COURT FILE NO.: FC-16-960
DATE: 2021-05-31
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
W.A.C.
Applicant
– and –
C.V.F.
Respondent
Marie G. Michaels, for the Applicant
C.V.F. on her own behalf
HEARD: May 25, 2021
RELEASED: May 31, 2021
Justice ALex Finlayson
PART I: NATURE OF THIS DECISION
[1] This Applicant father and the Respondent mother are the parents of an 11 year-old boy named E. This litigation began on May 26, 2016, some 5 years and 5 days ago, when the father launched an Application for access (now called “parenting time”) to E. According to the father, the mother was not letting him see E. on a regular basis. The current evidence now before the Court from the father, is that the mother has not allowed him to see E. again, the last time he saw E. being in November of 2020. This is despite several temporary court orders which provide otherwise.
[2] The parties have had many, many appearances in this Court. This case was supposed to go to trial five times between 2018 and now. Most recently, this case was supposed to go to trial during these spring of 2021 sittings. But once again for the reasons that I will explain, the trial is not proceeding in these sittings.
[3] Different judges of this Court have attempted to hold Trial Management Conferences over the years without complete success. Trial Scheduling Endorsements have only ever been partially completed; the details of the father’s case for trial have been discussed, whereas the details of the mother’s have not. The Court scheduled another TMC for May 17, 2021. The mother failed to attend it, and instead sent a friend to seek an adjournment of the trial on her behalf. The Court rebooked the TMC for May 19, 2021, but the mother did not show up once again.
[4] On Friday, May 14, 2021 and again on Tuesday, May 18, 2021, the mother filed two 14B Motions, one to adjourn the trial and the second one to adjourn the second TMC. By Endorsements of May 17 and 19, 2021, the Court advised the parties that it would not deal with another request to adjourn the trial by way of a 14B Motion. The Court directed that the adjournment motion was to be argued orally on May 25, 2021, on what ought to have been the first day of trial.
[5] The mother asks the Court to adjourn the trial for another full year, to 2022. Her request is based on a disability [^1]. She says the Court has a duty to accommodate her. The mother referred to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended [^2], and to the Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c. C. 11, as amended in her motion material, and during submissions.
[6] The mother is not actually asking for accommodations though, in the sense of asking the Court to adopt procedures that will assist her to participate fully in the trial. What the mother is seeking is a straight adjournment. Adjournments of this trial have already been granted by judges’ orders, or they have been achieved in effect, because of other circumstances (like Covid-19), for a total period of almost 3 years.
[7] The father opposes the mother’s adjournment request. His principal position is that the mother has failed to provide the necessary medical evidence to justify another lengthy adjournment, or even a short adjournment for that matter. He says that this trial should start a few days late, on Monday, May 31, 2021. Alternatively, if there is to be a lengthier adjournment, for example to the next trial sittings in the fall of 2021 (but not to 2022), then the Court should enforce its prior order for parenting time between the father and the son, via a police enforcement Order.
[8] Separately, the father brings a motion relating to an evidentiary issue for trial. There have been five orders appointing the Children’s Lawyer during the lifespan of this litigation. As I understand it, more than once, the OCL agreed to investigate and prepare a report pursuant to section 112 of the Courts of Justice Act. Yet at least three times, the OCL has not been able to complete its investigations. There is an incomplete report filed in the Continuing Record as a result of Gunsolus J.’s Order of November 20, 2019. Other information and partial report(s) from earlier investigations apparently exist, but they have been sealed.
[9] Indeed, in the fall of 2019, the OCL brought a motion to seal portions of those two earlier, incomplete investigations. Nicolson J. granted that motion on October 23, 2019. The father brings a motion to unseal what Nicholson J. sealed. In this decision, I refer to this motion as the father’s “unsealing motion”.
[10] Although the mother filed responding, written material to oppose the father’s unsealing motion, she then took the position that the Court should adjourn the unsealing motion too, along with the trial. This submission was followed by her telling the Court that it should appoint a lawyer for E., if this case is being adjourned.
[11] The OCL did not appear on May 25, 2021. Before serving the motion, both parties apparently reached out to the Children’s Lawyer, to advise her that this motion was forthcoming. On May 18, 2021, counsel for the OCL sent an email to a court staff person in this Court, to get a message to me that the OCL would not be taking a position on the unsealing motion. At the TMC I attempted to hold on May 19, 2021, I directed father’s counsel to serve the unsealing motion on the OCL despite the email. The OCL is an interested party on the unsealing motion. On May 25, 2021, I was told by father’s counsel that the OCL’s position remains unchanged.
[12] The parties filed the following material with the Court for the trial and for these motions:
(a) the Trial Record, filed by the father (but I did not review the supplementary Trial Record which includes materials that are subject to the sealing order, which still applies subject to the outcome of the unsealing motion);
(b) the mother’s 14B Motion and affidavit dated May 14, 2021, requesting the adjournment of the trial;
(c) the mother’s 14B Motion and affidavit dated May 18, 2021, asking that the Trial Management Conference of May 19, 2021 not proceed;
(d) the father’s affidavit of May 21, 2021, in response to the trial adjournment motion;
(e) the father’s Notice of Motion and affidavit dated May 21, 2021 regarding the unsealing motion;
(f) the mother’s affidavit of May 21, 2021, regarding both the adjournment motion and the unsealing motion;
(g) the mother’s affidavit of May 25, 2021, regarding both the adjournment motion and the unsealing motion; and
(h) an email from Sheena Scott, counsel with the OCL dated May 18, 2021, advising that the OCL would not be taking a position on the unsealing motion.
[13] I heard submissions from both sides. Although she sought an adjournment of the trial and the unsealing motion on health grounds, the mother was able to prepare and file two adjournment motions and several affidavits, including responses to the unsealing motion. She also had lengthy submissions, typed and uploaded into a teleprompter, from which she read. She was able to stop the teleprompter mid-argument to respond to questions from the Court, and she was able to return to her presentation thereafter. She also advised me that she has another friend who is a lawyer, who helped her prepare[^3].
[14] At the conclusion of argument, I advised the parties that the Court would be granting an adjournment of both the trial, and of the unsealing motion. I advised the parties that I would release written reasons later, which would include next steps. These are my reasons. There will be an adjournment to the next sittings, but not to 2022. I am also scheduling a 2 hour appearance on July 12, 2021 at 2 PM to deal with a number of outstanding matters, listed below.
[15] I wish to say at the outset of this decision that I am not adjourning the trial because I find there is merit to the mother’s request to put this case on another one-year hiatus. The adjournment of the trial is being granted entirely for practical, timing and organizational reasons.
[16] If the trial were to start on Monday, May 31, 2021 as father’s counsel suggested, it will not finish in the remaining time allotted for the sittings. The trial would then go over to the next sittings anyway. I am exercising my discretion under Rule 2 to make judicial resources available to another family during the week of May 31, 2021. A different trial will be proceeding before me then. The mother is substantially responsible for this. Unless I am allocated elsewhere in the next sittings or the Court’s scheduling requires a different prioritization, I am seized of this matter and this trial will proceed before me, in first priority on those sittings (ie. to start on the first day).
[17] Regarding the unsealing motion, it is my view that the motion material is incomplete. The unsealing motion did not proceed on May 25, 2021 because of that, not because of a health-based adjournment request from the mother. The unsealing motion will be dealt with well in advance of the new trial dates.
[18] Finally, in setting terms of the adjournment in this decision, I intend to deal with the father’s oral request for police enforcement. I will deal with the mother’s request that the Court appoint a lawyer for E. I will also deal with other matters in the nature of trial preparedness. Some of the latter may double as accommodations for the mother, even though she failed to provide evidence and she declined to make any submissions about accommodations.
PART II: PRIOR LEGAL PROCEEDINGS
[19] It is necessary for me to summarize the prior proceedings in this case to explain this decision. I do so first, based on the Endorsements and Orders that have been put before me in the Trial Record. Although they are not in the Trial Record, my own Endorsements of May 17 and 19, 2021 from the attempted TMCs are relevant too.
[20] The history of this case begins in 2016, when the father commenced this proceeding.
[21] The first substantive Order included in the Trial Record was made on February 2, 2017. The parties entered into a part temporary and part final Consent Order of Rowsell J. They agreed, among other things, that the mother would have sole custody of E., that the father would pay temporary without prejudice child support, and that the father would have supervised access at the Durham Supervised Access Center. The OCL was appointed for the first time on this date.
[22] There was supposed to be a Settlement Conference on May 10, 2017, but it did not proceed. Rowsell J.’s Endorsement of May 10, 2017 indicates that the mother did not file a financial statement for that appearance, nor did she provide other information that ought to have been provided to have a proper Settlement Conference. Rowsell J. imposed timelines for those things to occur, and he adjourned the Settlement Conference to September 27, 2017. He also appointed the OCL again, for a second time.
[23] There is no Endorsement in the Trial Record for September 27, 2017. The next Endorsement is dated February 12, 2018. This time, Rowsell J. noted that the mother had withdrawn her claim for section 7 expenses. He allowed her to reconsider this. Rowsell J. appointed the OCL for the third time. He directed the parties to file their intake forms within 14 days and he reserved costs.
[24] The next date, June 20, 2018, was supposed to be a Settlement Conference, but once again, it did not proceed. Rowsell J.’s Endorsement begins by noting that only the father had filed an updated brief.
[25] Apparently, the mother had sought an adjournment by 14B Motion in advance of this appearance, but that was denied. The Endorsement states that the mother then attended Court, but “within 2 minutes of the conference commencing [the mother] was clearly in distress”. Rowsell J.’s Endorsement of June 20, 2018 is the first endorsement which states that the mother was seeking “a lengthy adjournment due to her medical issues”. While it does not detail the precise length of the adjournment the mother then sought, I note that was described as “lengthy”.
[26] Roswell J.’s June 20, 2018 Endorsement is also the first Endorsement by which the Court told the mother to provide “detailed” medical information from her treating physicians if she wanted further adjournments. In other words, she was told this for the first time, almost three years ago. Otherwise, Rowsell J. stated that this case should go to trial. He recommended it proceed on the November 2018 sittings.
[27] The June 20, 2018 Endorsement also addresses issues about the OCL once more. It notes that mother did not proceed with the OCL (in the face of prior court Orders), because she believed it to be unhealthy for the child. The OCL declined to act.
[28] In the result, Rowsell J. put the matter over to October 24, 2018 for a Trial Scheduling Conference, without any further mention of the OCL at that time.
[29] Although the next event was supposed to be a Trial Scheduling Conference, that is not what happened. Instead what followed were a series of attendances on the father’s contempt motion. They were presided over mostly by Hughes J., but once by Woodley J. too.
[30] August 2, 2018 was the first date on that contempt motion. Hughes J. appointed the OCL. On my count, that was the fourth OCL appointment. Hughes J. ordered the parents to submit intake forms within 10 days. She ordered the mother to re-register for supervised visits at an access center, so that such visits could begin. She also ordered the father to file an updated financial statement with Notices of Assessment. Finally, Hughes J. adjourned the motion to August 31, 2018 to allow the mother to “purge her contempt by complying with” the OCL intake process and the term about the access center.
[31] Hughes J.’s next Endorsement of August 31, 2018 reveals that some steps had been taken towards compliance of the August 2, 2018 Order, but full compliance had not yet been achieved. Hughes J. adjourned the contempt motion further, to October 2, 2018.
[32] By October 2, 2018, Hughes J. noted that mother had purged her contempt in relation to the supervised access centre. However, because the OCL investigation was not yet complete, and because visits at the supervised access center had not yet started, Hughes J. adjourned the balance of the contempt motion once more to monitor the mother’s compliance. Hughes J. fixed costs of $4,000, but stayed enforcement of the costs order pending her monitoring the mother’s compliance.
[33] In the intervening period, the matter returned before Rowsell J. on October 24, 2018 for the Trial Scheduling Conference. Rowsell J.’s Endorsement says that the trial was not ready to begin. The Court made another request for the OCL (the fifth one), directed the parties to complete intake forms again, and gave the father leave to amend his pleadings. The Trial Scheduling Conference was then adjourned to February 4, 2019.
[34] The next date on the contempt motion went before Woodley J. in error, rather than Hughes J. On December 10, 2018. Woodley J. adjourned it to a date before Hughes J. However, she also ordered, as a term of the adjournment, that supervised access could occur outside the access centre, since the access centre had still not been re-instated.
[35] Next, on February 4, 2019, the parties came back before the Court for that Trial Scheduling Conference. Only the father’s case was completed on the Trial Scheduling Endorsement. Rowsell J. gave the mother 45 days to provide the names of her witnesses. He told the parties to expect a trial in May. He ordered the parties to file an updated Trial Scheduling Endorsement too, for the return of another Trial Scheduling Conference on April 26, 2019 (to proceed before the May sittings). At that point with only the father’s witnesses identified, Rowsell J. estimated that five days of trial time would be required.
[36] March 7, 2019 was the next return date of the contempt motion. This time, Hughes J. lifted the requirement that the father have supervised access, in favour of supervised exchanges only. She ordered that mother was not to attend the access centre for those exchanges to decrease parental conflict, and she ordered the mother instead to send a third party.
[37] Hughes J. allowed the father to have visits with E. in the community on Saturdays, from 9:30 am to 5:00 pm. The Order contains terms prohibiting the mother from attending the child’s gymnastics on Saturdays too, and restricting the father’s consumption of alcohol and drugs prior to his visits.
[38] Hughes J. requested that the OCL expedite its investigation. She fixed costs of $2,500.00 against the mother. She also dismissed a cross-motion brought by the mother. Paragraph 8 of Hughes J.’s March 7, 2019 Order states that she dismissed that cross-motion because of the mother’s “ongoing unreasonable and contemptuous behaviour”.
[39] For the next Trial Scheduling Conference on April 26, 2019, the mother just did not show up, behaviour which she repeated again with me, twice during the week of May 17, 2021. In her absence on April 26, 2019, Gunsolus J. made an order that the matter was to remain on the May 2019 trial sittings, unless the OCL report was not available. And if the trial was to be adjourned Gunsolus J. ordered that would be peremptory to the mother.
[40] Pending the trial, Gunsolus J. ordered the mother to comply with Hughes J.’s access order, but he changed the location of the supervised exchanges from a YMCA access centre in Oshawa, to a different company, Side by Side, because of the mother’s “behaviour towards staff” at the YMCA. Gunsolus J. also gave some additional directions about the conduct of the trial, and ordered the mother to pay costs thrown away of $660 to the father. Although the mother did not attend Court on April 26, 2019, Gunsolus J.’s Order notes that the mother had filed documentation, and thus she was aware of the proceeding on April 26, 2019.[^4]
[41] The trial did not proceed on the May 2019 trial sittings. It was put over to the fall.
[42] The next Endorsement in the Trial Record is Fryer J.’s three-page, detailed endorsement of September 24, 2019. It states that the matter was called in for trial that September, but neither party was prepared to proceed. Upon being called in, the mother asked Fryer J. for another lengthy adjournment based on health grounds. Specifically, the mother sought an adjournment to the spring of 2020. Fryer J. declined to grant that long of an adjournment based on the inadequate medical evidence then before the Court. Based on the other preparedness issues only, Fryer J. adjourned the trial to November, 2019.
[43] According to Fryer J.’s Endorsement of September 24, 2019, the basis for the mother’s adjournment request at that time, was that she had been involved in a car accident in May 2019 and she suffered a brain injury. The Endorsement states that mother had filed only a “brief note”, saying she would “need six months off to deal with these medical issues”. Importantly, Fryer J. asked the mother to advise the Court what accommodations she thought would assist her. Fryer J. suggested to the mother that she consult with the Court’s Disability Coordinator. Fryer J. also asked the mother to outline her requests for accommodations in a 14B Motion, before the next Court date. There is no evidence before me that any of these things were done by the mother.
[44] Pending the November 2019 trial, Fryer J. made a more detailed order for the father’s parenting time on a temporary without prejudice basis. This included changing the location of the access center for exchanges.
[45] Instead of following Fryer J.’s directions, the mother asked Fryer J. to reconsider her ruling. The next Endorsement in the Trial Record is Fryer J.’s dated October 17, 2019. Fryer J. rejected this request for a reconsideration. In the material now before me, the mother says she filed a complaint about Fryer J. for violating her “disability rights”.
[46] The OCL’s motion for a sealing order was heard next, on October 21, 2019. According to the Endorsement of Nicholson J. dated October 23, 2019, the OCL wanted to seal two discontinued or incomplete reports. Nicholson J. did order that certain material be sealed, and that the OCL would complete and file a fresh report by November 8, 2019. I note however that this Order was subject to the trial judge unsealing the file, in the event that the new report was not completed in time for the November trial sittings. I gather this statement in Nicholson J.’s Endorsement forms part of the father’s basis for the unsealing motion.
[47] In between the argument of the OCL’s sealing motion and the release of Nicholson J.’s Endorsement, there was another Trial Scheduling Conference on October 22, 2019, again before Gunsolus J. It appears that another adjournment was sought by the mother. In his Endorsement of October 22, 2019, Gunsolus J. declined to grant an adjournment, putting the issue back to Fryer J. and/or the trial judge to decide whether the trial could proceed. Gunsolus J. made certain other directions in the nature of case management that day.
[48] The trial then did not proceed in November 2019, either. On November 20, 2019, Gunsolus J. adjourned the matter to the May 2020 sittings. The record reveals that the OCL report was not yet ready. So Gunsolus J. made the new trial date peremptory to the mother, for the second time. He urged the mother to put forth the specific accommodations that she requires to participate. He ordered the OCL to submit its report by May 13, 2020 regardless of whether it was complete or incomplete, and he also ordered the parties to comply with the access order of Hughes J. of March 7, 2019.
[49] Unfortunately, the trial did not proceed in May 2020 due to the suspension of court operations due to the Covid-19 pandemic. This is the first trial sittings following the Court’s reduced operations. As I indicated earlier, this matter first came back on before me, on May 17, 2021 and then again on May 19, 2021, for TMCs. The mother did not appear on either occasion, but sent a friend to Court on her behalf, and separately filed 14B Motions. This led to these motions being argued before me, on May 25, 2021.
PART III: ISSUES AND ANALYSIS
A. The Test for An Adjournment
[50] The test for an adjournment of a trial is well known. In Khimji v. Dhanani, 2004 CanLii 12037, the Ontario Court of Appeal sets out various criteria to consider in deciding whether to grant or to refuse an adjournment.
[51] A trial judge enjoys wide latitude in deciding whether to grant or refuse an adjournment. A trial judge should balance the competing interests of the parties, and the interests of the administration of justice in the orderly processing of trials on their merits. In so doing, the Court should consider the overall objective of the Court’s process, which is to have a just determination of the real matters in dispute. The Court should consider any prejudice caused by refusing or granting an adjournment. Finally, the Court should consider the need to effectively enforce court orders.
[52] While Khimji v. Dhanani was a civil case, the above listed principles and considerations fit nicely with the objectives of the Family Law Rules too, and in particular with Rule 2. Pursuant to rule 2(2), the primary objective of the rules is to deal with cases justly. That means ensuring a procedure that is fair to all parties, saving expense and time, dealing with the case in ways that are appropriate to its importance and complexity, and giving appropriate court resources to the case while taking account of the need to give resources to other cases. See Rule 2(3).
[53] It must be remembered that this case also concerns a child. It is not just the parties’ interests that should be taken into account, but also the child’s. See for example White v. White, 1995 CanLii 4568 (N.S. S.C.). It is not only that the child is not seeing his father for months that is relevant here. It is well accepted that delay in cases involving children should be avoided where possible. This principle has statutory recognition. See section 26 of the Children’s Law Reform Act.
B. The Mother’s Reliance on Human Rights Legislation
[54] The mother has failed to point out with specifics how the Human Rights Code (or federal human rights legislation), or the Accessibility for Ontarians with Disabilities Act, 2005 impacts the exercise of my discretion in relation to her adjournment request. Human rights legislation does not apply to judicial decision making about court room procedure per se. See Taylor v. Canada (Attorney General), 2000 CanLII 17120 (FCA). Without more, it is difficult to consider her arguments.
[55] Nevertheless, I readily accept the proposition that the Court must treat all those who come before it fairly, and with dignity and respect. The Court should adopt measures that allow for the full participation of persons with disabilities. This Court should also conduct its process in a manner that is consistent with Charter values.
[56] The mother’s human rights arguments draw certain analogies between the Court’s relationship with a litigant to that of the relationship between and employer and an employee. The mother says that her request for an adjournment is as between her and the “service provider”. I understood her to be saying that the father has no right to challenge her medical evidence or to make arguments about what should be done here. I also understood her to be upset that judges of the Court have told her to put medical evidence before the Court, or better medical evidence before the Court. The mother argued that it is humiliating for her, to be forced to explain what techniques she employs to function on a day to day basis.
[57] With the greatest of respect to the mother’s perspective on these points, none of the applicable case law concerning adjournment requests on health or disability grounds adopts this approach. For example, Moreton v. Inthavixay, 2020 ONSC 5530 is a recent decision of Shore J. in a somewhat similar context. It is clear in that decision, just as in this case, that prior judges commented about the inadequate medical evidence presented by the mother at the time of prior adjournment requests. Prior judges had cautioned the mother to file better medical evidence. And prior judges had also made the Court’s accommodations officer available to the mother.
[58] Those cautions or directions do not seem to have been followed in Moreton v. Inthavixay. Then, when the mother sought once more to adjourn the trial, Shore J. considered the request, but declined it. In dismissing the request, Shore J. considered all of that history, but she also balanced the other competing interests at stake.
[59] The Court’s decision in Khan v. Law Society of Ontario, 2021 ONSC 966 is an even more recent case, on point. In Khan v. Law Society of Ontario, Kurz J. considered whether he should set a schedule for the hearing of the Law Society’s motion, in the face of an adjournment request from Mr. Khan based on a disability. Mr. Khan had told the Court that he suffered from psychological disabilities. He sought what Kurz J. referred to as an “indefinite adjournment”.
[60] Mr. Khan argued that once a disability claim is asserted, there should be no further probing into it, because the probing itself is discrimination. Kurz J. dealt with that argument at ¶ 16 as follows:
Mr. Khan offers a second element to his disability argument. He asserts that the duty to accommodate requires the court to effectively take his word on his disability. In other words, to reject his request for an accommodation, even in the absence of convincing proof of the need for that accommodation, is in itself a form of discrimination. Frankly, that argument appears to be a tautology.
[61] Even in the human rights context upon which the mother relies, there is no rule or principle about which I am aware that supports this approach. The person seeking accommodation is not exempted from providing detailed information about what her needs are, and the person obliged to accommodate is not prohibited from making inquiries. Exactly how much information should be provided, or how much additional information should be asked for, will be contextual and of course should be done proportionally and sensitively. But the accommodation process is supposed to be a shared process. The person with the disability is required to make their accommodation needs known, answer questions, including getting information from health professionals where needed, take part in discussions about solutions, and so forth. See Barber v. York Region District School Board, 2011 HRTO 213 ¶ 95.
[62] In Central Okanagan School District No. 23, v. Renauld, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970, the Supreme Court referred to that process as a “multi-party inquiry”.
[63] Returning to the family law context, I cite again the primary objective of the Family Law Rules. There is a shared obligation to promote the primary objective of the rules. It is not just that the Court is required to apply the rules in a way that promotes the primary objective. The parties and counsel are required to help the Court in its task. See Rule 2(4). In this context, that includes an obligation on the mother to cooperate. It includes an obligation on her to put proper information before the Court, to enable this trial to proceed, when it is appropriate for it to proceed. It includes an obligation on her to tell the Court what she needs, so the Court can put processes and substantive measures in place to allow her to participate. The mother has done almost none of that.
[64] Part of the mother’s refusal to cooperate is grounded in her belief that others are not entitled to information about her health. The mother is implicitly if not expressly raising privacy concerns. The difficultly with her argument is that the father (and the child), are very much impacted by another adjournment. The father necessarily has the right to make submissions in proceedings concerning him and his child, before this Court, and in this context, that includes the right to question the need for yet another adjournment.
[65] To this I would add that it is not only the adjournment request that engages questions about the mother’s health, but the parenting issues themselves do too. Parties in parenting litigation sometimes seek production of the other’s health records where relevant. The Court does not dismiss those requests outright based on privacy concerns. The Court will take into account privacy, and where they arise, Charter values, which could include concerns about the impact of disclosure on persons with a disability. But just like in the adjournment context, different interests must be balanced. Orders to address privacy concerns can be made. The Supreme Court has expressly rejected an ‘all or nothing approach’ to disclsoure. See M. (A.) v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157.
[66] As Fryer J. succinctly stated in her Endorsement of September 24, 2019, when she last confronted a similar adjournment request from the mother:
… the court has an obligation to balance the interests of and prejudice to each of the parties and most importantly ensure that E’s best interests are being addressed. [The mother’s] medical issues are one aspect of this balancing exercise. I am concerned that this case has been languishing in the system for some time now and the trial has been delayed. I am very concerned that E.’s relationship with his father remains fractured and this must be addressed in a timely fashion.
[67] It is not untoward, for the father to make submissions about the evidence before the Court, and for the Court to scrutinize all the evidence before it, to engage in this balancing exercise. An aspect of that is the mother’s health, the evidence about her needs (or the lack thereof), what an adjournment will accomplish, and what harm she will face if the adjournment is not granted. But another aspect of the balancing is the father’s and the child’s interests. And another aspect is the administration of justice.
C. The Trial Will Not Be Adjourned to 2022
[68] I am not prepared to grant another year-long adjournment. My decision is heavily influenced by the prior proceedings, particularly when I balance that against the caliber of medical evidence put before me, and the fact that temporary orders are not being complied with.
[69] By way of summary, in this case:
(a) The OCL has been appointed five times. No section 112 investigation or report has ever been fully completed;
(b) There have been three attempted settlement conferences with Rowsell J., the latter of which was held in June 2018 and ended quickly, when the mother was distressed. This signals to me that there is little chance of resolution of this case, between now and the trial if a long adjournment is granted. There is no point for there to be further case management, other than for trial organization;
(c) There have been five appearances on a contempt motion before Hughes J. and Woodley J., during which mother was found in contempt, had to monitored by the Court, and costs were ultimately ordered against her. Once again, the father is not seeing the child, this time for the last six months;
(d) There have been six attempts to have conferences in the nature of trial management or scheduling conferences. Three times, the mother did not come to Court to participate in these conferences. While there may have been valid health related reasons for that on at least one occasion (for example, on May 17, 2021 the mother’s friend told me that she was receiving a treatment in a hospital), the mother’s witnesses and other trial readiness issues relating to her case have yet to be dealt with at all for over two years. I have no confidence that an adjournment on its own for another year would in any way be used productively to prepare for trial, without court oversight;
(e) There has been a motion to seal part of the OCL’s files, and now a pending motion to unseal it. By the time both motions will be heard, there will have been three court appearances for this issue, cumulatively. I understand that the unsealing motion is based in part on behaviour during the litigation. It is contrary to the parties’ interests, and to the interests of the administration of justice, to allow a long adjournment. That creates an even greater opportunity for more interlocutory litigation to be brought;
(f) There have already been at least four requests to adjourn trials in this case. While I acknowledge that Covid-19 intervened and certain judges, myself included, have flagged trial readiness issues on the part of both parties at the time of various adjournment requests, the mother has made at least three requests for lengthy adjournments, on stand-alone health grounds as opposed to on trial readiness grounds;
(g) Both Rowsell J. and Fryer J. have found there was inadequate medical evidence to justify prior adjournments requests. Both Fryer J. and Gunsolus J. mapped out a process for the mother to get better evidence before the Court, and to put information about the accommodations she requires before the Court. That has not been done. She has not engaged collaboratively with the Court about this, as she ought to have; and
(h) Trial adjournments have been made peremptory upon the mother two times. I will do so for a third time in this decision. Peremptory orders must have some meaning.
[70] This family needs a resolution of their case on its merits, soon. E. needs a resolution. Court orders are not being followed. Beyond just this family, the interests of the administration of justice in the orderly processing of trials on their merits militates against granting another, year-long adjournment. Valuable trial time that could have been allocated to other families was lost last week. That cannot be allowed to happen again. Adjournments contribute to delays, scheduling issues, and use up scarce judicial resources. As it is, more judicial resources will be employed in this case to get it trial ready for next time.
[71] While the request, currently before the Court is for another one-year delay, I have good reason to suspect that this is in reality a request for an indefinite adjournment, not unlike what Kurz J. was confronted with in Khan v. Law Society of Ontario. Again, the mother’s first adjournment request, referred to in Rowsell J.’s Endorsement of June 20, 2018, was for a “lengthy” adjournment. On September 24, 2019, the mother asked Fryer J. for an eight month adjournment. Her medical evidence at the time said she required six months. Now, she is asking for another year.
D. The Mother’s Medical Evidence
[72] With this backdrop, I turn to the mother’s medical evidence, now before me. The mother has filed two letters from health care professionals, one undated letter from Dr. Kachooie, a physiatrist, and a letter dated May 12, 2021, co-authored by Dr. Salomeh Redjvani, a chiropractor, and Srikanth Lahoti, a physical therapist.
[73] The letter from Dr. Kachooie states that the mother was hospitalized in June of 2018 regarding blood clots in her lungs. According to the mother’s own submissions, this happened after the June 20, 2018 appearance before Rowsell J. at which she had already sought an adjournment on other health grounds.
[74] The letter states that the mother underwent surgery in February of 2020. It states that in May of 2019, the mother was involved in a car accident and suffered a traumatic brain injury and multiple physical injuries. The letter states that unfortunately, she underwent another accident in December of 2020, which the letter says made her “profoundly worse”.
[75] The letter states that the mother relies on multiple pain medications and requires regular therapy. It concludes that due to her traumatic brain injury, the mother is not able to participate in the proceeding “at this time”, and that if she is placed in this position, it will exacerbate her symptoms.
[76] The letter from Dr. Redjvani and Ms. Lahoti “strongly advise[s] that this hearing be postponed due to [the mother’s] inability to participate due to current health circumstances”. It says when she can participate in court proceedings, “please allow her the appropriate disability accommodation”. It makes no suggestion as to what an “appropriate disability accommodation” might be.
[77] Dr. Kachooie’s letter does not explain how, if at all, the incident involving the blood clots from 2018, in any way remains an issue. It does not explain with any detail why the mother underwent surgery, what were the results of that surgery, or anything about the mother’s prognosis. It does not explain what medications the mother takes, and how these either help her, or impact her with her condition.
[78] Neither of Dr. Kachooie’s nor Dr. Redjvani and Ms. Lahoti letters explain what therapies the mother participates in, to enable her to function, something which the mother also objected to elaborating upon during submissions. Neither letter explains how much time each day is needed for therapy. The letters do not explain how the therapy helps the mother, or what limitations it places on her. Nowhere in either letter is there an explanation about how the mother’s brain injury impairs her ability to participate in the Court’s process. Neither letter provides any opinion about what will be different in March 2022. Neither letter explains why the mother only sought a six month break from the litigation in 2019, and why now, almost two years later, she needs a longer period of one year.
[79] In spite of this medical evidence, the mother was able to file 14B Motions and affidavits for Court, arrange for her friend to attend Court on May 17, 2021 to seek an adjournment of the TMC and the trial, arrange for a friend, whom I am told is a lawyer, to help her with her materials, prepare lengthy submissions for the adjournment motion (some of which dealt with the substantive issues before the Court), upload them into a teleprompter and make those submissions before the Court, and respond to some questions from the Court. I also was told during submissions, based in part on the mother’s own evidence (and I see this too in the father’s affidavit evidence and upon hearing his submissions) that mother works in a charitable foundation, participates in a TV show and is involved in volunteering with hospitals. I do not have a proper understanding why/how she can do the latter, but not participate in a trial.
E. Why the Trial Is Being Adjourned to the Fall 2021
[80] Arguably, a balancing of the factors I have identified above should result in this trial proceeding during these sittings. Nevertheless, I am reluctantly granting an adjournment, as other judges have in the past, for the simple fact that this case is not ready to proceed. In effect, the mother is getting another six months because of this. The parties are expected to take the necessary steps to be ready for the fall. I will now set out some of what that should entail. This will also double as a kind of accommodation to the mother, in the absence of her actually telling me what would help her.
F. Terms of the Adjournment Pertaining to the Father’s Trial Readiness
[81] Rules 1(7.2) and 2(5) of the Family Law Rules list a number of powers of the Court to assist it in promoting the primary objective, through active case management. With mother finally present for an appearance after two recent, attempted TMCs, the Court took the opportunity on May 25, 2021 to have some trial management discussions with the parties.
[82] The father says the issues for trial are just his parenting time, and counselling for E. It may be that there are other issues, once counsel has an opportunity to reflect further on this, or once father is made aware of mother’s substantive positions.
[83] The father pared down some of his witnesses, compared to what he listed on his draft Trial Scheduling Endorsement Form previously. He confirmed that his witnesses for trial are himself, his sister, Jody White from the Durham Supervised Access Centre, and three clinicians from the OCL, namely Karen Guthrie-Douse, Naiomi Singh and Linda Bleau. I understood from counsel though that whether the latter two witnesses will testify may depend on the outcome of the unsealing motion.
[84] The father no longer feels it is necessary for him to call the other witnesses who were his parenting time supervisors, nor employees from children’s aid societies. Father’s counsel instead said that she will simply seek to admit and then to rely on case notes, pursuant to section 35 of the Evidence Act.
[85] Before the father’s counsel finalizes that decision, and to prevent any further delays to this trial, the Court directs the parties to review the decision of Jones J. in Catholic Children's Aid Society of Toronto v. L.(J.), 2003 CanLII 57514 (Ont. C.J.). That decision provides an excellent summary about which notes are admissible under section 35, and which are not. If, as a result of reviewing this case, it turns out that only some but not all of the notes are admissible, then counsel should consider whether some of the witnesses are still needed on limited matters. In any event, counsel to please ensure that the notes in any exhibit book are redacted/pared down to only include admissible records.
[86] During this motion, I observed the mother to be able to prepare affidavit material of her own, and to respond to the father’s affidavits. After hearing from counsel for the father on this point, one way to accommodate the mother might be to provide her with some of the father’s evidence, in writing, in advance of the trial. I suggested that the Court could also give her the option to present her own evidence that way too, in whole or in part (subject to cross-examination).
[87] Proceeding in this fashion has a dual advantage. It will assist the mother to prepare. And given the delay that has already been, and which will now be further occasioned, requiring the father to tender some of his evidence in chief by way of affidavit will reduce trial time. Quite some time ago, Rowsell J. estimated that the father’s case required five days. I am nevertheless asking the father to review this and to try to reduce this. I am exercising my authority under the Family Law Rules (but to be clear this is with the father’s consent) to make certain directions as to how his evidence will go in to help achieve this.
[88] Father’s counsel told the Court that the witnesses from the OCL, which the father intends to call, are being offered up as “experts”. I am unclear about the legal basis of that statement. If counsel intends to have a voir dire to seek to qualify these witnesses as “experts”, she must comply with the experts’ rule, give notice to the mother and be prepared with case law. Or, it may be that these are mere fact witnesses, or the admissibility of their testimony or reports may find some ground in section 112 of the Courts of Justice Act.
G. Terms of the Adjournment Pertaining to the Mother’s Trial Readiness
[89] In light of the history which I have just summarized, simply scheduling another TMC to address the mother’s case, without more, is not going to work. The Trial Scheduling Endorsement for the mother remains incomplete since February 4, 2019, more than two years ago.
[90] Although the mother has filed a medical report disclosing a brain injury from an accident, neither side is raising any capacity issues. I inquired of father’s counsel whether she intended to bring a motion for production of health records or whether the Public Guardian and Trustee should be put on notice. Father’s counsel does not believe either is required. The mother also disagrees that there are any capacity issues at play.
[91] I raised during the motion and I wish to advise the parties again, that I am contemplating appointing amicus curiae. I heard no helpful submissions during the motion on this point. I am directing that this decision be sent to the Ministry of the Attorney General, Crown Law Office Civil, as well as to Stanley Jenkins at Legal Aid Ontario. The process for appointing amicus is well known to the Court and notice should be given to the AGO. It is also well known to the Court that Legal Aid will likely take no position, but Mr. Jenkins will assist in sourcing amicus, if one is appointed.
[92] The parties, the Attorney General for Ontario (and Legal Aid Ontario if it wishes) are at liberty to make submissions on the issue when this matter returns before me. The scope of amicus could be as narrow as assisting the Court with evidence for any future accommodation requests, or more broadly to help ensure that all necessary evidence is put before the Court, for it to decide what is in E.’s best interests.
[93] When it receives this decision, it will be important for counsel for the Attorney General to review the history of this case described in this decision, and the Court’s concerns, in detail. If the Attorney General for Ontario then feels that this case is either an appropriate or an inappropriate one for the appointment of amicus, post- the Ontario Court of Appeal’s decision in Morwald-Benevides v. Benevides, 2019 ONCA 1023, the Court would appreciate submissions, with case law, either way. To be clear, I am inviting submissions about an amicus appointment generally, but also how the role should be defined, if amicus is appointed.
[94] At a minimum, the Court is going to need some help, prior to trial, to identify who the mother’s witnesses will be, what Orders at trial she will be seeking, whether the mother’s evidence from herself and any other witnesses will be presented by affidavit, in part, and whether other accommodations should be put into place for this trial.
H. The Father’s Unsealing Motion
[95] This motion is adjourned to the next Court date. Some of the material upon which Nicholson J. made the sealing Order of October 23, 2019 was also sealed. In their motion material now before me, the father and the mother say different things about why the OCL’s motion was brought in the first place. It would have been more helpful, had counsel for the OCL who brought the motion in the first place, attended Court to advise of its position itself rather than sending a short email. Even if she was taking no position, given that the Children’s Lawyer initiated this sealing order in the first place, her presence to answer questions about that, and whether something factual is different now, would have assisted the Court.
[96] In the absence of this assistance, counsel for the father shall instead send to my attention, c/o the judicial assistant all of the material that formed part of the motion for a sealing order before Nicholson J. Counsel should make it clear in the cover letter to the judicial assistant that the envelope is not to be opened, pending argument. When the matter is argued, I will hear submissions about whether the Court needs to review this material as part of its decision to unseal the file, or not. At least this way it will be readily available if it is needed.
I. The Mother’s Request that the Court Appoint Counsel for the Child
[97] As I indicated, the only term of an adjournment that mother proposed on May 25, 2021, was that a lawyer be appointed for E. Again, the Court has already appointed the Children’s Lawyer five times. I understand that as a result of those past referrals, the Children’s Lawyer decided to embark upon investigations under section 112 of the Courts of Justice Act, as opposed to providing counsel under section 89(3.1).
[98] The report that has been filed with the Court by the Children’s Lawyer is incomplete for reasons I will undoubtedly hear more about at the unsealing motion, and at the trial. Apparently there is more incomplete material that is sealed. But for the purposes of this unsealing motion and her adjournment request, the mother first argued that the unsealing motion ought not proceed on May 25, 2021, only to then make a request for a lawyer for E.
[99] I do not find it appropriate, after having been asked by mother to adjourn the unsealing motion (the result of which might inform what views and preferences evidence will be before the Court at the trial), only to proceed to appoint a lawyer for the child instead. Separately, I note again that mother has complained about the OCL on human rights grounds. I do not know where counsel for the child would come from, if not the OCL.
[100] Regardless, there is too much of a history here and another appointment will just cause more delay, which cannot be tolerated in this case. If it turns out that there will be a gap in the views and preferences evidence at trial, then counsel for the father and the mother will have to come up with another way to get that evidence before the Court, without delaying the trial.
J. The Father’s Parenting Time Pending Trial
[101] The remaining issue pending trial is the father’s parenting time with E. Without any motion before me, the father’s counsel asked the Court to order police enforcement.
[102] Police enforcement is governed by s. 36(2) of the Children’s Law Reform Act. In Neshkiwe v. Hare, 2020 ONCJ 149, I canvassed extensively the use of section 36 of the Children’s Law Reform Act to enforce a parenting order. While much of my analysis considered certain jurisdictional questions that do not present in this case, the principles I summarized at ¶ 407 do apply in this case.
[103] On the one hand, I am concerned that the father is not seeing E. I am also concerned about the mother’s inadequate responses to my questions about her intention regarding whether she will comply with the interim order that is in place for parenting time, pending trial. Nevertheless, I am not prepared to grant an ongoing order for police enforcement as the father seeks for two reasons.
[104] First, this is not a request for a one-time order to locate, apprehend and return a child to a parent. The order the father seeks is more in the nature of an ongoing enforcement tool and one that he may very well have to use more than once. Caution on the part of the Court is warranted when an Order for police enforcement is sought for use in such circumstances.
[105] Second, the father did not serve a Notice of Motion for this relief, to either the mother, or to the police force, advising that he would be asking the Court to compel the police to enforce its Order, potentially on an ongoing basis. Especially given the history of conflict in this case, and the child’s age, combined with the use for which the father is proposing a police enforcement order, I am not prepared to make this Order right now. It may be an option at trial, but the Court needs evidence from the parties and about the child, particularly about what the impact of such an Order might be. Counsel should consider whether notice to the police should be given, if an Order of this nature will be sought at trial.
[106] There is, however, one minor change that is required to the governing temporary Order for parenting time. The access centre, referred to in Fryer J.’s Order of September 24, 2019, is currently closed on account of the Covid-19 pandemic. Even if it re-opens when Ontario’s current ‘stay at home order’ ends, there is no evidence before me as to how quickly the parents may begin using the centre and/or what might be required of them by way of intakes. It appears from the Endorsements in the Trial Record that there have been problems with using access centres before.
[107] The father asked the Court to change the location of exchanges to an Esso gas station. I do not know whether that will work, or not. In my view, the only change that should be made here, is that the exchanges can take place in the parking lot of the access centre, until it re-opens and the parties may start using it. The parties are to take all steps required to begin using the access centre for supervised exchanges, once it does.
[108] I am cautioning the parties that any non-compliance with Court Orders will be an issue for trial in this case. Regarding the father’s parenting time with E., if it turns out in the trial that the father has not been allowed to see the child, without a legal justification, since November of 2020, and/or if there continues to be non-compliance between now and trial, he may very well have additional remedies he can pursue at trial.
[109] In addition, although I have not made an order at this time for police enforcement, on April 26, 2019 Gunsolus J. gave the father leave to enforce Hughes J.’s Order. If the father wishes to take enforcement steps prior to trial on a proper record, he may bring this to my attention prior to trial.
PART IV: ORDERS
[110] For those reasons, I make the following orders:
(a) This trial shall be adjourned to the fall sittings, to commence on November 15, 2021. This is peremptory to the mother;
(b) Unless I am assigned to another matter, or for some other reason I am not available, or there is a re-prioritization of cases, I shall be seized of this matter as the trial judge and the case shall be heard first, on the next trial sitting;
(c) The father shall have 30 days from today to confirm who his witnesses will be, and the order in which he intends to call these witnesses;
(d) The father’s lay witnesses, who at this point are himself and his sister, shall tender their evidence in chief by way of affidavit. They shall be permitted to testify in examination-in-chief orally in addition, but not to repeat their affidavit evidence, only to supplement it, to update it or to elaborate upon issues addressed in it, as is necessary, before they are cross-examined;
(e) The father shall ensure that these affidavits contain trial worthy evidence only;
(f) The father’s other witnesses (the professional witnesses) shall testify orally both in examination-in-chief in addition to when under cross-examination; and
(g) Within 30 days, the father shall serve and file a supplementary trial brief, with an index. The brief should also be tabbed and page numbered. The brief is to contain a draft Order of the terms sought by the father at trial, his adjusted witness list, a statement of the order in which he anticipates calling his witnesses[^5], the affidavits, a written statement as to how he intends to proceed with the OCL witnesses, with case law if necessary, and Evidence Act Notice regarding the CAS and any other business records. Again, counsel should only include any notes and records that are admissible, either under section 35 of the Evidence Act or if a witness is being called;
(h) The Court is contemplating appointing amicus curiae. This decision shall be sent to the Ministry of the Attorney General, Crown Law Office Civil, as well as to Stanley Jenkins at Legal Aid Ontario;
(i) When this matter returns before me, the parties, the Attorney General for Ontario (and Legal Aid Ontario if it wishes) should make submissions on the issue of amicus, if they wish. The Court is inviting submissions about an amicus appointment generally, but also how the role should be defined if amicus is appointed;
(j) The father’s motion to unseal the documents that are subject to the sealing Order of Nicholson J. dated October 23, 2021 shall be heard on the next return date. Counsel for the father shall send to my attention, c/o the judicial assistant all of the material that formed part of the motion for a sealing order before Nicholson J. Counsel should make it clear in the cover letter to the judicial assistant that the envelope is not to be opened, pending argument. When the matter is argued, I will hear submissions about whether the Court needs to review this material as part of its decision to unseal the file, or not;
(k) The mother’s oral request to appoint counsel for the child is dismissed;
(l) The access centre, referred to in Fryer J.’s Order of September 24, 2019, is currently closed on account of the Covid-19 pandemic. Exchanges for the father’s parenting time shall therefore take place in the parking lot of the access centre, until it re-opens and the parties may start using it. The parties shall take all steps required to begin using the access centre for supervised exchanges, once it does re-open, including completing any intakes;
(m) The father’s oral request for police enforcement is dismissed without prejudice. If the father wishes to take enforcement steps prior to trial on a proper record, he may bring this to my attention at the next Court date, or otherwise by 14B Motion;
(n) Costs shall be argued orally on the next date. If either party seeks costs or costs thrown away, then he or she shall provide the other a Bill of Costs, a copy of any Offers to Settle that might have been served and any case law at least 7 days before the return date. That material shall be filed with the Court at least 2 days before the return date;
(o) This matter shall be adjourned to July 12, 2021 @ 2 PM. I am prepared to set aside up to 2 hours to address the outstanding issues. The purpose of that attendance shall be to address the issue of amicus, to deal with the unsealing motion, to deal with any further trial readiness issues concerning the mother, if possible, and to set any other dates that might be needed, prior to the commencement of the trial in November, 2021; and
(p) The mother confirmed during argument on May 25, 2021 that she may be served by courier to her home. Therefore, there shall be an order to that effect and the father may serve court documents to the mother to her home, by courier.
Justice Alex Finlayson
Released: May 31, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
W.A.C.
Applicant
– and –
C.V.F.
Respondent
REASONS FOR JUDGMENT
Justice Alex Finlayson
Released: May 31, 2021
[^1]: During submissions, the mother raised concerns about privacy and about having to disclose details of her disability. I address her concerns below, but I am also releasing this decision with the parties and the child referred to with initials with mother’s privacy concerns in mind. I also do so with the child’s best interests in mind.
[^2]: I am assuming, based on her written material, that the mother is referring to provincial human rights legislation, and so I have included that citation in this decision. However, the mother has not, in either her material or in submissions, averred to the existence of both federal and provincial human rights legislation, clarified which one she says applies, or provided the Court with any explanation as to how or why either the provincial Code, federal legislation or the Accessibility for Ontarians with Disabilities Act, 2005, applies to her adjournment request.
[^3]: This is not the same friend who appeared at the failed TMC on May 17, 2021. That person is not a lawyer.
[^4]: The mother also filed written material before me during the week of May 17, 2021, while not attending the actual TMCs themselves.
[^5]: I recognize that some of these items might change as the trial approaches, but as much notice as possible should be given to the mother. Please update this and provide it to the mother as any new information comes to light.