COURT FILE NO.: FS-19-08567
DATE: 20210609
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
B.B.
Applicant
– and –
N.Y.
Respondent
Garry J. Wise and Simran Bakshi, for the Applicant
Annie Noa Kenet, for the Respondent
HEARD: June 3, 2021
Pinto J.
Reasons for Decision
[1] Two motions brought by the applicant father were heard by me via Zoom.
[2] In the first motion, the father requested that his motion commenced on December 4, 2020 (“parenting motion”) for termination of his supervised parenting be adjourned, pending the completion of a therapeutic counsellor’s report.
[3] The father’s parenting motion sought, inter alia, termination of the supervised parenting order of Gilmore J. dated June 28, 2019, and reinstatement of the father’s in-person parenting arrangement as per the parties’ Separation Agreement.
[4] In the second motion, the applicant sought a court order permitting the applicant’s criminal lawyer to release to the parties the entire unredacted Stinchcombe file and related materials in the criminal lawyers’ custody, control and possession (“Wagg motion”). The mother objects to the release.
[5] The respondent’s position on both motions is that they should be dismissed until after the therapeutic process that the parties are currently engaged in has been completed.
[6] For the reasons that follow, I find that the father’s parenting motion should be adjourned, not dismissed, to a date determined by a Case Conference judge at a Case Conference to be scheduled on an urgent basis following the release of the therapeutic counsellor’s report. With respect to the Wagg motion, the father’s motion is granted.
The Facts
[7] I have excerpted and edited the respondent’s recitation of the facts in her factum in areas that I consider to be non-contentious.
[8] The parties were married on August 12, 2005. They separated, 6-1/2 years later on January 27, 2012.
[9] The parties have two children:
• M.B. who will be turning 15 years old on […], 2021 (“daughter”); and
• N.B. who turned 12 years old on […], 2021 (“son”).
[10] On June 3, 2013, the parties entered into a comprehensive Separation Agreement resolving all issues arising from the breakdown of their marriage, including the parenting of their two children.
[11] In May 2018, the daughter made allegations of sexual assault by the applicant father. As a result, the respondent mother, daughter and son all attended interviews with the police on May 9, 2018. At that time, the son also made allegations of sexual assault by the father.
[12] There are audio tapes and video recordings of the interviews given to police on May 9, 2018.
[13] About 47 days after these interviews were given to the police, the father was charged criminally. Due to his bail terms, he was unable to exercise parenting time.
[14] In January 2019, the father obtained a variation of his bail terms. However, the mother refused to facilitate parenting time. The father brought a motion in June 2019 before Gilmore J. which resulted in:
(a) his being granted two hours of supervised access every two weeks; and
(b) the mother being ordered to pay him $7,500 in costs (see endorsement of Gilmore J. dated June 28, 2019).
[15] In September 2020, the father’s criminal trial was heard. All charges were dismissed.
[16] Thereafter, the father requested “immediate reinstatement” of the parenting time provided for in the Separation Agreement. The mother believed that it was contrary to the children’s best interest for them to immediately transition from two hours of supervised access every two weeks to an immediate reinstatement of the parenting time in the Separation Agreement which included (in addition to holiday and vacation time):
• every other weekend from Friday at 4:15 p.m. to Monday at 8:15 am;
• every other Monday from 4:30 p.m. to 7:30 pm; and
• every other Wednesday from 4:30 p.m. to Thursday morning at 8:15 a.m.
[17] The mother also raised a concern that the children may want to have a say in their parenting schedule given that they were 14 and 12 years old at the time (they were 7 and 5 when the Separation Agreement was finalized).
[18] On October 5, 2020, the mother invited the father to have discussions given the parties’ opposing views on immediate reinstatement of the father’s parenting time.
[19] On December 4, 2020 the father brought an “urgent” parenting motion for immediate reinstatement of the parenting time provided for in the Separation Agreement.
[20] Justice Akbarali, as triage judge, directed the matter to an early Case Conference rather than a motion.
[21] The parties attended a continued Case Conference (January 4, 8 and 15, 2021) before Justice Faieta resulting in a comprehensive order for the family to undergo a consultation process with therapeutic counsellor Ricardo Theoduloz of the Mackenzie Clinic (see endorsement of Faieta J. dated January 22, 2021).
[22] Due to COVID-19 and public health restrictions, there have been delays and setbacks in the family counselling and Mr. Theoduloz has yet to provide the parties with a report or interim report setting out his conclusions and recommendations.
The Parenting Motion
[23] The father wishes to maintain his parenting motion but to adjourn it pending the completion and receipt of Mr. Theoduloz’s report. He relies on the court’s decision in Cameron v. Vincent, 2020 ONSC 5222, to adjourn in arguably similar circumstances.
[24] The father states that despite being acquitted on all charges he still has not obtained in-person parenting time. He has been restricted to supervised parenting for almost two years despite the access supervisor Shely Bent’s recommendation that “there is no need for continued supervision of B.B’s time with M.B. and N.B.”
[25] The mother submits that the father’s outstanding parenting motion is increasing conflict at a time when the family is engaged in a therapeutic counselling process and the appropriate outcome is for the court to dismiss the motion at this point. The father’s so-called “urgent” motion has been adjourned previously from January 27, 2021 to March 16, 2021, and then from that date to June 3, 2021. The mother suggests that it makes no sense to maintain a motion whose purpose is to decide the ultimate issue that may go to trial, namely parenting time.
[26] The mother also submits that nothing prevents the father from bringing a new parenting motion following the conclusion of the Mr. Theoduloz’s counselling process.
[27] The father replies that there is a difference between dismissal and adjournment. Dismissal of his parenting motion would inevitably invite an award of costs against him and obtaining another motion date would delay the hearing of his parenting motion, if it is to proceed.
[28] The father suggests that the mother’s goal is to delay his in-person parenting time as much as possible which is resulting in his further alienation from the children as they grow up.
The Wagg Motion
[29] The father submits that the court should grant the Wagg motion and notes that his motion is “technically not for the production of the Crown brief, which is already available to the Father, but rather for the Court’s permission to share and rely upon relevant documentation in the brief in this family law proceeding.”
[30] From the father’s perspective, this is a parental alienation case. He believes that the material in the criminal proceeding may end up being useful in the family law proceeding. This does not mean that allowing the Wagg motion will disrupt the current therapeutic counselling process. The father notes that the criminal trial judge specifically noted in his acquittal decision that:
I am prepared to find, on a balance of probabilities, that there was either collusion between the witnesses or tainting by a third party. N.B. acknowledge (sic) the dramatic change in his evidence and he explained it by saying that someone had educated him as to what was “right and relevant”. M.B.’s evidence changed just as dramatically and in many of the same respects as N.B.’s. She did not offer any explanation for the change, apart from saying that it was not in her “mindset” to disclose all of the allegations to her mother, the police, or the CAS. I do not accept that these significant and notably similar changes occurred independently or naturally. In my view, there is a high degree of probability that the two witnesses colluded or that their evidence was tainted by the efforts of a third party.
[31] The father further submits that the Ministry of the Attorney General has already consented to disclosure and fulfilled the necessary screening function to determine whether to disclose and produce Crown briefs outside of the criminal proceeding.
[32] The father characterizes his Wagg motion as an administrative motion to get the documents in question before the parties so that, if they are necessary, there is no further delay. The father conceded that, if successful on the Wagg motion, the material would not be forwarded to Mr. Theodoluz, at least not without a further court order.
[33] The mother objects to the Wagg motion due to concerns that:
(a) the Wagg motion triggers privacy concerns for the children;
(b) the Wagg motion impacts her obligation to the children (if any); and
(c) the negative impact the Wagg motion may have on the therapeutic intervention given that the objective of the therapeutic intervention requires everyone to focus on moving this family forward.
[34] The mother argues that the father’s Wagg motion should be dismissed on a without prejudice basis until after the therapeutic process is terminated or, in the alternative, if I am inclined to order disclosure, that that the children’s audio and videotapes be withheld from disclosure.
[35] The mother also raises concerns that the father’s Wagg motion is inconsistent with the primary objective of the Family Law Rules and statutory objectives to protect children from conflict arising in a parenting proceeding.
[36] I note that the counsellor, Mr. Theodoluz, has remained neutral on the Wagg motion. His email to the parties stated in part:
In the family therapy agreement signed by the parents it outlines the following: “While the parents may have different views about the causes or reasons for their children’s reluctance or refusal to have contact with B, they agree not only to the objectives defined but also that they each need to be a part of the solution to meet those objectives”. I raise as a reminder of what the parents have agreed to and I hope that this can continue to be a focus of my work with the parents and the children.
Decision on Motions
[37] With respect to the parenting motion, I grant the father’s request to adjourn the motion. Overall, I am concerned that dismissing it would, among other consequences, result in unacceptable delay if it needs to be heard on its merits. I do not consider adjourning it inconsistent with the current family therapeutic counselling process.
[38] I share the father’s strong concern about delay in hearing a parenting motion should it become necessary. The father does not want to drop his ability to proceed to a motion as soon as possible in the event that the parties cannot reach a satisfactory interim agreement on parenting time, notwithstanding his agreement to participate in a family therapeutic process. Dismissing his motion, as opposed to adjourning it, would require:
(a) the father to once again obtain leave before another Case Conference judge to bring a new parenting motion;
(b) the new parenting motion being scheduled at a much later point; and
(c) attracting a presumptive award of costs against the father.
[39] It is worth reviewing the timeline in this case. Following allegations of sexual assault, the children were removed from the father’s home on June 23, 2018 and a few days later criminal charges were laid against him. He had no parenting time whatsoever with the children. Even after his bail conditions were varied on January 24, 2019, the mother refused to grant parenting time and it was not until June 28, 2019, that the father obtained supervised parenting time as per the order of Gilmore J. The father was then acquitted of all criminal charges on September 21, 2020. The father then brought a motion on December 4, 2020 for reinstatement of in-person parenting time but was persuaded to participate in a therapeutic counselling process which, but for COVID-19 difficulties, would likely have concluded by June 2021. It is approaching 3 years since the father had in-person parenting time in accordance with the parties’ Separation Agreement.
[40] To mitigate the mother’s concern that the father is using his pending motion as a sword of Damocles over the parties, I would direct the parties to a Case Conference to be scheduled on an urgent basis once the results of Mr. Theodoluz’s report and recommendations are known, or at least until an interim or progress report is issued. This way, the parties can conference the parenting time issue on the other side of Mr. Theodoluz’s report, and it is not inevitable that a parenting motion will take place. However, that Case Conference judge is not deciding the legal right of the father to proceed to a parenting motion, only the scheduling of the parenting motion, if one is necessary.
The Wagg motion
[41] With respect to the Wagg motion, the mother’s counsel spent considerable time distinguishing between section 74(3) of the Child and Family Services Act (court ordered production of a record to a CAS), and Rule 30.10 of the Rules of Civil Procedure (production from non-parties with leave), the former which she says the father relies on, and the latter which she argues is the proper test. I find the mother’s submission to be a strawman argument. The father is not relying only on the CFSA.
[42] The mother also claims the screening function required by Wagg is incomplete. I disagree. The mother’s materials themselves contain a letter dated May 7, 2021 from Crown Counsel confirming that the AG Ontario has screened the documents in compliance with the Wagg decision. The mother’s arguments suggesting that further screening is necessary or that the documents are insufficiently described amount to overly technical arguments.
[43] The father relies on Rule 19(11) of the Family Law Rules, which deals with documents in the control of a non-party:
19 (11) If a document is in a non-party’s control, or is available only to the non-party, and is not protected by a legal privilege, and it would be unfair to a party to go on with the case without the document, the court may, on motion with notice served on every party and served on the non-party by special service,
(a) order the non-party to let the party examine the document and to supply the party with a copy at the legal aid rate; and
(b) order that a copy be prepared and used for all purposes of the case instead of the original.
[44] The mother argues that the proper test is really section 30.10 of the Rules of Civil Procedure:
30.10 (1) The court may, on motion by a party, order production for inspection of a document that is in the possession, control or power of a person not a party and is not privileged where the court is satisfied that,
(a) the document is relevant to a material issue in the action; and
(b) it would be unfair to require the moving party to proceed to trial without having discovery of the document.
[45] The mother suggest that per Wagg, the focus should be, per Rule 30.10 of the Rules of Civil Procedure, on whether it would be unfair to proceed to trial without the documents in question, rather than, per Rule 19(11) of the Family Law Rules, whether it would be unfair to a party to go on with the case without the document.
[46] While I accept there is a distinction between the Family Law Rules and the Rules of Civil Procedure, there is no requirement that I am aware of for the father to only rely upon Rule 30.10 of the Rules of Civil Procedure. He is entitled to rely upon Rule 19(11) of the Family Law Rules, as he does here, to argue that, if a parenting motion is to proceed, it would be unfair to proceed without the documents arising from the criminal proceeding: M.H. V. R.B., 2002 54808 (ON CJ).
[47] I find that it would be unfair to proceed in the family law proceeding without the Wagg documents. There is no doubt that they are relevant to parenting and, in light of the comments of the criminal trial judge about possible collusion between the witnesses or tainting by a third party, it would seem unfair to the father to decline his Wagg motion.
[48] Is it in the best interests of the children to grant the Wagg motion at this time, or as the mother suggests, should it await the termination of the therapeutic counselling process? My understanding is that the father has the Wagg disclosure already. He continues to participate in the process with Mr. Theodoluz. The father is not requesting that the Wagg documents be shared with Mr. Theodoluz. The father wants disclosure now, otherwise he has to bring another Wagg motion which would entail further delay on the other side of the conclusion of the therapeutic counselling process. I do not see the father’s position as unreasonable and would permit the parties to discuss the Wagg documents at a Case Conference prior to a parenting motion. Otherwise, if I denied the father’s motion now, at the next Case Conference, the father would have the Wagg documents through the criminal process, but the mother would not. It may even be more therapeutic or cathartic for the Wagg disclosure to be dealt with now in the family law proceeding, rather than later. I find it more consistent with the primary objective of the Family Law Rules to grant the motion now.
[49] The mother argues that the father did not serve his motion on the non-party via special service: Rule 19(11). I see this argument as of no moment since the non-party made no issue of it and, by Rule 2, I would excuse the father’s failure in this regard.
[50] Ultimately, the mother argues that the reason the father’s Wagg motion should not be granted now is that the use of the material is speculative. The mother states that if Mr. Theodoluz’s process results in greater parenting time, then the father is unlikely to end up relying on the Wagg materials. It is only in the scenario that the recommendation results in substantially less parenting time, that the Wagg materials will be used in a parenting motion.
[51] I understand the mother’s argument and agree that it is unclear at this point whether or not the Wagg materials will be used on a parenting motion. However, as stated above, I see the Wagg motion before me as largely an administrative matter about production of documents, albeit requiring attention to be paid to the fairness to the parties and best interests of the children. Is it consistent with Wagg, the Family Law Rules and the best interests of the children that the parties before me have the documents from the criminal proceeding now? I find that the answer is yes. And, if I am going to order Wagg disclosure, I am not going to withhold the audio and videotapes of the children, as this would prevent disclosure of what I understand to be one of the key pieces of evidence sought by the father.
[52] The father anticipated that Mr. Theoduloz would have a progress report ready in August 2021 but conceded that he did not know this for sure. My intention is to provide the parties with the ability to attend an urgent Case Conference in less than 30 days from the time that Mr. Theoduloz releases his progress report. To clarify, this may not be the final report as Mr. Theoduloz may release an interim report.
[53] In light of the foregoing, an Order shall go as follows:
a) The parties shall attend an urgent Case Conference to be scheduled not more than 30 days from the day that Mr. Theoduloz releases a progress report.
b) The father’s parenting motion, should it proceed, shall be rescheduled to a date determined by the next Case Conference judge.
c) The contents of the Crown Brief in respect of the criminal proceedings against the father shall be disclosed and produced forthwith to the Applicant Father on the terms proposed by the Attorney General of Ontario.
Costs
[54] The applicant has been successful on both motions. If the parties are unable to resolve the issue of costs, they shall make written costs submissions by June 18, 2021. Such written submissions directed to the Family Law Judicial Assistant Patrizia Generali at Patrizia.Generali@ontario.ca shall not exceed three double-spaced pages, exclusive of Costs Outlines, Bills of Costs, and Offers to Settle. Authorities are to be hyperlinked or forwarded to me via the judicial assistant. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs. The parties shall provide me with a draft order approved as to form and content, and a clean copy of the order in WORD for signing.
Pinto J.
Released: June 9, 2021
COURT FILE NO.: FS-19-08567
DATE: 20210609
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
B.B.
Applicant
– and –
N.Y.
Respondent
REASONS FOR JUDGMENT
Pinto J.
Released: June 9, 2021