, despite showing some improvement. This was supported by her going online to obtain the lab results as well as modifying the antibiotic prescription to a liquid form. It is apparent the full course of the first round of antibiotics did not clear up the infection thus resulting in repeating and continuing for another week.
    24. H.G. asked the doctor if she could be provided with a note and that the judge had requested it. She was very concerned and quite frightened of the sanctions that the judge is prepared to place upon her and hear Mr. Fazari’s relief when she is simply ill. H.G. has a serious bacterial infection. She really had no idea what was wrong with her come the morning of March 25, 2019 as this infection came on so very fast without any other warning signs which is why infectious disease is following this. The doctor indicated that she does not provide doctor’s notes to others. This is a standard policy H.G. was told. The doctor can only provide medical notes to H.G.. The Doctor added that it was “ none of their business ” what the specific details of her medical condition are, other than provide confirmation that H.G. is under her medical care. The doctor was quite surprised that a judge was even seeking a medical note that was so detailed and it is her practice and HIPPA that she provides care to her patients (H.G.).
    25. The Doctor’s only goal and expertise is to treat H.G. and this terrible infection and get her back to her normal functioning self, and to make sure that this infection is completely cleared up. That is the doctor’s goal and certainly H.G.’s goal.
    26. H.G. remains on antibiotics, following a schedule for fluids and nutrients and will follow up as ordered in another week.
    27. H.G. will be forwarding under separate cover additional medical documentation (there may be some duplication). H.G. has also included completely unredacted medical documentation that was sent previously in October 2018 related to her ongoing migraine condition. This was information in which the contact information and address information only were redacted for personal safety reasons. The doctor’s note from October 2018 was extremely detailed and specific.
    28. It is H.G.’s position that any requirement to provide this level of detail is manifestly inappropriate, a violation of her right to privacy and safety/security, and a fundamental abuse of process. The Applicant, Mr. D.D., testified under oath that he redacted multiple business expense documents (among other things, such as credit cards and bank statements), and his reason under oath for doing so regarding, for example, his advertising receipts was that he alleged H.G. was going to contact these advertising companies. So he heavily redacted the invoice number and account number and, in some cases, even his own name; at no time did Mr. D.D. provide any evidence whatsoever that H.G. has ever even attempted to do such a thing. Mr. D.D. also indicated with sarcasm that he would have to change all of his credit card numbers because H.G. has knowledge of them. Mr. D.D. went on to say that he redacted it because it was “ none of [H.G.’s] business .” The Trial judge has never in any endorsement made any reference that Mr. D.D.’s bald assertions were either inappropriate or unacceptable, nor has he commented in his endorsements on this issue or Mr. D.D.’s redactions. This clearly makes it more difficult to reconcile Mr. D.D.’s business expenses when they are permitted to remain redacted.
    29. If more medical information is still required, given that doctors have expressed extreme reluctance to provide detailed information in letters, then in line with Mr. Fazari’s submission in court in October 2018 that he wished to call H.G.’s doctor’s to court to testify on the stand, this may possibly be the better and more appropriate avenue to obtain further details about H.G.’s private medical conditions.
    30. As alluded to above, H.G. is still suffering from her recent infection and has not been able to eat solid food for approximately two (2) weeks now, and she continues to have difficulty even drinking. She has a follow up appointment next week (also included in the attached documentation) on April 10, 2019. She is very week, and not able to participate in court proceedings until her condition improves.
    31. H.G. has very little recollection of what happened on the last teleconference on March 29, 2019.
    32. Again, if it is deemed necessary by the Court, H.G. will attempt to attend the teleconference scheduled for today for as brief a time as possible. She must continue to attend to her health by resting as best she can, however, and following doctor's instructions. Please note however, that it causes H.G. pain to speak. NOTE : H.G. will shortly be sending two (2) additional emails under separate cover with medical documentation attachments referred to herein.

    Written on behalf of H.G.

    ( emphasis in original )

73. Attached to a separate e-mail the mother sent additional medical disclosure: a. Some of the documents were new b. Some of them were unredacted versions of documents previously submitted but heavily redacted.

74. At the April 5, 2019 teleconference it was decided that we would leave the next two scheduled trial dates – May 1 and May 3, 2019 – in place, but we would have a further teleconference on April 29, 2019 to confirm whether those days of trial would actually proceed.

April 29/19 Teleconference

75. Shortly prior to the April 29, 2019 teleconference the mother e-mailed a copy of a note indicating that she had an appointment with a specialist on Wednesday May 1, 2019 so she couldn’t attend for court on that day. a. The note stated that the specialist only schedules appointments on Wednesdays. b. The mother provided no written explanation as to why the appointment had to be on that particular Wednesday, as opposed to a previous or subsequent Wednesday (when no court was scheduled).
76. Beyond that, during the teleconference on Monday April 29, 2019 the mother also expressed uncertainty about whether she could commit to attending for trial on Friday May 3, 2019. She said she wasn’t sure what the doctor would tell her on May 1.
77. Given the fact that after May 3, 2019 we didn’t have any further days available for trial until July 2019 (3 days) and then September 2019 (three weeks), Mr. Fazari again renewed his motion to suspend spousal support on a temporary basis.
78. After all these delays – and with no indication from the mother that her availability was likely to improve in the future – I directed that the father’s motion to suspend spousal support would be formally considered on May 3rd.

The Respective Positions

79. The father’s motion to suspend support temporarily was based upon Mr. Fazari’s submission that the mother has caused needless delay with respect to a trial which should have finished by November 2018. He says her actions have caused unjustified delay in two related ways.
80. Firstly, she has cancelled quite a number of specifically scheduled trial days. a. In fact, she cancelled most of the original five weeks set aside for the trial starting in October 2018. b. On several of the missed days everyone except the mother showed up for 10:00 a.m. court. This resulted in significant inconvenience for witnesses and the court system -- and substantial wasted legal fees for Mr. Fazari’s client.
81. And apart from being unavailable for specific trial days, at several stages the mother announced she was unavailable “until further notice.” a. In each case, this meant the trial was “on hold” until the mother advised that she would be available. b. Once she confirmed she was available, there was further delay while we arranged and waited for new trial dates compatible with everyone’s schedules. c. Re-scheduling became so difficult that at times we ended up squeezing in whatever random trial days we could find. d. And then, as it happens, the mother called in sick for some of those replacement trial dates, meaning that the whole rescheduling process repeated itself.
82. The mother does not dispute the magnitude of past trial delay, or even the possibility of ongoing future delays. But she urges the court not to make any temporary order which would “punish” her financially, at a time when she is already experiencing so many challenges: a. She emphasizes that she has multiple, long-standing health issues, including PTSD and other emotional and psychological consequences which are the direct result of domestic violence perpetrated by the father. b. She notes that on two separate occasions in 2011 and 2013 the father was convicted of criminal offences against her. So she feels it is unfair for the father to deny or minimize her emotional trauma when he is the one who created her problems. c. She says she has been doing her best to participate in the court process – and specifically in this trial. d. She says periodically medical issues have arisen during the course of the trial, and that this is not coincidental. She says the stress of this trial -- and the stress of having to cross-examine the father, his fiancé, and F.D. -- has triggered episodes where she has needed to take a break from the courtroom. e. She submits that the father’s request to suspend spousal support is punitive and strategic, because he wants to hurt her financially when she is already weak and struggling to represent herself in a bitter, complicated trial. f. She submits that every time she has had to interrupt the trial, it has been as a result of legitimate, unavoidable medical issues. And she feels that she has done her best to provide medical corroboration of her situation. She says she has no ability to compel doctors to write reports, and that medical reports are expensive to obtain. In any event, she submits that PTSD is so complex and pervasive that it is difficult to summarize in a medical report exactly what she is experiencing. g. She denies that she has any motivation to prolong the trial. To the contrary, she says the sooner the trial is over, the better it will be for her mental health. h. She denies that any monetary strategy is in play. She is confident that at the end of the trial she will be entitled to ongoing spousal support; that all outstanding arrears will still be owing; and that she will likely be entitled to a significant retroactive increase in spousal support.

Analysis

83. The parties have focused on whether the mother has provided adequate medical corroboration of the many days when she has been unavailable to participate in the trial. While I do not agree that the sufficiency of the mother’s explanations is entirely determinative, I will start there in my analysis. a. The father alleges the mother is fabricating or exaggerating her medical problems, and he submits the paucity of medical corroboration supports his contention that the mother is periodically choosing to call in sick for strategic reasons. b. The mother denies deliberately delaying the proceeding. She says she really does have recurring and unresolved medical issues, and she insists that she has provided sufficient medical corroboration to verify her position.

84. On the latter point – the sufficiency of the medical corroboration – I do not accept the mother’s position. I reviewed in detail the relatively small amount of medical disclosure and corroboration the mother has provided since the trial commenced. I considered the materials in relation to specific periods where significant trial time was lost.

85. For the period October 16, 2018 to November 16, 2018. a. The mother provided a two line note from neurologist Dr. W. J. Oczkowski dated October 16, 2018. The note stated the mother was evaluated at Hamilton General Hospital on that date. “She has probably suffered a concussion from a fall.” “She can’t return to work until Friday October 19, 2018.” The mother had no idea why the doctor inaccurately commented on her ability to return to “work” when it was clear that she was not employed. b. The mother provided an even less informative “Doctor’s Note” dated October 18, 2018, in which Dr. Gavin Shokar checked off a box that said the mother was unable to attend “work” between October 18, 2018 and October 26, 2018. Again, no explanation about the erroneous reference to “work”. c. The mother provided a two-page medical record confirming she had some tests conducted on October 18, 2018, as a result of hitting her head. The note provided little relevant information, and no guidance as to whether the mother was required to miss any future trial days. d. The mother provided a 12-line typed letter from Dr. Shokar dated October 25, 2018. The letter was both informative and confusing. i. On the one hand the doctor clearly indicated that the mother had experienced post-concussive symptoms; that as a result her mental functions were impaired; that the duration of her incapacity was uncertain; and that she would be evaluated in two week increments. ii. But on the other hand, the letter inexplicably focused on the mother’s temporary inability “to return to work”. The doctor recommended that she “remain off of work for 2 weeks”. The letter said “she cannot be expected to work at the capacity that she previously did.” The letter said she would be re-evaluated in two weeks “to see if she is able to return to work.” These were very specific references to employment limitations, raising a legitimate question as to exactly what information the doctor was dealing with when he commented on what the mother could and could not do. iii. The mother submits doctors loosely used the term “work” when they really mean that she can’t attend court. But I agree with the father that the mother’s medical notes all so specifically refer to “work”, that it was incumbent on the mother to provide some clarification as to what the doctors had been told, and what they were really saying. e. Dr. Shokar’s October 25, 2018 letter is likely the single strongest piece of evidence provided by the mother. i. But despite requests for clarification about all of the confusing references to the mother not being able to return to work, the mother never provided any follow up from Dr. Shokar. ii. At best, the October 25, 2018 letter explains that the mother was generally unavailable for about two weeks. iii. The letter indicated that there would be regular follow-ups and ongoing re-evaluation of the mother’s situation. But the mother provided no evidence that she attended for follow-ups; and no evidence of any re-evaluation beyond those two weeks. f. Overall, I find that the mother has provided some evidence to explain a few weeks of missed trial time starting in October 2018. But that evidence is somewhat vague and contradictory, and the mother has failed to provide necessary clarification and follow-up. g. If we were only dealing with an isolated two or three week interruption of the trial, out of an abundance of caution and fairness I would probably conclude that the above-noted medical information from the mother was minimally acceptable . h. But in the context of repeated trial cancellations over many months, the above noted medical reports are not sufficient.

86. For the next period of missed court time, January 23, 2019 to February 4, 2019 the mother provided virtually no medical corroboration of her inability to participate in the trial. a. She referred to a January 28, 2019 e-mail chain in which a therapist stated she had tried to reach the mother in October 2018 but hadn’t heard back from the mother. The e-mail chain spoke of setting up an appointment for the mother. b. The mother also produced a letter dated January 31, 2019 from her therapist, confirming that the mother has been a client since September 2018 and continues to be an active client. c. No particulars of any treatment or health problems are set out in the letters. The letter simply refers to a delayed appointment finally being set up, with no indication as to whether the appointment ever took place, or what was discussed. d. The mother provided no evidence that she had followed up on any of Dr. Shokar’s comments in his October 25, 2018 letter. e. In the mother’s e-mail to the court on January 23, 2019 (when she called in sick) she indicated she would be seeking medical assistance and support and that she would provide an update. But the documentation provided by the mother does not corroborate that she sought out any medical assistance after calling in sick for court.

87. For the next period of missed court time, March 6, 2019 to March 22, 2019 the mother provided three hospital notes indicating that on each of February 23, March 2, and March 10 she went to the hospital complaining of a headache. She provided no indication that she followed up, and no medical opinion that she was unable to attend court.

88. For the period March 25 to March 29, 2019, Mr. Fazari acknowledges that the mother had to miss court as a result of an infectious skin condition. a. Mr. Fazari notes that the father has never challenged the mother when she had an actual, verified medical problem. b. Mr. Fazari distinguished the verified physical medical issue during this one week period, from the unverified health problems the mother has complained about for months (in relation to missing trial days) -- and for years (in relation to missing visits with her children).

89. Finally, in relation to May 1 and May 3, although it may seem like a minor issue in the scheme of things, I agree with Mr. Fazari that the mother did not really verify that her May 1st appointment with the specialist had to occur on that same Wednesday when she had court, and that it couldn’t have been scheduled on an earlier or subsequent Wednesday.

90. The mother said she shouldn’t be confined to medical reports arising since October 2018 when the trial began. a. She submitted a separate volume of old medical reports dating from 2014 to just before the trial began in October 2018. b. I advised her that I was prepared to consider older reports if the contents related to any of the days she said she couldn’t participate in this trial. c. In response the mother only referred to one document: a January 12, 2018 Criminal Injuries Compensation Board decision which included the statement: “The Board accepts that the Applicant suffered emotional and psychological injuries resulting from the abuse that she suffered at the hands of her ex-husband.” The mother did not specifically establish a connection between that general statement, and the fact that more than a year later she was still periodically calling in sick, with no verification of any contemporaneous medical follow-up.

91. On the issue of the sufficiency of the mother’s explanation for cancelling so many trial days: a. I find that her evidence in relation to October 2018 is marginal but perhaps minimally adequate. b. Similarly, she established to Mr. Fazari’s and to the court’s satisfaction that during the week of March 25, 2019 she was unavailable as a result of a skin infection. This was a limited problem and quite different from the general medical complaints the mother has advanced. c. Beyond that, the mother has provided no independent evidence establishing a continuing or periodic inability to participate in this very important trial. d. She has certainly not provided any verification with respect to several dates on which she suddenly halted the trial process, stating that she was experiencing some sort of medical emergency in the courtroom. e. Cumulatively, the mother has demonstrated such a pattern and inclination to cancel trial days – with little or no medical verification – that I must agree with the father that at least a significant percentage of the mother’s absences were without verified justification.

92. The mother expressed frustration that she was being subjected to what she perceives as onerous and unfair requirements that she “prove” that she is sick. I disagree with her complaint that the court has lacked sensitivity or awareness with respect to her health problems generally, or the dynamics of domestic abuse and post-traumatic stress disorder. a. On a number of occasions I tried to make it clear to the mother that I do not disbelieve that there was domestic abuse in this relationship. While the magnitude or frequency of abuse is disputed, at the very least the father has twice been convicted of criminal charges in relation to the mother for events which occurred in 2011 and 2012. b. The court accepts without hesitation that historical domestic abuse may directly relate to current or long-term emotional or other health problems. Establishing that connection usually requires some – but not a lot of – professional evidence. c. The problem was that the mother bristled at the suggestion that she should be required to provide medical corroboration of any current health problems affecting her ability to attend trial. She appeared to be of the view that all she has to do is say that she was the victim of domestic abuse – or that she suffers from PTSD -- and the court should unquestioningly take her word for it whenever she calls in sick. d. Requiring a doctor’s note is not synonymous with disbelieving. The court cannot appropriately respond to the mother’s situation until it clearly understands her situation.

93. As stated, the court’s response to a litigant’s health problems must at all times be sensitive and respectful. a. Occasional or isolated adjournments for health reasons are almost always granted, no questions asked. b. Sometimes – and there’s no specific formula – the amount of time being missed may come to be so problematic that medical corroboration will be required, even at the risk of appearing to be intrusive and insensitive. c. When a party’s stated inability to participate in an important proceeding becomes chronic, the court has a responsibility to ensure fairness: Fairness not just for the party who doesn’t come to court. But also fairness for the party who attends and is ready to proceed. d. It’s a difficult balancing act, particularly mid-trial where fairness requires the court to exercise extreme caution, particularly once it has heard only some of the evidence.

94. Debating the existence or extent of the mother’s recurring health issues is both unseemly and to a certain extent unproductive. Perhaps even counter-productive. It has only served to add more tension and recrimination to an already very nasty trial. Ironically, the more upset the mother becomes about courtroom discussion, the more frequently she calls in sick.

95. From a practical point of view, we should focus not only on the sufficiency of the explanations for delay – but perhaps even more so on the consequences of delay. a. A poorly explained delay that merely causes inconvenience but no real harm, may not be a big deal. Especially if any prejudice can be compensated in collectable costs. b. But where the real or potential consequences of delay are significant and potentially irreparable, the court must engage in careful balancing act to ensure fairness to both parties.

96. On this mid-trial motion, I will not be relying upon any factual determinations based on the partial evidence I have heard thus far from the four witnesses.

97. I am, however, in a position to deal with some undisputed facts, including the following: a. This is a long-standing, high conflict file. b. There are no property issues still to be determined. But there are significant child and (especially) spousal support issues. And most importantly, the two subject children have been subjected to extraordinary disruption and institutional intervention in their lives. Each parent alleges the current parenting arrangement remains problematic. The parents want financial issues to be resolved. And the children need parenting issues to be resolved. c. As a result, the court has prioritized this file, and required the parties (including counsel) to give it equivalent priority. Significant effort was put into arranging a five week trial (the duration estimated by the parties) to commence in October 2018. d. The trial started as scheduled in October 2018. But it has not proceeded as scheduled. There have been numerous missed trial days. And there have been extended periods when resumption of the trial was put on hold. e. It is not disputed that all of these delays are attributable to the mother. f. Inherent in the nature of the health issues identified by the mother, she is unable to provide any assurance that future trial days will actually proceed as scheduled. She has certainly provided no professional reassurance that she is gaining control over whatever medical problems she is experiencing. To the contrary, she appears to be saying that the debilitating factors which have caused her to miss so much trial time during the past eight months, are the same unpredictable debilitating factors which have caused her to miss so much access to her children for years. g. At this stage – having just completed Day 21 – we are only part-way through the fourth of what could easily be 15 to 20 witnesses. h. Coordinating future trial dates has been a challenge (particularly since both the court and Mr. Fazari have had to repeatedly re-schedule other court commitments, as we went through successive last-minute adjournments). i. Currently, we have three days of trial time set for July 2019, and three weeks of trial time set for September. But even if all of those days proceed, it is doubtful that this trial will be completed within a calendar year of it having commenced on October 11, 2018. j. Given the fact that we have been averaging only three trial days per month – and we have never sat more than five days in a row without the mother requiring an adjournment – it is unrealistic to presume that the balance of the trial will proceed without (potentially significant) further delays.

98. The father alleges that this litigation quagmire is the result of blatant bad faith and manipulation by the mother. He says she’s stalling because she has a financial incentive to stretch out spousal support payments which – in his view -- will inevitably be terminated upon completion of the trial. a. At this point, I’m not able to make any determination in relation to spousal support. b. It is entirely possible that after I hear all the evidence and submissions, spousal support will end. Possibly retroactively. c. It is entirely possible that spousal support will continue. d. It is entirely possible that the spousal support numbers may change, both prospectively and retroactively. e. It is a distinct mathematical possibility that the father may end up owing a lot of money to the mother. f. It is a distinct mathematical possibility that the mother may end up owing a lot of money to the father. g. Based upon the narratives of the parties, these are not just fanciful or theoretical possibilities. The facts of this case are quite complicated, and each party is vigorously pursuing credible positions on financial issues. h. It is premature – and entirely inappropriate – for me to speculate or comment on the likely eventual result.

99. For purposes of this motion I must be mindful of all of the realistic possible outcomes. And I must give careful consideration to the interplay between indefinite trial delay, and the enforceability of each of the realistically possible outcomes at the end of the trial. The dilemma is really quite straightforward. a. If the father is ultimately ordered to pay any amount of money to the mother, there is no doubt that the mother will be able to enforce her entitlement. The father is financially secure. b. If on the other hand the mother is ultimately ordered to pay any amount of money to the father, there is equally no doubt that the father will not be able to enforce any portion of his entitlement. The mother is impecunious. c. If the mother “succeeds” at trial, she’ll actually receive what she’s supposed to receive. d. But if the father “succeeds”…he’s out of luck. e. “Win Win” for her. f. “Lose Lose” for him. g. In the best of circumstances – even if all the numbers had crystalized – that sort of double-standard would be patently unfair. h. But here, we have the aggravating factor of ongoing delay making this anomalous situation even more grievous with each month that passes. i. If the mother’s future attendance for trial is as spotty as her past attendance, the father might end up paying potentially unwarranted support – for years – with no possibility of reimbursement. j. And while the father is convinced that this uneven playing field has been deliberately created by the mother’s deception – even if I completely accept the mother’s explanations (which I do not) – the risk and prejudice to the father would remain equally unpalatable.

100. Where a party stands to gain significant benefit from a delay that they have unilaterally created -- to the irreparable detriment of the other party -- the court has an absolute responsibility to guard against unfairness; potential mischief; or abuse of process.

101. Here, the mother’s weak explanations for past delays; the likelihood of similar delays in the future; and the serious prejudice to the father – all converge to compel the court to consider intervention in the unique circumstances of this case.

102. Mr. Fazari characterizes the objective as removing the mother’s incentive to stall. I think the more appropriate characterization is to increase the mother’s incentive to complete this trial without further delay.

103. Not to be forgotten: This is the father’s motion to change a final spousal support order which did not include a termination date. a. But so many changes have occurred in the almost seven years since spousal support was determined. b. The children have switched households. The father is now assuming responsibility for them, with no contribution by the mother. c. The mother’s situation has become unsettled and unclear. Inadequate medical disclosure has been a recurring problem, not just with respect to trial delay, but also with respect to spousal support. d. I am satisfied that in multiple ways the “material change in circumstances” threshold has been met.

104. Beyond that, the father seeks an interim variation of a final order. a. The threshold for such temporary variations is quite high – normally requiring the most urgent facts. b. But again, in the unusual circumstances of this case, I am satisfied that the extraordinary delay combined with the financial realities of the parties, justify consideration of interim variation.

105. Finally, the father bases much of his argument on the mother’s inability to satisfy a potential reimbursement order. a. Where entitlement, need and ability to pay have all been determined, we don’t normally infuse “ability to reimburse” as a further pre-requisite to ongoing support. b. But again, this is a very unusual situation – somewhat akin to security for potential future obligations. c. The father has made an absolute commitment to properly determining all obligations in a reasonable and timely manner. He is doing everything “by the book” and honouring all of his obligations. d. It is the mother’s absolute inability to commit to a timely resolution that has brought the issue of “ability to reimburse” to the forefront.

106. Many of the concerns which arise in this type of situation – duration of support pending judicial determination; a temporary variation; ability to reimburse – are commonly dealt with by expediting the trial, to minimize the period and magnitude of any potential prejudice. a. But this trial has turned out to be the exact opposite of “expedited”. b. As a court system we have allocated every possible resource to allowing and encouraging these parties to bring this bitter dispute to a conclusion. c. For his part, Mr. Fazari made his own attempts to speed up the process by filing a Request to Admit (which was ignored). d. Nothing seems to work. e. Irrespective of where her explanations lie on the continuum of “sufficient vs insufficient”, the bottom line is that the mother has virtually paralyzed the trial process.

107. Throughout this trial I have attempted to be mindful of the mother’s particular challenges as a self-represented litigant. a. On days when the trial has proceeded, we have gone slowly. I have done a lot of explaining and accommodating. b. There are many procedural rules and requirements which can be confusing. I have taken the time to explain things at every step (although I agree with Mr. Fazari that the mother is a sophisticated litigant). c. But the basic requirement that everyone should show up for court – on time and every day – is not hard to grasp, even if you don’t have a lawyer.

108. At this stage the only practical approach is to focus less on the cause of uncontrolled delay, and more on guarding against the consequences of a runaway trial. a. At a certain point – and I think we’ve reached that point – the court has to regain control of the process; reduce the potential for misadventure; and treat all parties equally in relation to both expectations and protections. b. As the Supreme Court of Canada recently stated in Mazraani v. Industrielle Alliance, 2018 SCC 50: “The presence of a party who is not represented by counsel does not result in the suspension of anyone's fundamental rights.”

109. I have considered the mother’s submission that if her support payments are immediately cut off she will lack sufficient funds to physically attend the balance of this trial. a. The objective throughout has been to complete this trial in a timely manner. That’s still the objective. b. I am mindful of the father’s response that even when the mother was receiving spousal support, she still didn’t come to court regularly. He disputes that shortage of funds has ever been the issue. c. Nonetheless, as stated, we have three days of trial time set for July 2019 and three consecutive weeks set for September 2019. And I really do want to give the mother both the incentive and the ability to make a commitment to attend all future trial days. d. As a result, while I have determined that the time has come to suspend ongoing spousal support payments (on a without prejudice basis), I will allow continued enforcement of some spousal support arrears for a fixed period of time. e. I have selected a temporary amount of enforcement of arrears which takes into account the previous amounts of both ongoing spousal support and the child support set-off. f. These continued payments – combined with a suspension of the mother’s child support payments toward the father – should ensure that the mother has the basic financial resources to participate in the trial. g. The purpose of all of this is to modify expectations and behaviours. h. So far, the mother has perceived that there is no downside to repeatedly cancelling court, thereby causing significant inconvenience, expense and prejudice. i. The mother needs to understand that if she causes more delays and if the trial is not completed efficiently, she will face the downside of all payments from the father being suspended.

The Order

110. Temporary-Temporary without prejudice order: a. Commencing May 1, 2019 the father’s ongoing spousal support payments to the mother are suspended. b. Commencing May 1, 2019 enforcement of arrears of spousal support owing by the father to the mother shall be limited to $1,400.00 per month, until and including September 1, 2019. Commencing October 1, 2019, enforcement of arrears of spousal support owing by the father to the mother shall be completely suspended. c. Commencing May 1, 2019 the mother’s child support payments to F.D. shall be suspended. d. Commencing May 1, 2019 enforcement of the mother’s arrears of child support to F.D. is suspended. e. All determinations herein are on a without prejudice basis, and subject to redetermination upon the completion of the trial. f. As well, if currently scheduled trial days proceed as scheduled, the suspension of enforcement of spousal support arrears may be revisited in September 2019. g. Costs of this motion are reserved to be dealt with when costs in relation to the main action are dealt with. h. Support deduction order to issue.
111. After I prepared this judgment but before it was released, the mother sent an e-mail to the St. Catharines Trial Coordinator advising that she had made a mistake when she told me that the father’s arrears listed with FRO are more than $62,000.00 (the figure I referred to in paragraph 9(b). She says she reviewed the numbers and the correct arrears are $82,212.82. Mr. Fazari has not had an opportunity to comment on that recalculation, but he was clear in previously stating that once all proper adjustments are done, there are no arrears owing. This is among the issues to be determined upon the completion of the trial. However, the mother’s additional information today does not change my order.

Pazaratz, J.

Released: May 16, 2019

COURT FILE NO.: 766/16 DATE: 2019-05-16 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: D.D. Applicant F.D. Applicant - and - H.G. Respondent REASONS FOR JUDGMENT The Honourable Mr. Justice A. Pazaratz Released: May 16, 2019