COURT FILE NO.: 766/16

DATE: 2020-02-14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

D.D. and F.D.

Mr. Angelo P. Fazari, for the Applicants

Applicants

and -

H.G.

Self-Represented Respondent

Respondent

HEARD: October 11, 12, 15, 16, 19, 29, 2018; November 16, 20, 21, 22, 23, 2018; January 21, 22, 23, 2019; February 4, 19, 20, 21, 26, 28, 2019; March 4, 5, 6, 25, 29, 2019; April 5, 29, 2019; May 3, 2019; July 2, 3, 4, 2019; September 17, 18, 19, 20, 23, 24, 25, 26, 27, 2019; December 19, 2019; January 21, 23, 27, 29, 30, 31, 2020

JUDGMENT

THE HONOURABLE MR. JUSTICE A. PAZARATZ

NOTE TO READER: This is a sensitive file. Unless otherwise specified, all of the names have been changed.

Endless excuses.
Endless excuses why the mother couldn’t commit herself to participating in this trial.
Endless excuses why the mother can’t commit herself to visiting her children -- even though she’s asking for custody.
Endless excuses about a lot of things.
To give some perspective about this 41-day trial I’ll start with a quick profile:

Anticipated # of trial days

20-25

Trial commenced

October 11, 2018

Anticipated trial completion

November 2018

Actual trial completion

January 31, 2020

Actual # of trial days

of Children (ages 13 & 8)

of Applicants (Father & Paternal Grandmother)

of Respondents (Mother)

Date Mother & Father separated

2011

Children in mother’s care:

2011-2013

Motion to Change Final order dated:

August 31, 2012

Mother relocated children to Alberta

March 2013

Court ordered children to be returned to Ontario

Summer 2013

Children actually returned to Ontario

October 2013

Children apprehended by Niagara FACS

October 2013

Children placed with paternal grandmother since:

December 2013

Father residing with paternal grandmother & kids

January 2014 – August 2019

of witnesses called by Court (s.112 clinician)

of witnesses called by Applicants

of witnesses called by Mother

of trial days Mother was late for court (15 minutes or more)

of trial days court adjourned early because Mother felt unwell

of trial days Mother failed to attend, stating health reasons; everyone else present & ready to proceed

9 (included in 41-day total)

of scheduled trial days cancelled in advance at Mother’s request for health reasons

At least 10 (not included in 41-day total)

of court days wasted re: Mother served Notice of Motion for mid-trial relief (including mistrial) but filing no proper materials & not attending for her motion

of trial days cancelled to allow Mother to file proper motion materials (although she didn’t end up filing any materials)

5 (not included in any other total)

of teleconferences to determine mother’s availability to continue with trial

At least 6 (not included in 41-day total)

Obviously, there are stories behind each of those dates and numbers. I will review some of the competing narratives to the extent they are relevant to the issues I must decide.
But a couple of dynamics command obvious attention:

a. The Respondent mother had custody pursuant to an August 31, 2012 order.

b. But the children haven’t lived with her in about seven years.

c. She seeks custody in this oral hearing of the Applicant father’s motion to change.

d. But she rarely sees the children.

e. There is little suggestion of “access denial”. For the most part the mother admits she is frequently unable to exercise access. And she acknowledges her personal issues will likely remain unpredictable for the foreseeable future.

f. The uncontroverted – and overwhelming – evidence is that both children have done extremely well in their current placement for more than six years. They are happy and well cared for.

a. The children doing well.

b. The mother rarely sees them.

c. Why did this require a 41-day custody trial spread over 16 months?

The explanation is both complex and frustrating.

a. The self-represented mother appears to be overwhelmed by inadequately addressed (or inadequately disclosed) physical and mental health issues.

b. Her issues have interfered with her ability to focus on her children.

c. Her issues have interfered with her ability to focus on this trial.

In family court, judges are used to seeing people “at their best”.

a. We often hear descriptions of problems and behaviours which are in stark contrast to a litigant’s presentation within the courtroom.

b. We generally realize parents might act a bit differently when the judge isn’t watching.

c. Often, it’s difficult to get a clear sense of what a person is really like.

But sometimes courtroom behaviours are identical to the problems alleged to occur out in the real world.

a. In this case for example, one of the father’s main themes is that the mother often fails to show up or do things when she’s supposed to. She provides very little notice or explanation. And she becomes hostile and evasive when pressed for answers or commitments.

b. Speaking plainly, that’s precisely what I observed of the mother during this needlessly protracted trial.

OVERVIEW

I will try to explain how these children’s lives have unfolded – and how this trial unfolded. I will start with an overview. For anonymity I will refer to the parents as “the father” and “the mother”. I will refer to the paternal grandmother as “Florence” (not her real name).
The father is 48 years old. The mother is 40. Florence is 71.
At trial the father and Florence were both represented by Mr. Fazari. The mother represented herself (although she has previously had counsel).
The parents met at work (Casino Niagara) in June 2004. They started living together in 2006 when their first child was born. They were married on May 31, 2008.
They have two sons Matthew now age 13 and Donald now age 8. (Not their real names)
The mother has a daughter Amanda (not her real name) of a former relationship. She’s about 18. The mother did not exercise access to that child during the time that the father and mother herein were together.
The parties acknowledge they had a tumultuous relationship. On a number of occasions, the police and Family & Children’s Services Niagara (“FACS”) were called to their home.

a. The mother says the father was physically and verbally abusive.

b. The father says the mother constantly threatened to call (or actually called) police to intimidate and punish him. He says she regularly makes false complaints.

The parties separated in April 2011, just before the birth of their second child. There was an incident. The father was charged with several offences in relation to the mother. He eventually pleaded guilty to criminal harassment. He was placed on probation and received a discharge.
The father was charged again in October 2012. He pleaded not guilty but in March 2014 he was found guilty of assault and breach of probation. He again received a conditional discharge.
I heard conflicting versions about whether the parties reconciled during periods between the first charges in April 2011 and the second set of charges in October 2012.

a. The father says for periods of time they lived together, and he continued to be actively involved in both children’s lives. For example, he says they were actually living together when a temporary order was granted on June 13, 2012 and when a final order was granted on August 31, 2012. He says both orders were granted “on consent” because they were together, and he was prepared to sign or agree to anything just to stay on good terms with the mother.

b. The mother denies they ever reconciled after April 2011, and points to three subsequent occasions when the father was charged with breaching the terms of his recognizance by attending at the mother’s residence. (The father insists he would come around at the mother’s invitation, and that she set him up.)

c. It is common ground that during this time the children were residing continuously with the mother. I accept that there may have been periods when the father was also at the residence, and in any event, he had ongoing involvement in the children’s lives.

d. Beyond that, it is not necessary for me to make a more precise determination as to whether the parties saw actually “reconciled” during this period.

On August 31, 2012, when neither party had counsel, the parents entered into minutes of settlement on all issues other than equalization (which was adjourned to another date). The minutes were incorporated in the final order of Justice Henderson which included the following terms:

a. Custody to the mother.

b. Father to have access: Saturdays and Sundays from 10:00 a.m. to 6:00 p.m., on the first, second and fourth weekend of each month; each Wednesday from 4:00 p.m. to 7:00 p.m.; and at other times agreed upon by the parties.

c. Parties to use their best efforts to agree upon any changes to the access schedule in order to deal with circumstances that arise, and special days/holidays.

d. Father to pay child support to the mother in the sum of $1,488.00 per month based upon his 2011 income of $105,893.00, commencing September 1, 2012.

e. Father to pay spousal support to the mother in the sum of $1,746.00 per month commencing September 1, 2012.

f. Reasonable extracurricular expenses for the children to be paid pro-rata by the parties in accordance with their incomes. Currently the father’s pro-rata share is 100%.

g. Parties to exchange copies of their tax returns and notices of assessment annually by June 30.

h. Outstanding property issues including the pension issue adjourned to October 15, 2012 to be spoken to.

i. A Support Deduction Order was issued, but the parties agreed to withdraw from enforcement through the Family Responsibility Office (“FRO”).

The subsequent criminal charges against the father in October 2012 resulted in restrictions on his contact with the children:

a. His access had to be supervised at Pathstones, a local access center.

b. He says he went for a few visits but didn’t feel it was an appropriate environment for his young boys.

c. So, by his own admission, in the fall of 2012 he fell out of touch with both children who remained in the mother’s care.

Then in the spring of 2013 the father discovered that the mother had taken the children to Alberta.

a. On April 9, 2013 the father received a letter from his automobile insurance company advising that a vehicle which he owned (but which the mother was driving) had been involved in an accident in New Battleford, Saskatchewan on March 28, 2013.

b. Soon after he learned that this was a serious “rollover” accident. The vehicle was “totalled.” The children had been in the car with the mother.

c. He said this was the first information he had that the mother and children had left Ontario.

d. He subsequently received information from FACS that the mother and children had relocated to Edmonton.

He then received more information: The mother had fled to Alberta because she had been bouncing around from shelter to shelter with the children here in Ontario. The mother appeared to be homeless. She kept leaving shelters because staff expressed concern about her parenting. It appeared that the mother fled Ontario with the children to escape several children’s aid societies which were about to swoop in.
Most of the father’s evidence about the mother’s transience and parenting issues came from FACS. The alarming narrative included the following:
On November 17, 2012 the mother and the children moved into Gillian’s Place, a St. Catharines shelter.
On December 20, 2012 the mother took the children to Toronto to stay with her parents for the holidays.
On January 2, 2013 the mother took the children to stay at the home of a friend in Niagara Falls, New York.
On January 7, 2013 the mother reported to the Society that staff at Gillian’s Place are abusive and that she will be staying with the friend in Niagara Falls, New York until she is able to find proper accommodations in Toronto.
On January 8, 2013 the mother signed out from Gillian’s Place.
On January 9, 2013 the mother moved with the children to Sandgate Women’s shelter in Toronto.
On January 14, 2013 the mother removed the children from the Toronto shelter, and they moved back in with the friend in Niagara Falls, New York.
On January 23, 2013 the mother relocated with the children to stay at the Mary-Ann Hotel in North York.
On February 3, 2013 the mother advised the Society she was moving with the children to the Blue Shelter in York Region.
On February 4, 2013 the principal at a Niagara Falls school contacted the Society because the mother had attempted to enroll Matthew in school in that community.
On February 6, 2013 the mother advised the Society the children were at the Yellow Brick Shelter in the Toronto area, and that Matthew was becoming aggressive because they were moving so frequently.
On February 6 or 7, 2013 the mother and the children checked into another shelter Nova House in Niagara Falls. But staff soon expressed concerns about the mother’s behaviour.
On February 9, 2013 the mother signed herself and the children out of Nova House, advising the Society that staff were verbally aggressive. The mother refused to sign a service agreement with the Society.
On February 15, 2013 the mother advised the Society that she and the children were in a shelter in Peel. But she said they intended to move to Milton.
That same day FACS advised the mother that if she returned to the Niagara Region, they would pursue a supervision order. The mother then checked herself and the children into a shelter in Halton.
On February 20, 2013 the Halton shelter evicted the mother and the children, and contacted the local child protection agency with concerns about the mother. The Children’s Aid Society of Halton then apprehended the children as a result of the mother’s transience, her unstable presentation, and her aggressive behaviour toward staff. However, the children were returned to the mother’s care after four days, and she took them to a different shelter in Halton.
On March 13, 2013 staff at the second Halton shelter contacted the Society expressing concern that the children’s behaviours were escalating. Staff wanted Halton CAS to assess the risk to the children. The mother then removed the children from that shelter and relocated them to Guelph.
Later that same day on March 13, 2013, the Children’s Aid Society in Guelph was contacted by local shelter staff who indicated that the mother and the children had been there less than 24 hours, and the shelter had major concerns about them.
On March 14, 2013 Niagara FACS contacted Guelph CAS and requested that a risk assessment be done immediately, since it appeared that the mother would not be in Guelph much longer.
On March 28, 2013 Niagara FACS was advised by Guelph CAS that the mother had removed the children from the Guelph shelter at 2:00 a.m. on March 27, 2013.
The father also received troubling information from Dr. Harris (not her real name), the family physician for both parents and both children. I will discuss that information in more detail below.
As I will explain, the mother did not testify at this trial. But during her vigorous cross-examination of witnesses her position was clear:
She denies transience or any parenting or personal issues.
She says the father used to make vile and insulting allegations about her to FACS as part of his continuing animosity toward her.
She admits she took the children to Alberta without telling the father.
A pervasive theme throughout her cross-examination was that she is the victim of domestic abuse and she needed to take steps to stay safe from the father (even though the evidence is clear that by the beginning of 2013 the father wasn’t exercising access or initiating any contact with the mother).
She says she and the children were doing fine in Alberta, and they should have been allowed to remain there.
In the spring of 2013 both parties raced to court.
Once the father learned about the mother’s behaviour in Ontario and her relocation to Alberta, he immediately started this motion to change in St. Catharines, to have the children returned (a) to this Province, and (b) to him.
The mother responded by commencing proceedings in Alberta to allow the children to remain there with her.
Both parents participated in the legal proceeding in each province.
The court in St. Catharines prevailed, and a series of orders were made requiring the mother to return the children.
On April 23, 2013 the father obtained an emergency ex parte order from Justice Henderson which included the following terms:

a. Leave was granted to proceed without notice and prior to a Case Conference.

b. Substituted service was ordered by way of service on Darlene (not her real name) at her place of employment in Toronto. (Darlene was the mother’s “foster mother” but the mother has always referred to Darlene as her “mother”, so I will do the same.)

c. A police enforcement order was made requiring several agencies to locate the children and return them to the Niagara Region.

d. Upon the children’s return they were to be placed in the care of the father on a temporary without prejudice basis.

e. The motion was adjourned to May 8, 2013.

On May 8, 2013 the mother attended for the return of the father’s emergency motion in St. Catharines, but she did not return the children to this jurisdiction.

a. Justice Henderson’s order of April 23, 2013 was continued.

b. The mother was ordered to immediately provide to the court and the father’s counsel with the address where the children were staying in Edmonton.

c. The motion was adjourned to May 22, 2013.

Justice Maddalena issued a further temporary order on May 22, 2013:

a. The mother had ignored the April 23, 2013 and May 8, 2013 orders. She refused to return the children from Alberta. She refused to disclose the whereabouts of the children.

b. As a result, the father brought a contempt motion against the mother. He made the motion returnable May 22, 2013, which was already the return date set out in the May 8, 2013 order.

c. But even though the mother was present on May 8, 2013 when the return date was set, the mother failed to attend court on May 22, 2013.

d. Instead, a lawyer from Legal Aid Ontario advised the court that the mother had retained counsel in Alberta and was requesting that the matter be transferred to that province.

e. The father advised the court that he was receiving no cooperation from authorities in Alberta to enforce the previous Ontario emergency orders requiring the children to be returned to Niagara.

f. After reviewing the history and considering the vague information provided by the Legal Aid Ontario lawyer, Justice Maddalena issued yet another order that the children be returned to the father.

g. As well, a warrant of committal was issued for the arrest of the mother as a result of her repeated non-compliance with orders.

h. The mother was also ordered to pay to the father costs in the sum of $10,814.00.

On May 23, 2013 the mother filed for an emergency protection hearing in Alberta.

a. The father alleged the mother didn’t disclose the existence of the Ontario orders to the Alberta court.

b. During cross-examination the mother suggested it was the father who misled the Ontario court by providing false information.

c. In any event, for a period of time the Alberta court granted an order in the mother’s favour, allowing her to keep the children with her in that province.

On June 26, 2013 the matter returned before Justice Maddalena, who made the following order:

a. The mother had not purged her contempt. She was prohibited from filing any materials or bringing any motions until her contempt was fully purged.

b. The father could schedule an uncontested hearing.

c. Spousal support payable by the father in the sum of $1,746.00 per month (pursuant to the August 31, 2012 order) was suspended pending further order.

d. The police enforcement clause (requiring police to locate and return the children to the father) was extended.

e. The orders of April 23, May 8 and May 22, 2013 were continued.

f. The R.C.M.P. was directed to execute a Canada Wide warrant to arrest the mother.

g. The motion was adjourned to July 31, 2013.

On July 31, 2013 the matter returned before Justice Maddalena who made the following temporary order and findings:

a. The Superior Court of Justice in Ontario has jurisdiction over the issues involving these two children.

b. The mother did not disclose the existence of three Ontario court orders to the Alberta court.

c. The Alberta Emergency Protection Order was based upon incomplete disclosure by the mother.

d. All prior Ontario court orders shall continue.

e. The matter was adjourned to August 28, 2013.

f. The father was to notify Niagara FACS immediately upon the children being returned to Niagara.

At an uncontested hearing on August 2, 2013 Justice Maddalena made a final order which included the following:

a. The father shall have sole custody of the two children.

b. A further police enforcement order was made requiring police in Ontario and in Alberta to locate and apprehend the children and return them to Ontario to be in the custody of the father.

c. The mother shall have supervised access to the children after they are returned to the father in Ontario, subject to the mother providing the father with a psychiatric report satisfactory to him.

d. The custody, access, child support and spousal support provisions of Justice Henderson’s order of August 31, 2012 were terminated.

e. The mother is to pay the father child support in the sum of $306.00 per month commencing August 2, 2013 based upon an imputed income of $20,000.00.

f. The mother is to provide copies of her tax returns and notices of assessment annually, but her income shall not be determined to be less than $20,000.00 per year.

g. The mother is restrained from harassing or annoying the father and the children, directly or indirectly.

h. The mother is to pay costs of $14,653.84.

i. The mother is prohibited from commencing any further proceedings until she has purged her contempt and returned the children to the care of the father in Niagara.

On September 2, 2013 the mother filed an appeal in relation to the August 2, 2013 order. She refused to return the children to Ontario.
On September 19, 2013 the mother returned to St. Catharines from Alberta to testify against the father at his criminal trial relating to the October 2012 charges. (These were the criminal charges which resulted in convictions in March 2014.)
She left the children back in Alberta and refused to disclose where they were.
After she testified, she was immediately arrested and incarcerated pursuant to the warrant of committal which had been issued as a result of her contempt of court in not returning the children.
On October 18, 2013 Justice Maddalena sentenced the mother to 60 days incarceration in relation to her previous contempt of Ontario orders. (She had already been in jail 30 days, so she was sentenced to an additional 30 days.)
During the first week of October 2013 the children were located by child welfare authorities in Alberta (where the mother had left them) and brought back to Ontario.
Upon their arrival in Ontario they were immediately apprehended by Niagara FACS which commenced a protection application in the Ontario Court of Justice in Welland.

b. This resulted in the father’s St. Catharines motion to change being stayed until the proceeding under the former Child & Family Services Act was completed.

c. In the months that followed, there were a series of temporary orders within the protection application which gradually increased the amount of involvement which the mother, father and Florence were having with the children.

In December 2013 FACS placed the children temporarily with Florence.
They have been living in her St. Catharines home ever since.
In early 2014, FACS allowed the father to move into that home as well.
Accordingly, the children have now been living with Florence for more than six years.
The children have also been co-parented by the father for more than six years.
Between January 2014 and September 2019, they were all living under the same roof.
In September 2019 the father remarried and moved to a nearby residence with his wife Victoria (not her real name).
The father continues to have contact with the children daily. They stay with the father and Victoria every weekend, since the mother doesn’t usually exercise the alternate weekend access which is available to her.
On January 13, 2015 the father filed an Amended Motion to Change which included the following requests:

a. Sole custody to the father.

b. In the alternative custody to Florence.

c. Specified access to the mother.

d. Spousal support to terminate March 1, 2013.

e. Mother to pay child support based upon an income not less than an imputed sum of $25,000.00 per year.

f. Police Enforcement of the parenting order.

g. Office of the Children’s Lawyer (“OCL”) to consider involvement.

On June 8, 2015 the Ontario Court of Appeal released its decision in relation to the mother’s appeal.

a. The July 31, 2013 and August 2, 2013 orders were set aside.

b. The August 31, 2012 order was restored.

c. The motion to change the August 31, 2012 order was returned to this court for a re-hearing. That was the subject of this trial.

d. The father’s child support obligations were suspended pending further order of the court.

e. The custody and access provisions of the motion to change would have to await resolution of the child protection proceedings which were continuing in Welland.

f. While the Court of Appeal decision was based primarily on procedural considerations, the ruling did not result in the children being returned to the mother.

g. The Court of Appeal was aware that FACS had temporarily placed with children in Florence’s home and that the father also resided there. The appeal decision did not alter that placement.

Getting back to the year 2013, can you imagine what these two young boys were going through?
Matthew was six and Donald was one during the first part of 2013, when they were moving around from shelter to shelter to shelter. When they were suddenly taken to Alberta where they had no connections -- being involved in a “rollover” accident along the way.
They were barely seven and two when the mother left them in Alberta during her return trips to Ontario to fight in family court or testify in criminal court. They were left with strangers.
They were still seven and two when more strangers – child protection workers – transported them back to Ontario where they were immediately placed with…strangers (foster parents).
The father says when the children came back to Ontario, Donald was losing his hair, as a stress reaction. He says the problem resolved itself after the boys went to live with Florence.
For her part, during cross-examination the mother suggested that after the children were returned from Alberta and placed in foster care, Matthew started talking about suicide and hurting himself. The father denied any knowledge of this.
He says the children were traumatized when the mother took them from Ontario. She says the children were traumatized when the father forced them back to this province.
What a destructive and irresponsible blame-game.
The only good news – and it’s really news – is that no matter how damaged these children were by the end of 2013, they appear to have made remarkable progress since then. Since being placed in Florence’s home.
Florence’s evidence on this topic was corroborated by non-family member witnesses:

a. She said it bothered her when the children were initially placed in foster care, and she requested that they come live with her as soon as possible.

b. She said when the children came to her home, they had both been quite traumatized by what they had been through.

c. She said Matthew was old enough that he remembered Florence very well and was comfortable with her. But Donald was so young he didn’t really know her.

d. She said when Donald came to her home he hardly spoke. He only had a vocabulary of about 10 words.

e. She said Donald would often get so emotional he would bang his head on the floor. He was very stressed and pulling his hair out.

f. She said it took a lot of love, praise and encouragement to help Donald through the difficult transition.

g. She said she devoted 100% of her energy to helping the children, and they both adjusted very well. “Donald really came around.”

h. She said Donald’s school performance has improved. He attended “Reading Gym” and she worked with him at home to improve his reading. His grades have improved considerably.

i. She said when they came to her home, she was shocked by Matthew’s foul language and swearing. He was very insecure and clingy, and she had to reassure him that he was in a secure home. She said he was particularly clingy at bedtime, needing reassurance that nothing would change.

j. Florence said Matthew couldn’t read when he came into her care. But she registered him for several programs and his reading has improved considerably. He is now experiencing some math problems, but she has arranged a tutor for him, and she is also working with him.

Since 2013 the mother’s access has been problematic:
The initial order in the Welland child protection file required that the mother’s access be supervised.
FACS later consented to an order that the mother’s access could be unsupervised.
But in late 2015 problems arose. The mother was making inappropriate statements to the children; she was audiotaping and videotaping the children; and she introduced them to a person named Rawle Elliott who the mother sought out as an advocate for the children (even though they already had a court-appointed lawyer, Virginia Workman, through the Office of the Children’s Lawyer).
On February 4, 2016, after reviewing extensive evidence – including transcripts which the mother had prepared about her recorded “interviews” with the children -- Justice Martin made an order which included the following terms:

a. The mother’s access is to be supervised by Brayden Supervision Services to occur in the Niagara Region for no less than five hours on alternate weekends.

b. Neither the mother, nor any family members, nor any third-party person shall video tape or audio tape the subject children except with the written permission of the Society.

c. The transcript of a videotape dated December 29, 2015 attached as an exhibit to an affidavit of the mother shall be stricken from the Record.

d. Rawle Elliott of the Office of the Provincial Advocate for Children and Youth is hereby precluded from attending at these proceedings until further order of this court.

e. The children shall participate in counselling, with the parties to provide the court with details about the counselling.

During the trial I heard evidence about multiple court orders and judges’ reasons. It is not necessary to repeat everything that previous judges have said about this family. But Justice Martin’s 31-page oral reasons on February 4, 2016 expressed a lot of concerns about the mother, including:

a. The court expressed concern about of the transcript the mother produced with respect to a recorded conversation between the children and Rawle Elliott of the Provincial Advocate’s Office for Child & Youth.

b. There was no indication that the children requested to speak to the advocate.

c. Mr. Elliott was aware the children were already represented by a lawyer, Ms. Workman, through the Office of the Children’s Lawyer. There was no attempt by the mother or Mr. Elliott to have the children’s lawyer participate.

d. “Certainly the interview did not take place in appropriate circumstances.”

e. There were multiple concerns about the circumstances under which the recording was made.

f. The court expressed concern that one of the children “may have been coached” or provided inappropriate information.

g. That child used conspicuously adult language like “contentious” – which Ms. Workman subsequently confirmed the child didn’t know the meaning of.

h. “There are a number of comments and a number of words and descriptions that cause me great concern that there has been some manipulation with respect to some of these comments, some doctoring with respect to some of these comments; some attempt to have the child report perhaps what someone else may have deemed to be important information to this Provincial advocate.”

i. The court noted that it was “most concerning” that the mother had elected to tape record the children rather than being child-focussed and enjoying her time with the children.

j. “…I find the mother’s behaviour on the whole most concerning and not in the children’s best interests with respect to her continued attempt to what appears to be to gather information with respect to what she perceives to be the shortcomings of the father and the paternal grandmother in caring for the children.”

k. “Until I hear further from Mr. Elliott and what he perceives to be his role and responsibility with respect to this matter and these children, I am also going to prohibit him from being a part of these proceedings.”

Thereafter, many, many things happened on the two intensively litigated files: the child protection proceeding in Welland, and this motion to change in St. Catharines. And while all of those things were happening, the children continued to reside with the father and Florence, and the mother’s access continued to be irregular and at times problematic.
A brief recap to try to bring us to the present situation:
FACS continued to work with both parents as part of its child protection application.
There were a couple of adult assessments which didn’t resolve very much.
In May 2016, Florence was added as a party; the Office of the Children’s Lawyer was requested to investigate; and the parties agreed that the mother’s access would once again be unsupervised.
Since May 2016 the mother has been allowed access on alternate weekends from Friday 4:30 p.m. until Sunday at 7:00 p.m., together with mid-week and alternate Sunday telephone access.
However, although the mother generally exercises telephone access, her direct physical access to the children has been quite limited, even after all restrictions were removed in 2016.
On September 2, 2016 Justice Martin granted a motion by FACS seeking leave to withdraw its child protection application in Welland on a without costs basis. The court agreed it was more appropriate for all issues to be determined by the Superior Court of Justice in St. Catharines, in the context of this motion to change: Justice Martin’s endorsement included the following:

[29] For a significant period of time this proceeding continued without the participation of the mother. She declined to exercise access proposed by the Society. It appears she moved to Alberta sometime in January 2014, but declined to provide information to the Society about her changed address or her circumstances. She remained absent from the children’s lives for approximately eleven months. She began visits to the children, supervised at the Society’s offices, in late November 2014.

[31] Over time, and usually following contested motions regarding terms, the Respondent mother’s access has increased and the terms of supervision relaxed. By December 2015 unsupervised access outside of the Niagara Region and Christmas access had been ordered. However the mother’s access reverted to supervised access for a period of time after it was determined that the Respondent mother had inappropriately videotaped the children during access visits and arranged for a representative from the Provincial Advocate for Children and Youth Office to interview the older child without notice to the Society or the children’s O.C.L. representative.

[35] The only stability that has been enjoyed by these children has been the placement with the paternal grandmother….

[36] Justice Ramsay, in making his interim order in the C.L.R.A. proceedings, determined the placement with the paternal grandmother should continue to avoid any potential for multiple moves or difficulties in transition for the children.

[37] The children were finally able to receive some counselling from Ms. Debbie Good. Sadly she concluded, in her report dated June 14, 2016, that the children could not effectively benefit from the counselling as they are still experiencing the ongoing conflict of their parents. “This continuing parental conflict perpetuates emotional instability for the children. This is not to say that each of these boys does not require ongoing emotional support, just that therapy is not as effective as long as the parental conflict continues.”

[70] Interestingly, each of the parents has been agreeable to the withdrawal of the Society’s application at one time or another. But a party’s agreement has always been contingent on whether or not he or she will enjoy a preferred status quo custodial arrangement should the proceeding be withdrawn. This “flip flopping” consent only more clearly demonstrates exactly what this matter is really all about, and that is a highly conflictual custody dispute.

[72] The Society is not a police enforcement agency, nor are they parenting co-ordinators or access supervision centers.

[78] The Society wants to withdraw because their continued presence only intensifies and prolongs the conflict.

Once the matter returned to this court in St. Catharines the parties continued to vigorously litigate, seeking temporary relief pending final determination of the motion to change.
On March 13, 2017 Justice Reid made a temporary order with respect to a motion brought by the father and Florence. The order included:

a. Motion to change custody is adjourned without a date.

b. The father’s obligation to pay child support as set out in the order of Justice Henderson dated August 31, 2012 is terminated effective December 31, 2013.

c. Mother to have telephone access Tuesdays and Thursdays at 6:00 p.m. and on her non-access weekend Sundays at 7:00 p.m.

d. Father’s request to vary spousal support on temporary basis dismissed.

e. Mother to pay child support of $320.00 per month commencing April 1, 2017 based on an annual income of $21,000.00.

f. A schedule was set for costs submissions.

On April 26, 2017 the OCL released a 43-page report prepared by social worker Gillian Sheldrick (there is no reason to change her name) in relation to an investigation which had been conducted pursuant to s.112 of the Courts of Justice Act.
The contents and recommendations of that report were accepted by the father and Florence – but immediately disputed by the mother, who vigorously cross-examined Sheldrick at trial.
I will more fully discuss the report – and the cross-examination – below.
But to assist at this “overview” stage, I will set out the social worker’s conclusions and recommendations.
Sheldrick summarized her analysis in relation to the mother:

a. Matthew and Donald care about the mother and want to spend time with her. The mother’s relationship with both boys is very important.

b. However, the mother’s plan to have the children reside with her full-time is not feasible.

c. Throughout the investigation the mother exhibited behaviours which impacted upon the children.

d. She has cancelled and reduced her parenting time.

e. She has not supported the children’s relationship with the father and paternal stepmother.

f. She was previously transient when the children were in her care.

Sheldrick summarized her analysis in relation to the father:

a. The father has presented a feasible parenting plan for the children.

b. Although the children have been placed in the care of Florence since December 2013, the father has resided in that home with the children and he has been one of their primary caregivers.

c. The father has also taken the children on extended holidays to Florida with no reported concerns.

d. All of the professionals involved, including the children’s doctor, school and after-school daycare have expressed no concerns about the father’s parenting of the children.

e. The father and Florence have demonstrated an ability to support the children’s relationship with the mother. They have ensured the children have attended for access. They have offered extra parenting time when appropriate.

f. Florence proposes that the children be returned to the father. She has no concerns about the father and is willing to assist him, and to assist with access exchanges.

Sheldrick’s s.112 report made the following recommendations:

a. The father should have sole custody and primary residence of the children. Sheldrick ruled out any suggestion of joint custody or parallel parenting as a result of the complete inability of the parents to communicate; their inability to make decisions together; differing parenting styles; the level of conflict between them; and the history of disagreements leading to criminal involvement.

b. The father should ensure that the mother has full access to information about the children. Communication can be through Florence.

c. The mother should have reasonable access to the children to include alternate weekends from Saturday at 12:00 p.m. to Sunday at 4:00 p.m.; one week during each of July and August; alternating March breaks; and Mother’s Day. Additional terms were specified in relation to children’s birthdays, Christmas, and telephone access. Sheldrick explained that access times should be determined based on the schedule the mother is able to commit to, to avoid any disappointment for the children.

d. Florence shall facilitate all access exchanges. Sheldrick explained that Florence is willing to assume this ongoing responsibility, and her involvement as an intermediary has been working so far.

e. The mother and father should have no direct contact with one another. Communication should be directed through Florence.

f. The parents should be assigned one day per week when they can send one e-mail to one another about the children, if necessary. Sheldrick warned that excessively frequent e-mails can be upsetting, stoke conflict, and create needless stress within high conflict families. She said the stress of frequent and provocative e-mails inevitably impacts on parenting.

g. Matthew and Donald should attend for counselling to assist them in coping with the ongoing family conflict.

h. The mother should have a mental health assessment to assist her, if needed, in getting the support to successfully parent Matthew and Donald.

i. Neither caregiver should speak negatively about the other caregiver while in the presence of the children or in close proximity.

It doesn’t surprise me that the mother disagrees with the OCL’s recommendations:
She says she wants her children back.
Almost all parents in family court want their children back.
It’s perfectly understandable.
It’s a good thing when parents show interest and commitment.
The confounding part is that while the mother verbalizes – sometimes very emphatically – that she wants Matthew and Donald back in her life, she appears to be doing very little to make that happen. In fact, she seems to be putting a great deal of energy into avoiding it from happening.
From a parental involvement perspective, she is not taking advantage of nearly the amount of time currently available to her. That’s really strange. Most parents seeking custody want to make sure that at the very least they get as much access as they can.
And from a litigation perspective, the mother has consistently tried to delay and avoid finalization of this case. That’s also really strange. In most custody disputes the parent who doesn’t have the children has the greatest motivation to accelerate the legal process, so they can rectify an unfavourable parenting regime as quickly as possible.
I will try to address the inter-relationship and magnitude of two pervasive problems created by the mother:
Her unwillingness or inability to commit to the children.
Her unwillingness or inability to commit to this trial.
Dealing firstly with the mother’s lack of commitment to the children, I received a summary from the Applicants setting out the extent to which the mother has been taking advantage of the alternate weekend access available to her.
The summary is based on records which were created as of August 2016. The Applicants advise that the mother’s access was irregular even prior to that date. But they didn’t start maintaining records until August 2016.
The summary refers only to in-person access to the children. The Applicants acknowledge that generally the mother has been exercising telephone access (although apparently even this has broken down in the recent past).
If any months subsequent to August 2016 are missing, it means I didn’t receive evidence about that particular month.
The mother’s access since August 2016:
August 2016: the mother exercised access on one of her two weekends.
October 2016: the mother exercised access on one of her two weekends.
December 2016: the mother cancelled her regular weekend access, but had the children from December 26 to 31.
January 2017: the mother exercised access on one of her two weekends.
February 2017: the mother exercised access on one of her two weekends.
March 2017: the mother exercised access on one of her two weekends.
April 2017: the mother exercised access on one of her two weekends.
May 2017: the mother exercised access on one of her two weekends.
June 2017: the mother cancelled her June 2, 2017 visit. She exercised access on the weekend of June 9. She then cancelled all further weekends and suspended access pending further notice. She resumed access on July 28, 2017.
September 2017: The mother did not exercise any access. She called ahead to cancel her September 8 weekend visit. She did not call ahead to advise that she would not be exercising access on the weekend of September 22.
November 2017: the mother had a separate visit with Matthew. She cancelled a separate visit with Donald which had been scheduled later in the month.
December 2017: the mother exercised access on the first weekend of the month but cancelled all further access in December (and all remaining access until further notice).
2017 total: Out of 63 days the mother was scheduled to have with the children, she saw Donald 21 days, and she saw Matthew 25 days.
January 2018: The mother was to have a make-up weekend January 6 because she had previously missed time. However, she then cancelled January 6. She ended up having a single overnight visit at the end of the month.
February 2018: The mother had abbreviated time during the weekends of February 9 and 23.

p. March 2018: The mother was to have the full weekend commencing Friday March 9, but instead she elected to only see the children for nine hours on the Saturday. On the mother’s next weekend, the maternal grandparents picked up and returned the children. The boys said the mother was not present during that weekend.

April 2018: The mother cancelled both of her weekends without explanation.
May 2018: the mother had a single overnight visit during the entire month.
June 2018: The mother cancelled her weekend of June 2nd. June 8 was to be the father’s weekend, but he agreed to switch weekends because the mother had not seen the children for a long time. The children advised that the mother only spent part of the weekend with them – the rest of the time the children were with the maternal grandparents. For the mother’s next weekend of June 29, the mother initially requested that the visit start on the Saturday rather than the Friday. But in the end the mother didn’t show up on the Saturday either.
July 2018: For the mother’s July 13 weekend visit, the children were picked up and dropped off by the maternal grandmother. The mother had some contact with the children during this weekend. But the mother cancelled her weekend of July 27 without explanation.
August 2018: The mother cancelled her scheduled weekend on August 10, sending an e-mail advising that she was sick. She cancelled her other weekend on August 24, without explanation. She didn’t see the children at all that month. Her parents had a single overnight visit.
September 2018: The mother requested access for the weekends of September 7 and 21, but she ended up cancelling both visits without explanation. Only the maternal grandmother Darlene had personal contact with the children that month.
October 2018: The mother had a visit on October 12, 2018, and then advised that she was suspending access until further notice. She did not give a reason.
November 2018: The mother had no personal access.
December 2018: The mother did not exercise any access on her scheduled weekends. As arranged in court (since this trial was underway) the mother was supposed to have an extended block of personal time with the children over the Christmas break. Instead, the maternal grandmother had the children from December 26 until December 30, 2018. During that time the children said they saw the mother for a few hours to exchange gifts.
January 2019: The mother had no access.
February 2019: The mother had no access. The maternal grandmother saw the children on the weekend of February 22, 2019. But the children did not see the mother.
March 2019: The mother had no access.
April 2019: The children spent April 5, 2019 weekend with the maternal grandmother. They saw the mother for two hours at breakfast on Sunday April 7, 2019. This was the first personal contact the children had with the mother in four months.
May 2019: The children spent two hours with the mother on May 5, 2019.
June 2019: The children spent June 1st at Canada’s Wonderland with the mother. They spent the June 14, 2019 weekend with the maternal grandmother (they had a two hour breakfast with the mother on June 16).
July 2019: The mother had no access.
August 2019: the maternal grandmother took the children on vacation between August 12 and 17, 2019. The children spent two hours with the mother on August 17.
September 2019: The mother had no access.
October 2019: On October 12 the mother took the children to a Halloween Haunt. That was her only access that month.
November 2019: The maternal grandmother took the children for the weekend of November 8, 2019. On November 11, 2019 the maternal grandmother sent Florence an e-mail advising that both boys had fun. The boys spoke to the mother each day that weekend. They met for breakfast at which time the mother gave the boys a Starbucks gift card and a T-shirt.
December 2019: The mother had no access. The maternal grandmother had the children from December 27 to 30, 2019. The children spoke on the phone and texted with the mother, but the mother didn’t exercise any personal access even though there was a December 19, 2019 order which specified that she was entitled to eight overnights in a row commencing Christmas Day.
January 2020: The mother had no access.
So that’s one of the issues:

a. The mother’s visits are infrequent and irregular.

b. That dynamic isn’t just inconsistent with the mother’s custody claim.

c. The children suffer when there’s an existing alternate weekend access order, but nobody really knows when the mother is coming and when she’s not.

d. As I will discuss below, I accept the evidence that the children have been negatively impacted – upset – by the mother’s sporadic contact.

e. Orders should reflect reality, and the existing alternate weekend order is unworkable and unhelpful. It creates options for the mother with no obligation.

f. The children need predictability and certainty in their lives.

g. The father, Florence, Matthew and Donald all need to get on with their lives and not continue in this permanent limbo while the mother deals with her personal issues.

h. And on a very basic level, these children need resolution. They need to know where their home base is going to be. Florence’s home? The father’s home? The mother’s home? Matthew will soon be 14. It’s not too much for him to expect the adults in his life to finally get their act together and figure out where he’s going to live. Whether he’s going to be changing schools.

The second troubling dynamic is really quite unique to this case.

a. At every stage the mother has sought – and often caused – serious delay with respect to the resolution of pressing child-related issues and completion of this trial.

b. And beyond delay, the unfocussed and disorganized nature of the mother’s participation in the trial process has resulted in extreme inefficiencies and wasted resources.

c. The behaviour I’m describing is far more serious than the relatively minor frustrations and inefficiencies which arise whenever parties represent themselves in family court. Self-represented parties invariably require extra time and accommodation. And invariably judges provide it.

d. But we spent 41 trial days hearing just eight witnesses. And that was just the Applicants’ case.

e. We never got to the mother’s evidence because she repeatedly refused to attend trial, despite being given multiple opportunities – and despite being given clear warnings that sooner or later we would have to proceed without her, if she kept missing court.

f. When she finally attended on the last day of trial for submissions – after missing five trial days in a row – she objected to the trial being concluded.

g. This was one of those rare situations where the mother’s litigation behaviour was so outrageous that I ultimately had to impose firm time restrictions.

I will try to explain what this trial was like.
Between 2013 and 2018 this file had consumed so many judicial resources that it was ultimately case managed by Regional Senior Justice H. Arrell.
In January 2018, with the participation of all parties, the matter was set for a five week trial on the long trial sittings in October 2018.
In July 2018, Justice Arrell dealt with a number of matters including disclosure. The court reaffirmed that the trial would have to proceed in October 2018 as it was in the best interests of the children to resolve their situation, after more than six years of bitter litigation and disruption.

OCTOBER 11, 2018: TRIAL DAY 1

The trial commenced in St. Catharines on October 11, 2018.

a. It was scheduled to proceed for five consecutive weeks, possibly subject to a couple of missed days as a result of scheduling issues.

b. It was anticipated that even with a few brief interruptions, the five weeks of trial time which had been set aside would be sufficient to allow the entire trial to be completed by November 2018.

At the opening of the trial the mother immediately requested an indefinite adjournment of the trial, citing a number of reasons.

a. She generally described health issues interfering with her ability to focus on the trial. She said she needs to focus on her health.

b. She said she was in therapy for Post-Traumatic Stress Disorder (PTSD) as a result of the father’s abusive behavior prior to separation in 2011 and a further assault in 2012.

c. She said she had “a filing cabinet full of doctors’ notes” but did not present any medical or professional evidence or reports. She provided no professional or independent corroboration of any impediment to her participating in the trial.

d. She also wanted an adjournment so that she could attempt to retain a lawyer through Legal Aid.

e. She said she was having difficulty dealing with an “avalanche” of materials filed by the father.

f. She said FRO had suspended her driver’s licence as a result of her non-payment of child support. She said she wasn’t sending child support to FRO because she wasn’t consistently receiving spousal support through FRO.

g. She complained about a general lack of financial resources to attend in St. Catharines to participate in the trial, noting that she resides north of Toronto.

On behalf of the father and Florence, Mr. Fazari strenuously opposed the adjournment request. He submitted:
The mother had previously attempted to delay the trial without success. She was simply repeating submissions which had already been rejected by other judges.
Despite the mother’s request that the trial be delayed, in both January and July 2018 Justice Arrell specifically ordered that this long-outstanding matter needed to be finalized for the sake of the children.
The court had set aside a significant block of trial time, and Mr. Fazari had cleared his schedule to be available to proceed with this multi-week trial.
Multiple witnesses had been arranged and were on stand-by to testify, including professional witnesses.
One of the primary issues was the custody/access dispute which had been ongoing and intensively litigated since 2013.
As recently as August 17, 2018, in denying the mother’s request for an adjournment with respect to another aspect of this file under appeal, the Ontario Court of Appeal noted that “the parental conflict must end.”
A major trial issue related to the findings and recommendations of the detailed section 112 report issued April 27, 2017. It was important for the court to determine parenting issues while the report was still relatively current. Mr. Fazari submitted that by intentionally delaying the trial, the mother was seeking to water down the relevance of the report. If the trial came to be further delayed by even months (let alone indefinitely), at a certain point most of the detailed work done by the OCL social worker would become out of date. This could predictably give rise to a request for an updating report, which would not only create even further delay – but it would also needlessly subject the children to yet another round of professional intervention and intrusion in their lives.
While the mother claimed that as a self-represented litigant she was too overwhelmed to represent herself at this trial, the mother had a history of skillfully preparing materials and detailed motions, without any counsel appearing on record. He suggested the mother is actually a skilled and relentless litigator, and that she was seeking any possible excuse to delay a trial where she fears the outcome will be unfavourable.
Similarly, Mr. Fazari noted that the mother’s complaint about an inability to come to St. Catharines for the trial had already been considered and rejected. She previously brought a motion for a change of venue, and that motion was dismissed by Justice Arrell.
Mr. Fazari denied that there was any unfairness with respect to the timing or volume of trial documents the mother had been presented with. The disclosure issue had been thoroughly canvassed in case management. The father had been given a deadline of September 8, 2018 to serve his trial documents, and the mother was actually served on September 6, 2018. Most of those documents were simply copies of FACS records and previous pleadings in the Ontario Court of Justice child protection proceeding in Welland. The mother was already well acquainted with by far the majority of the documents assembled by the father in document briefs.
Mr. Fazari also submitted that while adjournments are sometimes granted if the prejudice can be compensated in costs, in this case the prejudice to his clients could not realistically be compensated by any costs order. The mother has failed to pay previous costs orders, and she was impecunious. So, the financial prejudice of a delayed trial could not realistically be addressed or alleviated.
Beyond potential financial prejudice, Mr. Fazari focused on actual prejudice to the children. There was a significant dispute as to appropriate parenting arrangements, in terms of the custody designation; primary residence; and timesharing. These issues needed to be resolved for the emotional well-being and security of the children.
I dismissed the mother’s opening-of-trial request for a potentially lengthy adjournment.

a. I accepted most of Mr. Fazari’s submissions, including especially that this long trial had been scheduled many months earlier with the specific objective of bringing some resolution to the lives of two young children who desperately require (and deserve) resolution and stability.

b. The mother had at various times been represented by counsel. She had always been aware of the benefits and potential availability of counsel. She had always been aware of the option to apply for Legal Aid.

c. Most of the mother’s reasons for requesting an adjournment had previously been considered and rejected by other judges. This included her general (and recurring) complaint about pre-occupying medical issues in her life. But the mother provided no specific information or corroboration about the nature or anticipated duration of any medical limitations.

d. The mother was well aware that a great deal of coordination went into scheduling a long trial. If the parties squandered the five weeks which had been set aside for them eight months earlier, it would inevitably be many more months before a similar block of trial time could be arranged. Further lengthy delay would be unfair to everyone – especially the children.

Once it was determined that the trial would proceed, a somewhat related issue arose when Mr. Fazari attempted to file a Request to Admit which had been served upon the mother – which she had not responded to.
The mother acknowledged that she had been served with the Request to Admit on September 7, 2018.
She acknowledged that as of the first day of trial October 11, 2018, she had not filed a response to the Request to Admit.
However, she requested an order that her non-reply did not constitute an admission, or alternatively for an order extending time to file her Response to Request to Admit.
The mother’s explanation for her failure to respond mirrored her submissions in support of her unsuccessful request for an adjournment of the trial. She said:

a. She felt overwhelmed as a self-represented litigant.

b. She said she had health problems which resulted in her being hospitalized between September 27 and October 4, 2018 (the father’s counsel noted that her hospitalization didn’t commence until the 20 days for responding to the Request to Admit had already elapsed). The mother provided no specifics or documentation in relation to that hospitalization.

c. She said that since receiving the Request to Admit on September 7, 2018 she had “browsed through it”, but she needed more time to review it. She anticipated she could file a response within a week (which would be of limited assistance since, at that point, it was anticipated the father would already be well into his evidence on topics which could have been narrowed pursuant to the Request to Admit).

I declined the mother’s request for an extension of time to respond to the Request to Admit while the trial proceeds. A mid-trial response to a Request to Admit largely defeats the purpose.
But as an accommodation, I granted the mother’s motion that her failure to respond to the numbered paragraphs in the Request to Admit would not be deemed to constitute an admission.

a. This of course was subject to very specific costs considerations which might apply if it turned out that needless trial time would be spent establishing facts which should not have been disputed.

b. I mentioned those costs consequences being mindful of Mr. Fazari’s recurring submission that costs consequences are meaningless for impecunious litigants who don’t pay costs orders.

c. As it turns out, the mother’s refusal to acknowledge some of the evidence and documentation referred to in the father’s Request to Admit did in fact result in significant extra time being spent during the trial. Mr. Fazari was required to go through the time-consuming process of introducing individual documents as exhibits, and having the father confirm by oral evidence various facts which should have been acknowledged pursuant to the Request to Admit.

d. I note that on that first day of trial there was no point in granting the mother an extension of time to respond to the Request to Admit, because it was anticipated the trial would proceed expeditiously, and the evidence in question would have to be dealt with earlier than extension sought by the mother. As of October 11, 2018, there was no reason to believe the trial wouldn’t be completed by November. But even though the trial ended up proceeding much more slowly than anyone could have imagined, the mother never formally acknowledged any of the facts set out in the father’s Request to Admit. To the very end she required the father to formally present evidence on quite a number of facts which the mother should have acknowledged.

After those time-consuming preliminary issues, the trial finally commenced.

OCTOBER 12, 2019: TRIAL DAY 2

On the second day of trial, October 12, 2018:

a. Court opened as usual at 10:00 a.m.

b. However, the mother had telephoned court staff at 9:30 a.m. to advise that she was running late as a result of traffic and she expected to arrive by 10:30 a.m.

c. Everyone else – including the OCL social worker as the first witness – was present in the courtroom at 10:00 a.m. We stood down waiting for the mother.

d. As it happens, the mother did not arrive in the courtroom until 11:20 a.m.

e. I explained to the mother that while it was understandable that delays might occur in exceptional circumstances, it was very important that everyone arrive on time for court so that limited trial time is used efficiently.

OCL social worker Gillian Sheldrick gave evidence for the balance of the day.

OCTOBER 15, 2018: TRIAL DAY 3

Day Three of the trial proceeded on October 15, 2018. The parties made opening statements and Sheldrick’s cross-examination was completed.

OCTOBER 16, 2018: TRIAL DAY 4

On Day Four of the trial, October 16, 2018, the mother again arrived late and court was not able to start until 10:35 a.m.

a. She had e-mailed the court earlier in the morning to advise that she was running late as a result of transportation problems. She said she would arrive at 10:30 a.m.

b. I again advised the mother that it was essential that all parties make all necessary arrangements to arrive on time for 10:00 a.m. court.

On Day Four, the father commenced his evidence as the second witness.
After the lunch break on Tuesday October 16, 2018 the mother advised that she was not feeling well and could not remain in court for the balance of the day. There had already been agreement that we would not be sitting on October 17, 2018 (as a result of my court commitment in another city). I adjourned the trial to resume Thursday October 18, 2018 at 10:00 a.m.
After I left the courtroom, I was advised that the mother had fainted and that she had been taken to hospital by ambulance.
On Wednesday October 17, 2018, the mother e-mailed the court a note from a doctor at Hamilton General Hospital. The note indicated the mother couldn’t “return to work” until Friday October 19, 2018. Based on that note, I had court staff notify the parties that the trial would not be resuming on Thursday October 18, 2018, but that instead we would resume Friday October 19, 2018.

OCTOBER 19, 2018: TRIAL DAY 5

On Friday October 19, 2018 everyone except the mother attended court in St. Catharines for the anticipated continuation of the trial.

a. Shortly before court started at 10:00 a.m., I was advised that the mother had telephoned the St. Catharines Trial Coordinator, and she also sent an e-mail advising that she had suffered a concussion when she fainted in court earlier in the week.

b. Later in the morning the court was able to arrange for the mother to participate in the courtroom discussion by teleconference.

c. Over the phone the mother reaffirmed that she had a concussion and she was under doctor’s care.

d. She said she could not come to court on October 19. She could not come to court the following week. She was unsure exactly when she’d be able to resume the trial.

e. She said she would be seeing her doctor again October 26, 2018. She expressed hope she would be able to resume the trial after that date.

On behalf of the father and Florence, Mr. Fazari expressed concern that the trial was off to an inefficient start.

a. He expressed frustration that the brief medical note the mother sent on October 17, 2018 – advising that she “couldn’t return to work” until October 19, 2018 – made no sense because the mother is not employed, and she has not “worked” for many years.

b. He expressed concern that his client had paid him to attend for the continuation of the trial on October 19, 2018 – a date selected because the mother had sent in a note indicating she would be available October 19 – and once again time was being wasted and the trial was being delayed.

c. Mr. Fazari noted that one of the themes in the parenting dispute – as noted in the OCL report – is that the mother has an admitted history of cancelling and missing access to the children on the basis of purported medical issues. But he said the mother never provides medical corroboration as to why she misses most of her visits – and now she is not providing medical corroboration as to why she is missing the trial.

d. He requested that in light of the threadbare and inaccurate medical note provided thus far, the mother should be required to re-attend on the next court date with her family doctor so that the doctor could be cross-examined about whether the mother was really too sick to participate in the trial.

While I understood Mr. Fazari’s frustration and suspicion, I did not accede to his request that the mother be required to bring her family doctor to court to be cross-examined.
I explained that to a large extent our court system must work on an “honour system” in terms of respecting the privacy and dignity of any participant who may suddenly be unable to attend a proceeding as a result of health issues.
By the same token, I advised the mother that since it appeared we would be forfeiting most of the first three of the five weeks set aside for trial – and since she was providing no reassurance as to when she would be well enough to return to court – it was reasonable to require that the mother provide medical corroboration of her situation and limitations.
To minimize the waste of court resources and Mr Fazari’s time/fees, rather than target a specific resumption date for the trial, I directed that we would have a conference call at 2:00 p.m. on Monday, October 29, 2018 for an update as to when we could resume the trial.

a. I directed that the mother was to provide medical corroboration in advance of the October 29, 2018 teleconference, to explain why she was unable to attend court on October 18, 19, 22, 23, 24, 25, and 26.

b. The hope was that as of October 29, 2018 the mother would report that she was ready to return to court, in which case we would resume the trial on October 30.

c. I directed that in the event that the mother was taking the position she would have to miss more court days beyond October 29, 2018 she would have to provide medical corroboration explaining her limitations and providing a realistic estimate as to when the trial could resume.

During the court attendance on October 19, 2018, Mr. Fazari raised what would become a recurring theme on behalf of the father.

a. He predicted the mother will keep calling in sick to delay the trial, and to prolong unwarranted (and unrecoverable) monthly $2,000.00 spousal support payments ($1,746.00 per month ongoing, plus a top-up toward arrears).

b. He submitted that while the mother portrays herself as an unsophisticated abuse victim struggling without a lawyer, in reality she has skillfully learned how to use a collection of buzzwords and generic excuses to repeatedly manipulate the system.

c. He pointedly suggested that the mother has become masterful at exploiting our court system’s almost limitless commitment to showing compassion and affording the benefit of the doubt.

d. He said as a result the mother has learned that all you have to do is say “you’re sick and you don’t have a lawyer” and special – endless – accommodation is almost guaranteed.

e. He expressed frustration that on the one hand the court keeps telling the mother that this trial is not going to be adjourned – and on the other hand, the court keeps adjourning based on the flimsiest of medical excuses.

The mother categorically denied this characterization.

a. She insisted that any skepticism or scrutiny of her medical complaints reflects a lack of compassion and understanding of the long-term impact of domestic violence and PTSD.

b. She said the father was the one who initially abused her, and now the father was trying to use the court system to “punish” her for being sick.

c. The mother urged the court to be aware of the power imbalance “between the abuser and the victim” and “between a self-represented litigant and an experienced lawyer.”

In response, Mr. Fazari noted that the mother appears to have had mental health issues even before she met the father.
I did not accede to the father’s request for an immediate suspension of spousal support. I advised that this issue might have to be revisited, if there were further significant delays in relation to the trial.

OCTOBER 29, 2018: TELECONFERENCE

At 2:00 p.m. on October 29, 2018 I convened a teleconference with the mother and Mr. Fazari.

a. Earlier that day the mother e-mailed in some very brief medical information.

b. The mother advised that she was still unable to resume the trial. She wasn’t sure when she’d be medically able.

c. Mr. Fazari took the position that the minimal medical information provided by the mother – which was heavily redacted -- did not explain either her past or future unavailability for trial. An unnamed doctor merely stated that the mother required a further two weeks off of “work”.

d. Ultimately, I adjourned the matter to November 16, 2018 for a further teleconference in order to update the mother’s situation and availability to continue the trial.

My October 29, 2018 endorsement attempted to summarize the discussion; the priority to be given to completing the trial; and the necessity for the mother to provide more informative medical corroboration in light of the significant and potentially indefinite delay. My endorsement:
Mr. Fazari and the Respondent participated by teleconference.
The context herein is important.
This is an extremely high conflict file, primarily in relation to custody and access regarding two children, but also in relation to spousal and child support.
The file has been extensively case managed, and significant time was set aside for a lengthy trial to take place in October 2018.
I note that on Day 1 of the trial the self-represented Respondent mother requested an adjournment for various reasons, including problems with Legal Aid and for unspecified health reasons, but no medical disclosure was provided. I dismissed the Respondent’s request for an adjournment, noting that the Respondent had previously expressed to a case management judge that she wanted an adjournment, but the case management judge determined that the matter must be brought to a conclusion.
On October 16, 2018 after the lunch break the Respondent indicated that she was not feeling well and couldn’t proceed in the afternoon. I immediately agreed to adjourn the matter. We were not scheduled to resume until October 18. As court was to conclude for the day, and as I was leaving the courtroom, I heard some commotion. I was later advised that the Respondent had fainted, and that she was taken to hospital.
On October 17, 2018 the mother sent in a note from an emergency room doctor advising that the mother could not “return to work” until October 19, 2018. This was curious because the mother’s position has been clear that she is not working and that she is not able to work. I presumed that the doctor might simply have been imprecise about whether the mother’s delay was in relation to “work” or “court”. Nothing much turned on it at the time.
On October 19, 2018 the Respondent e-mailed and contacted the trial co-ordinator to advise that she would not be attending court that day because of ongoing problems relating to a concussion. She participated by teleconference, at which time it was agreed that the trial would be adjourned until today’s date for the parties to participate by teleconference, to determine when the trial could resume. The Respondent was to provide medical disclosure confirming her past unavailability for court and any future unavailability (if she would be requesting a further adjournment of the trial).
This morning Mr. Fazari and I received some very brief medical documents from the Respondent. All of the identifying information for the authors of the documents were obliterated as were other relevant sections. One note is threadbare and simply checks off a box that says the mother is unable to attend “work” until October 26, 2018. There was a box for “other” so “court” could have been set out. In any event, it suggested the disability extends to October 26, 2018 which has obviously past.
Another note refers to an unnamed medical professional having seen the Respondent on October 25, 2018. The note summarizes the Respondent’s reports of symptoms and sets out that the author recommends that the mother “remain off of work for 2 weeks to recover.” The note also says “she cannot be expected to work at the capacity that she previously did…” Again, it is curious that these reports keep talking about the mother being unable to work, in circumstances where the mother is not working. It is impossible to know what limitation the author is talking about, if we don’t know what the author thought the Respondent was previously doing.
I made it clear to the Respondent that requests to adjourn a trial are discretionary and if a person is asking for an adjournment for medical reasons, the onus is on the person requesting the adjournment to provide satisfactory medical information to explain why the adjournment is necessary. The reports so far are not very helpful, given the fact that so much information was obliterated, and given the fact that the various references to “work” raise important questions about what limitations are really being described.
For clarity: The court is able to resume the trial immediately. Mr. Fazari says he is ready to resume the trial immediately.
The Respondent says she is not currently able to resume the trial, and I have no reason to doubt her when she says she fainted in court, that she hit her head, and that she has unresolved medical issues. While the Respondent does not seem to perceive that she is being treated sympathetically, I would note that Mr. Fazari immediately consented to the matter being adjourned on the afternoon of October 16; on October 18; and on October 19. Even today, he is not insisting that the trial proceed tomorrow. He is simply requesting that proper medical disclosure be provided if the Respondent is going to be seeking a further delay in the trial, and I do not believe requesting proper medical information is unreasonable.
The Respondent indicated she sees a specialist on November 15, 2018 and she believes she will know at that stage whether she is able to proceed with the trial.
I am adjourning this matter to Friday November 16, 2018 at 2:00 p.m. again for a teleconference like this one. Once again the primary issue will be scheduling of the resumption of the trial. Hopefully we will be able to resume the trial on Monday November 19, 2018. If the Respondent is unable to do so, I am fully prepared to consider whatever updated medical information the Respondent may wish to submit prior to the teleconference. But the Respondent should understand that any medical information should not be redacted, and should specifically address her availability to participate in a “trial” and not some unspecified “work”.
Given the generalized health issues the Respondent has spoken of, I alerted the parties that if she will be taking the position that she cannot resume the trial for the foreseeable future as of November 16, 2018, and if the court accepts that a long-term or significant adjournment of the trial is necessary, then I would anticipate there may be need to address some issues on a temporary without prejudice basis.

a. The mother currently has access on a schedule she was having some difficulty maintaining even before the injury she has described. If her health affects her ability to attend for access, and if scheduling needs to be changed, she should advise Mr. Fazari and the court on the return date.

b. Similarly, the Respondent is not paying any child support for children not in her care. The Applicant continues to pay spousal support and one of the very real issues in the trial is whether the Respondent should be paying child support and whether the Applicant should no longer be paying spousal support. If a long-term adjournment is inevitable, I anticipate that continuation of the above noted spousal support may have to be reviewed pending completion of the trial, and I would anticipate that --- in the absence of any better information – ongoing spousal support might be suspended effective December 1, 2018. Again, hopefully we will be able to resume the trial and no temporary determination will have to be made, but the court has an obligation to be sensitive not only to the Respondent’s health issues but also to the realities of the Applicant’s financial circumstances, since he is assuming financial responsibility for the children without assistance from the Respondent.

NOVEMBER 16, 2018: TELECONFERENCE

A further teleconference was held on November 16, 2018.

a. The mother did not provide any further medical documentation corroborating why she was unavailable to proceed with the trial during the last half of October and the first half of November.

b. Had the mother not called in sick, the trial would most likely have been completed by the date of this conference call.

c. In any event, as of Friday November 16, 2018 the mother said she was ready to resume the trial. I endorsed that we would return to court on Tuesday November 21, 2018.

d. I advised the mother that while it was encouraging that the trial could resume, she still had an outstanding obligation to provide proper medical corroboration for all of the trial time we had missed. I made it clear that the very limited medical documentation she had provided thus far was not sufficient.

NOVEMBER 20, 2018: TRIAL DAY 6

On November 20, 2018 when the trial resumed, I reminded the mother of her obligation to provide proper medical corroboration with respect to all of the trial time which had been missed.

a. The mother stated that she felt she had provided sufficient medical information.

b. I advised the mother that I agreed with Mr. Fazari that she had not provided sufficient medical information.

c. We resumed the trial. But I clearly identified that I would be expecting the mother to provide the previously ordered medical disclosure.

d. I also again confirmed that if future court dates were missed by the mother for health reasons, she would have to provide medical corroboration.

The father testified in chief all day.

NOVEMBER 21, 2018: TRIAL DAY 7

Day Seven of the trial proceeded on November 21, 2018.

a. The mother arrived late. Court started at 10:15 a.m. (Unless otherwise specified, court was scheduled to commence at 10:00 a.m. on all trial days.)

b. The father testified in chief all day.

NOVEMBER 22, 2018: TRIAL DAY 8

Day Eight of the trial proceeded on November 22, 2018. The father’s examination in chief was completed, and the mother commenced her cross-examination.

NOVEMBER 23, 2018: TRIAL DAY 9

Day Nine of the trial proceeded on November 23, 2018. The mother cross-examined the father all day.

JANUARY 21, 2019: TRIAL DAY 10

As a result of my schedule; Mr. Fazari’s professional commitments; and, the availability of court time, the trial was not able to resume until January 21, 2019.

a. We were unable to find courtroom space in St. Catharines, so we arranged a week of trial days in Hamilton.

b. This was actually more convenient for the mother because throughout the trial she repeatedly said she was having difficulty commuting from her home in the Toronto area to attend the trial. Commuting to Hamilton was easier.

Day 10 proceeded as scheduled. At that point – three months after the commencement of the trial – we were only on our second witness, the father (who was still being cross-examined).

JANUARY 22, 2019: TRIAL DAY 11

Day 11 of the trial proceeded on January 22, 2019. The mother continued her cross-examination of the father for the entire day.

JANUARY 23, 2019: TRIAL DAY 12

However, on January 23, 2019 (Day 12) the mother did not attend for the trial. Instead, at 8:53 a.m. she sent the following e-mail to Mr. Fazari and St. Catharines court staff:

WITHOUT PREJUDICE

[NOTE: While I have had some assistance with this email, the words and thoughts expressed herein are mine, (mother’s name), and mine alone.]

PLEASE NOTE: Until further notice, for all email correspondence with me, please use this email: (e-mail address deleted)

I am writing to notify and inform everyone involved in the 766/16 proceedings scheduled to resume again today that, until further notice, I am not emotionally or physically able to attend the court proceeding. I will be seeking medical assistance and support as soon as practically possible and will provide the court and Mr. Fazari with an update on these unfortunate and unavoidable circumstances, as well as why the extreme symptoms I am currently experiencing are so severe that it would make me absent for court.

I am suffering from extreme trauma following the proceedings this week on January 21 and 22, 2019, during which I had to directly confront my convicted domestic abuser, (the father) and during which I had no choice but to cross-examine him myself.

The trauma that I have suffered and continue to suffer at the hands of my abuser and my physical health condition has been well documented.

As you are aware I had to seek the assistance of Duty Counsel on January 21, 2019 who then immediately attempted to contact lawyers to assist me given the unique dynamics of this case and severe domestic violence. I am awaiting call backs.

At present, I am simply not able to attend the proceedings nor do I have any agent who is able to represent me at present.

If you require any further information please advise me at this email and I will respond.

Please confirm receipt of this email and that the court is aware of my absence. Thank you.

That was the first of a number of e-mails from the mother which I will refer to.
E-mails from the mother came to be an ongoing issue as the trial proceeded.
The mother developed a pattern of sending self-serving and inaccurate e-mails, addressed to the court Trial Coordinator and the Applicants’ counsel Mr. Fazari. The e-mails were clearly directed at me, and the mother would generally ask for immediate confirmation that I had received and considered her e-mail. She wanted my response.
Sometimes the mother would simply e-mail to advise that she wasn’t coming to court that day. Sometimes those “cancellation” e-mails arrived about an hour before court started. Sometimes they arrived a few minutes before or after 10:00 a.m. -- after everyone was gathered and ready to proceed.
On a number of occasions, the mother’s e-mails requested that I make decisions or amend endorsements or orders, based on her e-mailed submissions.
Sometimes her e-mails simply expressed disapproval of my past decisions or rulings.
I repeatedly explained to the mother that it was not appropriate to communicate with a judge by e-mail – particularly during an on-going trial -- and that all communications should occur in the courtroom, on the record, with everyone present.
I also had to repeatedly requested that the mother not make self-serving and inaccurate statements – both in her e-mails and in the courtroom. The mother regularly mis-quoted Mr. Fazari, myself, court staff, and the evidence of witnesses.
Somewhat curiously, the mother’s e-mails kept coming from a variety of different e-mail addresses, sometimes using names of unknown persons. This added to a sense of general mystery about the mother’s circumstances. She didn’t explain the constantly changing e-mail addresses. She was vague about where she lived. She couldn’t give anyone a telephone number, stating that she didn’t have a telephone (even though she used two cell phones to record each day’s proceedings, with the court’s permission).
As well, on a number of occasions when the mother e-mailed that she wouldn’t be attending court, I instructed the Trial Coordinator to send a return e-mail to the mother enclosing my typed endorsement of that day. Sometimes the mother subsequently claimed that she had never received those e-mails and endorsements, because she was having computer problems.
So, e-mail became a bit of a one-way street. The mother used e-mail to tell us what she wasn’t going to do. But when we told her what she was required to do, she claimed she didn’t receive the e-mails.
When court opened at 10:00 a.m. on January 23, 2019, Mr. Fazari expressed disappointment and frustration at this further delay, which he described as completely unexpected and highly suspicious.

a. He recalled that earlier in the month, when the court was making efforts to arrange trial time during the week of January 21, he alerted everyone that he had a possible criminal trial commitment for the same week. He said when the mother learned Mr. Fazari might have a scheduling conflict, she sent a stern e-mail to the Trial Coordinator urging the court to insist that Mr. Fazari make himself available for this trial during this week, because of the urgency of the children’s issues.

b. He noted that the mother had now called in sick on a Wednesday, but she had given no indication on the Monday or Tuesday that she was experiencing any difficulties or health problems.

c. He accused the mother of abusing the court process and again requested that I temporarily suspend ongoing spousal support, to remove the mother’s incentive to prolong the trial.

I did not accede to Mr. Fazari’s request. But I addressed it in my lengthy endorsement of January 23, 2019:
I am preparing this endorsement on what would have been day 12 of this protracted trial.
This morning at 8:53 a.m. the self-represented Respondent mother sent the following e-mail to the Applicant’s counsel, Mr. Fazari, and to court administrators:

(Mother’s e-mail inserted)

Whenever a party identifies a health issue impacting upon their ability to attend court or participate in the process, the court must take a very sensitive and patient approach. This is particularly the case where a party involved in family litigation identifies an emotional response to the court process, and/or the historical issues between spouses which led to these proceedings.
I have very little information about the Respondent’s situation today. As always, she must be given the benefit of the doubt, and she should have an opportunity to give priority to her health needs. For that reason, I have no alternative but to adjourn the trial, and to give the Respondent an opportunity to provide the Applicant’s counsel and this court with more comprehensive information about her situation, and her availability to continue.
Having identified the need for sensitivity with respect to the Respondent’s situation, I also have an obligation to ensure equal fairness and consideration with respect to the Applicants herein (and I say this primarily in relation to the Applicant father, as the real issues herein are primarily between the father and Respondent mother – the co-Applicant paternal grandmother’s position is allied with the father.)
As always, context is important.
This is primarily a custody/access dispute in relation to two children currently ages 12 and 7.
There has been an extremely complicated history, but looking it things from the children’s perspective, they have been residing continuously with the paternal grandmother since December 2013. The Applicant father has been residing continuously in that same home with the paternal grandmother and the two children since approximately January 2014.
The mother’s access has been limited:

a. Starting in late 2013 she had fully supervised access.

b. In late 2015 it became unsupervised.

c. In early 2016 supervision was reinstated by the court.

d. Later in 2016 the supervision requirement was lifted.

e. Soon after a temporary order provided that the mother is to have access essentially on alternate weekends, together with telephone access.

But it is common ground that the mother has not been fully exercising her access. She misses visits entirely or abbreviates her weekends. There is disagreement as to why she has not been fully exercising the barebones access currently in place. She has identified health issues, but to my knowledge she has not provided any medical corroboration to explain why – by her own admission – she has not maintained consistent in-person access to her children. (It also appears to be common ground that she consistently has telephone access three times per week.)
The Office of the Children’s Lawyer prepared a detailed 43 page s.112 report which was issued on April 26, 2017. The report included many recommendations including sole custody and primary residence to the father; the mother to have reasonable access to the children to include alternate weekends from Saturday at 12:00 p.m. to Sunday at 4:00 p.m.; and a recommendation that the mother obtain a mental health assessment. The father accepts those recommendations. The mother disputes them and still seeks custody.
Courts are reluctant to implement professional reports until there has been an opportunity to test the evidence at trial. While this trial has not been completed, the social worker’s evidence and cross-examination was completed in October 2018. So, I have some additional perspective. I also have to be concerned that with the OCL report soon to be almost two years old, the longer it takes to complete this trial, the more dated the report will be – and this could lead to even more delay while a suggestion arises that perhaps updated information about the children’s perspective needs to be assembled. It is vitally important that custody/access matters be determined as quickly as possible, particularly where significant third party and professional information has been assembled.
This matter has been extensively case managed. Prior to my involvement the mother had objected to the matter proceeding in the fall of 2018 (a scheduling determination made at the beginning of that year). But Justice Arrell’s endorsement of July 24, 2018 confirmed that after all this time, and having regard to the needs of the children, the matter had to proceed to trial.
On the first day of trial October 11, 2018 the mother requested an adjournment for a number of reasons – including an assertion that during the period leading up to the trial she had been experiencing medical issues. However, the mother provided little specification as to the nature of those medical issues, and no corroborating information.
More generally, she referred to unspecified medical issues as precluding her from seeking or maintaining employment, but again she provided few specifications and no corroborating materials.
I did not grant the request for the adjournment and the trial proceeded.
However, after the lunch break on the fourth day of trial, October 16, 2018, the mother stated that she felt unwell and we agreed to adjourn to the morning of October 18, 2018 (it had previously been arranged that as a result of my schedule, we would not be sitting on October 17). I was later informed that as I exited the courtroom on October 16, 2018 the mother fainted and was taken to hospital.
On October 17, 2018 the mother e-mailed the court a note from a doctor at Hamilton General Hospital saying she couldn’t “return to work” until Friday October 19, 2018. It was unclear why the brief note referenced the mother being unable to “return to work” since the mother’s position is that she hasn’t held employment for a very long time. In any event we cancelled court on October 18.
However, the mother e-mailed the court on the morning of October 19, 2018 to advise that she had suffered a concussion and couldn’t resume the trial that day. When court convened on the morning of October 19, 2018 the mother participated by teleconference. She advised she was still under doctor’s care and would need to take a break from the trial. We agreed to adjourn until October 29, 2018 at which time the parties would participate in a teleconference to update the mother’s situation, and address resumption of the trial. The mother was directed to provide medical corroboration explaining any trial time missed prior to October 29, 2018, and explaining any request for an adjournment beyond October 29, 2018.
Shortly prior to the October 29, 2018 teleconference the mother e-mailed some brief heavily redacted medical notes, one of which recommended that the mother “remain off of work for two weeks to recover.” It went on to say “she cannot be expected to work at the capacity that she previously did…” Again, this was curious because the author was describing her medical situation as a temporary inability to return to employment…but the mother didn’t have employment.
As of October 29, 2018 Mr. Fazari’s clients were prepared to resume the trial immediately, and the court was able to schedule a resumption of the trial immediately. But the mother indicated she still needed more time to recover from vaguely described (and minimally corroborated) health issues.
I agreed to give the mother more time. We adjourned to have a further teleconference on November 16, 2018, to update the mother’s situation. Once again, I advised the mother that she would have to provide better medical information to explain the time already being missed. And if she would be asking for a further delay as of November 16, 2018 we would require comprehensive medical disclosure on that topic.
The mother did not file any additional medical disclosure in relation to the November 16, 2018 teleconference. She advised that medically she was ready to resume the trial, and we agreed to proceed on November 20, 2018.
During that teleconference and also when the trial resumed on November 20, 2018 the mother expressed confusion about Mr. Fazari’s request for more medical disclosure. She felt that she had provided all of the medical disclosure required of her.
On November 20, 2018 I explained to the mother that it was legitimate for Mr. Fazari to request better medical disclosure to explain the mother’s unavailability for trial during the period October 18, 2018 to November 16, 2018. The reports she had provided were redacted, uninformative, and perpetuated a mystery about why doctors were saying the mother was briefly unable to return to work – when she wasn’t working.
Ultimately on November 20, 2018 Mr. Fazari indicated he didn’t want to waste any more time dealing with the medical disclosure issue on that date. But he reserved the right to further address the issue later. On that basis we resumed the trial on November 20, 21, 22 and 23, 2018. During those days the mother continued to represent herself. She expressed no issue about her physical or emotional health or her ability or comfort level with respect to proceeding. She made no further mention of wanting an adjournment for any reason including retaining counsel. Clearly, with the unexpected delays since day one of the trial on October 11, 2018 she would have had ample opportunity to follow up on retaining counsel if that was her desire.
Unfortunately as a result of the court’s scheduling limitations, almost two months went by before we could find trial time compatible with everyone’s schedules.
In early January 2019 I identified that I could make myself available to proceed during the week of January 21, 2019 even though I was not scheduled to sit during that week. E-mails were exchanged through the St. Catharines trial co-ordinator attempting to co-ordinate those arrangements. When the Applicant’s counsel Mr. Fazari expressed some uncertainty about whether he could rearrange other court commitments to resume this trial, the mother sent a forceful e-mail requesting that Mr. Fazari make himself available to proceed during the week of January 21, 2019 because the issues were important and needed to be resolved. The mother was aware that on that last previous day of trial November 23, 2018 she was in the middle of cross-examining the father, and that her cross-examination would continue when the trial resumed.
The trial did indeed resume on Monday January 21, 2019 (in Hamilton because no courtrooms were available this week in St. Catharines).
At the outset, the mother indicated she was prepared to proceed. Early in the morning a legal issue arose. I reminded the mother that we have a duty counsel program in this building and if at any stage she wanted to take a break (to see duty counsel or for any other reason) she should ask. Soon after, the mother requested a break to see duty counsel. As it happens, it ended up being a break of about an hour. In any event, the mother returned from seeing duty counsel and the trial continued.
During part of Monday January 21, 2019 and all of Tuesday January 22, 2019 the mother cross-examined the father. The exchange was unremarkable. At times I had to remind the parties not to interrupt one another or speak at the same time. But the mother expressed no specific discomfort with anything that was happening, and she appeared to be quite well-prepared and able to make her points.
At around 4:30 p.m. the mother said she needed a few minutes to further consider some additional questions. I suggested that in light of the hour we would adjourn until Wednesday morning, and everyone agreed. At that point she expressed no discomfort, or health problem of any sort.
As an aside, I would note that before the lunch break on Tuesday January 22, 2019 I invited Mr. Fazari and the mother to see whether they could have discussions over the lunch hour to determine whether they could reach agreement on certain income levels to be applied in relation to support issues. Both parties agreed that such an agreement on at least some of the facts would be beneficial in that it would shorten the trial. After the lunch break Mr. Fazari and the mother both advised that they had had a very productive discussion, and they each intended to further consider their positions. They would advise Wednesday morning if they had reached a partial agreement in relation to income levels.
In that context, this morning’s e-mail from the mother expressing such profound emotional and physical limitations came as somewhat of a surprise. As stated, there was nothing about the mother’s presentation or the dynamics during two full days in court on January 21 and January 22, 2019 which would have suggested that the mother was experiencing any difficulties.
As stated, whenever a party expresses health problems, the court’s first response must be to be patient and accommodating.
But Mr. Fazari is quite correct in identifying that on previous occasions the mother has asserted that she had health problems impacting on her ability to participate in this trial. She provided no medical corroboration in support of her request for an adjournment in October. And the threadbare (and heavily redacted) medical disclosure she provided in relation to the hiatus in proceedings between October 16, 2018 and November 20, 2018 did not adequately explain why the mother was unavailable for trial for about a month.
Mr. Fazari submits that the mother’s intention throughout has been to delay this matter indefinitely, because she is still on the receiving end of spousal support payments in the sum of $2,000.00 per month. To put it bluntly, Mr. Fazari submits that with the mother never having provided either evidence of job search efforts or medical limitations, her claim for ongoing spousal support is dubious, and she’s simply trying to drag this court case out as long as possible because (a) she’s not paying any legal fees; (b) she’s ignored costs orders and is impecunious; and (c) the longer this trial drags on, the longer she will keep receiving temporary support.
The court must be alive to all possible dynamics. I had previously indicated back in October 2018 that if the mother would be proposing an indefinite adjournment of the trial, it might be necessary and appropriate to suspend temporary spousal support payments. It is entirely possible that ongoing spousal support may not continue. In the meantime the father is assuming full financial responsibility for both children, and the mother is not paying temporary child support ordered against her, based upon imputed income.
Adjourned to February 4, 2019 2 p.m. for a teleconference, for the mother to provide an update as to her situation and availability to continue the trial. No later than February 4, 2019 at 10 a.m. the mother shall provide Mr. Fazari and the court with a medical report setting out her situation and specifically addressing her availability to continue with the trial.
Once again, I would alert the mother that her past medical disclosure has been inadequate.
If it appears that the continuation and completion of the trial cannot occur in a very timely manner, I will consider suspending temporary spousal support. In this respect, if the mother will be taking the position that she cannot proceed with the trial at this time, but that she is seeking a continuation of temporary spousal support, she should ensure that her medical documentation specifically addresses any limitations with respect to employability.
The mother left belongings in Courtroom 1 in anticipation of returning to court today. She or an agent on her behalf may attend at the court to retrieve those belongings.
A copy of this endorsement is to be e-mailed to the mother at the address she provided to.
Basically:

a. I set up another teleconference for February 4, 2019 to get an update as to when the mother would be ready.

b. I reminded the mother that she required medical corroboration in relation to all past (and any future) missed trial days.

c. I reminded the mother that her previous medical disclosure was insufficient.

d. I reminded the mother that if the trial continued to be delayed, I would have to re-visit Mr. Fazari’s request that spousal support be suspended on a temporary basis.

FEBRUARY 4, 2019: TELECONFERENCE

On February 4, 2019 I made the following endorsement following the scheduled teleconference:
This matter was scheduled to proceed as a teleconference, but as it happens the mother advised the court that she would be attending the Hamilton court house in any event today, so she wished to attend in person rather than by teleconference. Mr. Fazari participated by teleconference as originally contemplated.
The primary purpose of today’s discussion was to ascertain when the trial could resume. The court offered the two weeks starting Tuesday February 19 (February 18 is Family Day) in St. Catharines. The mother indicated she is available to resume the trial as of February 19, 2019. Mr. Fazari indicated that he is available for most of the days of those 2 weeks, but as a result of other commitments he cannot make himself available on certain dates. Ordinarily the court expects counsel to be ready to continue a trial once it starts. But in the circumstances, the Respondent mother has caused sufficient unexpected changes to the schedule that I must respect the reality that Mr. Fazari is doing his best to make himself available, and I accept that certain days he will not be available.
On consent, the trial will resume as follows in St. Catharines:

a. February 19, 2019 all day

b. February 20, 2019 morning only til 1 p.m.

c. February 21, 2019 all day

d. February 26, 2019 all day

e. February 27, 2019 all day

f. February 28, 2019 all day

I doubt that this will be enough time for the trial to be completed. I would anticipate that as of February 19, 2019 we should be able to continue our discussions about scheduling beyond February 28, 2019. I am hoping we can complete this trial in March.
In the meantime, it is important to clarify a number of issues.
In my detailed endorsement of January 23, 2019 I set out that the trial could not proceed on that date because the Respondent mother had e-mailed that morning saying that she was unwell. She was unclear as to when she would be able to resume the trial, so I set this date for an update.
In my January 23, 2019 endorsement I specifically directed that in time for today’s attendance, the mother was to provide a medical report setting out her situation and specifically addressing her availability to continue with the trial.
This morning the Respondent sent 4 separate e-mails to the St. Catharines trial co-ordinator, each with attachments. However, having reviewed the attachments, none of them provide the medical corroboration required by the court.
As noted in my January 23, 2019 endorsement, the same sort of situation arose in October 2018 when the trial had to be halted because the mother collapsed in court. She indicated she would be unable to proceed with the trial for a period of time. I directed that she should provide medical corroboration not only with respect to any future inability to participate in the trial, but also to confirm her inability to participate since the day the trial was interrupted in October.
We ended up having another teleconference on October 29, 2018, similar to today. Once again, the Respondent mother indicated her health issues had stabilized and she would be able to resume the trial. But the mother never did provide satisfactory medical corroboration with respect to the several weeks she said she was unable to proceed in October 2018.
For clarity: my previous endorsements requiring medical corroboration with respect to each of the two periods when the Respondent required the trial to be interrupted (i.e., October 2018 and January 2019) remain outstanding. The Respondent seems to be under the impression that she provided adequate disclosure in relation to October 2018 but I agree with Mr. Fazari that she did not. The mother is still required to produce medical disclosure for both of those periods.
On both of the occasions that the Respondent interrupted the trial for medical reasons, Mr. Fazari advanced the theory that the mother is stalling the completion of the trial, because she wants to gain the ongoing benefit of a temporary spousal support order. On both occasions I have identified that the court has to do a balancing act, and that while strategic advantage is always something that the court must be mindful of, on balance the court must always give people the benefit of the doubt, especially when it comes to health issues. Courts are loathe to second-guess litigants or lawyers, because sadly health issues can arise in anyone’s life.
But part of my reassurance to Mr. Fazari was that the court would require that the Respondent mother would eventually justify interruptions and delays, by providing the necessary medical corroboration to confirm that such interruptions and delays were unavoidable.
However, twice now, the Respondent has been directed to provide medical corroboration and she has failed to adequately respond.
It would be unfair if this sequence of events (interruptions with no medical corroboration) would be allowed to be repeated.
Accordingly, if in the future the Respondent mother takes the position that she is not able to proceed with the trial for medical reasons, there will likely be a presumption that the spousal support should be suspended on a without prejudice basis, until the Respondent is able to provide medical corroboration to justify her position.

FEBRUARY 19, 2019: TRIAL DAY 13

Day 13 of the trial proceeded (back in St. Catharines) on February 19, 2019.
We were still on our second witness: the father.
The mother had been cross-examining him since Day 8.
As with all other witnesses, the mother’s cross-examination of the father was largely disorganized, unfocussed, and repetitive.

FEBRUARY 20, 2019: TRIAL DAY 14

Day 14 of the trial proceeded on February 20, 2019. The mother continued her cross-examination of the father for the whole day.

FEBRUARY 21, 2019: TRIAL DAY 15

Day 15 of the trial proceeded on February 21, 2019.
The mother completed her cross-examination of the father.
Mr. Fazari re-examined the father.
The mother then re-opened her cross-examination.
Mr. Fazari then finished with the father.
After the father left the witness stand the mother made a request of the court which appeared to take Mr. Fazari by surprise.

a. She said she had decided that the issues in relation to determining the father’s income were beyond her capability, and she intended to retain an expert to prepare an income analysis.

b. She admitted she was well aware that there were rules about having to file expert’s reports prior to trial. She acknowledged that she had not complied with any of those requirements.

c. She wanted advance mid-trial permission to file an unknown report by a not-yet-identified expert.

d. She anticipated the report might be available in about three weeks.

e. She said could provide the name of her proposed expert and his curriculum vitae to the father’s lawyer.

f. She wanted advance permission because she didn’t want to waste money having an expert prepare a report, unless the court gave her advance assurance that she would be able to file it as evidence.

The father’s lawyer objected strenuously to the mother’s unusual request. Among his comments:

a. The file had been extensively case managed. This request by the mother had never previously been identified.

b. The file had been ongoing for several years now, and the financial issues the mother now wished to better address had been known to her all along.

c. The trial date was scheduled back in January 2018 – about 14 months prior to this request.

d. On July 24, 2018 Justice Arrell heard a motion and subsequently issued a detailed endorsement dealing with a variety of procedural and disclosure issues. The court confirmed that the trial would be proceeding commencing October 9, 2018. The mother made no mention of wanting to retain an expert.

e. The father’s financial disclosure – which the mother now wanted to have an expert review – was all delivered to the mother by September 2018. Disclosure was fully produced within the timelines set by the court, and before the trial started.

f. The father had served the mother with a Request to Admit on September 7, 2018. That Request included much of the financial information the mother now wanted an expert to review. The mother never responded to that Request.

g. The trial commenced on October 11, 2018. The mother requested an adjournment for a number of reasons, but she made no mention of any intention to obtain an expert report in relation to the father’s income. I declined the request for the adjournment.

h. The mother had just completed her multi-day cross-examination of the father. The father would be seriously prejudiced by having the court authorize – in advance – the admission of some unknown report, after he had completed his testimony.

i. The mother had already caused many delays and inefficiencies. The uncertain timeline for the presentation of such a report, combined with the additional uncertain timelines associated with a possible review or critique of the report could significantly delay the completion of the trial, and cause the father to incur very significant wasted legal fees. The prejudice could not be compensated in costs because costs orders against the mother appear to be unenforceable.

j. Mr. Fazari suggested the mother was simply trying to create more delay and complication for strategic reasons. As a self-represented litigant, she was trying to deliberately drive up the Applicants’ legal fees by constantly making this case more complicated. And she was trying to delay any redetermination of an existing favourable spousal support order.

k. She was stalling.

I agreed with many of Mr. Fazari’s objections and declined the mother’s request.

a. In addition to all of the other concerns, I had to focus on the impact the mother’s request would have on the determination of the children’s issues.

b. Having commenced in October 2018, this trial should already have been completed by March 2019 when the mother introduced her request.

c. A detailed section 112 report prepared by the OCL had been filed, and the author had been extensively cross-examined.

d. The s.112 report was already almost two years old, and it was vitally important that all of the issues discussed in the report should be evaluated and determined by the court in a (relatively) timely manner.

e. Further delay would prejudice the children.

FEBRUARY 26, 2019: TRIAL DAY 16

Day 16 of the trial proceeded on February 26, 2019.
We started our third witness, Florence.
Examination in chief by Mr. Fazari was relatively brief.
The mother then started her cross-examination of Florence.
I then allowed the mother to reopen her cross-examination of the father, because she said she forgot to ask him some important questions.
The mother then continued her cross-examination of Florence.
We had to cancel court on February 27, 2019 as a result of a weather conditions.

FEBRUARY 28, 2019: TRIAL DAY 17

Day 17 of the trial proceeded on February 28, 2019. The mother continued her cross-examination of Florence for the whole day.

MARCH 4, 2019: TRIAL DAY 18

Day 18 of the trial proceeded on March 4, 2019.

a. The mother spent most of the day completing her cross-examination of Florence.

b. Mr. Fazari briefly re-examined this third witness.

MARCH 5 2019: TRIAL DAY 19

Day 19 of the trial proceeded on March 5, 2019.

a. Victoria, the father’s fiancé, gave brief evidence in chief.

b. The mother then spent the balance of the day cross-examining her.

But just before Victoria was called as the fourth witness, the mother brought what appeared to be an oral motion (although she didn’t specifically characterize it that way – and she really wasn’t too clear about exactly what she wanted).

a. The mother expressed concern that her personal medical information was being mis-used by the father, Florence, and their lawyer Mr. Fazari.

b. In very general terms she expressed concern that her medical information and records would be “passed around” to community agencies, doctors, hospitals, and through social media.

c. She said it was “traumatic to read and see” that the father has been spreading this private information.

d. She said this conduct will cause irreparable harm to her, and it has now escalated to the point where it needs to be stopped.

When Mr. Fazari attempted to respond, within seconds of him getting to his feet, the mother stood up and interrupted him.

a. This was an ongoing problem throughout the trial.

b. Despite my repeated explanations to the mother (as a self-represented litigant) that the trial process entails each party having distinct opportunities or “turns” to speak or question a witness, the mother repeatedly interrupted Mr. Fazari during questioning, to complain that he was being unfair, or to immediately interject her side of the story.

c. More than once I explained to the mother that the trial process entails a judge receiving and evaluating evidence from the witness stand, and that she should adduce evidence through her own testimony, the testimony of her witnesses, and through cross-examination.

d. Despite that clear explanation, the mother repeatedly stood up while Mr. Fazari was questioning a witness, and she would insist on giving her side of the story (or she would try to interfere with Mr. Fazari proceeding with his questioning).

e. On one occasion at the end of the day on March 4, 2019 when I admonished the mother for standing up and interfering with Mr. Fazari’s unremarkable re-examination of Florence, the mother stood and suddenly started packing up her belongings. When I asked if she was leaving she indicated that she wanted to leave before she fainted, and she could no longer tolerate Mr. Fazari’s “tone or volume.”

f. I advised her that from my perspective there was nothing unusual or inappropriate about Mr. Fazari’s tone, volume or questions, but if she wanted to leave for medical reasons, I would adjourn until the following day.

In that context, on March 5, 2019 when the mother refused to allow Mr. Fazari to respond to her unfocussed request in relation to medical records, I had to again advise her that fairness dictates that each side gets a chance to speak to the judge without interruption by the other side.
When Mr. Fazari was finally able to speak, he stated:

a. He didn’t know what the mother was talking about, in terms of being concerned about the release of medical information.

b. He acknowledged that the mother’s health has been an issue all along, because the mother has regularly referred to her health as the reason why she can’t exercise access to the children, and why she misses a lot of court.

c. Mr. Fazari acknowledged that in that context he has requested disclosure of the mother’s medical information.

d. But he said very little information has been provided, and to his knowledge none of the mother’s personal medical information had been disseminated inappropriately.

e. He said he knew nothing about the mother’s private information being disseminated through social media. He noted that “unlike the mother”, his clients had never gone to the media to talk about this case.

f. Mr. Fazari speculated that the mother was simply asking for some sort of blanket sealing order in this case, to prevent the father from using that information in defending a $250,000.00 civil lawsuit the mother has brought against the father in Newmarket.

I then asked the mother for clarification as to exactly what she was asking me to do, and the basis for it.

a. When I asked if she had any information or evidence that her personal information had been mis-used by anyone, she spoke of historical issues going back to the child protection file in Welland, but she identified no specific misconduct by anyone since this trial had commenced.

b. I noted that she had cross-examined both the father and Florence at length, and that she hadn’t presented either of them with the allegation that they were inappropriately or maliciously distributing her private medical information to anyone.

c. The mother then asked if she could privately show me her medical information without the father, Florence or their lawyer ever seeing it. I said no, that wouldn’t be fair.

In the absence of any indication that Mr. Fazari or either of his clients had in any way abused the very limited medical information provided by the mother – and given the fact that she herself has raised her medical issues as fundamentally important to most of the issues in this case – I advised the mother that there was no basis for the blanket restrictions the mother sought to impose.
In an effort to allay the mother’s concerns, I suggested that I would be prepared to consider a much more limited restriction that the Applicants not distribute any medical reports or information about the mother to third parties, except as may be required in relation to the conduct of this litigation. The mother didn’t follow up on this. And, as stated, she really produced very little medical disclosure.

MARCH 6, 2019: TRIAL DAY 20

March 6, 2019 was Day 20 of the trial.

a. The mother cross-examined Victoria for the entire morning. Before the lunch break she advised that she intended to continue her cross-examination for at least the balance of the day.

b. Given the fact that it was five months since the trial had started, and on Day 20 we were only on our fourth witness, I urged the mother to utilize the lunch hour to attempt to organize the balance of her cross-examination, for the sake of efficiency and to avoid repetitive questions.

c. I had not interfered with the mother’s multi-day cross-examinations of each of the OCL social worker; the father; or Florence. But the father’s fiancé was a relatively minor witness, and prolonged cross-examination was yielding diminishing returns.

d. We had also been taking shorter lunch breaks, to try to pick up the pace.

e. However, when we reconvened at 2:00 p.m. the mother advised that she could not confirm that she would be able to complete her cross-examination on that day. In fact, she indicated that she was not prepared to even resume her cross-examination of Victoria because she was not feeling well.

f. At the mother’s request, we once again adjourned the trial.

MARCH 25, 2019: TRIAL DAY 21

Court was to resume on March 25, 2019 (Day 21 of the trial). However, prior to the commencement of court that morning, the mother sent an e-mail (and a photograph of herself), advising that she was ill and unable to attend for medical reasons. The mother’s e-mail:

WITHOUT PREJUDICE

I am writing to inform the Court and the opposing parties that I will be unable to attend court when the trial resumes on Monday, March 25, 2019.

There are two (2) primary reasons for this.

First, as I have previously mentioned, when (the father) does not comply with his court ordered support payment obligations (as has happened yet again for the month of March), it becomes extremely difficult, if not impossible, to afford even the basic necessities of life. As everyone knows, and as Justice Reid found, my only source of income is (the father’s) support payments; without these payments, I cannot afford basic and important things such as medicine, access visit costs with the children, let alone afford the costs of child support, or being able to participate in a trial (which would include costs such as costs for witnesses, printing/copying, and transportation, to name only a few). If there is no support, there is no money, and if there is no money, there is no ability to participate in trial (especially one that is far away from me, but mere minutes from the Applicants’ front doorsteps).

Second, my health. I was in hospital on approximately February 25, 2019 and March 2, 2019 for severe migraine, and again on March 10, 2019 for severe migraine. That is also in part what caused me to have to leave court early on March 6, 2019. I am still awaiting a referral to a neurologist. Furthermore, I have developed another health condition over the past couple of days, and, in addition to migraines, I am simply not well enough to attend court (even if the support payment was to suddenly and magically appear). I have always provided the most up to date medical information that I have available.

Given how the Court and the Applicants have dismissed my previous medical documentation, out of an abundance of caution, I am attaching a picture of me that was taken on Sunday, March 24, 2019, which should be self-explanatory regarding my current physical health condition. I am having extreme difficulty speaking as well.

PLEASE: if the Applicants could please resist the urge to either blame me for being sick and not being able to attend, it would be greatly appreciated. Furthermore, especially given the fact that I was denied a sealing order from Justice Pazaratz for my very personal medical information, if the Applicants could please practice discretion with the attached image as it is very personal and confidential in nature.

I am forced to not attend court as I symptoms have drastically changed within the previous mere hours, enough so that I was forced to cancel the phone call with the children on Sunday night for the above reasons. I was attempting to send this out in the late evening hours last night/early this morning, and I have been in the past scolded by Mr. Fazari’s office for sending emails outside of business hours (so I was hesitant to send this at that time). And I understand that Ms. Leigh Foster is would be in this morning.

While I am needing to seek further medical advice today, the foremost priority for me right now is my health. Can you please confirm and provide the Court’s Endorsement from whatever transpires today via email to this email address. I know that Justice Pazaratz said that any type of teleconference for a trial day would be unacceptable. I am doing my very best today, but I simply cannot attend or address any matters that were to be addressed today in my current physical condition.

(The mother)

After court opened at 10:00 a.m. the mother participated by teleconference. It was a very brief discussion because it was clear the mother was having difficulty speaking as a result of a medical condition affecting her mouth.
Once again, I adjourned the trial and issued the following endorsement:
This morning (the mother) sent an e-mail advising that she was unavailable to attend for the continuation of the trial today as a result of medical issues.
Her e-mail was ambiguous as to whether she anticipated she would be available to attend at all this week (the matter was scheduled to continue Monday to Friday).
To clarify her situation and availability I arranged for (the mother) to participate by teleconference. She indicated she was in some distress and on her way to the hospital, so I tried to keep the discussion brief and focussed on scheduling issues.
(The mother) was unable to speculate as to her availability this week, but it was clear that she was in some distress and having difficulty speaking. Given the fact that there are some non-party witnesses who were going to be testifying this week – including a medical doctor who was scheduled to attend with her own lawyer on Wednesday March 27, 2019 – to minimize cost and inconvenience for everyone, I concluded that it is safer to presume the trial cannot proceed for the balance of this week.
I advised Mr. Fazari and (the mother) that the matter is adjourned to Friday March 29, 2019 at 2:30 p.m. for a conference call to address scheduling and any other issues the parties wish to discuss.
Mr. Fazari again requested that ongoing spousal support be suspended. I was not prepared to deal with that or other issues today as I didn’t feel it was appropriate for (the mother) to have to address those issues while she is in medical distress.
However, I reminded (the mother) that I have previously directed that she is to provide medical reports corroborating her past unavailability for court (resulting in a number of adjournments or delays with respect to this trial). I will require up to date medical disclosure dealing with this week’s missed court as well. I advised (the mother) that any medical reports she intends to rely upon should be e-mailed to the trial co-ordinator in St. Catharines and to Mr. Fazari’s office by Friday March 29, 2019 at 11 a.m.
I have prepared this endorsement after leaving the courtroom. I will ask the Trial Co-ordinator to e-mail a copy to Mr. Fazari and (the mother).

MARCH 29, 2019: TELECONFERENCE

Prior to our March 29, 2019 teleconference the mother sent in the following e-mail:

WITHOUT PREJUDICE

March 29, 2019

RE: 766/16 - MEDICAL UPDATE (the mother)

[PLEASE NOTE: while I have had some assistance with this email, the words and thoughts expressed herein are those of mine, (the mother), and mine alone.]

(The mother) attended the hospital on March 25, 2019 to address a medical issue that arose over the weekend of March 24, 2019. She was diagnosed with a skin infection, and was referred to an infectious disease specialist (for which she has an appointment upcoming on April 5, 2019). She was given urgent treatment of antibiotics at the hospital, and was provided with a prescription to take over seven (7) days.

The pain in her mouth greatly intensified during the week following her hospital visit, prompting her to seek medical attention on March 28, 2019. A note from the doctor from this visit is attached hereto.

Due to the difficulty speaking, breathing, eating, and drinking, and due to the high and consistent degree of pain, (the mother) has been unable to focus on anything else other than her health since her hospital visit.

If it is deemed necessary by the Court, (the mother) will attempt to attend the teleconference scheduled for today for as brief a time as possible. She must continue to attend to her health by resting as best she can, however, and following doctor's instructions. Please note however, that (the mother) is barely even able to open her mouth at all, and has not been able to eat solid foods for days. The doctor says that she may be on the wrong antibiotic and that until she has cultures back she may not show any improvement until she gets more information at her upcoming April 5, 2019 appointment with infectious disease specialist.

Written on behalf of (the mother)

The mother participated in the teleconference on March 29, 2019.

a. The purpose was to ascertain when the mother would be able to resume the trial. Again, the teleconference was brief as the mother was having difficulty speaking.

b. At that point we had lost the trial days set aside for March 25 to March 29.

c. Our next scheduled trial days were April 9 and 10. We agreed to leave those trial days scheduled, but to have a further conference call on April 5, 2019.

APRIL 5, 2019: TELECONFERENCE

Shortly prior to our teleconference on April 5, 2019 the mother sent Mr. Fazari and the court a very long e-mail:

RE: 766/16 - UPDATE AND FOLLOW-UP ((the mother))

[PLEASE NOTE: while I have had some assistance with this email, the words and thoughts expressed herein are those of mine, (the mother), and mine alone.]

This email is a (non-exhaustive) follow-up to the previous Endorsement of Justice A. Pazaratz dated March 25, 2019, as well as to provide a medical update, and is also further to the teleconference to be held on Friday April 5, 2019 with Justice A. Pazaratz moderating the teleconference.

(The mother) provided an email to the trial coordinators in St. Catharines on March 25, 2019 in the early morning hours. This was the date of the continuation of the trial for the week block and other dates are also scheduled for April 9, 10 and again the last week of April 2019.
(The mother) clearly knew something was medically wrong with her on Sunday, March 24, 2019. It came on suddenly and affected her ability to speak properly, and included severe swelling in her face, lips, and chin. She also developed a fever. The illness was so aggressive that (the mother) had to decline even speaking to her children on Sunday, March 24, 2019 in the evening. She was hopeful for a make-up call.
(The mother’s) understanding is that the Maternal Grandmother advised both boys (Matthew and Donald) about (the mother)’s illness, considering she had another regular call scheduled for the next night on Monday, March 25, 2019. Both children understood the best they could and were assured what the circumstances were. Aside from what (the mother) was able to communicate to the children herself when she did speak to them, (the mother) verily believes the Maternal Grandmother was the only other person to ever express the true nature of (the mother)’s illnesses.
When (the mother) did speak to the children on Monday, March 25, 2019, she was horrified when Donald came to the phone and abruptly and in a very stern and adult voice said: “What the FUCK is this? You are sick again…yeah right you are…you are not sick.” Donald left the phone and was cursing and swearing in the background until he was taken away from being near the phone.
Matthew spoke and was shocked at his brother’s behavior and stated “he gets like that sometimes,” and also said that he has “been out with [his father] before the phone call”. Matthew apologized for Donald’s behavior, which he should never have to do, or feel like he has to.
Justice Pazaratz’s stated in his March 25, 2019 Endorsement that (the mother)’s email that was sent on March 25, 2019 was ambiguous as to whether she would be able to attend at all the week block of March 25, 2019. (the mother) is not a doctor, and, as such, would have no idea about diagnosis, prognosis, let alone time frame for recovery. Therefore, (the mother) was clearly not intending to be in any way “ambiguous.”
(The mother) was very sick, disoriented, with fever, and had the greatest difficulty even speaking let alone swallowing properly.
As such, when the Trial Coordinator Ms. Leigh Foster contacted (the mother) on Monday, March 25, 2019 at approximately shortly after 10:00 am, she answered and spoke the best she could, which was very difficult and painful, and advised Ms. Foster of this and the fact that (the mother) was on the way to the hospital. Considering (the mother)’s medical situation, it was quite upsetting when Ms. Foster indicated that Justice Pazaratz insisted that (the mother) speak to the matter that morning.
Ms. Foster could barely hear or even understand (the mother) most times. (the mother) advised Ms. Foster that she (the mother) was in no position to speak and that her health was certainly paramount and quickly realized she needed to seek emergency medical assistance. Ms. Foster again stated the judge wished for (the mother) to be on teleconference and Ms. Foster insisted that the judge said it would only take a few minutes (less than five (5) minutes), and that it would be for scheduling. (the mother) agreed to hold off being taken to hospital to accommodate this request.
Ms. Foster required less than 10 minutes and asked if (the mother) could call back within that timeframe and to call her extension. Ms. Foster advised (the mother) that she would be now speaking with Justice Pazaratz regarding (the mother)’s inability to actually speak properly and her overall concern of her health. (the mother) indeed called back ten (10) minutes to the number and extension provided and received no response. Approximately another twenty (20) minutes went by before (the mother) reached someone. (the mother) believes it was Ms. Samantha Allcock (Assistant Trial Coordinator). (the mother) could not recite what she said to Ms. Foster but attempted to advise that she was not well and with the unnecessary delays she may have to forego the teleconference at that time. (the mother) was told to be patient and that they would be ready in mere minutes.
Suffice it to say the teleconference was delayed. And contrary to what (the mother) was told by the Trial Coordinator per what the judge apparently told the Trial Coordinator, the teleconference was longer than five (5) minutes. Justice Pazaratz states in paragraph 3 of his March 25, 2019 Endorsement that he “tried to keep the discussion brief and focused on scheduling issues.” This is simply incorrect as he permitted Mr. Fazari to make substantial submissions, including seeking multiple, various orders that were serious and potentially life-changing with (the mother) being unable to adduce any evidence on those issues. In (the mother)’s estimation there were no fewer than six (6) issues raised by Mr. Fazari. This was when Mr. Fazari was clearly aware and informed about (the mother)’s serious medical condition. In (the mother)’s vulnerable and weakened state, it was profoundly traumatic for her to have to even hear Mr. Fazari’s requested relief knowing that she would never have been in any position to even attempt to respond to Mr. Fazari’s very serious submissions that day.
During the call, (the mother) was even having difficulty speaking and swallowing, but tried her very best to respond; this was alluded to by the judge in paragraph 4 of his Endorsement.
As best as (the mother) can remember, she recalls that Mr. Fazari was suspect of the letter from (the mother) the morning of March 25, 2019 and of the attached picture sent to him and the court that morning. Mr. Fazari concluded that the picture of (the mother) in a very vulnerable state of illness was not dated, so he appeared to take some issue regarding the veracity of it (if he was not taking issue with the veracity of it, (the mother) is not certain why he brought it up).
During the teleconference, (the mother) made it clear that she had to end the teleconference as it was approximately 11:00 am (if she recalls correctly) and with her physical ailments she was told to seek emergency medical attention. After the call that is exactly what she did, attending at the hospital; with her departure being delayed for a considerable amount of time when Ms. Foster called earlier in the morning requesting that (the mother) attend as per the direction of Justice Pazaratz.
A follow up teleconference happened on March 29, 2019 wherein (the mother) sent in medical documentation as instructed to do so prior to the teleconference. (the mother) was still very ill and was in no position to compile and scan and email all the medical documentation.
It should be noted that (the mother) made a previous attempt to inform the court in February 2019 about a medical note regarding her migraines. The judge, however, did not understand the need or purpose of said medical note and asked (the mother) what she wanted him to do with it. In that context, the judge did not appear to wish to see it. Mr. Fazari also did not express any interest in seeing it. (the mother) had brought copies for everyone that day in court. The medical letter was advising that (the mother) was suffering from migraines and did advise against going back to court until a re-referral was made to a neurologist. Due to the very real fear of reprisal, including the possibility of termination of spousal support, (the mother) did not seek an adjournment on resuming the trial in February 2019 and simply wished to advise the judge of the circumstances and she did not wish to delay this matter or a resolution for her children (especially given how her children and she have been prejudiced by this long, protracted, and torturous litigation, both pre- and post- 2015 ONCA 409), and was hopeful that medication and fluids would help.
(The mother) has hardly any recollection of the teleconference on March 29, 2019. She knows she provided a medical note that she would have to be off from court proceedings and would be re-assessed in 2 weeks.
(The mother) also provided information that she had an appointment for an Infection Disease Specialist and it was booked fairly quickly and the following week she would be attending that appointment to see and follow up on this medical ailment.
Although, if (the mother)’s recollection is correct, Mr. Fazari stated that he never received that referral page indicating the specialist and appointment. (the mother) recalls that she advised during the call that she did have it and if he never received it then it was inadvertently not scanned. In any event, the appointment was noted with details. Again, at the time (the mother) advised Justice Pazaratz that she was having difficulty speaking, feeling unwell and dealing with fevers and she provided the most up to date medical information that she could in her fragile condition.
(The mother) did not receive an endorsement for this March 29, 2019 teleconference. She was just recently provided the call-in directives for a teleconference being moderated by Justice Pazaratz on April 5, 2019 at 2:30 pm from the trial coordinator.
(The mother) saw the specialist this week being Wednesday April 3, 2019. The infectious disease specialist saw her, and observed her face, mouth and lips. The doctor then had the microbiology result cultures from the hospital and the report clearly shows growing bacteria of staphylococcus aureus with the initial IV antibiotic given being Clindamycin being resistant to this strain of infection. Since that time (the mother) has been on another antibiotic which was finished the day before the Infectious Disease Specialist. Despite the large amounts of antibiotics given and the lab results the doctor concurred there was definitely some improvement, maybe 60 percent (after the Doctor asked (the mother) if she had any pictures of herself from earlier in her illness). Although (the mother)’s mouth is so raw and infected the concern was not being able to eat any solid food in almost two (2) full weeks. Even liquid diet and calories have been, and continue to be, a huge challenge.
The specialist ordered more antibiotics to continue for another week, and wants to see (the mother) next week for further follow-up to this infection.
(The mother) mentioned that it was a struggle to even attend the Doctor appointment. The Doctor said that (the mother)’s physical symptoms were obvious with the evidence of the bacteria in her mouth and lips and the fact that she could barely swallow even liquid, despite showing some improvement. This was supported by her going online to obtain the lab results as well as modifying the antibiotic prescription to a liquid form. It is apparent the full course of the first round of antibiotics did not clear up the infection thus resulting in repeating and continuing for another week.
(The mother) asked the doctor if she could be provided with a note and that the judge had requested it. She was very concerned and quite frightened of the sanctions that the judge is prepared to place upon her and hear Mr. Fazari’s relief when she is simply ill. (the mother) has a serious bacterial infection. She really had no idea what was wrong with her come the morning of March 25, 2019 as this infection came on so very fast without any other warning signs which is why infectious disease is following this. The doctor indicated that she does not provide doctor’s notes to others. This is a standard policy (the mother) was told. The doctor can only provide medical notes to (the mother). The Doctor added that it was “none of their business” what the specific details of her medical condition are, other than provide confirmation that (the mother) is under her medical care. The doctor was quite surprised that a judge was even seeking a medical note that was so detailed and it is her practice and HIPPA that she provides care to her patients ((the mother)).
The Doctor’s only goal and expertise is to treat (the mother) and this terrible infection and get her back to her normal functioning self, and to make sure that this infection is completely cleared up. That is the doctor’s goal and certainly (the mother)’s goal.
(The mother) remains on antibiotics, following a schedule for fluids and nutrients and will follow up as ordered in another week.
(The mother) will be forwarding under separate cover additional medical documentation (there may be some duplication). (the mother) has also included completely unredacted medical documentation that was sent previously in October 2018 related to her ongoing migraine condition. This was information in which the contact information and address information only were redacted for personal safety reasons. The doctor’s note from October 2018 was extremely detailed and specific.
It is (the mother)’s position that any requirement to provide this level of detail is manifestly inappropriate, a violation of her right to privacy and safety/security, and a fundamental abuse of process. The Applicant, (the father), testified under oath that he redacted multiple business expense documents (among other things, such as credit cards and bank statements), and his reason under oath for doing so regarding, for example, his advertising receipts was that he alleged (the mother) was going to contact these advertising companies. So he heavily redacted the invoice number and account number and, in some cases, even his own name; at no time did (the father) provide any evidence whatsoever that (the mother) has ever even attempted to do such a thing. (the father) also indicated with sarcasm that he would have to change all of his credit card numbers because (the mother) has knowledge of them. (the father) went on to say that he redacted it because it was “none of [(the mother)’s] business.” The Trial judge has never in any endorsement made any reference that (the father)’s bald assertions were either inappropriate or unacceptable, nor has he commented in his endorsements on this issue or (the father)’s redactions. This clearly makes it more difficult to reconcile (the father)’s business expenses when they are permitted to remain redacted.
If more medical information is still required, given that doctors have expressed extreme reluctance to provide detailed information in letters, then in line with Mr. Fazari’s submission in court in October 2018 that he wished to call (the mother)’s doctor’s to court to testify on the stand, this may possibly be the better and more appropriate avenue to obtain further details about (the mother)’s private medical conditions.
As alluded to above, (the mother) is still suffering from her recent infection and has not been able to eat solid food for approximately two (2) weeks now, and she continues to have difficulty even drinking. She has a follow up appointment next week (also included in the attached documentation) on April 10, 2019. She is very week, and not able to participate in court proceedings until her condition improves.
(The mother) has very little recollection of what happened on the last teleconference on March 29, 2019.
Again, if it is deemed necessary by the Court, (the mother) will attempt to attend the teleconference scheduled for today for as brief a time as possible. She must continue to attend to her health by resting as best she can, however, and following doctor's instructions. Please note however, that it causes (the mother) pain to speak.

NOTE: (the mother) will shortly be sending two (2) additional emails under separate cover with medical documentation attachments referred to herein.

Written on behalf of (the mother)

(emphasis in original)

Attached to a separate e-mail the mother sent additional medical disclosure:

a. Some of the documents were new.

b. Some of them were unredacted versions of documents previously submitted but heavily redacted.

At the April 5, 2019 teleconference it was decided that we would leave the next two scheduled trial dates – May 1 and May 3, 2019 – in place, but we would have a further teleconference on April 29, 2019 to confirm whether those days of trial would actually proceed.

APRIL 29, 2019: TELECONFERENCE

Shortly prior to the April 29, 2019 teleconference the mother e-mailed a copy of a note indicating that she had an appointment with a specialist on Wednesday May 1, 2019 so she couldn’t attend for court on that day.

a. The note stated that the specialist only schedules appointments on Wednesdays.

b. The mother provided no written explanation as to why the appointment had to be on that particular Wednesday, as opposed to a previous or subsequent Wednesday (when no court was scheduled).

Beyond that, during the teleconference on Monday April 29, 2019 the mother also expressed uncertainty about whether she could commit to attending for trial on Friday May 3, 2019. She said she wasn’t sure what the doctor would tell her on May 1st.
Given the fact that after May 3, 2019 we didn’t have any further days available for trial until July 2019 (3 days) and then September 2019 (three weeks), Mr. Fazari again renewed his motion to suspend spousal support on a temporary basis.
After all these delays – and with no indication from the mother that her availability was likely to improve in the future – I directed that the father’s motion to suspend spousal support would be formally considered on May 3rd.

MAY 3, 2019: TRIAL DAY 22

May 3, 2019 was Day 22 of the Trial.

a. We were still only part-way through the mother’s cross-examination of the fourth witness, Victoria.

b. With the trial having no end in sight, I heard Mr. Fazari’s mid-trial motion for a suspension or reduction of ongoing spousal support.

c. I received submissions from Mr. Fazari and the mother.

MAY 13, 2019: MID-TRIAL DECISION RE: SUPPORT

On May 13, 2019 I released a 111-paragraph judgment in which I tried to guard against financial mischief to the father, while at the same time giving the mother the financial resources and incentive to complete this trial more efficiently. I reproduce portions of that judgment here, because the same problems continued even after May 13, 2019, and the analysis is applicable to this final determination.

1 Every trial that starts should finish.

2 You'd think that goes without saying.

3 But what do we do when the end isn't even remotely in sight?

4 What do we do when a trial starts, and then gets bogged down? And each side asks a judge who has only heard part of the evidence to make really tough decisions pending the unknown date — or even year — when the trial will finally end.

5 That was the issue on this mid-trial motion within an incredibly complex and nasty family trial.

9 Before I review the chronology of this trial, it will help if I briefly summarize the nature of the mid-trial motion brought by the father:

a. One of the main issues is spousal support.

b. The father has been paying spousal support since separation. He currently pays $2,000.00 per month. This includes $240.00 per month towards arrears currently listed by the Family Responsibility Office (FRO) as more than $62,000.00. The father insists that arrears figure is mathematically incorrect. He says after the court makes all necessary adjustments, it will be clear that there are no arrears.

c. He notes that the existing spousal support order was made at a time when both children were living with the mother. But for more than five years both children have been living with the father and Florence. He says he's already paid spousal support longer than the period suggested by the Spousal Support Advisory Guidelines, even if the children had remained in the mother's care. He says he can't and shouldn't be sending money to the mother, while she makes no contribution toward the children.

d. At trial, the father seeks a retroactive termination of spousal support and a refund of what he characterizes as a significant overpayment.

e. At trial, the mother wants spousal support to continue, with an increase both retroactively and prospectively.

f. This trial was scheduled to commence in October 2018 and to be completed by November 2018.

g. But within days, the trial was derailed because the mother keeps calling in sick.

h. In the eight months since the trial started, we have only managed 21 days of trial time — an average of less than 3 days per month.

i. The father submits that to make matters worse, we're not just missing a lot of trial days — but those days when we sit for trial are not very productive, because the self-represented mother wastes a lot of time with inefficiencies. That's why after 21 days of trial we're still on only the fourth witness, and we appear to be less than half-way through what was originally expected to be a five week trial.

j. The father submits the mother is deliberately stalling — repeatedly calling in sick, and trying to drag out the trial — because she wants to keep receiving those $2,000.00 per month spousal support payments as long as possible.

k. The father says the mother is impecunious so money only flows in her direction. He pays her spousal support. But she isn't paying the $220.00 per month child support ordered against her. She hasn't paid costs previously ordered against her. Any future costs order will be uncollectable. And she'll never be able to reimburse him if the court orders her to refund any overpayment of spousal support.

l. Basically, the father is asking the court to suspend spousal support — on a without prejudice basis, pending completion of the trial — to remove the mother's incentive to cause further delay.

m. The father insists his motivation to speed up the trial is not just financial. He says there are important children's issues which need to be resolved. Neither party is saying the current parenting arrangement should continue. For this reason it is imperative that the trial be completed as quickly as possible.

n. The father says the mother keeps coming up with excuses to delay completion of the trial, because she has good reason to anticipate that the outcome of the trial will be unfavourable for her on just about every topic.

o. He says the mother realizes her custody claim has little merit, because the children have been with the father and the paternal grandmother since December 2013. FACS has no concerns about that arrangement, and the OCL has actually recommended that it continue.

p. He says if the mother was serious about pursuing custody, she'd be the one in a hurry to undo the status quo. He notes that the mother hardly ever even visits the children, so the mother's "custody" claim is really somewhat phantom.

q. The father says the mother is not only unconcerned about legal fees — because she is not incurring any — but she is recklessly and deliberately causing the father's legal fees to mount, by making the trial process as inefficient and protracted as possible. He says he can't afford to keep paying a lawyer for an endless trial with countless unproductive adjournments.

r. The father rejects the idea that he is being insensitive to the mother's health issues. An important part of the father's narrative on the parenting issues is that the mother constantly uses vague and uncorroborated health issues as her "excuse" for cancelling most of her visits with the children.

s. He feels very strongly that the mother is using "health issues" as a strategic device, to avoid all of her responsibilities.

t. In the father's view, the mother has been saying for years that she is too sick to work; too sick to visit the children; and now she's saying she's too sick to consistently participate in the trial.

u. But he notes that the mother rarely provides any particulars (let alone corroboration) of the details of her illness.

v. The father's counsel Mr. Fazari notes that at the same time that the mother keeps saying she is too sick to participate in this family trial, she is aggressively pursuing two separate civil actions: One against the father in Newmarket for $1,000,000.00 in damages. And a separate damages claim against FACS.

10 The mother disputes the entirety of the father's theory and request.

a. She denies stalling.

b. She denies having any incentive to stall, because she expresses confidence that at the end of the trial she will be awarded increased spousal support.

c. She says she is legitimately sick, and that she too regrets that the trial has been prolonged.

d. And she says it is the father who is being strategic, by seeking to strip her of the financial resources she requires to keep pursuing her claims.

THE RESPECTIVE POSITIONS

79 The father's motion to suspend support temporarily was based upon Mr. Fazari's submission that the mother has caused needless delay with respect to a trial which should have finished by November 2018. He says her actions have caused unjustified delay in two related ways.

80 Firstly, she has cancelled quite a number of specifically scheduled trial days.

a. In fact, she cancelled most of the original five weeks set aside for the trial starting in October 2018.

b. On several of the missed days everyone except the mother showed up for 10:00 a.m. court. This resulted in significant inconvenience for witnesses and the court system -- and substantial wasted legal fees for Mr. Fazari's client.

81 And apart from being unavailable for specific trial days, at several stages the mother announced she was unavailable "until further notice."

a. In each case, this meant the trial was "on hold" until the mother advised that she would be available.

b. Once she confirmed she was available, there was further delay while we arranged and waited for new trial dates compatible with everyone's schedules.

c. Re-scheduling became so difficult that at times we ended up squeezing in whatever random trial days we could find.

d. And then, as it happens, the mother called in sick for some of those replacement trial dates, meaning that the whole rescheduling process repeated itself.

82 The mother does not dispute the magnitude of past trial delay, or even the possibility of ongoing future delays. But she urges the court not to make any temporary order which would "punish" her financially, at a time when she is already experiencing so many challenges:

a. She emphasizes that she has multiple, long-standing health issues, including PTSD and other emotional and psychological consequences which are the direct result of domestic violence perpetrated by the father.

c. She notes that on two separate occasions in 2011 and 2013 the father was convicted of criminal offences against her. So she feels it is unfair for the father to deny or minimize her emotional trauma when he is the one who created her problems.

d. She says she has been doing her best to participate in the court process — and specifically in this trial.

e. She says periodically medical issues have arisen during the course of the trial, and that this is not coincidental. She says the stress of this trial -- and the stress of having to cross-examine the father, his fiancé, and Florence -- has triggered episodes where she has needed to take a break from the courtroom.

f. She submits that the father's request to suspend spousal support is punitive and strategic, because he wants to hurt her financially when she is already weak and struggling to represent herself in a bitter, complicated trial.

g. She submits that every time she has had to interrupt the trial, it has been as a result of legitimate, unavoidable medical issues. And she feels that she has done her best to provide medical corroboration of her situation. She says she has no ability to compel doctors to write reports, and that medical reports are expensive to obtain. In any event, she submits that PTSD is so complex and pervasive that it is difficult to summarize in a medical report exactly what she is experiencing.

h. She denies that she has any motivation to prolong the trial. To the contrary, she says the sooner the trial is over, the better it will be for her mental health.

i. She denies that any monetary strategy is in play. She is confident that at the end of the trial she will be entitled to ongoing spousal support; that all outstanding arrears will still be owing; and that she will likely be entitled to a significant retroactive increase in spousal support.

ANALYSIS

83 The parties have focused on whether the mother has provided adequate medical corroboration of the many days when she has been unavailable to participate in the trial. While I do not agree that the sufficiency of the mother's explanations is entirely determinative, I will start there in my analysis.

a. The father alleges the mother is fabricating or exaggerating her medical problems, and he submits the paucity of medical corroboration supports his contention that the mother is periodically choosing to call in sick for strategic reasons.

b. The mother denies deliberately delaying the proceeding. She says she really does have recurring and unresolved medical issues, and she insists that she has provided sufficient medical corroboration to verify her position.

84 On the latter point — the sufficiency of the medical corroboration — I do not accept the mother's position. I reviewed in detail the relatively small amount of medical disclosure and corroboration the mother has provided since the trial commenced. I considered the materials in relation to specific periods where significant trial time was lost.

85 For the period October 16, 2018 to November 16, 2018.

a. The mother provided a two line note from neurologist Dr. W. J. Oczkowski dated October 16, 2018. The note stated the mother was evaluated at Hamilton General Hospital on that date. "She has probably suffered a concussion from a fall." "She can't return to work until Friday October 19, 2018." The mother had no idea why the doctor inaccurately commented on her ability to return to "work" when it was clear that she was not employed.

b. The mother provided an even less informative "Doctor's Note" dated October 18, 2018, in which Dr. Gavin Shokar checked off a box that said the mother was unable to attend "work" between October 18, 2018 and October 26, 2018. Again, no explanation about the erroneous reference to "work".

c. The mother provided a two-page medical record confirming she had some tests conducted on October 18, 2018, as a result of hitting her head. The note provided little relevant information, and no guidance as to whether the mother was required to miss any future trial days.

d. The mother provided a 12-line typed letter from Dr. Shokar dated October 25, 2018. The letter was both informative and confusing.

a. On the one hand the doctor clearly indicated that the mother had experienced post-concussive symptoms; that as a result her mental functions were impaired; that the duration of her incapacity was uncertain; and that she would be evaluated in two week increments.

b. But on the other hand, the letter inexplicably focused on the mother's temporary inability "to return to work". The doctor recommended that she "remain off of work for 2 weeks". The letter said "she cannot be expected to work at the capacity that she previously did." The letter said she would be re-evaluated in two weeks "to see if she is able to return to work." These were very specific references to employment limitations, raising a legitimate question as to exactly what information the doctor was dealing with when he commented on what the mother could and could not do.

c. The mother submits doctors loosely used the term "work" when they really mean that she can't attend court. But I agree with the father that the mother's medical notes all so specifically refer to "work", that it was incumbent on the mother to provide some clarification as to what the doctors had been told, and what they were really saying.

e. Dr. Shokar's October 25, 2018 letter is likely the single strongest piece of evidence provided by the mother.

a. But despite requests for clarification about all of the confusing references to the mother not being able to return to work, the mother never provided any follow up from Dr. Shokar.

b. At best, the October 25, 2018 letter explains that the mother was generally unavailable for about two weeks.

c. The letter indicated that there would be regular follow-ups and ongoing re-evaluation of the mother's situation. But the mother provided no evidence that she attended for follow-ups; and no evidence of any re-evaluation beyond those two weeks.

f. Overall, I find that the mother has provided some evidence to explain a few weeks of missed trial time starting in October 2018. But that evidence is somewhat vague and contradictory, and the mother has failed to provide necessary clarification and follow-up.

g. If we were only dealing with an isolated two or three week interruption of the trial, out of an abundance of caution and fairness I would probably conclude that the above-noted medical information from the mother was minimally acceptable.

h. But in the context of repeated trial cancellations over many months, the above noted medical reports are not sufficient.

86 For the next period of missed court time, January 23, 2019 to February 4, 2019 the mother provided virtually no medical corroboration of her inability to participate in the trial.

a. She referred to a January 28, 2019 e-mail chain in which a therapist stated she had tried to reach the mother in October 2018 but hadn't heard back from the mother. The e-mail chain spoke of setting up an appointment for the mother.

b. The mother also produced a letter dated January 31, 2019 from her therapist, confirming that the mother has been a client since September 2018 and continues to be an active client.

b. No particulars of any treatment or health problems are set out in the letters. The letter simply refers to a delayed appointment finally being set up, with no indication as to whether the appointment ever took place, or what was discussed.

c. The mother provided no evidence that she had followed up on any of Dr. Shokar's comments in his October 25, 2018 letter.

d. In the mother's e-mail to the court on January 23, 2019 (when she called in sick) she indicated she would be seeking medical assistance and support and that she would provide an update. But the documentation provided by the mother does not corroborate that she sought out any medical assistance after calling in sick for court.

87 For the next period of missed court time, March 6, 2019 to March 22, 2019 the mother provided three hospital notes indicating that on each of February 23, March 2, and March 10 she went to the hospital complaining of a headache. She provided no indication that she followed up, and no medical opinion that she was unable to attend court.

88 For the period March 25 to March 29, 2019, Mr. Fazari acknowledges that the mother had to miss court as a result of an infectious skin condition.

a. Mr. Fazari notes that the father has never challenged the mother when she had an actual, verified medical problem.

b. Mr. Fazari distinguished the verified physical medical issue during this one week period, from the unverified health problems the mother has complained about for months (in relation to missing trial days) -- and for years (in relation to missing visits with her children).

89 Finally, in relation to May 1 and May 3, although it may seem like a minor issue in the scheme of things, I agree with Mr. Fazari that the mother did not really verify that her May 1st appointment with the specialist had to occur on that same Wednesday when she had court, and that it couldn't have been scheduled on an earlier or subsequent Wednesday.

90 The mother said she shouldn't be confined to medical reports arising since October 2018 when the trial began.

a. She submitted a separate volume of old medical reports dating from 2014 to just before the trial began in October 2018.

b. I advised her that I was prepared to consider older reports if the contents related to any of the days she said she couldn't participate in this trial.

b. In response the mother only referred to one document: a January 12, 2018 Criminal Injuries Compensation Board decision which included the statement: "The Board accepts that the Applicant suffered emotional and psychological injuries resulting from the abuse that she suffered at the hands of her ex-husband." The mother did not specifically establish a connection between that general statement, and the fact that more than a year later she was still periodically calling in sick, with no verification of any contemporaneous medical follow-up.

91 On the issue of the sufficiency of the mother's explanation for cancelling so many trial days:

a. I find that her evidence in relation to October 2018 is marginal but perhaps minimally adequate.

b. Similarly, she established to Mr. Fazari's and to the court's satisfaction that during the week of March 25, 2019 she was unavailable as a result of a skin infection. This was a limited problem and quite different from the general medical complaints the mother has advanced.

c. Beyond that, the mother has provided no independent evidence establishing a continuing or periodic inability to participate in this very important trial.

d. She has certainly not provided any verification with respect to several dates on which she suddenly halted the trial process, stating that she was experiencing some sort of medical emergency in the courtroom.

e. Cumulatively, the mother has demonstrated such a pattern and inclination to cancel trial days — with little or no medical verification — that I must agree with the father that at least a significant percentage of the mother's absences were without verified justification.

92 The mother expressed frustration that she was being subjected to what she perceives as onerous and unfair requirements that she "prove" that she is sick. I disagree with her complaint that the court has lacked sensitivity or awareness with respect to her health problems generally, or the dynamics of domestic abuse and post-traumatic stress disorder.

a. On a number of occasions, I tried to make it clear to the mother that I do not disbelieve that there was domestic abuse in this relationship. While the magnitude or frequency of abuse is disputed, at the very least the father has twice been convicted of criminal charges in relation to the mother for events which occurred in 2011 and 2012.

b. The court accepts without hesitation that historical domestic abuse may directly relate to current or long-term emotional or other health problems. Establishing that connection usually requires some — but not a lot of — professional evidence.

c. The problem was that the mother bristled at the suggestion that she should be required to provide medical corroboration of any current health problems affecting her ability to attend trial. She appeared to be of the view that all she has to do is say that she was the victim of domestic abuse — or that she suffers from PTSD -- and the court should unquestioningly take her word for it whenever she calls in sick.

d. Requiring a doctor's note is not synonymous with disbelieving. The court cannot appropriately respond to the mother's situation until it clearly understands her situation.

93 As stated, the court's response to a litigant's health problems must at all times be sensitive and respectful.

a. Occasional or isolated adjournments for health reasons are almost always granted, no questions asked.

b. Sometimes — and there's no specific formula — the amount of time being missed may come to be so problematic that medical corroboration will be required, even at the risk of appearing to be intrusive and insensitive.

c. When a party's stated inability to participate in an important proceeding becomes chronic, the court has a responsibility to ensure fairness: Fairness not just for the party who doesn't come to court. But also fairness for the party who attends and is ready to proceed.

d. It's a difficult balancing act, particularly mid-trial where fairness requires the court to exercise extreme caution, particularly once it has heard only some of the evidence.

94 Debating the existence or extent of the mother's recurring health issues is both unseemly and to a certain extent unproductive. Perhaps even counter-productive. It has only served to add more tension and recrimination to an already very nasty trial. Ironically, the more upset the mother becomes about courtroom discussion, the more frequently she calls in sick.

95 From a practical point of view, we should focus not only on the sufficiency of the explanations for delay — but perhaps even more so on the consequences of delay.

a. A poorly explained delay that merely causes inconvenience but no real harm, may not be a big deal. Especially if any prejudice can be compensated in collectable costs.

b. But where the real or potential consequences of delay are significant and potentially irreparable, the court must engage in careful balancing act to ensure fairness to both parties.

96 On this mid-trial motion, I will not be relying upon any factual determinations based on the partial evidence I have heard thus far from the four witnesses.

97 I am, however, in a position to deal with some undisputed facts, including the following:

a. This is a long-standing, high conflict file.

b. There are no property issues still to be determined. But there are significant child and (especially) spousal support issues. And most importantly, the two subject children have been subjected to extraordinary disruption and institutional intervention in their lives. Each parent alleges the current parenting arrangement remains problematic. The parents want financial issues to be resolved. And the children need parenting issues to be resolved.

c. As a result, the court has prioritized this file, and required the parties (including counsel) to give it equivalent priority. Significant effort was put into arranging a five week trial (the duration estimated by the parties) to commence in October 2018.

d. The trial started as scheduled in October 2018. But it has not proceeded as scheduled. There have been numerous missed trial days. And there have been extended periods when resumption of the trial was put on hold.

b. It is not disputed that all of these delays are attributable to the mother.

c. Inherent in the nature of the health issues identified by the mother, she is unable to provide any assurance that future trial days will actually proceed as scheduled. She has certainly provided no professional reassurance that she is gaining control over whatever medical problems she is experiencing. To the contrary, she appears to be saying that the debilitating factors which have caused her to miss so much trial time during the past eight months, are the same unpredictable debilitating factors which have caused her to miss so much access to her children for years.

d. At this stage — having just completed Day 21 — we are only part-way through the fourth of what could easily be 15 to 20 witnesses.

e. Coordinating future trial dates has been a challenge (particularly since both the court and Mr. Fazari have had to repeatedly re-schedule other court commitments, as we went through successive last-minute adjournments).

f. Currently, we have three days of trial time set for July 2019, and three weeks of trial time set for September. But even if all of those days proceed, it is doubtful that this trial will be completed within a calendar year of it having commenced on October 11, 2018.

g. Given the fact that we have been averaging only three trial days per month — and we have never sat more than five days in a row without the mother requiring an adjournment — it is unrealistic to presume that the balance of the trial will proceed without (potentially significant) further delays.

98 The father alleges that this litigation quagmire is the result of blatant bad faith and manipulation by the mother. He says she's stalling because she has a financial incentive to stretch out spousal support payments which — in his view -- will inevitably be terminated upon completion of the trial.

a. At this point, I'm not able to make any determination in relation to spousal support.

b. It is entirely possible that after I hear all the evidence and submissions, spousal support will end. Possibly retroactively.

c. It is entirely possible that spousal support will continue.

d. It is entirely possible that the spousal support numbers may change, both prospectively and retroactively.

e. It is a distinct mathematical possibility that the father may end up owing a lot of money to the mother.

f. It is a distinct mathematical possibility that the mother may end up owing a lot of money to the father.

b. Based upon the narratives of the parties, these are not just fanciful or theoretical possibilities. The facts of this case are quite complicated, and each party is vigorously pursuing credible positions on financial issues.

c. It is premature — and entirely inappropriate — for me to speculate or comment on the likely eventual result.

99 For purposes of this motion I must be mindful of all of the realistic possible outcomes. And I must give careful consideration to the interplay between indefinite trial delay, and the enforceability of each of the realistically possible outcomes at the end of the trial. The dilemma is really quite straightforward.

a. If the father is ultimately ordered to pay any amount of money to the mother, there is no doubt that the mother will be able to enforce her entitlement. The father is financially secure.

b. If on the other hand the mother is ultimately ordered to pay any amount of money to the father, there is equally no doubt that the father will not be able to enforce any portion of his entitlement. The mother is impecunious.

b. If the mother "succeeds" at trial, she'll actually receive what she's supposed to receive.

c. But if the father "succeeds" . . . he's out of luck.

d. "Win Win" for her.

e. "Lose Lose" for him.

f. In the best of circumstances — even if all the numbers had crystalized — that sort of double-standard would be patently unfair.

g. But here, we have the aggravating factor of ongoing delay making this anomalous situation even more grievous with each month that passes.

h. If the mother's future attendance for trial is as spotty as her past attendance, the father might end up paying potentially unwarranted support — for years — with no possibility of reimbursement.

i. And while the father is convinced that this uneven playing field has been deliberately created by the mother's deception — even if I completely accept the mother's explanations (which I do not) — the risk and prejudice to the father would remain equally unpalatable.

100 Where a party stands to gain significant benefit from a delay that they have unilaterally created -- to the irreparable detriment of the other party -- the court has an absolute responsibility to guard against unfairness; potential mischief; or abuse of process.

101 Here, the mother's weak explanations for past delays; the likelihood of similar delays in the future; and the serious prejudice to the father — all converge to compel the court to consider intervention in the unique circumstances of this case.

102 Mr. Fazari characterizes the objective as removing the mother's incentive to stall. I think the more appropriate characterization is to increase the mother's incentive to complete this trial without further delay.

103 Not to be forgotten: This is the father's motion to change a final spousal support order which did not include a termination date.

a. But so many changes have occurred in the almost seven years since spousal support was determined.

b. The children have switched households. The father is now assuming responsibility for them, with no contribution by the mother.

b. The mother's situation has become unsettled and unclear. Inadequate medical disclosure has been a recurring problem, not just with respect to trial delay, but also with respect to spousal support.

c. I am satisfied that in multiple ways the "material change in circumstances" threshold has been met.

104 Beyond that, the father seeks an interim variation of a final order.

a. The threshold for such temporary variations is quite high — normally requiring the most urgent facts.

b. But again, in the unusual circumstances of this case, I am satisfied that the extraordinary delay combined with the financial realities of the parties, justify consideration of interim variation.

105 Finally, the father bases much of his argument on the mother's inability to satisfy a potential reimbursement order.

a. Where entitlement, need and ability to pay have all been determined, we don't normally infuse "ability to reimburse" as a further pre-requisite to ongoing support.

b. But again, this is a very unusual situation — somewhat akin to security for potential future obligations.

b. The father has made an absolute commitment to properly determining all obligations in a reasonable and timely manner. He is doing everything "by the book" and honouring all of his obligations.

c. It is the mother's absolute inability to commit to a timely resolution that has brought the issue of "ability to reimburse" to the forefront.

106 Many of the concerns which arise in this type of situation — duration of support pending judicial determination; a temporary variation; ability to reimburse — are commonly dealt with by expediting the trial, to minimize the period and magnitude of any potential prejudice.

a. But this trial has turned out to be the exact opposite of "expedited".

b. As a court system we have allocated every possible resource to allowing and encouraging these parties to bring this bitter dispute to a conclusion.

b. For his part, Mr. Fazari made his own attempts to speed up the process by filing a Request to Admit (which was ignored).

c. Nothing seems to work.

d. Irrespective of where her explanations lie on the continuum of "sufficient vs insufficient", the bottom line is that the mother has virtually paralyzed the trial process.

107 Throughout this trial I have attempted to be mindful of the mother's particular challenges as a self-represented litigant.

a. On days when the trial has proceeded, we have gone slowly. I have done a lot of explaining and accommodating.

b. There are many procedural rules and requirements which can be confusing. I have taken the time to explain things at every step (although I agree with Mr. Fazari that the mother is a sophisticated litigant).

c. But the basic requirement that everyone should show up for court — on time and every day — is not hard to grasp, even if you don't have a lawyer.

108 At this stage the only practical approach is to focus less on the cause of uncontrolled delay, and more on guarding against the consequences of a runaway trial.

a. At a certain point — and I think we've reached that point — the court has to regain control of the process; reduce the potential for misadventure; and treat all parties equally in relation to both expectations and protections.

b. As the Supreme Court of Canada recently stated in Mazraani c. Industrielle Alliance, Assurance et services financiers inc., 2018 SCC 50 (S.C.C.): "The presence of a party who is not represented by counsel does not result in the suspension of anyone's fundamental rights."

109 I have considered the mother's submission that if her support payments are immediately cut off she will lack sufficient funds to physically attend the balance of this trial.

a. The objective throughout has been to complete this trial in a timely manner. That's still the objective.

b. I am mindful of the father's response that even when the mother was receiving spousal support, she still didn't come to court regularly. He disputes that shortage of funds has ever been the issue.

c. Nonetheless, as stated, we have three days of trial time set for July 2019 and three consecutive weeks set for September 2019. And I really do want to give the mother both the incentive and the ability to make a commitment to attend all future trial days.

b. As a result, while I have determined that the time has come to suspend ongoing spousal support payments (on a without prejudice basis), I will allow continued enforcement of some spousal support arrears for a fixed period of time.

c. I have selected a temporary amount of enforcement of arrears which takes into account the previous amounts of both ongoing spousal support and the child support set-off.

d. These continued payments — combined with a suspension of the mother's child support payments toward the father — should ensure that the mother has the basic financial resources to participate in the trial.

e. The purpose of all of this is to modify expectations and behaviours.

f. So far, the mother has perceived that there is no downside to repeatedly cancelling court, thereby causing significant inconvenience, expense and prejudice.

g. The mother needs to understand that if she causes more delays and if the trial is not completed efficiently, she will face the downside of all payments from the father being suspended.

THE ORDER

110 Temporary-Temporary without prejudice order:

a. Commencing May 1, 2019 the father's ongoing spousal support payments to the mother are suspended.

b. Commencing May 1, 2019 enforcement of arrears of spousal support owing by the father to the mother shall be limited to $1,400.00 per month, until and including September 1, 2019. Commencing October 1, 2019, enforcement of arrears of spousal support owing by the father to the mother shall be completely suspended.

c. Commencing May 1, 2019 the mother's child support payments to the father shall be suspended.

b. Commencing May 1, 2019 enforcement of the mother's arrears of child support to the father is suspended.

c. All determinations herein are on a without prejudice basis, and subject to redetermination upon the completion of the trial.

d. As well, if currently scheduled trial days proceed as scheduled, the suspension of enforcement of spousal support arrears may be revisited in September 2019.

e. Costs of this motion are reserved to be dealt with when costs in relation to the main action are dealt with.

f. Support deduction order to issue.

As of May 2019, it was still possible that if the trial proceeded more efficiently (and with no more interruptions), the case could be finalized by the end of September, and the mother would have continued to receive ongoing cashflow to ensure her financial ability to participate in the trial.

a. But that’s not what happened.

b. The same problems continued.

c. And then they got worse.

JULY 2, 2019: TRIAL DAY 23

July 2, 2019 was day 23 of the trial.

a. Mr. Fazari commenced and completed his examination in chief of FACS worker Kathleen Stead (there is no reason to change her name).

b. The mother commenced her cross-examination of Stead.

JULY 3, 2019: TRIAL DAY 24

July 3, 2019 was day 24. The mother cross-examined Stead for the whole day.

JULY 4, 2019: TRIAL DAY 25

July 4, 2019 was day 25. The mother cross-examined Stead for the whole day.
(We were scheduled to continue the week of September 9, 2019 but as a result of a court scheduling issue we were not able to resume until the following week.)

SEPTEMBER 17, 2019: TRIAL DAY 26

September 17, 2019 was day 26.

a. Everyone arrived for the 10:00 a.m. start time.

b. The mother raised some general issues which shouldn’t have required more than 15 minutes of discussion. But the mother was non-specific about what she was asking the court to do. The discussion ended up taking one hour.

c. At 11:00 a.m. the mother resumed her cross-examination of Stead for the balance of the day.

SEPTEMBER 18, 2019: TRIAL DAY 27

September 18, 2019 was day 27.

a. The mother arrived late for 10:00 a.m. court. We started at 10:30 a.m.

b. On consent, instead of Stead’s cross-examination continuing, a sixth witness was called: the former family physician for both parents and both children, Dr. Harris.

c. The morning was spent sorting out problems in relation to production of the physician’s medical records.

d. In the afternoon Mr. Fazari commenced his examination in chief.

SEPTEMBER 19, 2019: TRIAL DAY 28

September 19, 2019 was day 28.

a. Dr. Harris would not be available to return as a witness until September 23, so on September 19, 2019 at 10:00 a.m. the mother resumed her cross-examination of Stead.

b. But when we returned from the lunch break at 2:30 p.m. the mother indicated she was unwell. We adjourned for the day.

c. I suggested the mother should get medical attention if she was unwell, but the mother was non-committal.

d. I offered to cancel court for the following day if the mother was unwell, but she insisted she wanted to leave court scheduled to proceed on September 20, 2019.

SEPTEMBER 20, 2019: TRIAL DAY 29

September 20, 2019 was day 29:

a. Shortly before court the mother sent an e-mail in the morning to advise that she would not be attending court because she was unwell.

b. Another day of trial was cancelled at the last moment.

SEPTEMBER 23, 2019: TRIAL DAY 30

September 23, 2019 was day 30

a. The mother attended and indicated she was well enough to proceed.

b. I reminded the mother that she had long-since been advised that she would be required to produce brief medical corroboration – a doctor’s note – for any court time that had to be cancelled in relation to illness. This was clearly communicated on a number of previous occasions, and the rationale for such corroboration was clearly set out in my May 16, 2019 judgment.

c. Mr. Fazari spent the day on his examination in chief of Dr. Harris.

SEPTEMBER 24, 2019: TRIAL DAY 31

September 24, 2019 was day 31:

a. Mr. Fazari completed his examination in chief of Dr. Harris.

b. The mother commenced her cross-examination which proceeded for the balance of the day.

c. Due to her schedule, Dr. Harris would not be able to return until September 26, 2019.

SEPTEMBER 25, 2019: TRIAL DAY 32

September 25, 2019 was day 32.

a. The mother arrived late for 10:00 a.m. court. We started at 10:45 a.m.

b. The mother then had some procedural questions which took another 15 minutes.

c. Around 11:00 a.m. the mother resumed her cross-examination of Stead. She finished around 4:30 p.m.

d. Mr. Fazari took about five minutes to conduct his re-examination.

SEPTEMBER 26, 2019: TRIAL DAY 33

September 26, 2019 was day 33.

a. The mother arrived late. We started at 10:30 a.m.

b. The mother spent the balance of the day cross-examining Dr. Harris. She didn’t finish.

c. After Dr. Harris had been released for the day, around 4:30 p.m. the mother raised a new issue. She advised that she had been mailed a copy of her medical records from Dr. Harris’s office back in 2017, but she only recently opened the envelope and she now discovered that there was a discrepancy between her patient records which she received (but didn’t look at) in 2017, and her patient records which Dr. Harris had produced on September 18, 2019 and had been testifying about for four days. The mother didn’t provide much explanation about why she hadn’t looked at these records before; why she didn’t mention it before she was well into her cross-examination; and she wasn’t even sure how much of a discrepancy there was between the 2017 records and the 2019 records.

d. After discussion extended well beyond 5:00 p.m. we agreed that when court resumed the following day the mother could cross-examine Dr. Harris in relation to all of the records in her possession.

SEPTEMBER 27, 2019: TRIAL DAY 34

September 27, 2019 was day 34:

a. We got off to a late start while counsel (including Dr. Harris’s lawyer) reviewed the “discrepancy” issue.

b. By 11:00 a.m. a supplemental group of documents from the mother’s medical records were submitted. All of that could have been sorted out much earlier (without consuming trial time) had the mother revealed at an earlier stage that she had a separate set of medical records.

c. The mother’s cross-examination of Dr. Harris continued until around 3:30 pm. at which time we took a break to allow the mother to make submissions in relation to her request to re-visit spousal support.

d. Dr. Harris’s cross-examination was scheduled to continue when the trial resumed in January 2020 (no earlier dates were available).

OCTOBER 2, 2019: MID-TRIAL DECISION RE: SUPPORT

On October 2, 2019 I issued a 45 paragraph mid-trial judgment explaining why I was declining – at least temporarily -- the mother’s request to reinstate her spousal support payments pending completion of the trial. I reviewed the rationale and expectations set out in my May 13, 2019 judgment. My October 2, 2019 analysis included the following:

8 On May 16, 2019 I made a determination that support needed to be addressed immediately for the following reasons:

i. The trial was being delayed repeatedly and significantly as a result of the Respondent mother stating she was unavailable for health reasons. But the mother did not provide adequate medical corroboration to justify the significant loss of trial time. (I acknowledged that there were certain missed days for which adequate medical corroboration was provided.)

ii. On days when the trial proceeded, the self-represented mother’s participation was so inefficient and disorganized as to at least double the amount of time required for each step in the process.

iii. The mother was supposed to be paying child support but she wasn’t paying it.

iv. The father was paying spousal support.

v. There was a very significant issue as to entitlement and duration of spousal support.

vi. There was a very significant issue as to which party might owe the other a retroactive adjustment (arrears, an underpayment, or an overpayment).

vii. The mother is impecunious. She has not paid outstanding costs orders. There is no realistic likelihood that future costs orders, or future support orders (or reimbursements) in relation to the mother will be enforceable against her.

10 In crafting a reasonable and realistic solution as of May 16, 2019, I also attempted to address an important “access to justice” issue.

a. The Respondent mother took the position that she needs ongoing support to be able to afford to come to the courthouse to participate in the trial.

b. In response, the Applicants noted that even during the months October 2018 to May 2019 when the mother was receiving full spousal support, she still kept missing court repeatedly. In their view, the problem is not the mother’s lack of funding but rather her lack of commitment.

c. In addressing this issue, I was also mindful that “access to justice” is a two-way street. The court must also guard against the potential mischief which may arise if an unrepresented party (unencumbered by legal fees, and impervious to costs orders) behaves unreasonably to such an extent that the opposing party’s ability to afford their legal representation comes to be jeopardized.

d. More broadly, whenever any party (represented or not) needlessly causes a trial to become grossly protracted, it creates a drain on limited judicial resources which impacts on many other cases.

e. Every wasted trial day could have been used to benefit other families; Other children.

f. If a litigant wastes or abuses trial time, they create an “access to justice” issue for many other people still waiting for their own trial to be called.

13 Speaking plainly, I was trying to provide the mother with both resources and incentive to participate in an expeditious completion of this trial. I was trying to give the mother a roadmap as to the court’s expectations of her for the balance of the trial, and guidance as to what she would have to do if she wanted to revisit the suspension of enforcement of spousal support arrears.

14 As stated, on September 27, 2019 the mother formally advanced that request and I received submissions from all parties. Sadly, there is little indication that the mother has addressed any of the concerns set out in my May 16, 2019 temporary judgment. And she has not complied with specifically identified requirements if she wanted to have the support issue revisited.

30 In dealing with this motion I referred the mother to all of the concerns set out in my May 16, 2019 judgment, and specifically to paragraph 100(f) which identified the applicable criteria:

“…if currently scheduled trial days proceed as scheduled, the suspension of enforcement of spousal support arrears may be revisited in September 2019.”

31 I am not satisfied that since May 2019 this trial has “proceeded as scheduled” or that it has really “proceeded” as it should have.

32 With respect to cancelled trial days for illness:

a. The mother’s health issues resulted in half a day of trial time being lost on September 19, 2019 and one full day being lost September 20, 2019.

b. In isolation, missing a day and a half doesn’t sound like a major issue. People get sick. Courts routinely work around that reality.

c. But regrettably, “cancelled trial days for illness” has become a major issue on this protracted trial. I won’t repeat the detailed discussion of this topic in my May 16, 2019 judgment.

d. The bottom line is that I specifically and repeatedly explained to the mother that if she is going to cancel any more trial days for health reasons, she will have to produce brief medical corroboration – a doctor’s note – to explain her absence or unavailability.

e. The mother provided no medical corroboration in relation to missed trial days on September 19 and 20, 2019.

33 Instead, the mother provided a “To Whom It May Concern” letter from Dr. Tazeen Al-Haq dated September 9, 2019. It is unclear why the letter was generated prior to the trial resuming in September after a summer break. The mother only produced the letter on September 27, 2019. (She also provided a few other documents which were unhelpful).

a. Dr Al-Haq’s letter sets out that the mother has long-standing medical issues. Some of those issues are aggravated by stress, and in the doctor’s view this trial aggravates the mother’s stress.

b. This was not new information. The mother has previously produced general medical information outlining her multiple problems and stress reactions.

c. As outlined in my May 16, 2019 judgment, since this trial began on October 11, 2018 the mother has repeatedly cancelled trial days and declined to schedule trial days, for health reasons. Given the prejudice and the controversies which flow from this pattern – and given the fact that there appears to be no end in sight -- it is not unreasonable or excessively-intrusive to require that the mother provide basic medical corroboration whenever her reported circumstances have such a profound impact on so many other people.

d. The concept of a doctor’s note shouldn’t be so complicated. The note should corroborate the mother’s unavailability for specific days or periods of time whenever the mother doesn’t attend for trial.

e. This has been explained on multiple occasions. It is a reasonable, necessary requirement. And once again the mother has not complied.

34 And ongoing inefficiencies by the mother have – cumulatively -- compounded the problem of delay and wasted resources.

a. The mother continues to arrive late for 10:00 a.m. court. 30 minutes one day. 45 minutes another. Not every day. But it’s a pattern and it all adds up.

b. The mother waits until court is in session to raise time-consuming issues which could have been resolved when court is not in session.

c. The mother’s cross-examination of witnesses is unfocussed, disorganized, and repetitive. I have tried to patiently provide guidance, recognizing that conducting a cross-examination by a parent in a custody case can be quite daunting. And to Mr. Fazari’s credit, he rarely interjects. But as an example: Mr. Fazari’s examination in chief of child protection worker Kathleen Stead took less than a day. The mother’s cross-examination of Stead continued for all or parts of seven separate days, starting in July and finishing in September. With each of the first five witnesses, the mother’s multi-day cross-examinations could easily have been reduced by half.

35 In many ways, all of this comes down to a balancing of rights and consequences.

a. The mother has rights. The father and paternal grandmother have rights. The children have rights. Taxpayers have the right to expect efficient use of scarce and expensive judicial resources. I am trying very hard to protect and balance all of those rights. Particularly the children’s.

b. It is far too early in the trial – in the evidence – for me to make any determinations or predictions as to credibility, substantive rights, and the best interests of the children. I have deliberately avoided even touching upon such determinations. The trial is still underway.

c. After one full year, 33 days of trial, and many more missed scheduled or potential trial days, we are still bogged down in frustrating and at times unseemly procedural debate.

36 There can be little doubt that the majority of the significant delay herein must be attributed to the mother.

a. Part of the discussion is whether the mother could be doing more to attend for trial; attend on time; and participate more efficiently. To finish the trial.

b. But even to the extent that the mother might be characterized as blameless for unavoidable difficulties in her life – the court must also be mindful that the father and paternal grandmother are equally blameless.

c. Apportioning the consequences of this interminably protracted trial – fairly and without creating a mid-trial apprehension of judicial predisposition – requires a full appreciation of the rights and responsibilities of all parties.

37 With the passage of time, the financial issues have become even more acute than described in my May 16, 2019 judgment. They will become more acute the longer this trial drags on.

a. The mother says she should be on the receiving end of money from the father. But there is absolutely no certainty that this is correct.

b. The father says he should be on the receiving end of money from the mother. There is absolutely no certainty that this is correct.

c. If we ever finish this trial, I’ll be able to figure out whether either party owes money to the other.

d. But in the meantime, is it clear that if the mother’s position prevails, the father will have the resources to pay the appropriate financial adjustment. But if the father’s position prevails, he’ll never be able to secure reimbursement of any overpayment.

e. The mother has costs orders outstanding against her.

f. And the mother already has additional costs exposure in the context of “costs thrown away” for the multiple days when the trial has been cancelled.

38 Again, it gets us down to the basic dilemma:

a. Should the mother be allowed to create endless trial delay, with no financial downside for her, but with enormous and uncorrectable potential downside for the father?

b. The financial impact of all of this on the two children is important: They have not been in the mother’s care since 2013. The two Applicants (the father and the paternal grandmother) have been assuming full financial responsibility for them, with no assistance from the mother.

39 Part of the mother’s argument is circular: She needs ongoing support so that she can afford to keep pursuing her various claims including…support.

a. But the mother has been receiving support for all of the 33 days of trial so far. Had her participation during those 33 days been more efficient, I suspect the whole of this trial could have been completed by now.

b. Looking at it another way, the mother has been receiving support since 2012. She has been receiving support for the 12 months since this trial started in October 2018. Had the mother’s participation during those 12 months been more efficient, I am certain this whole trial could have been completed by now.

40 I tried to painstakingly explain all of these concerns in my lengthy temporary judgment on May 16, 2019. I tried to create an opportunity and framework for this trial to get back on track.

a. But nothing has improved.

b. And even today the mother offers no reassurance that anything will improve in the future.

c. She says she’s sick. She’ll attend the trial when she can. But her own medical reports suggest that consistent attendance in the future is uncertain.

d. She says she has transportation problems. She’ll try to arrive on time for court when she can. But there’s no indication that she’s changed anything in her life to be more punctual.

e. She says representing herself is difficult. She admits her cross-examinations are time-consuming. But even after 33 days of trial, there is no indication she is making any progress in organizing her thoughts or presentation.

41 Given the number of witnesses still to come, we could easily be having this same discussion a year from now.

42 I am not satisfied that the mother has addressed the serious concerns set out in my May 16, 2019 temporary judgment.

43 I am not satisfied that the mother has specifically or adequately addressed the criteria which I outlined in relation to a re-visiting of the spousal support issue.

44 I am not prepared – at this time – to change my May 16, 2019 order.

45 I will allow the mother to revisit this issue after we have completed our three scheduled weeks of trial in January 2020. Hopefully the expectations on the mother will be clear.

I was still trying to give the mother incentive and encouragement to be more reliable and efficient in her participation in this trial. But it didn’t work.

DECEMBER 19, 2019: TRIAL DAY 35

As of September 2019 the trial wasn’t scheduled to resume until January 2020.
However, the mother brought an emergency motion returnable December 19, 2019.

a. She requested so many items of relief that she proposed that the motion would require two full days to argue.

b. She wanted to deal with the most urgent issues on December 19, 2019.

c. She proposed that the second day of her motion could be heard on January 6, 2020 – the day the trial was scheduled to resume.

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.

On 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.
We 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

D.D. and F.D. v. H.G., 2020 ONSC 889

Case Summary

ONTARIO

SUPERIOR COURT OF JUSTICE

of Children (ages 13 & 8)

of Applicants (Father & Paternal Grandmother)

of Respondents (Mother)

of witnesses called by Court (s.112 clinician)

of witnesses called by Applicants

of witnesses called by Mother

of trial days Mother was late for court (15 minutes or more)

of trial days court adjourned early because Mother felt unwell

of trial days Mother failed to attend, stating health reasons; everyone else present & ready to proceed

of scheduled trial days cancelled in advance at Mother’s request for health reasons

of court days wasted re: Mother served Notice of Motion for mid-trial relief (including mistrial) but filing no proper materials & not attending for her motion

of trial days cancelled to allow Mother to file proper motion materials (although she didn’t end up filing any materials)

of teleconferences to determine mother’s availability to continue with trial

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 3

Legal Tests 1

Legislation 1