COURT FILE NO.: FS-17-420321

DATE: 20200911

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Christian Moreton

Applicant

– and –

Douangta Inthavixay

Respondent

In-person, Applicant

In-person, Respondent

J. Hyndman, for the Office of the Children’s Lawyer

HEARD: September 11, 2020

S. Shore, J.

Overview:

[1] On September 1, 2020, the parties attended before me at scheduling court to reschedule their trial that had been adjourned in March 2020, less than one week before the commencement of their trial, because of the reduction of court services due to COVID-19. That trial date was peremptory on the respondent.

[2] At scheduling court, the respondent requested that she be permitted to proceed with a long motion on the issues of mobility (as the father is moving in October 2020) and the children’s residential schedule and that a trial of those issues and the other outstanding issues be heard later. The Office of the Children’s Lawyer expressed concern about delaying the trial yet again. The trial had already been adjourned a few times and it was in the children’s best interest to have a final decision from this Court. The applicant also took the position that the trial needs to take place sooner rather than later.

[3] A trial on the issues of mobility and the residential schedule of the children was scheduled to begin September 28, 2020. The reasons are set out in my Endorsement dated that same day.

[4] The Respondent has now brought an urgent motion for an order that the trial be delayed until December 2020, a case management judge be assigned to her file, and the issues of mobility and the residential schedule of the children proceed by way of a long motion in September.

[5] In my endorsement, I referred to various paragraphs of a prior order of Justice Kraft (2020 ONSC 4881). I am going to repeat one of these paragraphs again, as it is important to understand the context in which the respondent’s motion is being brought:

This case has a lengthy history of protracted litigation. This Court file has been in existence for almost three years. It is a high conflict case where the OCL has been involved. There are two children of the marriage, ages 11 and 7. The level of mistrust is exceptionally high. Prior to the suspension of regular court operations due to the Covid-19 health crisis, this family had thirteen court appearances. Since April 2, 2020, the parties have had four virtual court appearances. A total of 9 Court Orders have been made in this matter. The parties have been unable to take the necessary steps to agree on a parenting schedule, adjust support due to the loss of employment; adjust travel schedules or agree on the basic exchange of necessary materials without court intervention. It is a tale of mistrust which has caused these parents to be embroiled in litigation for almost three years, which no doubt, negatively impacts the children.

[6] The number of court attendances has increased to fifteen (including this motion) and there are now eleven Court Orders in this case.

[7] I continue to rely on the reasons set out in my endorsement, dated September 1, 2020, in dismissing the respondent’s motion however, given the motion before me, I will expand on my previous reasons.

Respondent’s Position:

[8] The Respondent primary grounds for seeking an adjournment of the trial in her urgent motion material can be summarized as follows:

a. She has a disability and has been working with the accommodations officer to meet her needs but “it has not been resolved”;

b. She cannot participate in the trial in person because she will not pass the COVID-19 screening process;

c. She cannot participate by Zoom because “it is not aligned with [her] communication needs”;

d. The pandemic has affected her ability to access services, including a court support worker.; and

e. “The family needs finality and closure” and the best way to achieve that is to assign a case management judge.

Analysis:

Accommodations and ability to participate in the trial:

[9] The respondent alleges that her health issues prevent her from a meaningful, full participation in her trial and her accommodations cannot be met by the court.

[10] There have been a number of prior court orders that refer to the respondent’s need for accommodations. Two themes emerge from these orders:

a. The Court’s Accommodations Officer can meet the respondent’s accommodations as set out in a letter from the respondent’s doctor.

b. The Respondent has not provided sufficient evidence of any additional disability or accommodations.

[11] In an endorsement dated July 18, 2018, Justice Kristjanson refers to the mother’s evidence filed with the Landlord and Tenant Board regarding Lupus and her environmental sensitivities, but states that the respondent did not produce the evidence in the proceedings before this Court.

[12] In an endorsement dated April 2, 2019, Justice Stevenson alludes to the fact that the mother kept changing her reasons for not attending the motion brought by her counsel to be removed as solicitors of record. One of the reasons given by the mother was that she needed accommodations for her disabilities before she could attend. When advised that the court could meet her accommodations, the mother said she had a procedure done that morning and would be in recovery for 24 hours and therefore could not attend. There was no evidence before the court. The solicitor’s motion was granted.

[13] In Justice Kristjanson’s trial scheduling endorsement dated October 21, 2019, Justice Kristjanson sets out the accommodations needed by the Respondent and specifically states that they were addressed with the Court’s Accommodations Officer and could be met. The accommodations were specified as follows:

a. Low light;

b. Support person; and

c. Not standing

[14] The Respondent was provided with the Superior Court of Justice’s detailed guide to a trial, prepared for self-represented litigants.

[15] The respondent has not provided evidence that her needs or accommodations cannot be met by the Court.

[16] On January 22, 2020, Justice Horkins permitted a brief adjournment based on the respondent’s assurances that she would be able and ready for trial in March. The trial was re-scheduled to begin on March 23, 2020, peremptory on the Respondent, unless she brought a proper motion, with proper medical evidence, as to why she could not proceed to trial as scheduled.

[17] Justice Horkins found the letter from the mother’s doctor, dated January 14, 2020, to be “vague and does not give any particulars of her condition”. The Respondent described symptoms to Justice Horkins that were not included or set out in the letter from her doctor, leading Justice Horkins to conclude that her health problems were “unproven and unsupported”. As set out above, the lack of evidence was also raised by Justice Kristjanson and Justice Stevenson.

[18] Specifically, Justice Horkins order is clear that if the Respondent is going to seek a further adjournment of the trial, she will need to provide “a detailed medical report from her treating doctor that clearly explains why the RM is unable to attend Court, what the medical problem/diagnosis is and when she would be able to proceed to trial or continue with the trial”(emphasis added).

[19] Justice Horkins confirmed (again) that the accommodations required for the Respondent to attend at trial, as set out in the doctor’s letter, could be met by the Court.

[20] The issue of the need for evidence regarding accommodations was considered by Justice Kruzick in E.R. v. P.L., 2016 ONSC 7492 along with a question of whether the mother’s Charter rights to a full participation at trial had been breached. This case was an appeal from the refusal of both the motion and trial judges to grant an adjournment of a trial. The appeal was dismissed. In this child protection case, the mother was seeking an adjournment because she was incarcerated and dealing with her criminal proceedings. She also alleged she was prevented from participating at trial due to mental health issues. The mother alleged she was not able to participate in the trial in a meaningful way. In upholding the previous decisions, Kruzick J. found that the decisions to refuse the adjournments were made knowing the appellant’s circumstances and based on the best interests of the child. The court found the need to bring finality of the case for the sake of the child.

[21] At paragraph 70, the judge continues: “[t]he need to have the trial heard, given the significant passage of time, compelled the court to proceed with the trial so that the best interests of the child could be served” (at para. 70).

[22] For the purpose of the motion before me, some of the findings made by Justice Kruzick are worth repeating:

The appellant's material failed to specifically address or satisfy the court as to the circumstances that prevented her from participation in the trial (at par 63)

On this appeal, apart from the statements made by the appellant, there was no supporting evidence. Without further and supporting evidence, the appellant does not convince me that the trial should have been adjourned. (at para 65 – emphasis added)

Mother also argued that her mental health was such that she could not prepare for trial, but in the absence of any medical evidence it was reasonable to not give effect to this argument (at para. 57).

[23] The respondent has not provided any proof of her disability or further accommodations needed, other than an initial letter from her doctor (and a brief letter from her ophthalmologist), which was found to be lacking in any details. The respondent failed to hear prior judge’s cautions that she needs to provide proper evidence to the Court. There is very little to no evidence to support most of the respondent’s position regarding accommodations required.

[24] The respondent also alleges she has not been given enough time to prepare for trial in light of her disability. The respondent has had ample time to prepare for trial. In October 2019, the trial was scheduled for February 2020, which gave the respondent over four months to prepare. It was then adjourned by Justice Horkins to give the respondent more time to prepare. The respondent assured the court she could and would be ready to proceed in March. The trial was adjourned to March 2020. The March trial date was adjourned only one week before the trial. Again, the respondent should have been ready to proceed at that time. Further, the respondent has had the last six months to prepare for trial. The respondent was aware that the attendance on September 1, 2020 was to reschedule the trial date. It comes as no surprise to her that the trial was rescheduled. She has had almost a full year from the TMC to the start of the trial to prepare for her trial.

Access to services:

[25] In her recent motion materials, the Respondent alleges that the current pandemic affects her rights as a disabled person to access services. I accept that a significant amount of services offered by the Court were shut down in March 2020 due to COVID-19. However, over the last several months, new procedures and protocols were put in place at the courthouse, and in family court almost all services have resumed.

[26] The family court in Toronto has resumed hearing all matters including conferences, motions and trials although on a reduced schedule. Attendances can take place either in person or by videoconferences. Other than trials, settlement conferences, TMCs and long motions, most matters can be heard by teleconference, if needed. Services in the courthouse once only available in person are now available on line, through email or by phone. This includes services such as 361Mediate (previously 393Mediate), duty counsel, Advice and Settlement Counsel (ASC Project), the Family Law Information Center, and most of the court staff, such as the filing office and the trial coordinator’s office. Parties have the option of filing materials either in person or on line. Service on other parties is available by email. Legal Aid Ontario has waived its financial requirement and is offering summary legal advice on the phone.

[27] The respondent alleges that her inability to access the court means she cannot meet with the trial coordinator and accommodations officer and therefore her needs cannot be met. The respondent has not given any reason why she must meet them in person. She has been in contact with both of them through email.

[28] The respondent also alleges she will not be able to access the courthouse to appear at trial in person because she will not pass the screening process. She does not have COVID019 and has not provided any evidence that she has a disability that mimics the symptoms of COVID-19.

[29] The respondent alleges that she cannot participate using zoom, as it “is not aligned with my communication needs” but has not specified why nor provided any proof of same. She has not explained her need or accommodation in any way. The respondent has now requested that everything take place in writing and insists that any other method would be a breach to her right to a fair trial.

[30] The court is able to meet the accommodations as set out in the trial scheduling endorsement form.

[31] I find that the respondent’s reasons for not being able to participate keep evolving and expanding with each court attendance. Many of the issues raised at Scheduling Court had not been raised with any previous judges. Further issues were raised in the most recent affidavit for the first time.

[32] I find the Respondent is creating obstacles to avoid or delay the trial without providing proof of same (except for those referred to in a letter from her doctor and set out in the TSEF). She has not provided evidence (other than her own allegations) for accommodations other than those set out in the trial scheduling endorsement form.

[33] As set out below, in the interest of justice and the best interest of the children, this trial needs to be heard as scheduled.

Best interests of the children:

[34] The respondent acknowledges that the family needs finality and closure. There are at least four prior orders of this court finding that it is in the best interest of the children to proceed to trial quickly. The children need a final order from this Court.

[35] In her endorsement dated May 23, 2019, Justice Akbarali expresses a concern for the children and the level of conflict.

[36] On October 21, 2019, in setting the matter down for a trial to start on February 3, 2020, Justice Kristjanson found that that there was urgency to having the trial heard because the children need certainty.

[37] On January 22, 2020, the Respondent requested an adjournment of the trial. The Respondent did not attend at the TMC but participated by teleconference. Although she advised the court that she could not attend court in person, she was in the courthouse the previous day speaking with court staff. Justice Horkins granted only a brief adjournment as Her Honour (along with the OCL), expressed concern for the children and their need for a final resolution.

[38] In August 2020 another motion (and cross motion) was heard by Justice Kraft in relation to child support and spousal support. Justice Kraft also expressed concern for the children and the need to have a final resolution of the issues. Part of that decision was set out above.

[39] This file has been plagued by adjournments and frequent litigation.

[40] By way of one example (and there are many), on April 5, 2019, the mother brought an ex-parte motion to adjourn the father’s pending motion scheduled for April 11, 2019. He was seeking an order permitting him to travel with the children. The respondent did not serve the father or the OCL but brought ex-parte. The motion was dismissed. At the hearing of the applicant’s motion on April 11, 2019, before Justice Stevenson, the mother again sought an adjournment. She did not file responding material for the father’s motion. The motion was adjourned but with strict filing timelines set out in the endorsement. At the return of the motion on April 30, 2019, the mother did not even oppose the travel but would only let the child fly if approved by the ears, nose and throat doctor. There had been no prior issues with the child’s ears, nose and throat. Costs were ordered against the mother because Justice Stevenson found the father should not have had to bring the motion.

[41] The saga did not end there. On May 23, 2019, the father brought another motion to allow him to renew the children’s passports for the trip that was the subject of the applicant’s motion Justice Stevenson. The motion was returnable before Justice Akbarali, who also found that the father should not have had to bring the motion. Justice Akbarali commented that “these parties are interested in their conflict, not its resolution” and that their behaviour shows a “misuse of judicial resources”.

[42] I appreciate that sometimes there may be a conflict between the need to push a case on to trial in the best interest of the children and meeting accommodations requested or needed by a party. Again, I rely on Justice Kruzick’s decision, as set out above.

[43] Further, the tension because delay for accommodations and the best interest of the children was considered in Children and Family Services for York Region v. H.C., 2008 CanLII 45823 (Ont. S.C.). Although the case was also a child protection case, the principles are still applicable. In that case, both parties were hearing impaired and required the assistance of an ASL translator. There was only one translator available at the commencement of trial. The parties sought an adjournment because they had opposing interests, and each wanted their own translator. The adjournment was not granted. The child needed finality and the best interest of the child had to trump over the parties’ Charter rights. At par 34 the judge states:

Any imperfections in the accommodations must also be considered in light of the best interests of the child, as it stands to reason that the Charter rights of the parents cannot automatically trump the best interests of the child. In fact, while a balance between the parents’ Charter rights and the best interest of the child is sought and preferred, in the event that these two concepts clash, the best interests of the child must prevail. An adjournment to allow for total perfection in courtroom accommodations would prolong the uncertainty to the child, possibly for a rather long period of time. Her placement should be decided with as much speed as possible, so that she can be settled and comfortable, and so that she may properly bond with her ultimate caregivers. If the parents’ Charter rights have been breached, such a breach cannot supersede the best interests of the child. (at par 34)

[44] As set out above, one thing that the parties agree on, as well as the OCL, and several judges of this court, is that it is in the best interest of the children to obtain a final order. The evidence before this court is that the children are suffering from the conflict.

[45] Finally, the Court is required to consider and promote the primary objective set out in the Family Law Rules (O. Reg. 114/99, r. 2 (4)). Section 2(3) of the FLRs provides that dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. O. Reg. 114/99, r. 2 (3).

[46] It has been almost a year since this matter was set down for trial, and three years since the commencement of litigation. This is a high conflict case and the children are suffering because there has been no final resolution. It would be an understatement to say that the parties are frequent users of the court system. The children need resolution. The applicant and the children have a right to have the trial proceed. The court cannot continue to expend the same level of resources on this family without it affecting other families/files. It also makes very little sense to proceed to a long motion on the issue of mobility instead of proceeding to trial.

[47] In making my previous order (and this order) I considered several factors, including but not limited to:

a. The primary objective of the family law rules;

b. the consistent concerns expressed by prior judges about delay and the children’s need for final resolution;

c. the delay in getting this matter to trial;

d. the OCL’s concerns about the need of the children to have a final resolution;

e. court attendances repeatedly being adjourned at the Respondent’s request;

f. the trial being made peremptory on the respondent;

g. the lack of evidence from the mother with respect to her ability or inability to prepare for and participate in a trial, as expressed by other judges previously involved in this case;

h. the lack of clarity or details by the mother or her doctor with respect to her illness or symptoms;

i. the ability of the court to meet the initial accommodations requested;

j. the parties’ frequent use of court time and resources;

k. the need for the court to spend time and resources on the many other cases in family court;

l. the high conflict between the parties;

m. the request for a long motion in lieu of a trial; and

n. the duplication of resources to proceed first by way of a long motion for a temporary order followed closely by a trial for a final order;

[48] I find it is in the best interest of these children and in the interest of justice that this trial proceeds as scheduled.

Request for a Case management judge:

[49] The respondent has requested the appointment of a case management judge. As co-team lead, I do have discretion to appoint a case management judge. This is not the appropriate time appoint a case management judge. Had a request been made shortly after the commencement of the file, it would have been considered. These parties are facing a trial. A case management judge will be of no further assistance than attending before a trial management judge in trying to settle the outstanding issues. The parties have a TMC scheduled for later this week.

Order:

[50] Order to go as follows:

a. The respondent’s motion is dismissed.

b. The trial shall proceed as scheduled, to begin on September 28, 2020 at 10:00 am, peremptory on the respondent.

c. The Trial Scheduling Endorsement Form of Justice Kristjanson will be brought to the attention of the Court’s Accommodation Officer again to ensure the accommodations referred to therein are in place for the trial.

d. The trial shall proceed in person.

e. If the respondent wants to participate using videoconferencing or another method as set out below, she shall advise the trial coordinator’s office, by email, no later than September 23, 2020.

f. If participating by videoconferencing, the respondent shall make necessary arrangements to have access to the internet and a computer to participate in the trial using Zoom.

g. In the alternative, the respondent may participate by telephone, using videoconferencing or attending in person only to give her own evidence and for the purpose of cross-examination.

h. To be clear, the trial will proceed even if the Respondent chooses not to participate.

i. Request for case management judge denied.

S. Shore, J.

Released: September 11, 2020

COURT FILE NO.: FS-17-420321

DATE: 20200911

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Christian Moreton

Applicant

– and –

Douangta Inthavixay

Respondent

REASONS FOR JUDGMENT

S. Shore, J.

Released: September 11, 2020