COURT FILE NO.: FS-18-1414
DATE: 20201001
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
M.V.N.
Applicant
– and –
F.K.D.
Respondent
George Karahotzitis and Rebecca D. Organ, counsel for the Applicant
Ren Bucholz, co-counsel for Applicant in connection with the Anton Piller Order
Gary S. Joseph and David Rappaport, counsel for the Respondent
Ian Smith, counsel for witness C.B.W.
HEARD: July 30, 2020
kiteley j.
Background
[1] The parties began cohabitating in January of 2010 and were married in June 2013. They have a child who is 4 years old. The parties separated on March 17, 2018 and remained living in the matrimonial home.
[2] The application was issued on March 26, 2018 and the Respondent was served on April 10, 2018. In circumstances that occurred at the time he was served, the Respondent was charged with uttering death threats. The terms of his release required him to leave the matrimonial home.
Prior proceedings
[3] In her application, the Applicant asserted claims for divorce, child and spousal support, equalization of net family property and interim and permanent sole custody of the child. She also asked for an order that the Respondent’s access be supervised by Brayden Supervision Services. She provided extensive details with respect to the Respondent’s behaviour towards her and towards the child. She expressed concerns about his ability to parent the child. In paragraphs 8 of her Form 35.1 affidavit sworn March 22, 2018, in the context of “violence or abuse the court should consider under s. 24(4) of the Children’s Law Reform Act” she said the following: “I am concerned about the Respondent Father’s abusive behaviour, the particulars of which are set out in my Application dated March 22, 2018, specifically at paragraphs 12, 13, 15, 16 and 31.
[4] As indicated above, the Respondent was served on April 10, 2018 and was charged with uttering death threats to the Applicant. According to the Applicant, the Respondent was admitted to the Centre for Addiction and Mental Health following his bail hearing at the Ontario Court of Justice on April 11, 2018. As a result of communication with the Jewish Family and Child Services, on April 13, 2018, the Applicant sought and obtained an order of Kruzick J. in which she was granted interim sole custody and interim exclusive possession of the matrimonial home. The order also provided that the Respondent’s access was to be supervised at Brayden Supervision Services or under the supervision of the Respondent’s surety, R.K, if R.K. agreed to the terms of supervision specific by the Applicant. As a condition of his bail, the Respondent entered in to a recognizance of bail which restricted him from being within 100 metres of the Applicant and from having contact with the Applicant except in the presence of counsel.
[5] In his answer and claim dated May 23, 2018, the Respondent disputed the allegations against him, and he made claims for joint custody, spousal support and property. The Respondent expressed his concerns about the behaviour of the Applicant towards him and towards the child. In paragraph 7 of his form 35.1 affidavit dated May 23, 2018, the Respondent noted that he had been charged with uttering threat/death or bodily harm pursuant to s. 264.1(1)(a) of the Criminal Code and that his next court appearance was June 8, 2018.
[6] In a consent order dated August 2, 2018, a temporary access schedule was established that included overnights without supervision. In the consent order dated October 26, 2018, the access schedule included overnights without supervision on an ongoing basis.
[7] The parties agreed to a s. 30 assessment by Howard Hurwitz. He reported his recommendations on January 8, 2019 and delivered his assessment report on February 25, 2019. He recommended that the Applicant have sole custody of the child, that a parenting coach be retained, that the child reside primarily with the Applicant and share a residential schedule with the Respondent that would expand after August 31, 2020 when the child was 4.5 years old so that the child would spend 6 nights overnight over a 14 day period with her father, and that an updated assessment would take place in 4 years.
[8] On March 8, 2019, the Respondent’s recognizance of bail was replaced with a recognizance to keep the peace, which was in place for a period of one year.
[9] On September 6, 2019, a female referred to as C.B.W. contacted the Applicant via Facebook direct message and provided information about the Respondent that caused the Applicant to be concerned about the conduct of the Respondent particularly in relation to their child.
[10] C.B.W. spoke to the Applicant’s lawyers and provided them with her laptop computer and gave consent for the Applicant to take a digital image of the hard drive and review copies of the text messages and images she said were exchanged between C.B.W and the Respondent. The text messages appear to show that C.B.W. and the Respondent had corresponded beginning when C.B.W. was 17 years old and that the relationship between C.B.W. and the Respondent was sexual in nature and involved pornography.
[11] Counsel for the Applicant retained forensic expert Robert Bonenfant.
[12] On November 4, 2019, the Applicant brought an ex parte motion before Kristjanson J. in which she sought, amongst other orders, an Anton Piller order to seize the Respondent’s electronic devices and an order that his access with the child be supervised. The evidence in support of the motion consisted of the following.
[13] In her affidavit sworn October 24, 2019 C.B.W. provided a detailed chronology of the relationship and she included the transcript of some text messages between her and the Respondent on various dates including December 29, 2016 in which he appeared to ask “how old r u” and she replied “Aw and pretty much 18”; December 30, 2016 in which he appeared to ask “Meet in TO tonight for $1000?” and in which he appeared to offer “great weed and mushrooms”; January 27, 2017 in which he appeared to ask “Hey:) can u chat this morning for $$$?”; January 28, 2017 in which he appeared to say “Just come tonight and I will make it up to u $$$); February 28, 2017 in which, in a dialogue about C.B.W. wearing her 7 year old sister’s top, the Respondent appeared to say: ”Awesome:) yes pls send pics xo I luv pics of u”; March 23, 2017 in which there was a dialogue about the future of the relationship; April 22, 2017 in which C.B.W. said she was turning 18 in two weeks :). The text messages continue throughout 2017 including November 26, 2017 in which C.B.W. said was attributed to her and the Respondent appeared to respond as follows:
C.B.W. Ugh I just don’t want to come all the way back to Toronto and then you change ur mind about wanting to see me.
The Respondent: I won’t. Can u bring some cute outfits tonight. . . and your sister for us to play withlol
C.B.W. Why are u obsessed with my sister. . . kind of weird. I’m not coming.
The Respondent: Omg. . . I am kidding. :( I hope u come.
Many of the text messages include graphic descriptions of sexual activity. The last text to which C.B.W. referred is dated April 22, 2018.
[14] In her affidavit sworn November 1, 2019 the Applicant described the contact by C.B.W. and confirmed the cell phone number of the Respondent with which the text messages were associated and confirmed that the photograph sent from the Respondent’s cell phone number to C.B.W. was of the Respondent. At paragraph 8 of her affidavit, the Applicant deposed that, based on the information from C.B.W. and the information and images contained in the text messages, they demonstrated that the Respondent had solicited sexual services from a minor in exchange for money and/or other consideration; that the Respondent has a sexual interest in minors or young people; that the Respondent has disturbing sexual fantasies; that the Respondent may be in possession of images or documents that may be considered child pornography; and that the Respondent consumes drugs and provides drugs to minors. The Applicant referred extensively to the text messages which indicates that those to which I have referred in paragraph 13 above are a small portion. In addition, she attached approximately 90 images, primarily of C.B.W., taken from the text messages.
[15] In his affidavit sworn October 31, 2019, Robert Bonenfant identified himself as a specialist in computer forensics. He had been retained to create a digital image of C.B.W.’s computer and to isolate the text messages and any other communications located on the laptop and the cell phone number belonging to the Respondent. He had created a digital image and a “digital casebook” as well as an excel spreadsheet that reflected his detailed analysis of the communications between C.B.W. and the cell phone number associated with the Respondent.
[16] On November 1, 2019, the Applicant delivered a copy of all of the affidavits filed in support of her motion to Toronto Police Services and an investigation was commenced.
[17] On November 4, 2019, Kristjanson J. made one order that included a publication ban, sealing of the Court file, and supervised access for the Respondent and the child. She made a separate Anton Piller order which allowed entry and search of the Respondent’s residence. In her endorsement, she noted that the purpose of the Anton Piller order is to preserve evidence, where the plaintiff demonstrates a strong prima facie case that the plaintiff will suffer serious damages as a result of the defendant’s alleged misconduct, potential or actual, that the plaintiff has provided convincing evidence that the defendant has in its possession incriminating documents or things, and that the plaintiff must show that there is a real possibility that the defendant may destroy such material before the discovery process can do its work.
[18] Referring to Celanese Canada v. Murray Demolition[^1], Kristjanson J. held that where there was evidence of materials on a cell phone/computer, the order must be enforced quickly and without notice. She found that the Applicant had established the following:
(a) a strong prima facie case re solicitation of sexual services from minors and possession of child pornography which is relevant to ability to parent, past conduct, and the best interests of the child;
(b) an inability to prove the case and provide relevant material evidence if the information is destroyed, since the information is uniquely in the Respondent’s possession;
(c) convincing facts, based on the affidavit of C.B.W. sworn October 24, 2019, of Robert Bonenfant sworn October 31, 2019, and of M.V.N., that the Respondent has in his possession text messages, digital images or electronic communications that will impact custody and access issues. This information appears highly relevant to the issues in this case, and the best interests of the child;
(d) real possibility of destruction; given the nature of the documents, and the fact that the Respondent has not already produced these relevant documents in the litigation, nor provided it to custody assessor M. Horwitz despite its relevance, there is a natural inference that there is a risk of destruction. In this case, in 2009, the Respondent was arrested and charged with luring and attempted procurement child prostitution; that charge was stayed in 2012, and the Respondent has refused to produce his lawyers’ file. The Applicant has been charged with uttering death threats, is under a recognizance, and after his bail hearing, admitted himself to CAMH. This reaction to the 2009 charges shows that the Respondent believes his reputation was diminished by those charges, which are similar to the behaviour in issue here. As a result, I find on a balance of probabilities the mother has established a real possibility that the father may destroy the evidence in the absence of an Anton Piller order, executed without notice. I have compared the Anton Piller order sought to the Commercial List precedent, and narrowed schedule “A” to target the conduct in issue. I am satisfied the order provides the basic protections required by the Celanese case.
Events after November 4, 2019 order
[19] The Independent Supervising Solicitor (Stockwoods LLP) immediately served the Anton Piller order, searched the Respondent’s residence and removed items covered by the order.
[20] The order was returnable November 14, 2019. On consent that date was changed to November 21, 2019 and the order continued in the meantime.
[21] On November 21, 2019, on the return of the motion, Gilmore J. noted that the Applicant and Respondent each had counsel on the Anton Piller matter, that the Respondent’s counsel did not oppose the continuation of the order and did not intend to move to set it aside, that supervised access with Brayden Supervision had started on November 17, 2019, that the parties agreed that the access terms of the November 4, 2019 order would continue until an up-dated assessment has been completed, and the parties were in discussions about the qualifications of the person who will undertake the assessment. On consent, the Anton Piller order was continued until December 19, 2019.
[22] The Respondent served a notice of motion returnable December 19, 2019 in which he asked for an order varying the order dated November 4, 2019 with respect to access, an order pursuant to rule 20 of the Family Law Rules authorizing questioning of C.B.W. on her affidavit sworn October 24, 2019 and authorizing the use of her full name in the Summons to Witness to be served; and an order permitting questioning to proceed notwithstanding non-compliance with Rule 20(8) and costs.
[23] On December 10, 2019, Justice Diamond was appointed to hear all conferences and to case manage the file.
[24] On December 19, 2020, Gilmore J. made orders on consent extending the Anton Piller order, the publication ban and the sealing of the court file.
[25] In an endorsement dated January 27, 2020, Diamond J. made the following orders:
(a) leave to the Respondent to bring a motion to vary interim access and leave to the Applicant to bring a motion for an updated s. 30 assessment, both motions to be heard together on the regular motions list;
(b) leave to the Respondent to bring a motion for interim spousal support and leave to the Applicant to bring a motion for interim child support, both motions to be heard together on the regular motions list.
[26] The Applicant served a notice of motion returnable March 26, 2020 in which she asked for an order compelling the Respondent to deliver a full and complete responding affidavit and any other responding evidence prior to the Respondent’s questioning of C.B.W., an order that the Respondent attend for questioning on all issues in this proceeding, including but not limited to, the facts and allegations contained in the materials filed in support of the order dated November 4, 2019, November 21, 2019 and December 19, 2019, an order setting a timetable for the delivery of evidence and questioning and motions, and costs.
[27] Effective March 17, 2020, the regular operation of the courts was suspended. The motions brought by the Applicant and the Respondent could not proceed.
[28] At a case conference on June 4, 2020, Diamond J. addressed the resolution of outstanding disputes about the process to be taken by the ISS to review and provide the evidence seized pursuant to the Anton Piller order. In his endorsement he gave directions as to the process by which the court and counsel for the parties will review the seized evidence. On July 30, 2020 counsel for the ISS advised that there are 300,000 to 400,000 documents and claims of privilege that need to be examined and that counsel expected that the evidence would be made available “shortly”, subject to any claims of privilege.
[29] Without prejudice to the Respondent, the Anton Piller order has been extended from time to time, most recently by Diamond J. who continued it on consent until September 30, 2020.
[30] As a result of the circumstances arising from COVID-19, the access was interrupted for a time. The status quo is that the Respondent exercises parenting time for 4 or 6 hours on 6 or 7 days in a two-week interval. He wants to bring a motion to vary the November 4, 2019 order to provide for unsupervised access.
[31] The Applicant wants to bring a motion for an updated s. 30 assessment and a motion for temporary child support.
[32] In his role as case managing judge, Diamond J. authorized the parties to bring these procedural motions on July 30. Once these motions are resolved, the parties will arrange a case conference to schedule those substantive motions.
[33] There is no planned or pending motion by the Respondent to set aside the Anton Piller aspects of the order made November 4, 2019. Indeed, as indicated in the endorsement of Gilmore J. dated November 21, 2019, referred to in paragraph 21 above, the Respondent does not oppose the continuation of the Anton Piller order and does not intend to move to set it aside.
Motions heard July 30, 2020
A. By the Respondent
[34] This is a motion by the Respondent for the following orders:
(a) an order pursuant to Rule 20 of the Family Law Rules authorizing questioning of the deponent C.B.W. on her affidavit sworn October 24, 2019;
(b) an order permitting questioning to proceed notwithstanding non-compliance with Rule 20(8) of the Family Law Rules;
(c) an order authorizing the use of C.B.W.’s full name in the Summons to Witness to be served.
[35] In support of his motion, the Respondent has filed affidavits sworn December 13, 2019, March 2, 2020 and July 21, 2020. The following is taken from his affidavit sworn December 13, 2019:
Given the nature of these proceedings and the fact that matters are being investigated by the Toronto Police Services, I am choosing at this time not to provide detailed responses to the unfounded allegations against me. I dispute the allegations, but will postpone my responses until the investigation has been concluded. Instead I make this affidavit in support of the relief as set out in my Notice of Motion.
The [C.B.W.] affidavit makes a host of unfounded and disgusting allegations against me, to which I did not have an opportunity to respond. . . .
[C.B.W.]’s affidavit is full of false and repulsive allegations. . .
It has been brought to my attention that, in the normal course, questioning will be denied unless, among other things, there is a promise in writing not to serve or file any further material for the next step in the case, except in reply to the answers or information obtained. However, given the criminal investigation, which I understand is underway, it would be unfair to compel me to comply with this requirement at this time.
[36] The following is taken from his affidavit sworn March 2, 2020:
Given the nature of these proceedings and the fact that there may be an ongoing investigation by the Toronto Police Services, I am choosing at this time not to provide detailed responses to the unfounded allegations against me. I dispute the allegations, but will postpone my responses until the investigation has been concluded. Instead, I make this Affidavit in support of the relief as set out in my Notice of Motion.
Firstly, I seek leave to question C.B.W. on her Affidavit sworn October 24, 2019 (“C.B.W.’s Affidavit”), which was received by the Court untested. C.B.W.’s Affidavit makes a host of unfounded and disgusting allegations against me. While I wish to respond to these allegations, I am refraining from doing so as this time. Instead, I seek to return the motion for questioning of C.B.W. so that the Court does not continue to rely upon C.B.W.’s Affidavit without her claims being tested for their veracity. . . .
As I wrote in my Affidavit sworn December 13, 2019, I understand that questioning may be denied unless, among other things, there is a promise in writing not to serve or file any further material for the next step in the case, except in reply to the answers or information obtained. I cannot make this promise because I would ultimately like to submit evidence in response to C.B.W.’s Affidavit. I believe it would be unreasonable to compel me to testify when it could negatively impact any criminal investigation that may be underway.
[37] At paragraphs 2 and 4 of his affidavit sworn July 21, 2020, the Respondent echoed the evidence in paragraphs 2 and 3 of the March 2 affidavit and he said the following:
5.. . . I am choosing not to provide specific responses to the allegations made in order to avoid having Toronto Police Services or the Crown using any evidence in this family law proceeding to incriminate me, if possible, in any criminal proceedings. I understand from paragraph 8 of the Applicant’s Affidavit sworn March 11, 2020 that a criminal investigation is underway as a result of the Applicant providing the Toronto Police Services with copies of the Affidavits. . .
If I am compelled to deliver Affidavit evidence in specific response to the allegations made against me, I am concerned that it will prejudice my defense to any criminal charges laid against me. As a result, I continue to refuse to provide these specific responses. . . .
I am placed in a difficult situation in which giving specific evidence could impact my defense in any criminal proceeding, but in which C.B.W.’s Affidavit evidence remains untested and relied upon as if truth. One of Justice Kristjanson’s Endorsements of November 4, 2019 included various findings, including the finding that I have a sexual interest in minors despite my lack of an ability to have responded to the evidence provided on the ex parte motion. It is unfair for this evidence, particularly that of C.B.W. to remain untested and similarly unfair to force me to provide evidence that can prejudice my freedom. I respectfully request that I be able to question C.B.W. on her affidavit of October 24, 2019 prior to submitting Affidavit evidence that responds directly to the allegations made.
In the alternative, if I am not permitted to Question C.B.W. prior to submitting particularized evidence, I will undertake not to provide Affidavit evidence in response to the Applicant’s ex parte motion in order to quell the concern that I could later tailor my evidence following the Questioning of C.B.W.
B. By the Applicant
[38] The Applicant has brought a motion seeking the following orders:
(a) an order that the Respondent deliver a full and complete responding affidavit and any other responding evidence to the Applicant’s affidavit sworn November 1, 2019, the affidavit of C.B.W., sworn October 24, 2019 and the affidavit of Robert Bonenfant, sworn October 31, 2019, prior to the Respondent’s questioning of C.B.W.;
(b) an order that the Applicant shall be permitted to file affidavits in reply to the responding affidavit of the Respondent referred to in (a);
(c) an order that the Applicant and the Respondent attend for questioning on all issues in this proceeding, including but not limited to, the facts and allegations contained in the materials filed and which gave rise to the orders of Kristjanson J. dated November 4, 2019, the endorsement of Gilmore, J. dated November 21, 2019 and December 19, 2019, after the delivery of the affidavits referred to in paragraphs (a) and (b);
(d) an order that the witness C.B.W. attend for questioning after the delivery of the affidavits referred to in paragraphs (a) and (b) above.
[39] In her notice of motion, the Applicant had asked for a timetable for the delivery of evidence, questioning and scheduling of other motions. During submissions, counsel agreed that the timetabling issues should be considered by Diamond J. at a case conference.
Pleadings
[40] The allegations and claims asserted in the application and in the answer and claim are summarized above.
[41] The serious allegations against the Respondent have been made in the affidavits filed by and on behalf of the Applicant in support of the ex parte motion. In her notice of motion, the Applicant asks that the Respondent provide responding evidence to the evidence offered in the ex parte motion and attend for questioning on all issues in this proceeding, not limited to the facts and allegations continued in the materials relied on in the ex parte motion. The application has not been amended to coincide with the allegations and the evidence relied upon in the ex parte motion. In theory, that means that the scope of the motions before me must be limited to the evidence relied on in the ex parte motion and the allegations contained in the application and answer and claim as they presently exist.
[42] As indicated below, rule 2(2) provides that the primary objective of the Family Law Rules is to enable the court to deal with cases justly. I could adjourn some aspects of this motion until the Applicant seeks leave to amend her application (which no doubt will be granted), until she delivers an amended application consistent with the allegations upon which she relied at the hearing of the ex parte motion, and until the Respondent delivers an amended answer and claim. That would only delay a decision on the scope of the response required by the Respondent. In keeping with the primary objective, for purposes of these motions, I assume the following:
(a) Unless the Respondent consents to the amendment, the Applicant will forthwith obtain leave and will amend her application to include the essence of the allegations on which she relied in the motion;
(b) the Respondent will serve and file an amended answer and claim;
(c) in accordance with rule 35.1(7)(a), each party will file an up-to-date form 35.1.
Analysis:
Family Law Rules
[43] The following are relevant to the issues in this motion:
14(20)… The following restrictions apply to evidence for use on a motion, unless the court orders otherwise:
The party making the motion shall serve all evidence in support of the motion with the notice of motion.
The party responding to the motion shall then serve all evidence in response.
The party making the motion may then serve evidence replying to any new matters raised by the evidence served by the party responding to the motion.
No other evidence may be used.
20(4) In a case other than a child protection case, a party is entitled to obtain information from another party about any issue in the case,
(a) with the other party’s consent; or
(b) by an order under subrule (5).
20(5) The court may, on motion, order that a person (whether a party or not) be questioned by a party or disclose information by affidavit or by another method about any issue in the case, if the following conditions are met:
It would be unfair to the party who wants the questioning or disclosure to carry on with the case without it.
The information is not easily available by any other method.
The questioning or disclosure will not cause unacceptable delay or undue expense.
20(7) The court may make an order under subrule (5) that a person be questioned or disclose details about information in an affidavit or net family property statement.
20(8) A party who wants to question a person or obtain information by affidavit or by another method may do so only if the party,
(a) has served and filed any answer, financial statement or net family property statement that these rules require; and
(b) promises in writing not to serve or file any further material for the next step in the case, except in reply to the answers or information obtained.
[44] Pursuant to rule 2(2), the primary objective of the Family Law Rules is to enable the court to deal with cases justly. Pursuant to rule 2(3), dealing with a case justly includes ensuring that the procedure is fair to all parties.
Issue #1: whether the Respondent may conduct questioning of C.B.W. without serving and filing responding affidavit
[45] As indicated above, counsel for C.B.W. did attend this motion because his client had been served. Her counsel did not seek intervenor status but he adopted the submissions made by counsel for the Applicant.
[46] The Respondent takes the position that the requirements of rule 20(5) are met because (a) it would be unfair for him to have to proceed in a case where the false and inflammatory allegations with respect to his romantic interest in minors are taken for fact without the opportunity to question the truth of the allegations and the credibility of C.B.W.; (b) the November 4, 2019 orders were made primarily as a result of the evidence contained in C.B.W.’s affidavit and that can only be tested through questioning of C.B.W.; (c) now that a criminal investigation is likely underway, it would be onerous on him to have to submit affidavit evidence before the conclusion of the criminal investigation; (d) questioning is a necessary step in order to test the truth of C.B.W.’s affidavit; and (e) no unacceptable delay or undue expense would be caused.
[47] As indicated above, in his affidavits sworn December 13 and March 2, the Respondent took the position he ought not to be required pursuant to rule 20(8) to make the promise in writing not to serve or file any further material. However, as indicated above, in paragraph 12 of his July 21st affidavit, he deposed he would make that promise if it were necessary.
[48] I dismiss the request to question C.B.W. before filing responding material for these reasons.
[49] First, I do not agree with the Respondent’s submission that the evidence of C.B.W. “remains unverified”. I have referred above to her evidence, to the extensive evidence of the Applicant based on her review of the transcripts of the text messages and images, and to the evidence of Bonenfant attached to which are excel spreadsheets that document hundreds, if not thousands of text communications from C.B.W. and to and from the phone number associated with the Respondent’s cell phone. This is not a situation of “he said, she said”. As indicated above, the Respondent asserts that C.B.W.’s evidence is “untested” and the Court ought not to “continue to rely on C.B.W.’s Affidavit without her claims being tested for their veracity”. In submissions, counsel conceded that the evidence was not “unverified” but took the position that “large parts of her evidence are not verified”. The affidavit evidence of C.B.W. was no doubt important to the granting of the Anton Piller order and to the order for supervised access but the affidavits of the Applicant and of Bonenfant verified her evidence. The record before the motion judge was thorough, well-documented, and comprehensive. The Respondent does not seek to set aside any aspect of the orders made.
[50] Given the nature of the evidence before the motion judge including the significant corroborating records in the form of transcripts of text messages and an excel spread sheet of contacts between C.B.W. and the cell phone number associated with the Respondent, it would not be unfair to the Respondent to be required to say more than that the allegations are “unfounded and disgusting”.
[51] Second, I do not agree that unfairness arises because the Applicant has provided copies of the affidavits to the Toronto Police Services and an investigation is ongoing. The self-incrimination issue will be addressed below. It does not arise in the application of rule 20(5) and 20(8) with respect to the affidavit of C.B.W.
[52] Third, it is the case that, in conducting questioning of C.B.W., the Respondent will obtain information. But given the extensive record in the form of C.B.W.’s hard drive, as documented by Bonenfant, it appears that information he would seek to obtain on questioning is already available and in his possession.
[53] Fourth, while subrule 20(5) specifically refers to unfairness to the party who wants questioning, as a result of subrule 2(2), the court must ensure that the procedure is fair to all parties. It would be unfair to the Applicant to allow the Respondent to challenge the evidence of C.B.W. by questioning her without providing reply evidence to the compelling record assembled on behalf of the Applicant for purposes of the ex parte motion.
[54] Although not necessary for purposes of the decision on this aspect of the motion, I agree that the questioning, if allowed, would not cause unacceptable delay or undue expense. In this case, the delay is being caused by the logistics of the Applicant gaining access to the records seized by the ISS. As a result of the approach I take, the belated evidence that the Respondent did eventually promise not to provide evidence in response to the Applicant’s ex parte motion is not relevant.
Issue #2: whether the court has jurisdiction to order the Respondent to “deliver a full and complete responding affidavit”
[55] The second issue, that also engages rule 20(5), is whether the court has jurisdiction to order a party to deliver affidavit evidence and, if it does have jurisdiction, whether the court should do so in the manner described by the Applicant.
[56] Pursuant to subrule 20(5), the Court has jurisdiction to order a party to “disclose information by affidavit” on “any issue in the case”, if the three conditions referred to above are met.
[57] The Applicant insists that the Respondent must provide “full and complete” evidence responding to the extensive record consisting of the affidavits of the Applicant, of C.B.W. and of Bonenfant. In other words, the Applicant asks that the court specify the quality of the responding evidence.
[58] At this point, there are two pending motions: the Respondent’s motion to vary the November 4, 2019 access order to remove supervision and the Applicant’s motion for a s. 30 assessment. Key to both motions is the allegations documented by C.B.W., by the Applicant and by Bonenfant.
A. Motion by the Applicant for an order for a s.30 assessment of the needs of the child and the ability and willingness of the parties to satisfy the needs of the child
[59] In her application, the Applicant asks for orders pursuant to the Divorce Act and alternatively pursuant to the Children’s Law Reform Act. The Respondent takes the position that only the Divorce Act is relevant and that that Act as it currently exists does not specifically consider the kind of behaviour referred to in the affidavits filed for the November 4 hearing. For purposes of this motion, it is not necessary to decide which statute is governing. The overarching principle is the best interests of the child. Under any statute, behaviour such as that described in the affidavits of C.B.W. and of the Applicant is relevant to the “ability and willingness” of the Respondent to satisfy the needs of the child as contemplated in a s.30 assessment report.
[60] In my view, the Court should order the Respondent to disclose information by affidavit relevant to the s.30 assessment motion because it would be unfair to the Applicant to require her to proceed with the motion without it, because the information relevant to whether the Court should order a second s. 30 assessment as to the Respondent’s ability and willingness to satisfy the needs of the child is not easily available by any other method, and because the disclosure by affidavit will not cause unacceptable delay.
[61] There has already been one s. 30 assessment and an order for a second is unusual. The overriding issue is the best interests of the child. The Court requires input by the Respondent.
[62] It is the case that if the Respondent fails to provide evidence in response to the Applicant’s motion, that the court may draw an inference against the Respondent that the allegations contained in the Applicant’s affidavit sworn November 1, 2019 are true. In issues involving the best interests of the child, particularly where the allegations are so serious, the Court ought not to decide a motion based on onus and negative inferences.
[63] Having decided that the Respondent must “disclose information by affidavit” in relation to the Applicant’s motion for a s.30 assessment, I turn to whether the Court should require the Respondent to “deliver a full and complete affidavit”.
[64] I agree that the Court can order a party to provide affidavit evidence “about any issue in the case”. But I do not agree that the Court should order that the affidavit be “full and complete”. Such a description would inevitably lead to conflict over how full and complete the evidence is.
[65] Without deciding whether the self-incrimination issue applies to the Applicant’s request for an order requiring the Respondent to deliver an affidavit, I will refer to it below.
B. Motion by the Respondent to vary the interim ex parte order to provide for unsupervised access
[66] In his motion the Respondent is not asking to set aside the ex parte order; he is asking to vary it. Because the order was made ex parte, the Respondent does not need to provide evidence of a material change in circumstances in order to seek a variation.
[67] The Respondent has included some evidence of parenting in his March and July affidavits. He takes the position that the “unfounded and disgusting allegations” are irrelevant to his motion to vary the order to remove supervision. I disagree. Just as his evidence is relevant to the s.30 assessment, it is relevant to whether his parenting time is supervised or not.
[68] Pursuant to subrule 14(20)5, he must file “all evidence in support of the motion with the notice of motion”. If the Respondent intends to pursue that motion to vary the November 4, 2019 order to remove supervision, then I agree he must respond to the evidence of C.B.W., the Applicant and Bonenfant.
[69] If, perhaps as a result of this ruling, he decides not to pursue that motion, then it follows that he cannot be required to provide an affidavit responding to the evidence filed in support of the motion and on which the interim supervision order was made. He must, in any event, provide an affidavit in response to the motion by the Applicant for a s. 30 assessment as indicated above.
Issue #3: whether the Respondent should be ordered to attend questioning and if so on what issues?
[70] As indicated above, in her notice of motion the Applicant asks that the Applicant and the Respondent attend for questioning “on all issues in this proceeding”, including those referred to in the materials for the November 4 ex parte motion. Two preliminary issues arise from this request.
[71] The first is whether the questioning should be on all issues in this proceeding. Questioning “in the proceeding” is premature until such time as the Applicant amends the Application as I have assumed she will. It would be a waste of judicial resources to require the Applicant to amend as anticipated and then bring another motion for questioning because the result would be inevitable. Questioning on “all issues in this proceeding” is ordered but cannot occur until the pleadings have been amended as outlined above.
[72] The second is that the Respondent did not ask for questioning of the Applicant. Questioning is not automatic and must be sanctioned by the Court pursuant to subrule 20(5). In the absence of a request by the Respondent to questioning the Applicant, I will not make an order.
[73] The opposition by the Respondent is largely based on his position that he ought not to be required to give evidence in which he might be found to have incriminated himself.
[74] Counsel agree that the statutes relevant to self-incrimination are these. Pursuant to s. 5(1) of the Canada Evidence Act, no witness shall be excused from answering any question on the ground that the answer to the question may tend to criminate him or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person. Pursuant to s. 9(1) of the Ontario Evidence Act, a witness shall not be excused from answering any question upon the ground that the answer may tend to criminate the witness or may tend to establish his or her liability to a civil proceeding at the instance of the Crown or of any person or to a prosecution under any Act of the Legislature. Pursuant to s. 13 of the Charter, a witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate the witness in any other proceedings, except in prosecution for perjury or for the giving of contradictory evidence.
[75] The evidence is that the Applicant provided to Toronto Police Services copies of the affidavits of C.B.W., of the Applicant and of Bonenfant in November 2019. The evidence of the Applicant is that the police investigation is ongoing. The Respondent takes the position that he ought not to be required to attend for questioning in the family law case because he risks that what he says may be used against him in the criminal matter and will “prejudice his defence to any criminal charges laid against” him and that could “prejudice [his] freedom (paragraphs 6 and 11 of the July 21, 2020 affidavit). He takes the position that he ought not to be required to attend for questioning “at this time” (paragraph 8 of December 13, 2019 affidavit), and “until the investigation has been concluded” (paragraph 2 of the March 2, 2020 affidavit).
[76] In other words, the Respondent does not object to being questioned. His concern is timing.
[77] In Meola v. Griffiths[^2] the Court was asked by the Respondent to adjourn a family law trial indefinitely until the criminal trial had concluded on the basis of the prejudice that he said he would suffer if his evidence in the family law trial were used in the criminal law trial. The court concluded that the matter must be decided having regard to the best interests of the child and that it was not in the child’s best interests to delay the family trial until the criminal proceedings were concluded.
[78] I agree that the Respondent should be required, in the immediate future, to attend for questioning on the issues in the motion for a s. 30 assessment, and, if he pursues it, in his motion to vary the ex parte order to remove supervision of his parenting time, and, once pleadings are amended as assumed above, on the issues “in the proceeding” for these reasons.
[79] First, there are presently no charges against the Respondent. The Court ought not to make a decision based on speculation whether the Respondent will be charged, when that will occur, and what the charges might be.
[80] Second, as in Meola v. Griffiths, the best interests of the child must prevail over such speculation.
[81] Third, I do not accept the submission that there is uncertainty as to whether the Respondent’s rights will be protected because the contemplated questioning is in the context of a motion while the statutes make reference to “a proceeding”. In the Courts of Justice Act, “proceeding” is not defined. However, in s. 1.03(1), “motion” is defined as a “motion in a proceeding”.
[82] Fourth, I am not persuaded that the Respondent’s rights under the Canada Evidence Act, the Ontario Evidence Act, and the Charter of Rights and Freedoms will be violated if he is required to attend for questioning.
[83] The “self-incrimination” submission overlapped in the issues of questioning and filing a responding affidavit. This explanation applies to both issues.
[84] Counsel did not make submissions on the duration of questioning. I expect that counsel will reach agreement and if not, the case management judge has the authority to decide. As a guideline only, it would be reasonable that the questioning of the Respondent in the context of the s. 30 assessment and the motion to vary last no longer than 2 hours. I do not suggest a guideline for the questioning “in the proceedings” because there are financial and other property claims that will also be canvassed.
ORDER TO GO AS FOLLOWS:
[85] The motion by the Respondent referred to in paragraph 34 above is dismissed.
[86] The motion by the Applicant is granted as follows:
(a) by October 22, 2020, in response to the motion by the Applicant for an order for a s. 30 assessment, the Respondent shall deliver an affidavit responding to the evidence in the affidavit of the Applicant sworn November 1, 2019, the affidavit of C.B.W. sworn October 24, 2019 and the affidavit of Robert Bonenfant, sworn October 31, 2019;
(b) the Applicant is permitted to file affidavits in reply to the responding affidavit of the Respondent in (a) above;
(c) the Respondent shall attend for questioning on all issues in the s.30 assessment motion, including but not limited to, the facts and allegations contained in the materials filed and which gave rise to the orders of Kristjanson J. dated November 4, 2019, the endorsement of Gilmore J., dated November 21, 2019 and December 19, 2019 after the delivery of the affidavits referred to in (a) and (b);
(d) if the Respondent pursues his motion to vary the ex parte order dated November 4, 2019 to remove supervision on his parenting time, the Respondent shall:
(i) deliver an affidavit responding to the evidence in the affidavit of the Applicant sworn November 1, 2019, the affidavit of C.B.W. sworn October 24, 2019 and the affidavit of Robert Bonenfant, sworn October 31, 2019 provided that the Respondent may rely on the affidavit referred to in (a) above; and
(ii) attend for questioning on all issues in the motion to vary the November 4, 2019 order to remove supervision on his parenting time, including but not limited to, the facts and allegations contained in the materials filed and which gave rise to the order of Kristjanson J. dated November 4, 2019 for supervised access;
(e) once the pleadings have been amended as contemplated in paragraph 42 above, the Applicant and the Respondent shall attend for questioning on all issues in the proceeding.
[87] If the parties are unable to agree as to the duration of the questioning of the Respondent on either motion or in the proceedings, the Case Management Judge has the authority to decide.
[88] If by October 12, 2020 the parties have not agreed as to costs of these motions, then each party will file written submissions no more than 3 pages plus costs outline and offers to settle, if any, on this timetable:
(a) Applicant by October 19, 2020;
(b) Respondent by October 26, 2020;
(c) reply, if any, by the Applicant by November 3, 2020.
[89] This order takes effect without a formal order being signed and entered.
[90] Counsel may forward approved draft order to my attention for signing.
Kiteley J.
Released: October 1, 2020
COURT FILE NO.: FS-18-1414
DATE: 20201001
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
M.V.N.
Applicant
– and –
F.K.D.
Respondent
REASONS FOR JUDGMENT
Kiteley J.
Released: October 1, 2020
[^1]: [2006] 2 S.C.R.; 2006 SCC 36 at para. 35
[^2]: 2012 ONSC 6439