Court File and Parties
COURT FILE NO.: FS-17-415944 DATE: 2020-12-02
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Aleksandra Dlacic Applicant
– and –
Nenad Dlacic Respondent
COUNSEL: Nancy Iadeluca, for the Applicant David Russell, for the Respondent
HEARD: November 19 and 23, 2020
BEFORE: Shore, J.
Reasons for Judgment
Background
1The parties are in the middle of an eight-day trial regarding custody and the residential schedule of the two children of their marriage, amongst other issues. During the trial, an issue arose with respect to the admissibility of surreptitious recordings (and the transcripts of those recordings) made by the Respondent of his interviews with Ilana Tamari, during a court ordered custody and access assessment. Ms. Tamari was retained to complete the assessment.
2The Respondent wants to use one of the recordings of a conversation between himself and Ms. Tamari to cross-examine Ms. Tamari. Specifically, the Respondent wants to use the recordings to put into question Ms. Tamari’s evidence of what occurred at the end of his second session (of six) with Ms. Tamari on October 11, 2019. Ms. Tamari specifically referred to and highlights this incident in both her notes and her report and gave evidence on it during her testimony in chief.
3In the summary paragraph located at the start of the assessment report, Ms. Tamari, in describing Mr. Dlacic states that “[h]e was overall quite confrontational and attempted to intimidate this author many times through undermining her work”: page 6. She repeats this sentiment throughout her report and during her testimony. At the bottom of page 6, before getting into the body of her assessment, Ms. Tamari writes as follows:
“Interview dated October 11, 2018
An incident occurred during the Interview with the Father on October 11 which this author feels is relevant to this report. The session was due to run between 5 pm and 7 pm. At approximately 6 p.m, this author received word that her daughter had been in an accident, and was en route to the hospital in an ambulance. At this juncture, this author informed Mr. Dlacic that there had been an emergency with her daughter, and she therefore needed to end the session early to go to the hospital. This author asked him to please call her office to reschedule. Mr. Dlacic then became confrontational and aggressive, saying that he would not call and reschedule, seeing as he felt this was this author’s responsibility. In the session which followed this on October 25, after this author apologized for having to rush out of the session, the Father did not respond, instead beginning with his usual tirade that her involvement in this assessment was a conflict of interest given the involvement in the Voice of the Child report, and retorting that if she didn’t like it she could “kick [him] out” of her office. This incident is being recalled due to call attention to the fact that the Father acted insensitively to this emergency situation.”
4Mr. Dlacic submits that the events did not occur as characterized by Ms. Tamari during her testimony and in her report, and that in no way was he confrontational, aggressive or insensitive to the emergency situation. Given the prominent location of this paragraph in the report and reference to same, this event clearly had an impact on the author and on the opinions, she formed or held about Mr. Dlacic.
5Unbeknownst to Ms. Tamari, Mr. Dlacic recorded the entire session on his iPhone, and the iPhone continued to record when the session was brought to an end by Ms. Tamari and the events described above ensued. Mr. Dlacic would like to rely on this recording at trial, and specifically put the recording to Ms. Tamari during cross-examination. There was a second recording that Mr. Dlacic wanted to use, of the October 25th session, also referred to by Ms. Tamari in her report, but the relevant part of the recording, taken in the waiting room before the session began, was not clear and was not even included in the transcript. Mr. Dlacic’s lawyer conceded that this recording was therefore not reliable and would not be used.
6The Applicant strenuously objected to the recording or transcript of the recordings being introduced as evidence during the trial and argued that there were strong policy reasons to exclude surreptitious recordings of sessions with a custody and access assessor.
[