Court File and Parties

COURT FILE NO.: FC-13-1417

DATE: 2019/09/20

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: P.B., Applicant AND C.A.O., Respondent

BEFORE: The Honourable Mr. Justice Marc. R. Labrosse

COUNSEL: Eric Lepine and Ira Marcovitch, Counsel for the Applicant C.A.O., Self-represented

HEARD: September 18, 2019

ENDORSEMENT

Background

[1] This matter is currently on the list for the trial sittings commencing the week of September 23, 2019. It is not high on the trial list and may or may not be heard. On August 27, 2019, I presided over a Trial Management Conference where the Respondent Mother identified a number of issues that had to be addressed involving disclosure, before the matter could proceed to trial. Ultimately, she was seeking a two to three month adjournment of the trial to obtain such disclosure.

[2] The Mother was advised that the third-party record sought necessitated a motion and that the proper proceedures needed to be followed, particularly with respect to the Ottawa Police Service and the Royal Canadian Mounted Police (RCMP) who have very specific processes in place for dealing with third party records applications. In addition, the Applicant Father objected to any adjournment and the Mother was provided with a special motion dated before me to allow her requests to be adjudicated prior to the trial sittings.

[3] When considering the steps required to prepare her documentation for the motion, together all the trial preparation issues that resulted from the Trial Schedulling Endorsment Form, there is no doubt that the Mother was faced with a series of very challenging procedural issues that she needed to address. By the time the Mother finally served her motion record on September 6, 2019 for the Motion to be heard on September 13, 2019, this left the Father with insufficient time to properly present his evidence in response to the Mother’s motion. Additionally, the Mother had not served the RCMP for the third-party records as required by r. 19(11) of the Family Law Rules, O. Reg. 114/99, (FLRs) and she had not prepared or served her draft Response to Request to Admit to allow the Court to rule on her request for leave to file this document. Ultimately, I adjourned the Mother’s motions to September 18, 2019.

[4] On September 18, 2019, the Mother had just served her draft Response to Request to Admit and she served and filed her updated Financial Statement. She retained a process server who was unable to serve the RCMP with the third-party records motion. The Father was able to serve and file his Affidavit for the Motion.

The Evidence

[5] At the September 13, 2019 appearance, all parties agreed that the Mother’s answer already contemplates a request for retroactive child support during the period when she had C.A.B. in her care. Also, I ruled that the request to change C.A.B.’s name was an issue for the trial judge and that I would not grant temporary relief on that issue.

[6] At the Trial Management Conference held in August, the Father provided his consent for the Mother to make applications to the York Centre and the Ottawa Police Service for records. The Mother has provided no evidence that these requests were made and on what date but she says she is still waiting for the documents.

[7] Finally, the Mother was seeking a copy of an Affidavit of Service filed for a Settlement Conference that the Mother failed to attend on September 10, 2014. The Father says he does not have it but assumes it was filed as he was allowed to file his Settlement Conference Brief on that date. I instructed the Mother to go inquire at the Family Counter to see if the document is in the Court file. Also, there should be a record in the electronic filing system if the Affidavit of Service was filed. As of September 18, 2019, the Mother had not gone to the Family Counter to inquire. I am not prepared to order the Father to make efforts to find this document. The Mother has not taken the steps available to her to inquire on the issue.

[8] As a result, I determined that the Motion would proceed only on the following issues:

1. An Order requiring the RCMP to provide the Respondent all records pertaining to the Applicant’s work Schedule since April 17, 2013 to August 2019;

2. An order requiring the RCMP to provide to the Respondent all of their records pertaining to the Applicant suicidal attempts and any other mental health issues regarding the Applicant.

3. An Order requiring the Applicant’s family doctor to produce all records relating to the Applicant suicidal atttempts and mental health issues, as well as any other medical, psychiatric and health profession and from any hospital and treatment facility in relation to his suicidal attempts and mental health issues.

4. An Order for Leave to file my Answer to Admit.

5. An Order to adjourn the trial for 2 to 3 months without prejudice to allow me to obtain all these third party records, please.

[9] In support of her request, the Mother has filed an Affidavit that provides the following evidentiary foundation for the requested orders:

a. That the Father told her that he had attempted to commit suicide in the past and the RCMP was aware of these suicide attempts;

b. That in 2016, while C.A.B. was under the Father’s care, the Father was concerned that C.A.B. may have ingested Tylenol and he was brought to the Children’s Hospital of Eastern Ontario for assessment.

c. That in September 2014, the Father provided fraudulent evidence in support of his position that the Mother had relocated to Cornwall in support of his argument that he should have temporary custody of the child;

d. That S.B. told the Mother that when the Father was a child, he would hold his breath when he did not get his way;

e. In 2012, the Father told the Mother that he could not conceive a child because he used to punch himself in the testicles to injure himself and that this was the reason that he requested a paternity test when C.A.B. was born;

[10] The Mother relies on these main issues as more particularly set out in her September 5, 2019 Affidavit, in support of her position that there are important parenting and mental health issues that must be addressed in order for the trial to proceed on a complete evidentiary record. She also relies on the Father’s alleged non-compliance with Court Orders to warrant an adjournment of the trial.

[11] The Father filed an Affidavit of an employee of his solicitor’s firm that provides much of the procedural background surrounding the non-compliance issues. It addresses some of the issues raised by the Mother such as the delivery of the birth certificate, the notes from the York Centre, the Paternity Test and the information for the Request to Admit. The Affidavit confirms that the Mother’s allegations of non-compliance are not accurate.

[12] The Father also filed his own Affidavit to address the allegations in the Mother’s Affidavit. The full details of that evidence is found within the Father’s September 17, 2019 Affidavit and can be summarized as follows:

a. The Father denies that he committed fraud to advance his claim. There was evidence to support that the Mother had relocated to Cornwall back in 2014 and he denies that he did not serve the Mother with the Settlement Conference material back in September 2014;

b. The Father denies that he has a history of suicidal attempts and mental health issues. He described one incident in grade 9 or 10 where he questioned the meaning of life after the death of a classmate. He denies attempting or considering suicide or ever trying to injure himself by punching himself in the testicles. He agreed that his Mother told him that before he was 1 year old, he would hold his breath to get his way. Over the years, he has taken two (2) stress related leave of absences, in 2012 and 2015;

c. He requested the medical notes from his family doctor. The cover letter from the Doctor states that they relate to emotional stress focussed on his son’s safety and well-being. The Father was provided with four (4) notes dated December 3, 2014, February 18, 2015, August 31, 2017 and October 12, 2017. They also relate to stress surrounding issues in this litigation;

d. The Father has been followed by a psychologist as a precautionary measure over the stress of the litigation and the nature of his employment as a member of the RCMP. As of the date of the Motion, he had not received the notes from the psychologist.

Issue #1: Third-Party Records

[13] At the commencement of the Motion, the Mother advised that she was unable to effect service on the RCMP of her motion materials. Given that r. 19(11) of the FLRs requires that a third-party is to be personally served with the request, I denied the Mother’s request to grant an order for the RCMP to be served by mail.

[14] As r. 19(11) has not been complied with, I hereby adjourn the Mother’s motion for RCMP records to a date that she can have the matter heard, likely by the trial judge, after the RCMP has been properly notified of her request as set out in the Rules.

[15] As for the notes from the Father’s family doctor and psychologist, there is a lack of evidentiary basis to support a conclusion that it would be unfair to require the Mother to go to trial without the requested documents. I come to this conclusion for the following reasons:

a. The Mother has waited until just before trial to present her request when she has been aware of the factual background for several years. This certainly puts in doubt the extent to which the Mother requires the records given that she has done nothing for a number of years;

b. The facts relied upon in support of the Mother’s request have been disputed by the Father and he has placed context around the limited discussions he admits to have had with the Mother about his mental health and stress related issues;

c. The Father has had C.A.B. in his care since 2014. There is no evidence that the issues raised by the Mother have materialized themselves and have affected his ability to care for C.A.B.. With respect to the family doctor’s four (4) entries, the most recent is dated October 12, 2017. The Father states that none of the notes reference the Father considering suicide.

d. The family doctor states that the notes relate to emotional stress experienced by the Father. This is far from the suicide attempts suggested by the Mother;

e. The Mother’s Affidavit dated September 5, 2019 raises serious credibility issues. She has made sworn statements about not receiving court-ordered disclosure of documents while the Father has clearly shown that these have been sent to her;

f. The Mother will have the opportunity to cross-examine the Father on the issues surrounding his alleged suicide attempts. The notes are in the Father’s possession. The Trial Judge will have the option of considering the production of the notes should the evidentiary record warrant it;

g. There is simply no evidentiary basis to warrant such an intrusion into the Father’s privacy. The Father’s mental health has not been an issue in these proceedings. The simple fact that the Father has consulted his family doctor or that he consults a psychologist are not grounds on their own to support a finding that the Father’s mental health is an issue at trial. The Mother is fishing for something that might assist her at trial without being able to demonstrate that it would be unfair for her to go to trial without the documents.

[16] While I am tempted to arrive at a similar conclusion for the RCMP documents, it would be premature to do so. The requests for the RCMP disclosure is to be left to the trial judge if the RCMP is properly served.

Issue #2 – Leave to file a Response to Request to Admit

[17] The Mother was served with a Request to Admit on July 22, 2019. She had 20 days to file her response. This would have been on or about August 12, 2019. On August 27, the Mother indicated her intention to seek leave to file a response. She brought a motion requesting leave on September 6, 2019, some twenty-five days after her response was due.

[18] The Father relies on the principles set out in Forget v. Forget, [2001] O.J. No. 3691, and the criteria for withdrawing an admission in a pleading. The Court may grant leave to withdraw admissions if the party seeking the withdrawal establishes that: (1) the proposed change raises a triable issue; (2) that there is a reasonable explanation for the change of position; and (3) that the withdrawal will not result in any prejudice that cannot be compensated for in costs. The law for the withdrawal of an admission in a pleading has also been applied where the request is to withdraw a deemed admission resulting from the failure to respond to a Request to Admit within the required 20 day period: See Epstein Equestrian Enterprises Inc v. Cyro Canada Inc, 2012 CanLII 44947 (Ont. S.C.).

[19] A review of the Request to Admit demonstrates that there are certainly triable issues that would result from the deemed admissions being withdrawn. For example, the Request to Admit seeks an admission that C.A.B. is strongly bonded with the Father and his wife. This is an issue that the Mother will be opposing as she states that there is “no substantial evidence” of these facts. In addition, the Mother has indicated that she challenges some of the facts surrounding the situations where she was found to have absconded with C.A.B.. While there may be other evidence to support the admission, I am of the view that the Mother should have the opportunity to present her evidence and have the trial judge come to a conclusion on the issues. I am therefore satisfied that the withdrawal of the admission will raise triable issues.

[20] With respect to the issue of inadvertence, I am satisfied that as a self-represented litigant, the Mother has been working hard to prepare herself for trial and that she did not understand or appreciate the importance of providing her response within the 20 day period although she was advised of the consequences by the Father’s counsel. The Mother has been working on complying with the Trial Scheduling Endorsement Form, she prepared her motion for disclosure, filed an amended Answer and filed a new Financial Statement. I accept that she did not appreciate the consequences of her failure to file her response and as such it is explained.

[21] Finally, the Response is 25 days late. There is no prejudice that cannot be compensated by costs. The Father has not attempted to suggest that such prejudice exists.

[22] Consequently, the criteria is met and the Mother shall have leave to file her Response to Request to Admit.

Issue #3 – Adjournment of the Trial

[23] One of the main reasons the Mother seeks to adjourn the trial is that she has not received the disclosure she has requested from the York Centre, the Ottawa Police Service and the third-party disclosure she has requested in this Motion.

[24] The Mother’s request to adjourn the trial for two to three months is refused for the following reasons:

a. The Mother is the cause of these last-minute disclosure requests. The matter was placed on the trial list by O’Bonsawin J. on June 10, 2019 and the Mother has delayed in making her requests for disclosure. In addition, the Father has provided her with the York Centre disclosure that he has received but the Mother does not trust that he has provided everything.

b. The Mother has not established that the York Centre’s notes of 2014 have any relevance to C.A.B.’s best interests in 2019.

c. The third-party disclosure requests from the family doctor and psychologist have been refused as fishing expeditions. While I have not ruled on the RCMP records, the requests are also based on the concerns for the Father’s mental health and suicide attempts and the evidentiary record does not support that these will be issues at trial.

d. The Mother has not filed any evidence that she has acutally made requests for disclosure from the York Center or the Ottawa Police and when those requests were made after the Father provided his consent.

e. This matter has now been before the Courts for over five (5) years. While the Mother has made progress that is reflected in the expansion of her access, C.A.B. cannot be expected to wait any longer to have permanence.

f. The time for the Mother to have objected was when the matter was placed on the trial list by O’Bonsawin J. The Mother confirmed that she did not object at that time.

g. There has been an assessment performed by Dr. Martine Roberge that contains recommendations on custody and access. An adjournment of the trial would further date those recommendations.

[25] Consequently, the Mother’s motion to adjourn the trial is dismissed.

Conclusion

[26] For the reasons set out above, the Mother’s motions for the family doctor and psychologist records are dismissed together with the Motion to adjourn the trial. The Motion for leave to file the Response to Request to Admit is granted. The Motion for the RCMP records is adjourned pending service as required by r. 19(11) of the FLRs.

Justice Marc R. Labrosse

Date: September 20, 2019

COURT FILE NO.: FC-13-1417

DATE: 2019/09/20

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: P.B., Applicant AND C.A.O., Respondent

BEFORE: The Honourable M. Justice Marc. R. Labrosse

COUNSEL: Eric Lepine and Ira Marcovitch, Counsel for the Applicant C.A.O., Self-represented

ENDORSEMENT

The Honourable M. Justice Marc R. Labrosse

Released: September 20, 2019