COURT FILE NO.: FC-18-1175-00
DATE: 20210608
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Dorothy Pamela Pinnock
Applicant
– and –
Donovan Pinnock
Respondent
Steven Benmor and Misha Leslie, for the Applicant
Richard Housen and Richet Housen, for the Respondent
HEARD: June 3 and 4, 2021
RELEASED: June 8, 2021
Justice Alex FInlayson
PART I: NATURE OF THIS MID-TRIAL RULING
[1] This is a mid-trial ruling about an evidentiary objection raised by Mr. Housen, counsel for Mr. Pinnock (the “husband”). Argument on the objection began at approximately 4:25 on Thursday, June 3, 2021, but as the objection was raised at the end of the sitting day, argument continued the next day. It took approximately a half day on June 4, 2021 for argument, for deliberations, and for the Court to deliver an oral ruling on the objection. I advised counsel that I reserved the right to release written reasons later, once I had an opportunity to make edits/revisions. Based on further discussions with counsel later in the day on June 4, 2021, I have also changed the next court dates and I have added additional directions respecting closing submissions to reflect the discussions.
[2] This trial commenced on May 31, 2021. The issues for trial concern, among other things, property and spousal support. Without needing to summarize all that is in issue in this trial, it is sufficient to indicate that a significant issue between the parties is the determination of their date of separation. The wife says that the parties separated at the end of 2012, whereas the husband says they separated much earlier, in mid-2002. I expect to hear submissions at the conclusion of the trial, that the resolution of the valuation date issue will have a significant impact on both the property and the support issues. Both parties agree that credibility is a central issue.
[3] This case began on July 10, 2018, almost three years ago. The Trial Record contains 15 pre-trial Endorsements[^1] made before this case proceeded to trial. Although credibility is in issue, the parties agreed in case management to present their evidence-in-chief by way of affidavit, followed by cross-examination. At the outset of the trial, I advised the parties that I would allow them to testify in examination-in-chief, in addition to their affidavits. The wife declined the Court’s offer. Over the subsequent objection of the wife’s counsel, I allowed the husband to provide some evidence by way of examination-in-chief, in addition to his trial affidavit, before he was cross-examined.
[4] During the cross-examination of the husband, the wife’s counsel confronted him with certain title documents to certain properties from one or both of the parties’ past. These title documents were then marked as Exhibits 7 to 9 in the trial. Although no objection was raised about this at the time, there is now an objection from the husband’s counsel, after the fact, that these documents had not been produced to the husband previously. This after the fact objection is being raised now, because it is intricately related to the current objection before the Court, about additional documents upon which the wife seeks to rely in her cross-examination of the husband.
[5] Towards the end of the cross-examination of the husband, specifically after 4 pm on Thursday, June 3, 2021, late in the afternoon on the fourth day of what ought to have been a five day trial, the wife’s counsel sought to put certain police occurrence reports to the husband. These too had also not been previously produced. The husband’s counsel’s initial objection was merely that he had not yet seen the document but as the arguments unfolded, it was revealed that the wife’s counsel intended to cross-examine the husband, not only on these police occurrence reports, but also on additional title and real estate documents pertaining to other properties, which had not been previously produced either.
[6] I directed the wife’s counsel to provide the documents to the husband’s counsel over night to enable him to consider whether he wished to object further. I directed that the husband’s counsel would not provide the documents to, or discuss them with the husband, as he was in the middle of cross-examination. I adjourned the case until the next morning.
PART II: THE PARTIES’ POSITIONS
[7] The husband’s counsel makes objections on a number of grounds. He argues that by proceeding in this fashion, this amounts to a form of a trial by ambush. He says he was deprived the opportunity to discuss these with his client prior to his client’s testimony, but also to cross-examine the wife and the parties’ adult daughter, Antonia, (who have already testified), on these documents.
[8] By contrast, the wife’s counsel says he is entitled to proceed in this fashion, relying on a document that the case management judge, Nicholson J., sent to the parties after their Trial Management Conference on May 18, 2021. As well, the wife’s counsel relies on what he says is the law and proper procedure concerning the impeachment of witnesses, the duty to disclose documents in advance of a trial and how these two interrelate.
[9] The wife’s arguments rest heavily on paragraph 8 of the “Minimum Trial Requirements for Counsel” document that the parties obtained from the Court, after their May 18, 2021 TMC. While elsewhere in its body this document makes provision for exhibits to be briefed prior to trial (as does the practice direction on the Court’s website for this trial sitting), paragraph 8 exempts certain documents, namely those to be put to a witness in cross-examination, from having to be included in the brief. The wife takes the position that this document, obtained a few days before the trial but well after the wife’s exhibit book was due under an earlier Order of this Court, essentially overrides her already existing disclosure obligations, in place throughout these proceedings. In addition, the wife’s counsel also relies on the impeachment provisions of the Canada Evidence Act and Ontario’s Evidence Act[^2] to support the wife’s position.
PART III: PRIOR PROCEEDINGS
[10] The prior proceedings, leading up to this trial, have been referred to in argument on the objection. The following events are particularly important to my decision:
(a) As I already indicated, there are 15 pre-trial Endorsements in the Trial Record[^3];
(b) On February 8, 2021, Nicholson J. ordered the wife to prepare her trial affidavit and exhibit book by March 30, 2021. He ordered the husband to do the same by April 13, 2021. It was only because of this Endorsement that the wife knew what the husband’s evidence-in-chief would be, in advance of hearing it at the trial, and vice versa;
(c) Nicholson J.’s Endorsement of February 8, 2021 also made provision for the exchange of Requests for Information, and for the parties to respond to those well in advance of the commencement of the trial too. The deadlines for the exchange of information precede the deadlines for the exchange of the trial affidavits and exhibit books;
(d) The parties later entered into the Trial Scheduling Endorsement on or around their TMC of May 18, 2021. The Trial Scheduling Endorsement largely confirms what they had previously agreed to with Nicholson J. on February 8, 2021. Importantly, the parties agreed in the Trial Scheduling Endorsement that no other exhibits could be relied upon at the trial, without leave of the case management judge or the trial judge; and
(e) After the TMC, Nicholson J. gave the parties, via email from court staff, the minimum trial requirements document containing paragraph 8 upon which the wife’s counsel relies as authorizing the withholding of select documents until cross-examination.
PART IV: ISSUES
[11] I wish to note at the outset of this ruling, despite the husband’s counsel’s other concerns about the reliability of some aspects of the documents which the wife’s counsel wishes to use in cross-examination, there is no serious question that the new documents have some relevance to the Court’s ultimate determination of valuation date, and perhaps to credibility. The real questions before the Court on the objection, are whether the wife’s counsel should be entitled to continue his cross-examination of the husband in this fashion, or whether the manner in which he proposes to proceed has created trial unfairness.
PART V: LEGAL PRINCIPLES AND ANALYSIS
A. The Production of Several New Documents in the Middle of Cross-Examination Has Created Trial Unfairness, Which Should Be Remedied
[12] I accept that counsel is entitled to be a zealous advocate for his client. It is also well known that the right to cross-examine is a fundamental principle. However, neither of these two principles operates in a vacuum, or to the exclusion of other well-known principles that apply in family law litigation. I agree with the husband, that the manner in which the wife proposes to continue the cross-examination, is unfair to him. I say this for seven reasons.
[13] First, the obligation to produce relevant documents, fully and comprehensively, is a fundamental principle in family law of paramount importance enshrined in the case law. As early as 1978, albeit in a somewhat different context, Galligan J. discussed this principle in Silverstein v. Silverstein, 1978 CanLii 1605. Galligan J. wrote that the legislature:
…intended to require that full, complete and up-to-date information be provided to the opposite party and to the Court at the earliest possible opportunity. Anyone who has had any experience with family litigation in this Province knows of the tremendous amount of time and expense that is often involved in establishing the financial circumstances of the spouses. This case is typical. I am certain that it was the intention of the Legislature to eliminate the waste of time and the expense involved in such inquiries by requiring early and complete financial disclosure.
[14] Although in Silverstein v. Silverstein, Galligan J. was speaking about the duty to provide financial disclosure as opposed to disclosure relevant to other issues of non-financial nature, such as documentation relevant to the determination of valuation date, his comments nonetheless have equal application. This principle has been repeated over and over again, by trial and appeal Courts across Canada.
[15] Second, not only are these principles set out repeatedly in the case law, but there are numerous rules in the Family Law Rules directed at the importance of early and complete disclosure. See for example Rules 1, 2, 13, 19, and 20. These rules enable the Court to discharge its primary obligation, which is to do justice. They help the Court actively and effectively case manage its cases. They help the Court help the parties settle cases. And if a case goes to trial, these Rules work to ensure that there will be trial fairness, by ensuring full disclosure and that trials by ambush are avoided.
[16] Third, the wife’s submissions were made without much regard to the context of this case. This is a family law case. As Benotto J. said in Frick v. Frick, 2016 ONCA 799 at ¶ 11:
The Family Law Rules were enacted to reflect the fact that litigation in family law matters is different from civil litigation. The family rules provide for active judicial case management, early, complete and ongoing financial disclosure, and an emphasis on resolution, mediation and ways to save time and expense in proportion to the complexity of the issues. They embody a philosophy peculiar to a lawsuit that involves a family.
[17] Fourth, I accept that sometimes factual or other matters do arise during the course of a trial, and counsel/the parties have to switch gears. For example, a witness may testify about a matter that is not anticipated, which then calls upon counsel to embark upon the impeachment process, or to try to prove or defend against a new fact or issue. This may require counsel to seek to rely on a document not previously thought to be important and therefore not produced. However, that is not what transpired here. This is not a situation of the husband, making a statement for the first time in his examination-in-chief, calling upon the wife’s counsel to embark upon the impeachment process.
[18] What has transpired here is the following, some of which I am repeating again:
(a) Again, on February 8, 2021, the parties agreed to exchange trial affidavits and exhibit books. They agreed to a schedule for that exchange that culminated well in advance of the trial;
(b) On or around February 23, 2021, counsel for the husband sent counsel for the wife a Request for Information pursuant to the February 8, 2021 Endorsement, asking that the wife produce “any and all evidence of [the wife’s] claim that she and [the husband] separated on December 30, 2012.” He did this prior to preparing the husband’s trial affidavit;
(c) On March 8, 2021, the wife responded to the Request for Information, also prior to producing her own trial affidavit, saying that she was relying on her previous sworn affidavits and her evidence from a pre-trial questioning. No police occurrence reports or title documents were produced at that time;
(d) The wife delivered her trial affidavit on or around March 30, 2021. She made some statements about the police and about the properties, but did not include the documents as exhibits;
(e) By April 13, 2021, each side was aware of the substance of the other’s evidence-in-chief, after the husband delivered his trial affidavit. The husband was not aware that the wife would later seek to rely on additional documents related to the statements each of them had made;
(f) It ought to have been obvious to both sides that the police occurrence reports and title documents might be relevant to the issues at the trial. These documents could have been part of both parties’ narratives in their trial affidavits;
(g) Yet it seems that the husband took no steps to obtain these documents during his trial preparation. And according to counsel for the wife, it was only after the exchange of the trial affidavits when he was “preparing for trial” that the wife/her counsel then took steps to obtain the police documents and the title documents. When they obtained them, they did not produce them; and
(h) Instead, the documents were produced towards the end of the trial, for the first time in cross-examination of the husband, leading to Mr. Housen’s objection.
[19] Fifth, even if counsel for the husband had not asked for all evidence upon which the wife was relying back in February, 2021, once the wife obtained relevant documents, she had a duty to provide them as part of her ongoing disclosure obligation. The parties chose to proceed with a trial on credibility based on affidavits and documentary evidence. They agreed to exchange information in advance of the trial. The wife can hardly complain now about being required to follow the very procedure to which she agreed.
[20] Sixth, while these new documents may be used for impeachment, that is not their sole function. Again, these documents are relevant pieces of evidence about a core issue in this case. They relate to statements the wife made in her own trial affidavit/evidence-in-chief, too, in addition to what the husband has said. The Court ought to have heard from both parties, in examination-in-chief and in cross-examination, as to what transpired with the police, what is the significance of these occurrence reports, and how and why they took title to certain properties at different points in time, with reference to these documents that counsel for the wife now wishes to put to the husband solely.
[21] Moreover, these documents probably should have been obtained and produced well in advance of the trial preparation process itself, for other reasons. For example, these documents might have been used in the settlement conferencing process.
[22] Seventh, I do not accept the wife’s counsel’s argument, that no affidavit of documents had been asked for previously by counsel for the husband, and therefore the wife was not required to produce these documents in advance of the trial. The obligation to produce relevant documents in family law cases does not depend upon an affidavit of documents. There is a positive onus on both parties to produce relevant documents, early and proactively. And in any event, counsel for the husband essentially asked for a form of an affidavit of documents, by asking for all relevant evidence on this topic, in his Request for Information. When the husband did not receive any additional documents from the wife via her response on March 8, 2021, he was entitled to rely on that state of affairs, and to prepare for trial accordingly.
B. How This Has Caused Unfairness to the Husband
[23] The wife, in proceeding in this fashion has created the following circumstances, which I find are unfair to the husband:
(a) Had the wife produced this evidence by March 8, 2021, after the husband’s counsel asked for it, the husband would have been able to address it in his affidavit for trial;
(b) By waiting to raise these documents until the end of the trial, the Court did not get to hear from the wife, either in examination-in-chief or in cross-examination, about the import of these documents. The husband has been deprived of the opportunity to cross-examine the wife, and their daughter on these matters. He was deprived of the opportunity to have the Court observe the wife and their daughter in cross-examination on these points. Had I allowed the cross-examination continue, the Court would have only observed the husband under cross-examination and this could have skewed how the Court weighs this evidence;
(c) As the husband’s counsel argued, he might have conducted his cross-examinations differently, had he been given these documents in advance of the trial;
(d) The husband’s counsel was put in the position of not even being able to discuss these documents with his client or to get instructions before the husband testified about them, since the documents were raised for the first time during the husband’s cross-examination; and
(e) If the cross-examination were just to continue as the wife’s counsel would have the Court allow, counsel for the husband would be similarly deprived of the ability to talk to his client, before re-examining him.
C. Other Problem
[24] There is another potential problem with this proposed cross-examination. The cross-examination of the husband on these documents will not necessarily lead to their admissibility. While the husband might have admitted some of the statements attributed to him in the documents, he equally might not have made such admissions, and he was not the author of any of the documents. During submissions on the objection, the wife’s counsel was clear with the Court, that he did not intend to call any other evidence after the husband’s cross-examination, to establish admissibility of these documents, regardless of the answers obtained (for example if the husband denied the statements attributed to him in the documents).
[25] The wife’s counsel says that he did not need to do so, as these documents are all business records. He referred to both the Canada Evidence Act and Ontario’s Evidence Act as authorizing their admission into evidence. At least in the case of Ontario’s Evidence Act, seven days’ notice to the husband was required, and the husband was entitled to production of the document in advance of the trial. See sections 35(2) and (3). There has been no notice, and no production. Part of the purpose of notice, would have been to allow counsel to consider whether oral evidence from the record keeper is required.
[26] In the Trial Scheduling Endorsement Form, the parties agreed that business records could be admitted into evidence without calling the record keeper. The wife’s counsel failed to satisfy the Court, in response to questions from the bench, why the husband should be held to that agreement, respecting business records that he had not even seen.
[27] In the absence of a proper understanding from counsel for the wife as to how these documents might ultimately go in to evidence, I asked counsel to explain whether one may impeach a witness with a document, if the underlying document ends up being inadmissible. This question was not persuasively answered. In my view, something more will be required for these documents to go into evidence, now that there is an objection. Until I advised the parties of this ruling, there was no plan by the wife’s counsel to get that something more before the Court [^4].
PART VI: CONCLUSION
[28] I find that the wife’s litigation strategy respecting these aspects of the cross-examination has created an unfairness to the husband. I am prepared to make Orders to remedy the unfairness. Although the wife has created the issue, my Order will also include terms that will allow her to give relevant evidence about these documents, which she ought to have done in the first place. While she caused this conundrum, the trial must still be fair to the wife, too.
[29] I wish to remind the parties and counsel, again, that I gave both parties the opportunity to testify in examination-in-chief in addition to their trial affidavits. In this scenario where these documents were not produced prior to trial, the Court now knows, with hindsight, that its offer to hear additional examination-in-chief would have had an additional benefit. It could have been used as an additional opportunity to attempt to introduce these documents into evidence, to give the husband some notice and at least some more fair warning, without prejudicing the husband in the way that he would now be prejudiced, if the Court just allowed the cross-examination to continue. Yet the wife expressly declined the opportunity given to her by the Court.
PART VII: ORDERS GIVING DIRECTIONS
[30] I make the following Orders giving directions:
(a) During my delivery of this ruling orally, I already directed Mr. Benmor to complete his cross-examination of the husband without cross-examining the husband on the documents produced on the afternoon of July 4, 2021 [^5] ;
(b) Likewise, I already directed Mr. Housen to re-examine the husband, but not on the new documents[^6];
(c) Mr. Housen then chose not to call any additional evidence (other than what I am making provision for below) and Mr. Benmor did not call any Reply evidence;
(d) The date of Monday, June 7, 2021, previously added as an additional trial date for submissions, is vacated. Mr. Housen requires more time to obtain instructions from his client about this new evidence;
(e) There shall be two more dates for this trial, now to proceed on July 5 and 6, 2021[^7]. The July 5, 2021 date shall be used for the parties to call evidence, and July 6, 2021 shall be used for submissions;
(f) The wife shall be called to testify, at a minimum to establish the admissibility of the documents she produced on the afternoon of June 4, 2021. Mr. Benmor shall be entitled to elicit any other evidence relevant to these documents, too;
(g) Mr. Housen shall be entitled to cross-examine the wife on the documents, as well as on Exhibits 7 to 9, which he was not given an opportunity to cross-examine her on, since these were introduced for the first time during the husband’s cross-examination, too;
(h) Mr. Benmor shall be entitled to re-examine the wife;
(i) The parties’ daughter, Antonia shall be recalled to give any additional examination-in-chief relevant to these documents if the wife’s counsel wishes, before the additional cross-examination of Antonia by Mr. Housen;
(j) Mr. Benmor shall be entitled to re-examine Antonia;
(k) The husband shall then be entitled to testify in examination-in-chief about Exhibits 7 to 9 and about the documents produced on the afternoon of June 4, 2021;
(l) Likewise, there shall then be cross-examination and re-examination of the husband;
(m) If either side feels it is important to call additional witnesses to deal with related issues, like the admissibility of these documents, any hearsay contained in the documents, their reliability or any other related matter, he or she should be prepared to do so. Counsel have until Monday June 14, 2021 to advise each other as to their intentions in this regard;
(n) Mr. Housen is free to make submissions at the conclusion of the trial, that these directions have not sufficiently remedied any unfairness to his client, and he shall be entitled to seek other remedies. For example, as discussed during submissions, he may decide to make submissions about how the Court should treat or weigh this evidence; and
(o) Mr. Benmor is advised that he should immediately notify Mr. Housen on what basis these documents should be admitted as business records, if they are to be introduced as such. If necessary, he is to give Mr. Housen the appropriate notice to tender business records.
PART VIII: OTHER DIRECTIONS
[31] As a result of the additional discussions with counsel at the end of the day on June 4, 2021, I make the following additional directions regarding closing submissions.
[32] Any additional material, case law, DivorceMate calculations, or other calculations that either party wishes to rely on for closing submissions shall be exchanged by counsel and filed with the Court by Friday, July 2, 2021.
[33] If Mr. Housen intends to rely on other information, like information from Statistics Canada not already entered into the record during this trial (to which Mr. Benmor has already objected), he should be prepared to satisfy the Court as to its admissibility, at this stage of the case (after his case is closed other than the above), and the legal basis upon which the Court may consider it, substantively.
Justice Alex Finlayson
Released: June 8, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Dorothy Pamela Pinnock
Applicant
– and –
Donovan Pinnock
Respondent
MID-TRIAL RULING
Justice Alex Finlayson
Released: June 8, 2021
[^1]: In my oral ruling, I erroneously indicated that there had been approximately 15 pre-trial conferences. I am correcting this now, based on my further review of the Trial Record. The Trial Record contains 15 Endorsements. While some are Endorsements made following conferences, others are in fact rulings on motions or adjournments.
[^2]: The wife’s counsel did not specify which Act applies, but for the purpose of this ruling, this does not matter.
[^3]: See again Footnote 1.
[^4]: Examples might include the need to call the police officer(s) who recorded the statements in the occurrence reports, or the real estate lawyer, to testify. However, the parties agreed in their Trial Scheduling Endorsement Form that they would call no other witnesses, without obtaining leave from the case management judge or the trial judge. As part of the Orders to remedy the unfairness, I am giving them leave if they now need it.
[^5]: By the time of the release of this ruling in writing, this has now been done.
[^6]: By the time of the release of this ruling in writing, this has now been done.
[^7]: When I delivered this ruling orally, I specified the dates would be June 21 and 22, 2021 but I then learned Mr. Benmor is in an arbitration that week.