Court File and Parties
Court File No.: FS-17-90706-00 Date: 2020 04 27 Ontario Superior Court of Justice
Between: E. (“M.”) B., Applicant Counsel for the Applicant: Jared Teitel
- and -
M.F.B, Respondent Counsel for the Respondent: Rachel Radley
Heard: In Writing
Reasons for Decision
LeMay J.
[1] I have been case managing this family law proceeding since March 6th, 2019. The parties were married on October 18th, 2014, separated on October 19th or 20th, 2017 and commenced this proceeding in either late October or early November of 2017. There is one child of the marriage, (“the child”) who will be four years old in September. The matter was proceeding to trial on the civil blitz list in May of this year, and that trial date was peremptory to both parties. I will address the issue of the trial date at the end of my reasons. However, at the outset it should be noted that the coronavirus outbreak has required the Court to move the trial date as well as other scheduled dates, and the parties were advised of that fact by e-mail in March of 2020. The timetable for producing documents takes that fact into account.
[2] The parties appeared before me for a Settlement/Trial Management conference on February 20th, 2020. At that time, I determined that there were some significant production issues outstanding between the parties. Those production issues included the production of medical records and the participation of the Applicant in therapy with the child.
[3] In addition to these issues, there were questions about whether the Respondent was proceeding with her claim for spousal support and whether the divorce could be severed from the corollary relief. If the spousal support claim was proceeding, then there would be additional production that would be required to be provided.
[4] The Respondent is not proceeding with her claim for spousal support. I am noting that this claim has been withdrawn, and it has not been included on the Trial Scheduling Endorsement Form. However, I am still going to review some of the history of how that withdrawal came about. The remaining issues, including whether the divorce could be severed from the corollary relief, required a ruling from me.
[5] I ordered the divorce to be severed from the corollary relief at the appearance on February 27th, 2020 over the Respondent’s objections. The remainder of the issues proceeded by way of written submissions.
[6] Based on the foregoing, I will divide these reasons into the following sections: a. The background facts. b. The severing of the divorce c. The abandonment of the claim for spousal support. d. The production requests from the Applicant. e. The request for the Applicant to be able to attend at a counselling session with Dr. Svitasheva and the child. f. The requests for a sealing order on the file. g. The requests for costs.
[7] I will deal with each issue in turn. I note at the outset that most of the issues do not appear to be seriously in dispute, and I will return to that fact at the end of these reasons.
The Background Facts
a. The Relationship and the Outstanding Issues
[8] The parties are both employed and are both in their early 30’s. As noted above, this was a short marriage, lasting just around three years. Although the Respondent had been claiming spousal support, this claim was abandoned shortly before these materials were filed.
[9] The parties had owned a matrimonial home together. That home has been sold and the proceeds have been dealt with.
[10] The other issues between the parties revolve around the child of the marriage. They include finalizing child support and section 7 expenses, as well as life insurance and parenting time. The most significant issue between the parties is parenting time.
b) The Litigation
[11] This litigation commenced in November of 2017. A number of Orders have been made since the litigation started. These Orders involve the sale of the matrimonial home and the provision of child support on account of the child of the marriage. Child support is continuing on an interim basis, but will be determined on a final basis at trial.
[12] A case conference was held before me on March 6th, 2019. At that time, the parties indicated that they were planning on attending a mediation session. I scheduled a further case conference for June 25th, 2019, which the parties adjourned on consent and without advising me that they were seeking an adjournment.
[13] Shortly after this case conference was adjourned, the parties wrote and advised me that they required a further appearance before me. Some discussions were had, and a date of November 4th, 2019 was scheduled.
[14] At the case conference on November 4th, 2019, it was clear that this matter was proceeding to trial. I placed it on the trial list for May of 2020, peremptory to both sides, and directed that the trial would proceed with or without counsel. I also indicated to the parties that the next settlement conference, on February 20th, 2020, was to finalize witness lists and other preparations.
[15] In addition, I had been advised on November 4th, 2019 that the Respondent had obtained the services of a therapist for the child of the marriage. I directed that the notes of the therapist were to be produced to the Applicant. I also directed that the parties produce updated communications logs in advance of the next case conference, which was scheduled for February 20th, 2020. I reviewed those communications logs and discussed them with counsel and their clients at both the February 20th, 2020 appearance and the February 26th, 2020 appearance.
[16] Finally, at the November 4th, 2019 appearance, Ms. Radley, the Respondent’s counsel provided the Applicant’s counsel with a letter from a Dr. Maria Svitasheva in which Dr. Svitasheva confirmed that the child had visited with her for the first time on October 28th, 2019. Dr. Svitasheva also confirmed that the child was having separation anxiety from the Respondent. I understand that the Applicant was not aware that this referral had been made until the case conference on November 4th, 2019.
c) Events Since November 4th, 2019
[17] I am going to set out the sequence of events in detail, as I am of the view that it is important to understand the reasons for the Orders that I am going to make.
[18] Within a couple of days of the November 4th, 2019, the Applicant’s counsel, Mr. Teitel, wrote to Dr. Svitasheva and asked for both information about the therapy and an opportunity to participate in a “play therapy” session with the child at Dr. Svitasheva’s office. The Applicant was advised that Dr. Svitasheva worked on Saturdays and not on Sundays.
[19] There was additional correspondence from Mr. Teitel on November 8th, 2019. First, a letter to Ms. Radley asking to switch the Applicant’s access from Sunday to Saturday so that the Applicant could attend a counselling session with Dr. Svitasheva. In that letter, Mr. Teitel also asked for confirmation as to whether the Respondent was abandoning her position on spousal support. No written reply was received to this letter.
[20] On November 8th, 2019, Mr. Teitel wrote to Dr. Lewi, the child of the marriage’s pediatrician, requesting production of the entirety of Dr. Lewi’s file. While these records were prepared by Dr. Lewi, they were not released to the Applicant or to Mr. Teitel.
[21] On November 28th, 2019 Dr. Lewi advised Mr. Teitel that she was not able to release the records as “the child’s mother and her lawyer have sent me notice not to release the records.” Mr. Teitel then wrote to Ms. Radley on November 29th, 2019 and advised her that there were no grounds to prevent the Applicant from obtaining copies of his daughter’s medical records. No written response was received to this letter until after the appearance before me on February 20th, 2020.
[22] It subsequently became clear that Ms. Radley had written to Dr. Lewi in mid-November and asked that the child’s medical records not be disclosed until the doctor was in possession of either a consent or a Court Order. This letter was not copied to Mr. Teitel or the Applicant, and was only produced after the records had been produced.
[23] There were a number of subsequent letters written by Mr. Teitel to Ms. Radley, on December 9th and 16th, 2019 and January 13th, 2020. Ms. Radley did not respond to any of those letters until after the Settlement Conference on February 20th, 2020.
[24] Finally, at the Settlement/Trial Management Conference on February 20th, 2020, Ms. Radley (the Respondent’s counsel) did not attend. Her junior counsel advised that she had a flat tire and was unable to be present. One of the key issues at this settlement conference was disclosure.
[25] Having reviewed the outstanding disclosure issues, I was of the view that they could be disposed of by way of a written motion. As a result, I strongly suggested to the parties that we proceed by hearing the motion in writing. There was no objection to this procedure.
[26] I have reviewed the written arguments of both sides. The Applicant’s materials are primarily provided by way of affidavits from a legal assistant at Mr. Teitel’s law firm. The Respondent objects to this because of the fact that the Affiant does not have a full picture of the litigation, and that there have been ongoing motions and other contentious issues between the parties that were not fully disclosed.
[27] This objection has no merit. The purpose of an affidavit on a disclosure motion is to ensure that the Court can understand the scope of the disclosure that has been requested, and the positions of each party on whether or not disclosure should be ordered. I have been case managing this file for some time, and have a sense of the underlying issues. A complete picture of every issue in the case is not necessary for a motion of this nature.
[28] To that end, I would note for both Mr. Teitel and Ms. Radley and their clients that the Affidavits that were filed by both sides were not appropriate for this motion. One example from each side will suffice. In the Respondent’s motion, she notes that the Applicant’s strategy is to “litigate me into submission”. This statement is both argumentative and of no assistance to me in resolving the production motion.
[29] From the Respondent’s materials, Mr. Teitel’s assistant has included (at paragraph 13 of her reply Affidavit) the statement that “the hypocrisies are obvious”. Again, this statement is both argumentative and of no assistance to me in resolving the production motion.
The Severing of the Divorce
[30] At the case management conference, Mr. Teitel asked that the divorce be severed from the corollary relief. Ms. Radley opposed that request on the basis that there were still claims for equalization and payments for support.
[31] Rule 12.6 of the Family Law Rules states that the Court may make an order severing a divorce from the other issues if neither spouse will be disadvantaged by the Order and reasonable arrangements have been made for the support of any children of the marriage. I will deal with each half of this test.
[32] First, on the arrangements for reasonable support for any of the children, the Courts have made Orders for the child’s support. While support remains to be resolved on a final basis at trial, reasonable arrangements for support and for the adjudication of the support claim are in place.
[33] Then, there is the question of whether either spouse will be “disadvantaged” by the granting of the divorce. The parties are now living in different cities. There are no claims relating to the matrimonial home, save and except for equalization. These are claims that can be dealt with as part of this proceeding, regardless of whether the divorce is severed from the corollary relief.
[34] During the course of the Case Conference, I asked Ms. Radley why the divorce would not be granted. The answer focused on the fact that other relief had not yet been granted. However, as noted by Gray J. in Al-Saati v. Fahmi 2015 ONSC 1114, disadvantage must mean a legal disadvantage, rather than using the divorce as leverage for other issues. In this case, I do not see any legal disadvantage that would accrue to the Respondent if the divorce were granted.
[35] As a result, I ordered the divorce severed from the corollary relief. As the case management judge, I retain the jurisdiction to consider the issue of the divorce and the actual divorce request is to be placed before me. If the Respondent can demonstrate any prejudice that would issue as a result of granting the divorce, I am prepared to leave the matter to trial. This is an issue that we will address at the next case conference.
[36] I should also note, as a final matter, that Mr. Teitel has been seeking to have the divorce severed since the appearance in November of 2019 and has covered the issue in more than one of his letters to Ms. Radley. At no time between November 4th, 2019 and February 20th, 2020 did Ms. Radley communicate any concerns about this request to Mr. Teitel.
Production Requests
[37] The first question to answer is what documentation remains outstanding. In my endorsement of February 20th, 2020, I limited the information that could be addressed by this motion to the list of items included in Mr. Teitel’s Confirmation and the draft Order he provided for the case conference.
[38] I should also address the Respondent’s statement in her affidavit that “it is troubling to me that I was not given an opportunity to request any outstanding disclosure that I may want.” In response to that statement, I would note three points as follows: a. On the record that I have, at no time between November 4th, 2019 and the Settlement/TMC did the Respondent or her counsel make any requests for disclosure from the Applicant or his counsel. The absence of any request for disclosure from the Respondent or her counsel must be placed in context. The parties were attending a Settlement/TMC on February 20th, 2020 in order, as I noted in my endorsement of November 4th, 2019, “to finalize the witness lists and other preparations for the trial.” If any additional documents were required by the Respondent, one would expect that they would have been requested in advance of the February 20th, 2020 case conference. b. In her Affidavit, the Respondent does not raise any examples of items that she is seeking to obtain. Instead, she simply makes the bald statement that I have produced above. This suggests that there are not actually any documents that the Respondent requires from the Applicant. c. The Respondent’s counsel has not sought leave to bring her own production motion. Again, this suggests that there are not actually any documents that the Respondent requires from the Applicant.
[39] I would also note that the Trial Scheduling Endorsement Form does not deal with any other production being sought by the Respondent.
[40] The list of information that is producible has been significantly reduced by the fact that the Respondent has withdrawn her spousal support claim. As a result, the following disclosure is outstanding: a. The complete file of Dr. Renee Lewi in respect of the child of the marriage. b. The complete file of Dr. Maryna Svitasheva in respect of the child of the marriage. c. The complete file of the Brampton Civic Hospital in respect of the child of the marriage. d. The surveillance from the Brampton Civic Hospital for December 8th, 2019. It is not clear to me whether the Applicant is still seeking this information, as it is not specifically mentioned in the Affidavit that was filed, but was mentioned in the Confirmation of Motion form.
[41] Having reviewed the correspondence of the parties, there does not appear to be any dispute that the documents listed in paragraphs (a) to (c) should be produced. There is a dispute over whether an Order is necessary, and whether a third-party records motion is necessary. Having reviewed the events since November 4th, 2019, I am of the view that an Order is necessary for three reasons.
[42] First, the level of trust between these parties (and their counsel) is very low. That is exhibited in both the failure of Ms. Radley to communicate with Mr. Teitel (described above) and in Mr. Teitel’s approach to the adjournment request of the Settlement/TMC before me on February 20th, 2020. Mr. Teitel’s opposition to the adjournment request, particularly since we were able to reschedule the case conference promptly, was unhelpful.
[43] Second, I reject the Respondent’s position that she was always ready to produce the medical documentation that was being sought. Instead, I conclude that the Respondent was intentionally placing obstacles in the way of the disclosure of this information. I reach that conclusion for the following reasons: a. Ms. Radley’s letter to Dr. Lewi was not followed up with any efforts to communicate with Mr. Teitel about the medical documentation. Indeed, Ms. Radley did not even copy Mr. Teitel on this correspondence. If there was an issue with protecting the child’s confidentiality while disclosing the documents, rather than merely a desire on the part of the Respondent to prevent the disclosure of the records, I would have expected Ms. Radley to follow up with Mr. Teitel and the Applicant rather than merely stopping the disclosure of documents. b. There is no indication in any correspondence anywhere on the record I have prior to February 20th, 2020 that the Respondent was prepared to have the child’s health records disclosed to the Applicant and was only concerned about privacy issues. c. There is a tendency on the part of the Respondent to take a technical and narrow interpretation of what should be disclosed. For example, her position that the invoices of Dr. Svitasheva are not part of the file may be technically correct but is something that is quite narrow. It suggests a desire to not produce the complete record, and to control what is produced.
[44] Third, there is the failure of Ms. Radley and/or the Respondent to respond in any meaningful way to Mr. Teitel’s correspondence. There were more than five letters written by Mr. Teitel to address issues of production, access and the issue agenda. The Court should be able to expect that parties respond to each other about the issue and work together to attempt to narrow the issues.
[45] In Ms. Radley’s letter sent in the late afternoon of February 20th, 2020, she suggests that Mr. Teitel “surreptitiously” scheduled a production motion. That claim is without merit. Mr. Teitel’s intention to seek a production order from me was made clear when he filed his Confirmation form in advance of the February 20th, 2020 appearance. Indeed, given that the purpose of the Settlement/TMC was to finalize preparations, it should have come as no surprise that outstanding production would be the subject of a motion, particularly when the Respondent and her counsel had not responded to a number of letters relating to production.
[46] Finally, in terms of whether Ms. Radley spoke to Mr. Teitel at any point after November 4th, 2019, all I have from either party is information and belief. Neither Ms. Radley nor Mr. Teitel have sworn an Affidavit on that point, so I have no direct evidence. My concerns about the conduct of Ms. Radley and/or her client are not affected by whether this conversation took place or not. I am still of the view that an Order is necessary.
[47] I am also concerned about the failure to respond to Mr. Teitel’s letters. Based on the Respondent’s Affidavit, it would appear that the Respondent was directing Ms. Radley not to respond to the letters rather than Ms. Radley failing to communicate with Mr. Teitel. The Respondent’s approach to the litigation in this regard was unhelpful and counterproductive in my view.
[48] Overall, these facts convince me that an Order is necessary in this case. It will ensure that the records are all disclosed, and remove any ambiguities or opportunities for further litigation.
[49] I am ordering all of the medical records described in paragraphs 40 (a) to (c) to be produced to both sides, subject to any objections made by the third parties. None of these parties have been served with the motion materials. Therefore, they are to be served with my Order, which will be in the following form: a. Both parties are required to consent to release all documents relating to the child in the possession of the health care provider. b. The health care provider shall advise the parties in writing within ninety (90) days of being served with a copy of the Order whether they object to producing the documents and, if so, what the objections are. Alternatively, the health care provider can advise that, because of the ongoing health crisis in Ontario, an extension is required to produce the documents. That extension will likely be granted. If there are objections to the production of documents, the parties and the health care provider concerned may make an appointment to see me. c. If there are no objections to the production of the documents, then a copy of the documentation is to be provided to each party separately and each party shall bear the costs of the copy of the documentation that they receive. d. If there are objections, then either party is free to bring a third-party records motion against the health care provider that has declined to release the records.
[50] This process is also designed to address any issues about whether a third-party records motion is required. To be clear, as long as the records are produced the motion is not required. Further the parties are expected to cooperate with each other in securing the records.
[51] The December 8th, 2019 videotape from the Brampton Civic Hospital is not covered by the above order. I have three reasons for declining to make an Order about this videotape. First, it is not entirely clear to me that it is still being sought. Second, it is quite possible that this record no longer exists. Finally, it is not the sort of document that would normally get produced in family litigation. Indeed, it seems that the request for the production of this videotape is to provide evidence to help determine who was right in an argument that took place in the hospital on December 8th, 2019. It is not clear how receiving this document would be productive to actually resolving the issues in the litigation.
[52] As a result, I decline to order production of this record at this time. If the Applicant’s counsel wishes, he may bring a third-party motion to seek that record from the hospital. This motion can only be brought after the Courts have resumed regular operations.
Spousal Support
[53] This is not a matter that the Respondent is pursuing at Trial. The Applicant, however, is seeking “an order that [the Respondent] has withdrawn her claim for spousal support.” I decline to make this Order. The issue agenda for trial has been set by the Trial Scheduling Endorsement Form, and no further Order of this Court is necessary.
[54] However, it is important to note that Mr. Teitel has been seeking an answer to the question of whether spousal support was an issue that was being pursued since November of 2019. In that regard, I note the letter that Ms. Radley sent to Mr. Teitel after the conference on February 20th, 2020. In that letter, Ms. Radley stated “if you had perhaps waited until the rescheduled Conference next week, you would have learned that [M.F.B.] was not pursuing her spousal support claim”.
[55] In my view, this is not something that Mr. Teitel should have had to wait to learn until February 26th, 2020. It is something that should have been communicated to Mr. Teitel when the decision had been made and, if no decision had yet been made, then Mr. Teitel should have been told that fact as well. Given that the Applicant did not know whether spousal support was going to be an issue, raising the disclosure issues related to spousal support was not an unreasonable position to take.
Counselling Session
[56] It appears that it would be both necessary and helpful for the Applicant to attend at one of the child of the marriage’s counselling sessions with Dr. Svitasheva at some point in the near future. It even appears that the parties had been able to agree on how this counselling session would take place.
[57] As I understand it, the parties had agreed to the following terms: a. A Sunday access would be changed to a Saturday access on a day when Dr. Svitasheva was available. b. The Applicant will be required to pick up the child at the Respondent’s house at 10:00 am and take her to her dance lesson. They would then have lunch and go to the session together, and the Applicant would bring the child home at the conclusion of the access and the session. c. The Applicant will pay for the cost of the counselling session in the first instance. I say the first instance, as the costs of these sessions is undoubtedly going to be an issue at trial. d. Nothing in this Order is intended to limit what Dr. Svitasheva does at the counselling session.
[58] I should note that there is no actual “agreement” between the parties. Instead, there are affidavits that, when read together, suggest that both sides would find these terms acceptable. In any event, I am persuaded that those terms are reasonable and that I should order them.
[59] However, it is not clear to me whether Dr. Svitasheva is currently seeing patients or is amenable to seeing them during the current medical emergency. As a result, I am ordering that the parties determine from Dr. Svitasheva when the next available opportunity for an appointment arises. I acknowledge that this may be some weeks (or even months) away. I am also ordering that the parties determine from Dr. Svitasheva whether more than one visit should be scheduled with the Applicant bringing the child to the appointment.
Sealing Order
[60] This is an issue that has been raised by the Respondent. She argues that I should make an Order sealing the child’s health records, anonymizing the child’s name and/or anonymizing the style of cause.
[61] Through his assistant’s Affidavit, Mr. Teitel argues that it is difficult to take this request seriously as it has only been the Respondent who filed materials from the medical file in the Court record and the request was not made until the production order was sought. The Applicant also suggests that these Orders are not routinely granted, although the Applicant is not opposed to the Respondent’s requests.
[62] I start by noting that I share some of Mr. Teitel’s concerns about the timing of this request. As I noted, had the Applicant been motivated solely by protecting her child’s privacy, then I would have expected that Ms. Radley, after writing her November letter to Dr. Lewi, would have written to Mr. Teitel asking about a sealing order or some other privacy measures. No such communication was undertaken.
[63] Ms. Radley directed my attention to the decision of van Rensburg J. (as she then was) in K. (D.) v K. (M.) 2010 ONSC 4585. In that decision, van Rensburg set out the two part test for addressing sealing Orders (at paragraph 18). First, the Court must determine whether the Order is necessary to prevent a serious risk to an important interest. Second, whether the risk of harm to any person outweighs the public interest in open and accessible Court proceedings. It is up to the party seeking the Order to demonstrate both of these factors are met.
[64] In this case, the child of the marriage’s privacy is an important interest, and she has no control over whether the parties (or other witnesses) disclose information about her medical records in public. She also has no control over whether the parties access those records.
[65] I am of the view that protection of the privacy of the child of the marriage should be ordered by this Court, and can be secured in the following way: a. The psychological and medical records of the child of the marriage are to be sealed in the Court file and not to be disclosed to members of the public. b. Neither parent may publish anything about these records anywhere or in any form. c. No other person may publish anything about these records anywhere or in any form, or otherwise use these records for any purposes save and except this litigation. d. Neither parent and neither counsel may disclose these records to a third party without providing a copy of my order and bringing the relevant sections to the attention of the party receiving the records. e. Any breach of the Orders respecting the confidentiality of the medical records will be addressed before me.
[66] This brings me to the Respondent’s request that “the parties shall be required to provide the other party with 14 days notice should any of [the child’s] medical or psychological records be released to a third party.” I reject that request for two reasons. First, the Order I have made about ensuring that the records are not published addresses any concerns in respect of the publication of the records by a third party. Second, this requirement would result in the Respondent and Ms. Radley being informed if Mr. Teitel or the Applicant sought an opinion from an expert in advance of trial, or sought information to cross-examine a witness with. That type of privileged information should not be disclosed to the other side.
[67] Finally, there is the request to anonymize the decision. I have decided to anonymize the decision. In addition, the parties will have noticed that I have carefully avoided mentioning the child’s name or gender in this decision. In my view, that level of anonymity plus the Order I have outlined at paragraph 65 sufficiently balances the interests of the parties in confidentiality and the public interest in an open and transparent justice system.
The Costs Requests
[68] The foregoing reasons will have highlighted some significant concerns with the conduct of the Respondent and/or her counsel between the November 4th, 2019 case conference and the Settlement/TMC held on February 20th, 2020. I confirm, again, that I have significant concerns about both the failure of the Respondent’s counsel to communicate with the Applicant’s counsel during this time period and the unjustified obstacles that the Respondent and/or her counsel put in front of the Applicant’s efforts to obtain disclosure of clearly relevant medical documents.
[69] That being said, I also have significant concerns about the Applicant’s aggressive approach to this litigation. I have now gone through a great deal of material on a disclosure motion where most of the issues were agreed to between the parties. I acknowledge that the Respondent’s agreement to some of these issues was unjustifiably delayed. However, the fact remains that a request for early intervention from the Case management judge rather than a three-month letter writing campaign would have been the more appropriate route for the Applicant to adopt in this case. The Applicant’s counsel should have sought the intervention of the Court when he received Dr. Lewi’s November 28th, 2019 letter.
[70] Similarly, the Applicant counsel’s aggressive approach to the adjournment of the February 20th, 2020 case conference was unjustified. This is a matter that should have been adjourned on consent as long as it could be brought back on quickly, which it could.
[71] I also note that the parties have both raised issues about the costs of the litigation in their materials. That is not something that the Court can control. It is something in the control of the parties. I strongly encourage them to consider resolving the underlying litigation.
[72] With all of these facts in mind, contrary to the request made by the Applicant, I am not prepared to decide the costs of this case without providing the parties the opportunity to address the points I have made in this decision.
[73] Therefore, the parties are directed to provide their costs submissions within fourteen (14) calendar days of the release of these reasons. Those submissions are to be no more than three (3) double-spaced pages, exclusive of bills of costs, offers to settle and case-law.
[74] Any reply submissions of no more than two (2) double-spaced pages are due within seven (7) calendar days thereafter.
[75] These submissions may be made in writing. They are to be sent to my judicial assistant by e-mail. They are limited to submissions. The parties are specifically ordered not to provide any additional Affidavit materials. Cases are to be filed by hyperlink, and the materials may not exceed 9 megabytes in size. If an extension is sought because of the ongoing health crisis, then a request may be made through my assistant for an extension.
[76] Counsel are to undertake to file hard copies of the costs submissions with the Court office once the Court resumes regular operations.
Next Steps
[77] This matter was originally set for the May 2020 blitz list. As the parties may be aware, the Court issued a notice to the profession on March 15th, 2020. Under that notice, Court operations (except for urgent matters) are suspended indefinitely.
[78] This matter was not urgent within the meaning of the Chief Justice’s directive. As a result, I am confirming the e-mail that my assistant sent to the parties on March 24th, 2020. Specifically, I am confirming my March 24th, 2020 orders as follows: a. The case conference before Ricchetti A/R.S.J. on April 6th, 2020 is adjourned sine die. Once Court operations resume, I will consult with Ricchetti A/R.S.J to determine whether a case conference will be rescheduled. b. The trial is adjourned from the May 2020 blitz list to the January 2021 blitz list. The new trial date remains peremptory to the parties and will proceed with or without counsel. c. The Trial Management Conference scheduled before me on April 27th, 2020 at 9:00 am in Milton is adjourned sine die to a date to be determined.
Order
[79] For the foregoing reasons, I order as follows: a. If the divorce proceeds before the trial, it is to proceed on notice before LeMay J. b. Subject to paragraphs (e) to (h), the complete file of Dr. Renee Lewi in respect of the child of the marriage is to be produced. c. Subject to paragraphs (e) to (h), the complete file of Dr. Maryna Svitasheva in respect of the child of the marriage. d. Subject to paragraphs (e) to (h), the complete file of the Brampton Civic Hospital in respect of the child of the marriage. e. Both parties are required to consent to release all documents relating to the child in the possession of the health care provider. f. The health care provider shall advise the parties in writing within ninety (90) days of the receipt of my Order if they have any objections to producing the documentation, and what those objections are. The health care provider may also advise that additional time is required to prepare the materials for disclosure because of the ongoing health crisis. Any objections (or extensions) are to be addressed by me. g. If there are no issues with respect to disclosure, then a copy of the documentation is to be provided to each party separately and each party shall bear the costs of the copy of the documentation that they receive. h. If there are issues, then either party is free to bring a third party records motion against the health care provider that has declined to release the records. i. Any request for the December 8th, 2019 videotapes from the Brampton General Hospital are to be addressed through a third party records motion that may only be brought once the Court has resumed regular operations. j. The parties are to determine when Dr. Svitasheva’s next available Saturday appointment is. k. A Sunday access for the Applicant shall be changed to a Saturday access on the next day when Dr. Svitasheva is available. l. The Applicant shall be required to pick up the child at the Respondent’s house at 10:00 am and take the child to the child’s extracurricular activity and then attend the session together. The Applicant is then required to bring the child home at the conclusion of the access and the session. m. The Applicant shall pay for the cost of the counselling session in the first instance. n. Nothing in this Order is intended to limit what Dr. Svitasheva does at the counselling session. o. The parties shall determine whether Dr. Svitasheva wishes to have the protocol in this Order apply to one, or more than one, appointment. p. The psychological and medical records of the child of the marriage shall be sealed in the Court file and shall not to be disclosed to members of the public. q. The parties shall not publish anything about the records sealed pursuant to paragraph (p) anywhere or in any form. r. No other person may publish anything about these records anywhere or in any form, or otherwise use these records for any purposes save and except this litigation. s. Neither parent and neither counsel may disclose these records to a third party without providing a copy of my order and bringing the relevant sections to the attention of the party receiving the records. t. Any breach of the Orders respecting the confidentiality of the medical records shall be addressed before LeMay J. u. The case conference before Ricchetti R.S.J. on April 6th, 2020 is adjourned sine die. Once Court operations resume, LeMay J. will consult with Ricchetti A/R.S.J to determine whether a case conference will be rescheduled. v. The trial is adjourned from the May 2020 blitz list to the January 2021 blitz list. The new trial date remains peremptory to the parties and will proceed with or without counsel. w. The Trial Management Conference scheduled before LeMay J. on April 27th, 2020 at 9:00 am in Milton is adjourned sine die to a date to be determined. x. The parties shall provide their costs submissions within fourteen (14) calendar days of the release of these reasons. Those submissions are to be no more than three (3) double-spaced pages, exclusive of bills of costs, offers to settle and case-law. y. The parties shall provide any reply submissions of no more than two (2) double-spaced pages within seven (7) calendar days thereafter. z. The costs submissions are to be sent to my judicial assistant by e-mail. They are limited to submissions. The parties are specifically ordered not to provide any additional Affidavit materials. Cases are to be provided by hyperlink, and the submissions are not to exceed 9 megabytes. aa. Service of submissions is to be limited to service by e-mail. bb. Counsel are required to file hard copies of their submissions with the Court office once the Court resumes regular operations.
[80] In addition, I will be in contact with the parties promptly once normal Court operations resume. I will expect that the parties will be available promptly at that time for a further case conference with me, and I will provide them with dates for that case conference quickly at that time.
LeMay J.