Court File and Parties
COURT FILE NO.: 766/16 DATE: 2020-01-21 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: David Destefano and Francesca Destefano, Applicants AND: Heather Gerry, Respondent
BEFORE: The Honourable Mr. Justice A. Pazaratz
COUNSEL: Mr. Angelo P. Fazari, Counsel, for the Applicants Self-Represented Respondent, not in attendance
HEARD: January 21, 2020
Endorsement
Endorsement
1Once again this lengthy and protracted trial could not proceed today because the mother did not attend court on this long-since scheduled date.
2In previous endorsements I have thoroughly reviewed the many delays and complications created by the mother repeatedly cancelling trial days since this hearing commenced in October 2018.
3We are now in uncharted territory. I have never seen any trial unfold so inefficiently – particularly a custody trial where children’s issues need to be resolved in a timely manner.
4The context of today’s endorsement is important:
[5] Friday September 27, 2019 was Day 33 of the trial. a. At that point we had ascertained that as a result of unavoidable scheduling constraints, there would be another long gap in the trial. b. We were scheduled to resume for three weeks in January 2020. c. I heard the mother’s oral motion for a reinstatement of enforcement of support arrears and for ongoing support. d. My May 16, 2019 temporary endorsement had set out in detail why spousal support payments and enforcement of arrears were going to be reduced and then fully suspended by September 2019. This very unusual mid-trial without prejudice adjustment of support was in response to a very simple concern: The mother was delaying completion of the trial, but the existing order required that at least until the trial was completed, the mother would continue to receive monthly spousal support. With no end to the trial in sight, with the passage of time there was an increasing possibility that the mother was receiving support payments she might not be entitled to. Since the mother has no ability to reimburse funds (or satisfy costs orders) my May 16, 2019 order attempted to address the financial needs of the mother (including her need to have the financial wherewithal to attend trial), while at the same time guarding against irreparable financial harm to the father. My adjustment of support was intended to provide both funding and incentive for the mother to cooperate in completing the trial in a timely and efficient manner. e. That May 16, 2019 endorsement specifically left open the possibility of support being revisited if the mother was able to address ongoing concerns about delay and missed court time. f. However, as set out in my October 2, 2019 lengthy temporary endorsement, I found that the mother had not addressed concerns about delay and inefficient use of court time. To the contrary, those problems were continuing. g. As a result, in my October 2, 2019 judgment I specified that the mother could revisit the support issue after we completed our three scheduled weeks of trial in January 2020.
Procedural History and the Mother's Motion
[6] However, while we were waiting for the trial to resume, the mother brought a lengthy motion returnable December 19, 2019. a. In fact, the mother identified in advance that her motion would require two full days to argue. b. She requested that the most urgent issues be dealt with on December 19, 2019. c. She proposed that the remaining issues could be dealt with on January 6, 2020 – which was in fact to be the first day of the resumption of the trial.
[7] The mother’s notice of motion requested the following (set out verbatim): a. The Applicant father, pay a lump sum of $6000.00 to the respondent immediately. This amount is the (3) months in the spring of 2019 when the applicant and his counsel ignored and did not pay, the live and operative court order in place at the time of both child/spousal support arrears being enforced by FRO. b. Re- instate the child/spousal support arrears order owing by the applicant to the respondent mother, so the respondent mother can fully participate in this motion to change trial brought by the applicant. This MTC has been directed to be heard afresh from the Ontario Court of Appeal, successfully brought by the respondent mother. The rein statement required immediately so that the mother can have her meaningful access and vacation Christmas time with her children. c. The respondent mother is in undue dire financial hardship. The mother requires immediate funds owing in arrears to assist with the respondent's mother's serious medical issues which require out of pocket expenses. d. Permitting that the Ontario Court of Appeal decision ONCA 409 H.D v. D.D be permitted to be filed for these proceedings and trial. e. A sealing order of the respondent mother’s medical file/ record s and reports. f. Setting aside the orders of Justice Alex Pazaratz namely May 16, 2019 and October 2, 2019. g. A restraining order as against the applicants. h. That a mistrial be declared in this case. i. ln the alternative, that Justice Alex Pazaratz recuse himself from sitting on the remainder of this trial. j. An order that when the respondent mother has a specialist or doctor appointment (dates that are out of the mother 's control) and it is conflicting with a court date that the respondent mother shall be permitted to attend the specialist appointment and be excused.
8On December 16, 2019 the mother filed a Confirmation advising that she would be proceeding with her motion on December 19, 2019. The father’s counsel filed a Confirmation setting out that he would be seeking an adjournment to allow him to respond to the mother’s recently served materials.
9We dealt with the mother’s motion from 10:00 a.m. on December 19, 2019 until approximately 1:20 p.m. My endorsement of that date explained why the father’s counsel was successful in submitting that all issues except Christmas access had to be adjourned. My endorsement:
1 We had been scheduled to resume the trial on January 6, 2020, but the Respondent brought a motion seeking extensive relief, returnable today.
2 Mr. Fazari requested an adjournment. The Respondent acknowledged that some items of requested relief would have to be adjourned, but she urged the court to deal with other aspects of her motion which she characterized as urgent.
3 After extensive discussion, I determined that with the exception of Christmas access – which obviously has to be addressed in a timely manner given today’s date – fairness requires that the Respondent’s motions be adjourned. a. Mr. Fazari advises that he only recently received the voluminous materials, and given the extremely serious nature of some of the relief being requested, he requires an opportunity to respond. b. The Respondent has not properly filed any materials with the court. She sent documents in by e-mail to the Trial Co-ordinator. The Trial Co-ordinator attempted to forward those documents to me so that I would have an opportunity to review them ahead of time. But the Respondent confirmed today that apparently some of the materials she intended to file by e-mail didn’t get through. So not everything she wanted to rely on made it to the court and to me. And in any event, the Respondent filed no materials in the form of hard copy with the court. I have been advised by the Trial Co-ordinator that the Respondent was specifically advised that even if she sent materials in by e-mail, she still had an obligation to file all of her materials with the court as hard copies. c. Beyond that, while the Respondent served a Notice of Motion and referred to various other documents (including voluminous transcripts from other proceedings) she has never filed an affidavit or any sworn materials in relation to her motions today. I explained to the Respondent that I agree with Mr. Fazari that the Respondent’s materials presented to date do not meet the requirements of the Rules. She has not provided sworn evidence which sets out the facts that she relies on. She has not explained her narrative or provided any formal evidence explaining how her various documents relate to or support the relief she is requesting. d. Indeed, an alternate claim included in the Respondent’s Notice of Motion is a request that I recuse myself from this file, and that a mistrial be declared. Clearly, if the Respondent is raising an issue as to whether I should be precluded from any further involvement in this matter, this is a threshold issue which needs to be determined before any other issues can be addressed. (Having said that, I will still try to assist with respect to Christmas access, as there is no choice, and the Respondent is specifically requesting that I do so, notwithstanding any other objection she may have with respect to my involvement.)
4 Except as specifically set out below, all motions are adjourned to be heard commencing at 10 a.m. on January 21, 2020 here in St. Catharines. The following scheduling considerations apply: a. The Respondent shall serve all remaining materials she intends to rely upon (including a sworn affidavit) on the Applicant’s counsel no later than 5 p.m. on December 30, 2019. b. The Applicant shall have until 5 p.m. on January 7, 2020 to serve any responding materials. c. The Respondent shall have until 5 p.m. on January 14, 2020 to serve any reply to the Applicant’s materials. d. Factums and Books of Authorities shall be served by January 17, 2020 at noon. e. All materials shall be filed with the court in hard copy form by January 17, 2020 at 3:00 p.m. f. The week of trial time currently scheduled to commence January 6, 2020 is vacated. g. We were previously scheduled to proceed with the trial on January 21, 23 and 24, 2020, and also the following week. For the moment we will leave all of those dates in place, subject to redetermination depending on the discussion and results of the motions on January 21, 2020.
5 Only the factums must be filed with the court both in hard copy and also electronically by the January 17, 2020 deadline. All other documents must be served on the opposing party and filed with the court in hard copy form with proof of service.
6 I received submissions in relation to timesharing during the Christmas school break. I tried to emphasize to the parties that with the trial only partially completed; with the Applicant’s evidence not completed; with my having not received any evidence from the Respondent – it is impossible for me to approach things from a multi-year or ongoing perspective (as we often do with final timesharing orders). a. The Respondent’s first choice is to have the children from December 23, 2019 12 noon until January 4, 2020. This would entail the Respondent having 12 overnights of the 16 days the children will be off school. The Respondent’s proposal would mean she has the children during the “premium” times of Christmas Eve, all day Christmas, Boxing Day, New Year’s Eve and New Year’s Day. b. The Applicant proposes that the Respondent have the children December 25, 2019 at 9 a.m. to January 1, 2020. The Applicant emphasizes that this would allow the children to participate in his family’s traditional Christmas Eve dinner. The Respondent feels the children should experience the family traditions of both sides of the family. c. I have tried to balance all of these complex considerations with limited (and no recent) information. d. For 2019 the Respondent shall have the children from December 25, 2019 at 9 a.m. until January 2, 2020 at 3 p.m. This allows the Respondent an extended period with the children (longer than she had last year). It gives her 8 consecutive overnights with the children which is almost precisely an equal sharing of the Christmas school break. It gives her most of the aforementioned “premium” days. The Respondent shall be responsible to transport the children, and transportation on Christmas Day is not to be by public transit.
7 The Respondent requested that I impose further terms with respect to telephone access and make-up telephone access. This issue has been canvassed repeatedly. It appears there have been ongoing problems since we were last in court in September 2019. Both parties seem to be saying that if phone calls are missed, conceptually there should be make up time as can be reasonably arranged. The problem is compounded by the Applicant saying the Respondent refuses to provide a telephone number for the children to call the mother. I have tried my best to assist in relation to Christmas access, because time was of the essence. I do not have confidence that I have sufficient information to fine-tune the issue of telephone access. I can only hope that all parties will be flexible if the Respondent identifies that she is not available for scheduled telephone access.
[10] The ultimate result of all of this: a. The mother had brought a separate, lengthy mid-trial motion which she characterized as an emergency. b. Her materials were deficient with improper service (with late service making it inevitable that an adjournment would have been required in any event to allow the father to respond). c. Timelines for service of future documents extended into January 2020, with the result that we had to cancel resumption of the trial during the week of January 6, 2020. We lost one of the three weeks of trial which had been set aside in September 2019.
11The following day the mother e-mailed Mr. Fazari and the court expressing her dissatisfaction with the results of December 19, 2019 and requesting further orders from the court. Insofar as the mother had previously conveyed information and requests by e-mail, I instructed the Trial Co-ordinator to advise the mother that we could not conduct this litigation by e-mail, and that our discussions would continue in court on January 21, 2020.
12However, nothing we spent so much time talking about on December 19, 2019 turned out as expected (or as ordered).
13Paragraph 4 of my December 19, 2019 endorsement set out the timelines for filing materials in relation to the mother’s motion (which needed to be resolved before the trial could continue). On December 19, 2019 we struggled to work out timelines which took into account the scheduling realities of the upcoming Christmas holidays. The mother was to serve Mr. Fazari’s office with all of her materials no later than 5:00 p.m. on December 30, 2019.
[14] However, at 8:12 a.m. Monday December 30, 2019 the mother sent the following e-mail to the court trial co-ordinator and also to Mr. Fazari: I am writing to advise. that I may be late in filing the documents that are due today. There are several factors I have tried to overcome and simply could not. The weather is most definitely playing a factor today. And unfortunately the infection I have acquired recently, which has not gone away, rather has simply progressed worse. This is quite similar to my lip infection and it causes a great deal of discomfort and doctor monitoring. Please advise if this one day delay will be satisfactory.
[15] At 8:47 a.m. on December 30, 2019 Mr. Fazari responded by e-mail to the court and to the mother: As everyone is aware Justice Pazaratz set specific time lines for the filing and serving of materials. We advised Ms. Gerry that our office was closed for the holidays, however in order to accommodate the serving of her materials we arranged for someone to be present on today's date. We are not open tomorrow. Ms. Gerry's request is unreasonable and unacceptable. Once again this matter is being delayed notwithstanding the accommodations that have been provided to Ms. Gerry by the Court and our office to date. We kindly ask that Ms. Gerry follow Justice Pazaratz's clear instructions and order.
[16] At 9:20 a.m. the mother responded by e-mail to Mr. Fazari and the court: Justice Pazaratz would need to be the one to make the decision. I would obviously need Justice Alex Pazaratz's decision on this as there is no agreement on a simple scheduling issue* Mr Fazari although there was some very unclear confusion around dates as you kept insisting that the trial proceed the very next day after the motions, especially since a mistrial motion you do not continue the trial right after. I told you that unless perhaps you know something I do not. I am very sorry you excuse that someone is ONLY at your office today is ridiculous. I could go back and on and on how you have used this type of excuse of nobody being there and sending couriers away of material I delivered ot you and Canada Post having difficulty with you. So please stop. We are talking about one day. It should be longer but I am saying one day. So here is a "solution" if nobody is on your office, and nobody is going be there tomorrow then how would it affect you exactly? You would not by your own words even be in receipt of them. The accommodations you are speaking of I have no idea what you are talking about. Because someone is confused with the scheduling dates, and you insisting the trial was continuing the day after my motion I was the one that said dates that wet sin line with the return dates of January 6, 2020. Seeing we are looking into the return being January 21, 2020 that is what changed. If you cannot receive them tomorrow and nobody is there then the suggestion is then to email you the documents. I would have to do certain things on my end for this to occur. Then oyu would be able to have them when no one is apparently at your office. Will you consent to this? Mr Fazari I will not permit or allow any further your lack of any understanding of one's medical illness and using it to discriminate me with your default setting I am delaying the matter. That is the last thing I am doing. You have said it time and time again cause immeasurable trauma, going so far to tell me when to see a specialist? If there is no agreement on the simple filing and your continuous never ending comments regarding one's health, I will have no choice, I will bring the doctor's involved in my care at the return of the court date, and the transcripts of your position and statements made and perhaps the doctor's can provide the insight you clearly lack. It is appalling and disgusting your behaviour of one's medical illnesses. It has manifested and gone on far too long without any consequences whatsoever. As you state "once again the matter is being delayed"...... When someone is sick and has a serious infection that is NOT delaying it!!! Someone has a medical issue! Please just stop. Do you consent to email service of the materials? I will need to hear from Justice Alex Pazaratz on this issue and his decision. When that occurs then I can and will take every necessary step that this torturous and cruel acts that nobody can control health wise has persisted by all without ever even asking seek any information whatsoever of the medical ailment, just that I am stalling, the usual. I do look forward to the judges response to this. Thank you (bold in original)
[17] When this e-mail exchange was brought to my attention that same day, I instructed the trial co-ordinator to send the mother and Mr. Fazari the following message by e-mail: “On a file with this extreme level of conflict and disagreement, I am not prepared to determine any contested issues on the basis of a hasty exchange of e-mails. I make no change to any existing order. If further relief is required, it should be addressed properly, in court.”
18On January 3, 2020 the mother sent Mr. Fazari an e-mail confirming that she would be proceeding with her motion scheduled for January 21, 2020.
[19] On January 6, 2020 Mr. Fazari sent correspondence to the mother and to the court. a. He advised that he still hadn’t received any materials from the mother in relation to her motion, notwithstanding the December 30, 2019 deadline for service. b. He advised that the mother had indicated she still intended to proceed with her motion. He would respond to her materials once he received them. c. But if the motion was not proceeding on January 21, 2020 he would want to continue the trial and he would have a witness available to testify if necessary.
[20] On January 17, 2020 the mother sent an e-mail to Mr. Fazari and the Trial Co-ordinator: My motion for mistrial was to be heard on January 21, 2020. This is from initially a motion to declare mistrial. (Amongst others to be heard over another full day if required). It was to be heard December 19, 2020 wherein Justice Alex Pazaratz presiding. That day, nothing was accomplished as certain other material needed to be filed. The judge put over the December date until January 2020. As the serious material change in circumstance has now occurred since our last court date, I am asking that it be adjourned so the judge may be apprised as to what has gone on since the last court date. I am asking that this be done as soon as possible, so much so it doesn’t interfere with my medical health and doctors. To proceed with this trial continuation as Mr Fazari so desperately wants. This is exactly what I wish for. Expect for that the truth come out and is not buried but ramming through such a trial as this. That this court date (to be determined) be permitted to have it held by video or teleconference. To dismiss the mistrial motion would not be in accordance with the principles of fundamental justice. Justice Alex Pazaratz stated on record “ okay I’m not sure of everyone’s answer to this but does ANY of you wish me to declare a mistrial at this point?” This was in relation to discussion once again on the exhibited behaviour of the applicant just outside the courtroom. It was appalling frightening and stuck in a room to hear this frightening behaviour. The judge needs to hear both sides before making many determinations. The judge painstakingly has made such egregious errors on his last two endorsements that they are so contradictory in nature, it makes no sense. The judge needs to hear from both parties. I am no okay being discriminated time and time again. I need to be heard. I simply do not have the funds it costs to even think about basic necessities more or less anything else. The judge made clear what to bring, how many copies etc (which I knew and my concern how does one pay for this?). When the applicant has NOT paid his support as was NOT the finding of Justice Alex Pazaratz in his May/September 2019 decisions. This is not a stall tatic or anything else. As has been asserted many times. That’s absurd. I am terrified of not being able to be heard. I’ve tried. The judge Alex Pazaratz knew the situation and what would and could become. I have tried to maintain being healthy the best as possible. The long and enduring story of just the grounds for the mistrial are traumatic and to be forced to recall every detail is hurting my emotional and mental health. We are trying. The best anyone could hope for. Supports and LAO and more supports. I have been forced to believe I could do what I needed to do. I clearly did not. Between medical and other mitigating factors the following: I am asking confirmation that January 21,2020 is not proceeding and an adjournment date be set. I am asking that video/teleconference be permitted for future upcoming dates. (If needed). I am asking that a teleconference be heard as soon as possible to better understand the situation between all parties. Please confirm that Justice Alex Pazaratz has received this. Thank you. “Those who cannot remember the past are condemned to repeat it.” George Santayana (16 December 1863 - 26 September 1952
[21] In accordance with my previous explanations to the mother that I was not prepared to change orders or the trial schedule based upon e-mails, I had the trial co-ordinator send the following e-mail to the mother and Mr. Fazari: As I have previously stated, I am not prepared to make determinations on this case by e-mail. We are scheduled to resume on Tuesday January 21, 2020 at 10 a.m. in St. Catharines. Everyone is required to attend in court on that date. Whatever anyone wants to tell me, they can tell me in court, so that everyone can participate in a thorough and productive discussion. The only exception: If anyone is advising that they cannot physically attend court on January 21, 2020 for medical reasons, they should let us know as far in advance as possible – and they will be required to provide medical corroboration to explain any missed court days.
[22] Yesterday, January 20, 2020 the mother sent another e-mail to the trial co-ordinator and Mr. Fazari: UPDATE FROM H. GERRY URGENT WITHOUT PREJUDICE JANUARY 20, 2020 I am writing this to advise that the motion for a mistrial (my motion) that was initially set for December 19, 2019 and being put over from Justice Alex Pazaratz (who is our trial judge) until January 21, 2020 was then adjourned. I have no doubt that I am forced to ask for an adjournment on my mistrial motion was the first. I am seeking with in (7) days that a date be set for a teleconference with Justice Hopefully with more answers regarding my medical, and also be afforded the opportunity as to why certain deadlines were not met, what has transpired to date since last appearance amongst other relevant issues. Also most importantly, why is physical/mental/emotional health have got so increasingly worse from a much dragged family trial, with the constant threat looking of it proceeding uncontested (yet again a thought they believe is appropriate and operant). To the manifest voids of the real truth in all transcripts from this one judge to date. To not believe that I am sick. Despite the doctor’s and specialists (none of who were ever witnesses). As stated ma not responding well at the moment, and I am alerting the court that tomorrow January 21, 2020 MUST be rescheduled as stated above. May I be permitted on any/some of the days be facilitated for teleconference? I would require a response on this clearly, as soon as possible. If you require further please do not hesitate to ask. I will do my best to respond in a timely manner. Please confirm receipt of the email and that Justice Alex Pazaratz is in receipt f it. Thank you.
[23] I instructed the Trial Co-ordinator to convey the following response to the mother and Mr. Fazari by e-mail: Today's e-mail from Ms. Gerry is confusing. I will open court tomorrow at 10:00 a.m. in St. Catharines. I expect that all parties and counsel will be in attendance. If anyone is not attending I will require professional corroboration that they were not able to attend for medical reasons. Please advise Ms. Gerry and Mr. Fazari.
The Mother's Failure to Attend
[24] This morning at 9:00 a.m. the mother sent another e-mail to the Trial Co-ordinator and to Mr. Fazari advising that she would not be attending today. I reproduce the narrative of her e-mail exactly as it was sent: Subject: Re: My email at bottom-URGENT-Trial NOT proceeding tomorrow awaiting Judges direction) CAUTION -- EXTERNAL E-MAIL - Do not click links or open attachments unless you recognize the sender. e no idea that comes out of my mouth you don’t understand or is just vague? Everybody else seems to hear and understand myself just clearly. I have JUST received this email, and as should be acceptable for everyone to follow along. My email I had sent spoke of possibles issues of non attendance but was doing my best. That is all I can do feeling like this. Stop even slow down, whatever I am doing or simply telling my body I cannot do it today to even in these last hours, days add up. With direction and sometimes silence is sometimes how they are managed. Along with all other medical procedures. Simply writing this email is a grossly violating one seeing, the comments went rampant over my being sick. The emotional response that I get even from writing thinking/of what you said and towards myself. I simply cannot take but I think a thick robust Affdavit would come some way. I simply cannot cannot work at the way I did before and working to review documents) (I cannot see well from). This had been a very daily and long struggle. TO BE CLEAR I AM NOT AS STATED YESTERDAY GOING TO BE ABLE TO ATTEND FOR TODAY AT 10:00A.M. And as has been often the case Apple cannot repair my laptop it nearly inoperable. Those were last were
25The matter was called at 10:00 a.m. The mother was paged, but she did not respond.
26Mr. Fazari confirmed that he has never received any materials from the mother in support of her motion, despite my order of December 19, 2019 – and despite his subsequent comment that he would try to respond to her materials in a timely manner if she ever provided them. He noted that he had made a point of attending at his office on December 30, 2019 to await the mother’s materials, even though the office was closed for the Christmas holidays.
27Mr. Fazari once again expressed his client’s exasperation with the mother’s delays and failure to comply with court orders.
28He noted that on December 19, 2019 the mother emphasized that even if the rest of her motion wasn’t ready to proceed, it was vitally important that her Christmas access to the children be confirmed. That issue was discussed in some detail, and as noted above, I ordered that the mother was to have access from December 25, 2019 at 9:00 a.m. until January 2, 2020 at 3:00 p.m. This would have been eight overnights, including part of Christmas Day, New Year’s Eve and part of New Year’s Day.
[29] Today Mr. Fazari reported that after all that discussion on December 19, 2019 the mother didn’t personally exercise any access to the children. Instead, during the Christmas break the boys spent three days with Debra Hurst the maternal grandmother. Mr. Fazari provided the court with a copy of an e-mail sent by the maternal grandmother Debra Hurst to the paternal grandmother on December 31, 2019 The boys were good and had fun. They enjoyed playing outside on Saturday at the park. Mario built his new Lego and Daniel spent time drawing and making up games for us to play. On Saturday Mario had a few accidents but I wondered if partially from his cold. He was good and tried not to eat chocolate. They spoke a couple of times with their mom and sent her a text about what they would like for earphones for Christmas, per her request. They wished their mom Merry Christmas and asked how she was in a text. We enjoyed out time with the boys. They are good and kind boys. Regards Debra
Accommodating the Mother's Health Issues
[30] The mother keeps complaining that she is being dealt with unfairly, but it is really difficult to know what more anyone can do to accommodate her health and other issues. a. She keeps saying she is too sick to come to court or prepare documents she’s supposed to produce. But she doesn’t provide medical corroboration to explain these limitations. b. She brought an urgent motion returnable December 19, 2019 without filing an affidavit in support, and without properly serving or filing any documents. c. On December 19, 2019 she emphasized how important it was for her to secure Christmas access. But she ended up not exercising any of it. This trial has been going on so long that we had a similar situation last Christmas where she was granted more access than she elected to take. And throughout this proceeding the mother has acknowledged that she has not been exercising all of the access she is entitled to. She says she misses many visits for health reasons. But as stated, since this trial began in October 2018 she has provided very limited medical corroboration as to her situation. She has certainly not provided corroboration for many periods when she has missed visits and missed court. d. The mother says she wants the trial halted while she pursues her motion for a mistrial. On December 19, 2019 I set out very specific timelines to allow her to serve and file her materials. Really, she should have served all of those materials prior to December 19, 2019. In any event, I gave her more time and this resulted in us having to cancel a week of trial commencing January 6, 2020. e. Now, we have the same situation playing out repeatedly. Everyone shows up for court except the mother. Her most recent e-mails are confusing. She makes no commitment as to when she’ll be ready – for a motion or for a trial.
[31] As Mr. Fazari notes, there is an irony to the fact that the mother closes some of her e-mails with the following quotation: “Those who cannot remember the past are condemned to repeat it.” George Santayana (16 December 1863 - 26 September 1952
32We have reached the stage on this trial where my obligation to the Applicants, to the administration of justice, to all of the witnesses -- and in particular to the children – require that I “remember the past” and that I guard against repeating it.
[33] As set out in previous endorsements, I have done my best – possibly more than I should have – to accommodate the mother’s personal issues and requirements. a. I have attempted to be sympathetic and respectful with respect to absences caused by reason of health issues, even without meaningful medical corroboration. b. I have attempted to be informative and patient in assisting the mother as a self-represented litigant.
[34] But I have to acknowledge Mr. Fazari’s concern that we have reached (or perhaps even passed) a tipping point: a. All of these accommodations to the mother are not merely inconveniencing the Applicants and the children. b. These children will soon be 14 and 9. They haven’t lived with the mother since 2013. They are aware that she is still pursuing custody. But they are also aware from their own daily experience that she exercises access infrequently. c. I am advised that there are specific issues involving the children which are being delayed and jeopardized as a result of the lack of a final resolution. For example, I am advised that Mario has a Confirmation scheduled for March 2020 but it cannot proceed without the mother’s consent (or court order). I am advised the mother is not consenting. Important issues and milestones in the children’s lives can no longer be delayed or put on hold. d. We are only part-way through this trial, so I am unable to make any final determinations. But after 33 days of evidence the uncontroverted evidence – so far – is that the children are doing extremely well in the primary care of the paternal grandmother, and they are having very extensive and beneficial daily involvement with the father (who has recently remarried and is attempting to get on with his life). e. The court system has an obligation to all parties, to ensure fairness and access to justice. f. But with the mother continuing to delay resolution of this court action, the ability of the primary caregivers to devote their time, affection and resources to these children is being seriously undermined. g. Speaking plainly, at this rate the children will be grown up before this custody trial is over. We run the risk of our judicial system becoming a mockery.
35In Steele v Big-Canoe 2019 ONSC 1778 (SCJ) Justice Gibson commented on unreasonable behaviour by a self-represented litigant which resulted in a needlessly lengthy trial: seven days. Justice Gibson described the balancing act judges have to engage in, when dealing with trials in which one party has counsel and the other party is self-represented:
28 Self-represented litigants may be afforded some additional consideration consistent with the Court's obligation to treat both parties fairly, but they are not afforded some special licence to behave badly without consequence. The reputation of the administration of justice requires an appropriate response. Moreover, other parties to the litigation who have behaved appropriately should not have to indefinitely absorb the misconduct of those who do not.
30 It is important to consider how these general principles should be applied in the particular context of cases involving self-represented litigants. As was stated at paragraphs 5-13 in Kirby v. Kirby, 2017 ONSC 6695 (Ont. S.C.J.):
5Self-represented litigants appear frequently in our courts on family law matters. It is generally recognized that they may be at some disadvantage to parties who are represented by counsel, and that there is a duty on judges and court staff to recognize this.
6The Canadian Judicial Council has produced a Statement of Principles on Self-represented Litigants and Accused Persons, which it adopted in September 2006. In Pinteas v. John, 2017 SCC 23, Karakatsanis J. declared at para. 4 of the judgment that the Supreme Court of Canada endorses this Statement of Principles.
7The Statement sets out a number of statements and principles, with accompanying commentary, to the general effect that judges, the courts and other participants in the justice system have a responsibility to promote opportunities for all persons to understand and meaningfully present their case, regardless of representation. It suggests a number of accommodations that may be made to assist self-represented litigants.
[8] However, this is not a one-way street. The Statement of Principles recognizes that there are also corollary duties incumbent upon self-represented litigants. In particular, Para 4 of the Commentary to statement B provides: Self-represented litigants, like all other litigants, are subject to the provisions whereby courts maintain control of their proceedings and procedures. In the same manner as with other litigants, self-represented persons may be treated as vexatious or abusive litigants where the administration of justice requires it. The ability of judges to promote access may be affected by the actions of self-represented litigants themselves.
[9] Paragraph 4 of the Commentary to statement C provides: Judges and court administrators have no obligation to assist a self-represented person who is disrespectful, frivolous, unreasonable, vexatious, abusive, or making no reasonable efforts to prepare their own case.
[10] Rule 24 of the Family Law Rules deals with the question of costs in family law matters. Paragraph 24(11) details the factors that the Court shall consider in setting the amount of costs, including, ellipsis; (b) the reasonableness or unreasonableness of each party's behaviour in the case, and ellipsis; (f) any other relevant matter.
11On the hearing of the motion, Ms. Kirby behaved very badly. She had to be frequently admonished by the Court. She consistently tried to take more time than she was allocated by the Court. She was rude to opposing counsel, and to the Court. She asserted that opposing counsel was lying. She frequently and repeatedly interrupted opposing counsel even after being instructed by the Court not to do so. She made both loud and sotto voce critical comments while the Court was speaking. She was observed by court staff to be trying to harass and physically bully opposing counsel in the hallway outside court during a break, and tried to intimidate her in court by crowding her and interjecting. Ms. Kirby's conduct required the attendance of police officers in court during the hearing to maintain security, and to safely escort the opposing counsel out of the building after the hearing.
12Ms. Kirby undoubtedly has many difficulties in her life, and contends with some physical and mental health challenges. But there is no evidence to demonstrate that these are so severe as to render her incapable of behaving properly in Court.
13The Courtroom is not a school playground. The outcome is not governed by who shouts loudest. There are minimum rules of decorum, orderliness and courtesy which must be observed in order to ensure that all parties are afforded the opportunity to present their case fully and fairly, and to maintain the reputation of the administration of justice. It is not a spectacle. It is not a free-for-all in which litigants may indulge their tempers at whim if they don't immediately get what they want. No party is entitled to be petulant, abusive or to attempt to bully another party.
36I agree with and adopt those comments.
Disposition
[37] We have to bring some focus – and resolution – to this matter. a. Even with ongoing spousal support having been suspended on a without prejudice basis, the Applicants are still incurring significant wasted legal fees as a result of all of these delays and needless complications. b. The Applicants have a right to get on with their lives. c. The children need to get on with their lives. d. It is not reasonable to expect the Applicant’s counsel to repeatedly commit to blocks of trial time only to have the mother cancel that time at the last moment. e. It is not reasonable for tax payers to incur the enormous cost of such inefficiency being imposed on the administration of justice. f. One way or another, this trial has to finish.
38The mother’s motion returnable December 19, 2019 is dismissed. Costs of the motion will be dealt with as part of costs in relation to the trial. I acknowledge that part of the mother’s motion – for a declaration of a mistrial – is fundamentally important. But having commenced the motion (thereby paralyzing this already too-long delayed trial) the mother had an obligation to pursue the matter in a diligent and timely way.
39The trial will proceed as scheduled, to continue on Thursday January 23, 2020, and thereafter on January 24, 27, 28, 29, 30, and 31st. These are all trial days that the parties had agreed to in September 2019.
40The trial will proceed whether the mother is present is not.
41The Trial Co-ordinator is to e-mail a copy of this endorsement to the mother today.
Pazaratz J.
Date: January 21, 2020