COURT FILE NO.: FC-16-960
DATE: 20210721
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
W.A.C.
Applicant father
– and –
C.A.F.
Respondent mother
Marie Michaels and Brandon Daniel, for the Applicant
On her own behalf
HEARD: July 12, 2021
RELEASED: July 21, 2021
JUSTICE ALEX FINLAYSON
PART I: NATURE OF THIS SUPPLEMENTARY DECISION
[1] This case involves parenting issues respecting the parties’ 11 year-old son. This case has been before the Court for over 5 years. It has been scheduled to go to trial multiple times, most recently during the spring 2021 sittings. The trial has yet to proceed.
[2] On May 25, 2021, what would have been the first day of the most recently scheduled trial, I heard two pre-trial motions, one from each party. The mother’s motion was for another adjournment of the trial. The father opposed the adjournment, and brought a motion to lift a sealing Order granted in October 2019, and which applies to parts of the Office of the Children’s Lawyer’s files concerning this family.
[3] For the reasons set out in my decision of May 31, 2021 (see W.A.C. v. C.V.F., 2021 ONSC 3942), I dismissed the mother’s request for a year-long adjournment, but I adjourned the trial to the fall sittings, 2021, before me. I advised the parties that I was contemplating appointing amicus curiae. I directed that my decision be sent to the Ministry of the Attorney General for Ontario, and to Legal Aid Ontario. I set a return date for July 12, 2021 to deal with the amicus issue. I also adjourned the father’s motion to lift the sealing Order to July 12, 2021. I found that the record before the Court concerning that issue was incomplete. I gave certain directions to the father to cure the deficiency.
[4] This supplementary decision arises out of my decision of May 31, 2021 and the further submissions I heard on July 12, 2021. These reasons should be read in conjunction with the May 31, 2021 decision.
[5] In this supplementary decision, I address four issues now present before the Court:
(a) whether to appoint amicus curiae;
(b) whether the sealing Order of October 23, 2019 should be lifted, to enable the parties to use the sealed material during the November, 2021 trial;
(c) whether the Court should give additional procedural directions, to ensure that these parties are held to the requirement to be ready for trial in November, 2021; and
(d) costs of the adjournment motion argued on May 25, 2021, and of the further appearance on July 12, 2021.
[6] During argument on July 12, 2021, I advised the parties that I intended to appoint amicus curiae, with written reasons to follow. These are my written reasons. I also told the parties I intended to reserve respecting the father’s motion to lift the sealing Order. For the reasons that follow, that motion is granted.
PART II: THE COURT’S DECISION TO APPOINT AMICUS CURIAE
A. The Various Positions Respecting Amicus Curiae
[7] The father, his lawyers and the mother each attended on July 12, 2021 to make submissions. Other lawyers also appeared before the Court on July 12, 2021 for different reasons, namely:
(a) Joshua Gleiberman;
(b) Deidre Newman;
(c) Stanley Jenkins from Legal Aid Ontario; and
(d) Joanna Chan, counsel for the Ministry of the Attorney General, Crown Law Office – Civil.
(1) Legal Aid Ontario’s Position
[8] Mr. Jenkins explained that a legal aid certificate might be available to the mother. He also touched upon Mr. Gleiberman’s involvement in relation to that.
[9] Mr. Jenkins advised the Court that the mother had applied for a legal aid certificate in June 2021. He explained that a certificate was issued. Mr. Gleiberman was going to accept the certificate and represent the mother. However, on or around Friday, July 9, 2021, Legal Aid Ontario realized that the certificate had been issued in error because the mother previously had a certificate, she applied for a change of counsel, Legal Aid Ontario denied that request, the mother appealed that to Legal Aid Ontario’s Area Director, and Legal Aid Ontario’s Area Office upheld the initial decision to deny the change in counsel.
[10] Mr. Jenkins advised the Court that mother has a further right of appeal to Legal Aid Ontario’s provincial office. To pursue that, Legal Aid Ontario will require certain information from the mother, mostly about her financial eligibility. Mr. Jenkins told the Court that Legal Aid Ontario will expedite its consideration of the mother’s appeal, if she files it. He could not provide any assurances that a new certificate would be issued to the mother, however.
[11] Legal Aid Ontario took no position on whether the Court should appoint amicus or not. Mr. Jenkins offered to source lawyers willing and available to act as amicus if the Court appoints amicus. He said he would submit a list of names to the Court from which the Court may select amicus. Between the date of argument on July 12, 2021 and the release of this decision, Mr. Jenkins submitted three names for the Court’s consideration.
(2) The Attorney General for Ontario’s Position
[12] Ms. Chan helpfully articulated the legal principles that the Court should apply to its decision about amicus. She also made submissions about what the role of an amicus might be in a case of this nature.
[13] The Attorney General for Ontario does not oppose the Court appointing amicus curiae in this case, even in light of the Ontario Court of Appeal’s decision in Morwald-Benevides v. Benevides, 2019 ONCA 1023. Ms. Chan submitted that she had reviewed this Court’s detailed Endorsement of May 31, 2021 and that informed the Attorney General for Ontario’s decision not to oppose amicus. Ms. Chan submitted that the Court would also have relatively wide latitude in defining the role of amicus, given the circumstances of this case.
[14] Ms. Chan did ask the Court not to make any orders that would interfere with the Attorney General for Ontario’s responsibility for payment of the amicus nor to determine the amount of compensation. She submitted that a standard term that amicus be paid at legal aid rates would be appropriate. She also asked the Court to make it clear that the mother may not discharge the amicus. And she asked for the right to revisit the need for amicus, should the mother retain a lawyer through Legal Aid Ontario.
(3) The Parties’ Positions
[15] The father’s counsel submitted that amicus is appropriate, because the mother might retain counsel, thereby on the surface obviating the need for amicus, but then discharge that lawyer prior to trial. That could result in another adjournment request.
[16] The father’s counsel also submitted that if amicus is appointed, the lawyer should not be someone with prior involvement in this case. Specifically, the father opposes the Court appointing as amicus anyone who represented or advised the mother in the past, or who acted in a capacity adverse to the mother (ie. a former associate of Ms. Michaels). The father did not otherwise add to the submissions about what the role of the amicus should be in this case.
[17] The mother advised the Court that she intended to file the appeal with Legal Aid Ontario. She seemed to oppose amicus, at least implicitly, by saying that she is worried Legal Aid Ontario will decline her appeal, should the Court appoint amicus.
[18] Ms. Newman advised the Court that she was attending to observe the proceedings and to “provide support” to the mother. When I asked a follow up question about her role, Ms. Newman was careful to tell the Court that she was not going to be giving “advice” to the mother. Still, she said she would explain to the mother what had transpired during the proceeding, and then set out some options for her. Ms. Newman did not make any submissions during argument on any point.
[19] Mr. Gleiberman attended as new counsel for the mother, but just before the attendance he learned he is not yet retained, for the reasons already explained above. Despite his lack of a retainer, Mr. Gleiberman assisted the Court with submissions on a point of contention concerning the father’s motion to lift the sealing Order, not about amicus.
B. Applicable Legal Principles
[20] The considerations for appointing amicus in a family law case (other than a child protection case) were recently articulated by the Ontario Court of Appeal in Morwald-Benevides v. Benevides, 2019 ONCA 1023. The Court applied the principles from Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43 to the family law context. The Court said the following:
(a) The appointment of amicus is “exceptional” or “rare”. Trial judges routinely resolve family law disputes without counsel on one or even both sides. Self-representation, on its own, is an insufficient reason to appoint amicus;
(b) Trial judges must consider whether they can personally provide sufficient guidance to an unrepresented party, in the circumstances of the case, to permit a fair and orderly trial;
(c) The Court should also consider the availability of alternatives to appointing amicus. These might include the availability of legal aid or appointing the Children’s Lawyer in a case involving a child. But the Court may also balance against these potential alternatives, how invoking them might create more delay;
(d) Amicus may be appointed in rare or exceptional circumstances, when a judge requires assistance to ensure “the orderly conduct of proceedings”, and “the availability of relevant submissions”;
(e) A party has a right to self-represent. Nevertheless, amicus might be warranted where the self-represented party is “ungovernable or contumelious”, where the party refuses to participate or disrupts trial proceedings, or where the party is adamant about conducting the case personally but is “hopelessly incompetent to do so, risking real injustice”;
(f) The assistance of amicus must be essential to the adequate discharge of the judicial functions in the case. The stakes must be high enough to warrant amicus;
(g) Amicus may assist in the presentation of evidence, but cannot control a party’s litigation strategy;
(h) “Very rarely”, amicus may mirror the duties of traditional counsel;
(i) However it is defined, the role of amicus must be clear, detailed and precise. During the trial, the Court must monitor the amicus, to ensure that he or she stays on course and remains within the limits of the role;
(j) The role may change or be refined as circumstances change during trial;
(k) Once appointed, the amicus is bound by a duty of loyalty and integrity to the Court, not to any of the parties to the proceedings; and
(l) A party may not discharge amicus; only the Court may do so.
C. Analysis
[21] I am aware of only two decisions since the Ontario Court of Appeal’s decision in Morwald-Benevides v. Benevides, in which a court has appointed amicus in a family law case. One of the two is a child protection case, and neither is entirely analogous to circumstances of this case before me. Still, there are some similarities.
[22] In Jewish Family and Child Service of Greater Toronto v. N.D., 2021 ONCJ 215, Zisman J. appointed amicus in a child protection proceeding. In so doing, she distinguished Morwald-Benevides v. Benevides, in part on the basis that the case before her was not a private family law matter. The stakes in child protection are different. There are also constitutional rights at stake.
[23] However, I still note that in the case before Zisman J., the mother had physical and mental health issues that impacted her ability to participate in the proceeding. The mother previously had two solicitor-client relationships break down. A legal aid certificate had been issued for a third lawyer, yet the Court still found amicus to be appropriate to safeguard against another breakdown and the corresponding impact on the trial.
[24] Fundamentally, Zisman J. appointed amicus because it was very important that the mother’s plan was before the Court, so the Court could fully assess the child’s best interests. Zisman J. was also concerned about the Court being put in the position of having essentially to cross-examine the Society’s witnesses.
[25] The second case is Neshkiwe v. Hare, 2020 ONCJ 285. In that decision, I appointed amicus. Like in this case now before me, Neshkiwe v. Hare was a private family law dispute, not a child protection proceeding. However, the amicus appointment was to assist the Court with complex, never before litigated, constitutional questions about the jurisdiction of the Ontario Court of Justice in circumstances where neither the Attorneys General of Canada or Ontario were going to intervene. See ¶ 252. Still, the case now before me is analogous to Neshkiwe v. Hare in the sense that the perspective of an important person in the litigation (the mother) is not before the Court. That is adversely impacting the Court’s ability to hold a hearing and to consider fully the child’s best interests.
[26] In this case now before me, not only did the Attorney General for Ontario not oppose the appointment of amicus, but counsel submitted that the amicus might take on a fairly broad role. Ms. Chan’s submissions clearly arose out of the history of this case. Most, if not all of the considerations articulated in Morwald-Benevides v. Benevides are engaged in this case, and they militate in favour of appointing amicus.
[27] While I do not intend to repeat everything that I said about this case in the May 31, 2021 decision, it is important to repeat ¶69-71. Those paragraphs summarize the prior proceedings and the problems that have arisen along the way. In those paragraphs, I said:
[69] By way of summary, in this case:
(a) The OCL has been appointed five times[^1]. 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.
[28] With that history in mind, applying the criteria set out by the Ontario Court of Appeal in Morwald-Benevides v. Benevides, I reach the following conclusions.
(1) Legal Aid is Not an Adequate Alternative in this Case
[29] There are no reasonable alternatives to amicus available, and that includes legal aid. Even though a legal aid certificate may theoretically be available to the mother, that remains to be seen, both whether it will be granted, but more importantly whether the mother will use it to prepare and participate in the trial, and keep counsel retained.
[30] I note that the mother is now pursuing legal aid, over five years into this proceeding, after she previously had a certificate and requested a change in counsel. She is doing so after this Court’s ruling of May 31, 2021, which denied her another year-long adjournment, advised the parties that they would be going to trial in the fall, and advised them that the Court was contemplating appointing amicus.
[31] I do not need to find, as the father implicitly submitted, that the mother’s recent pursuit of legal aid is a delay tactic. But it is true that if the mother retains counsel and then counsel is discharged or wishes to stop acting, the trial this fall may be at risk. Disorganization and chaos cannot be allowed to ensue: see Jewish Family and Child Service of Greater Toronto v. N.D. ¶ 39.
[32] I accept that appointing amicus is to be a rare event. I accept that, should the mother get legal aid and retain counsel, then it is rare to have both a lawyer and amicus available at the same time, especially where their roles would overlap. But Mr. Jenkins submitted to the Court that the granting of a legal aid certificate, and an amicus appointment, are not mutually exclusive orders. He advised the Court that he has seen situations where amicus was appointed but then discharged once counsel got retained. By contrast, he has also seen situations where the Court kept amicus, despite the subsequent retaining of counsel by the party, out of an abundance of caution to avoid the trial being derailed. I note he made similar submissions to Zisman J. on this point: see Jewish Family and Child Service of Greater Toronto v. N.D., 2021 ONCJ 215 ¶ 26.
[33] I have considered the mother’s concern, that by the Court appointing amicus, Legal Aid Ontario might now rule against her on her appeal, because there will be a form of legal assistance available to her via the amicus. The argument is that Legal Aid Ontario will somehow be influenced by this, either subtly, if not overtly, and then reject her appeal. This submission reflects a misunderstanding of the differences between counsel for the mother, and amicus for the Court.
[34] Furthermore, I have no information before me that this would even be a valid consideration on the part of Legal Aid Ontario. And even if this is a proper consideration, this argument does not tip the scales against appointing amicus. At this point, over five years into this lawsuit and in the context of what has gone on during it, the Court is not prepared to take a ‘wait-and-see’ approach with the mother’s legal aid appeal. Plus, there would still remain the father’s argument, about the risk to the trial, if the mother succeeds on her appeal, and retains but then parts company with her new counsel, between now and the trial.
[35] These concerns about duplication of roles can be addressed via the approach suggested by counsel for the Attorney General for Ontario, if necessary. The appointment of amicus may be revisited if the mother retains and keeps counsel. This approach is also in keeping with the Ontario Court of Appeal’s comments about the nature of an amicus appointment being capable of change, as the case unfolds.
[36] I was initially inclined to set a date, closer to the trial, for this review to occur. On further reflection, I am no longer prepared to set such a date. There have been too many court appearances in this case. The focus now, needs to be on trial preparation. It is not efficient or appropriate to allocate any more court time. There are upcoming court dates already booked for a Trial Management Conference and the trial. If the mother retains counsel, this is to be brought to the attention of the Attorney General for Ontario by the mother’s new counsel. If either party, or the Attorney General seek a review of the amicus appointment, the issue may be raised at the next, already scheduled date for the TMC. But the time to be allocated to this issue will be brief. The next Court date is not to become overwhelmed with this issue, to the exclusion of the trial management issues that need to be dealt with.
[37] I also wish to remind the parties, and counsel for the Attorney General for Ontario, that anyone seeking the review will have to persuade the Court that it would be prudent to discharge amicus in the context of this case. The fact of the mother succeeding on a legal aid appeal and then retaining counsel, although relevant, will not be dispositive of the issue. I ask that the following be considered, especially by the Attorney General for Ontario, before seeking to revisit this amicus appointment.
[38] The Court has been made aware, from the mother’s own submissions both on May 31, 2021 and July 12, 2021, that she has launched complaints about various professionals with whom she has dealt in this case, including person(s) with the Office of the Children’s Lawyer, the Court, a judge, and perhaps others. This lends weight to the father’s concern, that if the mother retains counsel, she may not keep counsel.
[39] And discharging amicus is not the only, or even a necessary option, should Legal Aid Ontario allow the mother’s appeal, and the mother then retains counsel. For example, the parties or the Attorney General for Ontario might alternatively consider whether there might still be a reduced role for amicus: see again ¶ 26 of Jewish Family and Child Service of Greater Toronto v. N.D.. Also, as I will explain when dealing with the father’s motion to lift the sealing Order, quite apart from the need for amicus to assist the mother, there may be a gap in the anticipated trial evidence concerning the child, with which the amicus may assist.
(2) The Children’s Lawyer Is Not A Viable Alternative in this Case
[40] The Children’s Lawyer is not a viable alternative in this case. I repeat again that the OCL has been appointed five times. No section 112 investigation or report has ever been fully completed. Mother has made a complaint about the OCL. The OCL even asked the Court to seal parts of its file in a fairly broad way. The effect of that was to exclude evidence before any determination could be made about it at the trial. There is now a motion to lift that sealing Order.
[41] In that context, on May 31, 2021, the Court rejected the mother’s request for yet another OCL appointment. I do not intend to set out the reasons for that here again in any detail. Another OCL appointment would cause delay. The OCL would likely to decline to accept another referral from the Court anyway. And even if it accepted the referral, the Court has no confidence that another appointment would result in a completed investigation and report.
(3) The Assistance of the Court as An Alternative
[42] At ¶ 35-36 of Morwald-Benevides v. Benevides, the Court said that the trial judge might consider as an alternative to appointing amicus, walking the self-represented party (in this case the mother) through essential documents, and giving her an opportunity to explain, line by line, her pleading, financial statement, and pertinent documents. The Court said the trial judge might do the same with respect to the other side’s documents. In doing this, the trial judge must not cross-examine.
[43] This would be very difficult in this case. The history of this case, cited above, reveals why. Were the Court to do nothing more at this time, and then wait and try to embark on such an endeavor at the trial in the fall, there is a real risk that the trial would be chaotic, and get quickly derailed and not finish.
[44] There is the possibility that the mother might decline to participate. It is a certainty that the father would oppose any more adjournments. Without commenting on the merits of any hypothetical further adjournment requests, perhaps the trial may not even start. Or, if an adjournment is denied, then there is a risk that the Court would end up hearing just from the father, and making a decision based on incomplete information. In cases involving children, that is far from ideal.
(4) The Mother’s Rights Respecting Representation
[45] The Court is not removing the mother’s right to appeal to legal aid, to hire her own counsel, or to self-represent. I will set out terms below to ensure that.
(5) The Stakes Are Sufficiently High In this Proceeding to Warrant the Appointment of Amicus
[46] This is not a child protection proceeding. Comparatively, the stakes are not as high in this case, in that this is not a case where the state has sought the removal of a child from his or her parent. The constitutional dimensions that are engaged in child protection are also not present. And at this point, it does not appear to the Court that the main issues in this case are particularly complex, either factually or legally. It is the surrounding events that are adding unnecessary complexity.
[47] However, comparing this case to a child protection case is not the only way to measure the stakes. The Court must not lose sight of the fact that this case still concerns an 11 year-old boy. I know from the affidavit evidence that has already been put before me for the motion argued on May 25, 2021, that he is not seeing his father. The father says the mother has not allowed it. The mother alleges the child is at risk. There is much collateral evidence that will be in issue in this case, including possibly from past police involvement, CAS, the OCL, potentially mental health evidence, and other evidence. Clearly, not only the parents’, but also the child’s interests are engaged in this case. There may be some complexity to the remedies sought at trial; that remains to be seen.
[48] Ultimately, the Court must make a decision this this child’s best interests. The Court will have to apply the myriad of factors in the Children’s Law Reform Act to the evidence, to arrive at that decision. It should not be doing that on the basis of an incomplete, or one sided evidentiary record.
[49] It is very important to the Court to have the mother’s perspective, and a full record about what is in the best interests of this child. It is very important for the outcome for the child.
[50] There is also an administration of justice concern in this case, which in my view raises the stakes. I addressed this already in the May 31, 2021 decision, in the different context of considering what the impact on the administration of justice would be, were the Court to grant the mother another adjournment. What I said about that is set out at ¶ 70 of the decision of May 31, 2021 and it is also reproduced above in this decision, too.
[51] This Court has been trying, repeatedly, to get this matter tried. It has not been successful in its efforts so far. Orders have been made, including orders that this trial will be peremptory. The delays that have been occasioned and the amount of resources that this case has consumed, have impacted other cases, other families, scheduling. It sends the wrong message in general, when parties are told to be ready for trial, and then cases get delayed, by default, without consequence. These administration of justice concerns militate in favour of appointing amicus. Appointing amicus increases the likelihood of the trial proceeding in November.
(6) The Mother’s Litigation Strategy and the Duties of Amicus
[52] The mother may control her own litigation strategy. The amicus will not. The amicus’ duty will be to the Court, not to the mother. The mother may not discharge amicus, only the Court may do so.
D. The Selection of Amicus
[53] On July 15, 2021, Mr. Jenkins sent an email to the Court, via the judicial assistant, to provide me with the names of three lawyers willing to act as amicus. Mr. Jenkins also provided to the Court an Endorsement containing terms of a previous amicus appointment that I had made in another case, as an aide.
[54] All three lawyers that Mr. Jenkins sourced are family lawyers. They are all well-known to the Court. They are equally qualified. There is no principled way for me to select amongst them, so I will select the first person on the list.
[55] The amicus will be Deborah Stewart. Ms. Stewart is an experienced family lawyer, who also practices child protection. In addition, Ms. Stewart has done agency work as counsel for the Office of the Children’s Lawyer.
[56] The Court is confident that Ms. Stewart is very capable of taking on this role. She understands well the role of amicus. She will take her duty to the Court seriously. The Court anticipates that Ms. Stewart will provide much assistance between now and the trial, and during the trial itself.
E. The Role of Amicus
[57] I intend to set out the role of amicus with as much specificity as I can at this time, as I am required to do per the Ontario Court of Appeal’s comments in Morwald-Benevides v. Benevides. At this point, the role will be six-fold.
[58] First, this Court requests that Ms. Stewart assist it to complete the Trial Management Conference. It is the mother’s case that requires the most organization. Ms. Stewart will have to review the trial material already prepared, and discuss the mother’s case with her. Ms. Stewart should assist the mother to complete her part of the draft Trial Scheduling Endorsement that has only been completed by the father so far. Ms. Stewart should be aware that I modified the plan proposed by the father, in the Trial Scheduling Endorsement that was submitted. This includes that some of his evidence will be presented by way of affidavit. Please see my Endorsement of May 31, 2021 for further details.
[59] Second, the Court requests that amicus to assist the mother to bring to the Court’s attention any accommodations that she needs to participate in the trial. I am giving one more chance for these to be raised, and they should be brought to my attention at the Trial Management Conference. Previously, Fryer J. suggested that the mother contact the Court’s disability coordinator. Ms. Stewart may see it appropriate to liase between the mother and the coordinator in that regard too.
[60] Third, the Court requests that amicus be available in advance of, and during the trial, to assist the mother with the presentation of her evidence, and to assist her with cross-examinations. Obviously, Ms. Stewart will have to talk to the mother before the trial, to help her prepare for this.
[61] In order for Ms. Stewart to be effective, the mother will have to cooperate and engage with Ms. Stewart. If the mother chooses not to engage with Ms. Stewart, then she may not complain about a lack of assistance or a lack of understanding of the process, at the trial. Even if the mother does not engage, I will still have Ms. Stewart available at the trial to assist as issues arise, subject to a determination otherwise on the potential review referred to above.
[62] To be clear, I am not making an order prohibiting the mother from participating in the trial on her own, calling evidence on her own, or conducting her own cross-examinations. The amicus will be available to help the mother. For example, the mother may choose to avail herself of the amicus and then to supplement the amicus’ assistance, with her own work. By way of further example, if the mother disagrees with any decision that the amicus makes about an argument or the presentation of evidence, the mother will be free to call other evidence, ask other cross-examination questions, or make other arguments to supplement anything she feels the amicus has omitted or that she disagrees with. She is also free to make her own submissions. She may do as much or as little of this trial on her own, and the amicus will be there to assist.
[63] Fourth, as I will explain next when addressing the father’s motion to lift the sealing Order, there may end up being gaps in the views and preferences evidence or in the other evidence about the child. In declining to appoint the OCL for the sixth time at ¶ 100 of the May 31, 2021 decision, I wrote that counsel for the father and the mother will now have to come up with another way to get evidence about the child’s views and preferences before the Court, without delaying the trial.
[64] Appointing Ms. Stewart as amicus has the added advantage that Ms. Stewart has acted as counsel for the OCL on other files. It is known to the Court that Ms. Stewart has much familiarity with the kind of evidence that a Court would consider helpful, and about how to get it. So, I would like to request that Ms. Stewart consider this. I ask that she not just consider this from the mother’s perspective. Once the amicus has had an opportunity to review what the anticipated evidence will be, including the discontinued OCL reports, the Court would welcome hearing from the amicus about how any gaps might be filled. There is some authority for amicus to take on this role, too, but it would be helpful to receive additional submissions/case law, as is necessary. See C.M.G. v D.W.S., 2015 ONSC 2201 ¶ 16-31.
[65] Fifth, to the extent that this case might call for a more complex remedy, the amicus might also assist the Court with submissions about appropriate remedies. To be clear, the amicus will have the right to make submissions about all relevant issues (not just the remedy), including about how the Court should weigh the evidence and what findings of fact should be made.
[66] Sixth, if after reviewing this decision, the parties or the amicus feel the role should be changed, the Court invites those submissions at the Trial Management Conference, too, and on a continuing basis as the trial unfolds. If there is any concern about privilege issues, then the parties and amicus should be prepared with submissions at the TMC. See Morwald-Benevides v. Benevides ¶ 38; see also R. v. Imona-Russel, 2019 ONCA 252 ¶ 89.
PART III: THE FATHER’S MOTION TO LIFT THE SEALING ORDER
A. Background to this Motion
[67] The father’s motion to lift the sealing Order of October 23, 2019 arises out of the following history.
[68] Just before the trial that was then scheduled to proceed during the fall 2019 sittings, the OCL brought the initial motion to seal certain documents in its possession. The OCL had attempted two investigations pursuant to section 112 of the Courts of Justice Act, but could not complete them. It filed two, incomplete discontinued reports in the Continuing Record, but then decided it wanted them sealed in favour of embarking upon a third investigation.
[69] As explained in the Endorsement of October 23, 2019, counsel for the OCL told the motions judge that the OCL intended to complete a new investigation and report on its own initiative pursuant to section 112(2) of the Courts of Justice Act. The OCL promised to undertake this new investigation according to whatever timeline the Court set. The argument, as I understand it, was that the discontinued reports would have little value, particularly when compared to the comprehensive report would be forthcoming.
[70] Paragraph 7 of the motions judge’s Endorsement of October 23, 2019 contains a finding that the mother’s lack of cooperation was the reason that “at least one of the two prior reports was defective/incomplete”. The Endorsement also explains that the mother supported the OCL’s motion to seal the file, and in so doing she promised to cooperate with the new investigation.
[71] Under these unusual circumstances, the motions judge granted the OCL’s motion. The material sealed consisted of the two incomplete discontinued reports, and the motion material filed in support of obtaining the sealing order.
[72] But then, despite the assurances that a new investigation would be undertaken promptly and the mother’s promise to cooperate, the new investigation was neither completed for the fall 2019 sittings. Nor was it ever completed. Nor was the comprehensive report ever prepared and filed. In fact, the third incomplete report ended up being less comprehensive than the second one.
[73] It is not clear to me whether, by the time of the November 2019 scheduled trial, the third investigation had already started to unravel. On November 20, 2019, the judge who had then been scheduled to hear the trial, adjourned it to the May 2020 sittings, given the absence of the new OCL report. He ordered the OCL to submit its report by May 13, 2020, regardless of whether it was complete or incomplete.
[74] Of course, the trial next scheduled for May of 2020 did not proceed because of Covid-19. But the OCL did file its third incomplete report, on May 13, 2020.
B. The Parties’ Positions
[75] The father brings this motion to lift the sealing Order, so he may rely on the two discontinued reports at the trial, and perhaps some of the other sealed material. The father says that the sealed material contains evidence of an observation visit between him and the child (the only objective observation evidence from the OCL that exists). He says that it contains evidence adverse to the mother, but which supports his case. He says there is evidence from collateral witnesses contained in the sealed material, too.
[76] The father says that the motions judge sealed the file in circumstances where a fulsome report was supposed to be prepared, but that has not materialized. The father says circumstances have changed, and the sealed material, which is really the only evidence garnered from the OCL, should be available for the trial.
[77] The mother opposes the father’s motion to lift the sealing Order. The mother alleges the OCL brought the motion to “protect the child”. She asks that the sealing Order should remain. She says the child’s voice is not before the Court. She does not want what is in the sealed material to be taken as the child’s voice. She also says that the sealed material contains “slander” against her.
[78] It will likely be an issue at trial as to who bears the responsibility for the incomplete OCL reports. Some findings about this were made, at least on an interim basis, in the October 23, 2019 Endorsement. During the submissions, the mother avoided answering questions from the Court about whether she cooperated with the OCL’s attempt to undertake a new investigation in the fall of 2019, in accordance with her promise to the Court to do so. Instead, the mother told the Court that the OCL did not act appropriately. She told the Court that she has made a complaint about either the OCL and/or the clinical investigator, for violating her human rights and the Accessibility for Ontarians with Disabilities Act, 2005.
[79] I leave this issue for the trial if it is relevant, although the trial should not turn into a collateral trial about the OCL’s alleged discriminatory conduct.
C. The Test to Lift a Sealing Order
[80] The open court principle is a principle of paramount importance. It enjoys constitutional protection. Confidentiality orders, including sealing orders, are the exception, not the rule. They are ordered on a delicate balancing of competing interests.
[81] Section 137(1) of the Courts of Justice Act is a partial statutory statement of the open court principle. It provides that on payment of a fee, a person is entitled to see any document filed in a civil proceeding in a court, unless an Act or an order of the court provides otherwise.
[82] Section 137(2) is another statutory provision that provides for a limit to that principle. It provides that a court may order that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record.
[83] In cases involving children, there are also confidentiality provisions in section 70 of the Children’s Law Reform Act. The motions judge did not base his decision on section 70.
[84] The legal framework to obtain a sealing Order depends on the application of a two-part test: see Elbakhiet v. Palmer, 2019 ONCA 333 ¶ 26, citing Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41. The test is:
(a) The order must be necessary to prevent a serious risk to an important interest, because reasonable alternative measures will not prevent the risk; and
(b) The salutary effects of the confidentiality order including the effects on the right of civil litigants to a fair trial, outweighs its deleterious effects, including the effects on the right to free expression, which includes the public interest in open and accessible court proceedings.
[85] Of course, this is not a motion for a sealing Order in the first instance; a sealing Order has already been made. This Court has already balanced the competing interests at stake based on the record that was before it in October, 2019. Rather, this a motion to lift that sealing Order. And while the father told the Court why he would like to use the sealed material at the trial, he did not make any submissions as to the applicable legal test for the lifting of a sealing Order. Nor did the mother.
[86] Section 137 does not provide the authority to lift a sealing Order, once one is made. There is also no Family Law Rule that governs the variation, setting aside or the lifting of an Order like a sealing Order, made under circumstances such as those in this case[^2].
[87] By contrast, rule 59.06(2)(d) of the Rules of Civil Procedure, which might apply by analogy pursuant to rule 1(7) of the Family Law Rules, makes provision for a party to bring a motion in the proceeding to obtain other relief than originally awarded. However, resort to the Rules of Civil Procedure in a family law case is rare. See Frick v. Frick, 2016 ONCA 799 ¶ 12.
[88] But even if the Rules of Civil Procedure are also unavailable, there is no serious debate that this Court has jurisdiction to entertain the father’s request to lift the sealing Order. The motions judge’s own Order left it to the trial judge to lift the sealing Order, if the new report was not prepared.
[89] It was not argued by either side that the Court lacked jurisdiction to entertain the father’s motion. And even in the absence of any rules-based authority, the Court would have inherent jurisdiction to change or set aside its own orders, if appropriate. See Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43 ¶ 17-26.
D. The Doctrine of Res Judicata Does Not Apply
[90] Just because the Court has jurisdiction to lift the sealing Order does not automatically mean that it should. Because this motion is for relief that was already dealt with by a different judge of this Court, I find it appropriate to consider whether the doctrine res judicata applies.
[91] The law seeks finality and generally precludes re-litigation of issues already decided. Certain conditions must be met for estoppel to apply. The doctrine of res judicata includes two kinds of estoppel: cause of action estoppel and issue estoppel. Cause of action estoppel, which applies where a cause of action has been finally adjudicated and then it is sought to be relitigated, is not in issue here. Issue estoppel applies to prevent the re-litigation of constituent issues or material facts within a case. It is issue estoppel that may be engaged.
[92] Where the same question has been decided, the judicial decision is final, and the parties or their privies are the same, issue estoppel may apply to prevent re-litigation, subject to the Court’s discretion to decline to apply the doctrine. See Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 ¶ 18-24. The question I will next consider is whether the three preconditions are met.
[93] In Ludmer v. Ludmer, 2012 ONSC 4478, the wife had brought multiple motions in the past for interim costs or the sale of the matrimonial home. Those motions were dismissed. The issues came before the Court again, on a third motion. Mesbur J. was the new motions judge. Although she dealt with the wife’s latest motions on their merits (and dismissed them again), Mesbur J. first considered whether the wife was barred from even bringing the motions at all, based on the doctrine of res judicata. Mesbur J. held that the wife was not barred.
[94] At ¶ 24-25, Mesbur J. held that the doctrine of issue estoppel did not apply. She referred to rule 2(2) of the Family Law Rules and the Court’s mandate to “oversee and maintain balance and fairness between the parties”. She also noted that the prior motions had been dismissed for specific reasons, based on the legal landscape of the case at the time. Intervening events may occur to change “the legal landscape sufficiently to support the wife’s motion”. Mesbur J. did find that the wife had a higher burden to show the necessary factual foundation for her motion, given the prior dismissals.
[95] Very recently in Joseph v. Molnar, 2021 ONSC 4432, Kiteley J. ordered a custody and access assessment, despite the Court’s prior dismissal of an earlier request for one. Kiteley J. held that the doctrine of res judicata did not apply, because the prior dismissal of the motion for an assessment did not finally dispose of the issue. She also found it now to be in the child’s best interests to Order an assessment, engaging in a different analysis than the previous motions judge.
[96] That said, an interim order may create an estoppel, at least as it pertains to a subsequent motion in the same proceeding. However, the doctrine has been held not to apply on a subsequent motion where there has been a material change in circumstances, or new evidence which was previously suppressed or unavailable. Further, the issue in the second motion must be the precise issue previously adjudicated in the first for issue estoppel to apply. And a motion granting interim relief until trial is not “final” for the purpose of issue estoppel. See Donald J. Lange, “The Doctrine of Res Judicata in Canada”, 4th ed., Chapter 6. See also Newmarch Mechanical Constructors Ltd. v. Hyundai Auto Canada Inc. (1994), 18 O.R. (ed) 766 (Gen. Div.), D.L.J. v. D.J.L., 2009 PECA 6, [2009] P.E.I.J. No. 9 (C.A.) and Bowering v. Bowering, [2001] S.J. No. 657 (Q.B.) ¶ 38/
[97] In this case now before me, the sealing Order was not finally resolved. The motions judge’s decision itself leaves the question of whether the sealing Order might be lifted for trial, to the trial judge. Even if the motions judge did not make that allowance in his Order, the material which the motions judge sealed includes discontinued reports prepared pursuant to section 112 of the Courts of Justice Act. Section 112(3) of the Courts of Justice Act states that an affidavit of the person making the investigation, verifying the report as to facts that are within the person’s knowledge and setting out the source of the person’s information and belief as to other facts, with the report attached as an exhibit thereto, shall be served on the parties and filed and on being filed shall form part of the evidence at the hearing of the proceeding. This is a mandatory provision.
[98] In that context, the OCL’s initial motion for a broad sealing Order having the effect of preventing evidence from being called at the trial, was highly unusual. The OCL did not ask the Court just to protect the information contained therein from public access, or even from use in a different proceeding. It is clear from the motions judge’s decision that he was instead asked to seal evidence so that it could not be used at all in this case, despite the wording of section 112(3).
[99] Notwithstanding the October 23, 2019 decision, it is ultimately a question for the trial judge to decide what evidence is admissible, as well as other matters in relation to the conduct of the trial. See also for example rules 1(7.2) and rule 1(7.4) of the Family Law Rules. In that context, it would be open to the trial judge to consider lifting the sealing Order. And again, even if I were not scheduled to be the trial judge, I also note that the decisions in Ludmer v. Ludmer and Joseph v. Molnar were made by subsequent motions judges.
[100] Still, the Court must remain vigilant to prevent the improper litigation of matters previously decided, even if the doctrine of res judicata does not strictly apply. The Court should not allow a litigant to mount an attack on a previous decision, or to engage in repeated litigation.
[101] Therefore, even though it may not be strictly necessary in this case, to decide the father’s motion the test that I will apply will be a material change type test. I will consider the circumstances or conditions under which the sealing Order was made, and I will compare those to what has changed. I will start with the motions judge’s initial application of the test for the sealing Order. I will then consider whether the reasoning/his balancing of the competing interests remains applicable, in light of the new circumstances.
E. The OCL’s Lack of Participation At this Motion
[102] Unfortunately, the OCL did not appear either on May 25, 2021 or July 12, 2021. The OCL initially told the father it would not be appearing, before even being served with his motion material. After being told this, the father decided not to serve the OCL.
[103] When I learned of this leading up to the May 25, 2021 motion, I directed the father to serve the OCL with his motion regardless. The OCL is a party to this motion pursuant to rule 7(2) of the Family Law Rules. I flagged for the parties (and the OCL) that the Court was interested hearing from the OCL. Unfortunately, after service, the position did not change.
[104] At ¶ 95 of the May 31, 2021 decision, I wrote, “… [e]ven 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”.
F. The Basis for the OCL’s Motion in October, 2019
[105] The parties disagreed as to why the OCL brought this motion in the first place. Without submissions on this point from the OCL, I questioned the parties about this. Also in the absence of submissions from the OCL, on May 31, 2021 I directed the father’s counsel to send to my attention all of the material that formed part of the motion for the initial sealing order before the motions judge, subject to argument about whether it should be unsealed to aid in deciding this motion. It was for that reason that I adjourned the father’s motion to lift the sealing Order, to July 12, 2021.
[106] On July 12, 2021, I invited submissions on the latter. The mother objected to the Court reviewing the 2019 motion material, saying it was prejudicial. The father argued that the Court could review it, although counsel suggested that the mother might also argue later on, that this was a legal error for me to have done so.[^3] Mr. Gleiberman told the Court that it could review the material for the purpose of deciding the father’s motion, and then disabuse its mind of anything in the material, for example should the father’s motion fail.
[107] I was not given any authority for either of the positions. I instead found authority without the assistance of the parties/counsel. In Elbakhiet v. Palmer, at issue was whether a temporary sealing Order should be made final. At ¶ 30, the Court of Appeal held it was an error for the motions judge to have made the order which required the balancing of competing interests under the test, without reviewing the material in issue. By analogy, in M.(A) v. Ryan, [1997] 1 S.C.R. 158, McLachlin J. held that it was appropriate for a judge considering a claim for case by case privilege to review the material in issue, where necessary. See ¶ 39.
[108] I have decided it is important for the Court to review the motion material that was before the motions judge, in order to understand fully what the sealed material consists of, why this material was sealed, and whether the balancing that the motions judge applied still applies in light of the new circumstances. Unfortunately, my review of the motion material that had been filed by the OCL back in 2019 did not reveal much additional information about why the OCL brought the motion. It did reveal to the Court exactly what evidence will exist for the trial, but for the sealing Order, however. As I have decided in the result to lift the sealing Order, I will summarize some of it. I find it necessary to do so, to to explain why it is important to lift the sealing Order.
G. The Record Before the Motions Judge
[109] The motion material consisted of an affidavit of Katherine Kavassalis, Deputy Legal Director of the Office of the Children’s Lawyer, Personal Rights Department, sworn October 8, 2019. That affidavit provides a short history of some of the Court’s Orders in this case and some of the OCL’s involvement in this case, and it states that two discontinued reports dated March 28, 2019 and June 24, 2019 had been filed with the Court. The two discontinued reports are attached as exhibits to the affidavit, along with certain other documents and correspondence.
[110] The first discontinued report is that of clinician, Linda Bleau dated March 29, 2018. The summary section contains two paragraphs. It explains why she was unable to complete the investigation.
[111] The next document of substance that is attached to Ms. Kavassalis’ affidavit is a letter by clinician Naiomi Singh dated May 29, 2019. Ms. Singh was the new clinician, attempting to undertake the next discontinued investigation and report. The purpose of Ms. Singh’s letter was to explain why the report was late. As part of her explanation, Ms. Singh wrote that she was able to complete an observation visit with the father, but not with the mother. She explains the reasons for that.
[112] Ms. Singh later filed a report of the second, discontinued investigation, dated July 23, 2019. It is 37 pages in length. It contains a family history, a summary of the concerns identified by the parents, a detailed summary of the interview with the father, and an observation of the father and the child. Although it contains no recommendations about the appropriate parenting order that ought to be made, it contains several pages of discussion. It makes one recommendation about the child. I do not know if the recommendation was followed. The report also contains several pages of summaries of the clinician’s collateral contacts.
H. The Motion Judge’s Reasons for Sealing Portions of the OCL’s Files
[113] The motions judge’s reasons for sealing portions of the OCL’s files are set out at ¶ 14-16 of the October 23, 2019 Endorsement. At ¶ 14, the motions judge found that the danger to the administration of justice is that the trial judge is prevented from determining what is in the child’s best interests because previous reports are incomplete and contain no recommendations. He also found that trial time would be wasted on examinations and cross-examinations of former clinicians who have evidence of limited value.
[114] The motions judge sealed the file, but that was premised on the OCL completing a new report. At ¶ 16 of the October 23, 2019 decision, the motions judge rejected the father’s argument that he would lose the opportunity to rely on evidence that supports his position in the old reports, because the benefit of having a complete report with substantive recommendations would outweigh the concern.
I. The Third Incomplete Report
[115] But what has been filed in the Continuing Record following the October 23, 2019 sealing Order, the mother’s promise to cooperate and the OCL’s assurance that a comprehensive report would be prepared in a timely fashion, is a third, incomplete report of OCL clinician Karen Guthrie-Douse, dated May 13, 2020. Unfortunately, it is even much more brief than the second report.
[116] The first 3 to 4 pages of this document merely summarize the parties’ intake forms. Pages 4 and 5 of the document contain a summary of the father’s interviews with this clinician. On page 6 of the document, the author writes that she had “not had any interviews with [the mother] to date”. On page 7, the clinician states that no observation of the child in either parents’ care had been completed, and that no interviews with the child had been completed either.
[117] There is only one substantive paragraph under the heading “Discussion” on page 7 of the May 13, 2020 document. It provides a very general summary of what access the father has had with the child from time to time. Under the heading “Recommendations”, the clinician said she was unable to make any.
[118] Apendices A and B of this document contain a list of collaterals whom the clinician says had been contacted, a summary of her conversation with the father’s new partner, and a list of the court documents she reviewed. There are no summaries of the collateral contacts, apart from that with the father’s new partner. Instead, attached as appendices B1 to B4 are some notes and records of the Durham Children’s Aid Society, the Durham Regional Police, the child’s pediatrician and the Durham Supervised Access Program.
J. Analysis
[119] The current circumstances now before the Court are very different from those represented to be so to the motions judge.
[120] The interest which the motions judge sought to protect was an administration of justice interest. The motions judge was concerned about the integrity of the trial, if incomplete evidence would be presented. The motions judge was aware of the father’s concern about his right to a fair trial, but he found the risk to that to be limited, since a new comprehensive report was going to be prepared. The motions judge even ordered the OCL to use all previously obtained source documents.
[121] However, the balancing in which the motions judge engaged is no longer applicable in light of the changed circumstances. The comprehensive report did not come. What the motions judge anticipated would happen (ie. a new investigation and a report with recommendations), has not materialized. The motions judge’s Order has ended up having the effect of placing limits on evidence that could be sought to be introduced at the trial. That is not just a significant limitation on the open court principle, it is in effect an evidentiary ruling. It was also not the motions judge’s intention.
[122] Therefore, I am granting an Order lifting the sealing Order because:
(a) The Court does not have a comprehensive report, as the motions judge contemplated;
(b) The history of the OCL’s involvement with this family has relevance to issues in this case, including to delay, to the length of the interruption of the father-son relationship, and the reasons for that;
(c) The only OCL observation evidence that exists is in the material that the motions judge sealed;
(d) Both parents’ willingness to support the development and maintenance of the child’s relationship with the other parent is an issue for the trial. The material that the motions judge sealed contains evidence relevant to that;
(e) The fact that the second clinician made a recommendation about the child, whether it was followed, and if not why not, is relevant; and
(f) The second report contains summaries of the collateral contacts. It is not presented in the same fashion in the third report.
[123] The above are just some of the reasons how the material that was sealed is relevant to the trial. It may very well be that additional relevance emerges during the trial.
[124] I find that it would be illogical to leave the sealing Order intact. The result would be that the third report, which is more brief than the second, would be in evidence, but the previous work done by the OCL would not be. That would exacerbate the danger that the motions judge identified, not cure it. Because of how things unfolded, this amounts to an unanticipated consequence.
[125] Again, it is important that in cases involving children, the Court have all available, relevant evidence. The mother may feel that the sealed material may be unbalanced, or not fair to her case, or to the child. The dangers that the motions judge identified may still be present, but they are manageable at the trial. The mother is free to challenge the reports, to cross-examine witness (with the assistance of amicus or on her own) and to explain her failure to engage with the OCL, where/if that occurred, to put into context areas of the report where the clinician obtained information from the father but not the mother. The mother is also free to make submissions about the weight that should attach to any such evidence. The Court may also place limits on irrelevant examinations or cross-examinations, if it is revealed that aspects of the examinations have little evidentiary value.
[126] In addition, the appointment of amicus also mitigates against the dangers that the motions judge identified. Again, I have asked the amicus to consider the OCL evidence, and to consider whether it should be supplemented.
[127] In lifting the sealing Order, apart from my earlier reference to section 112(3) of the Courts of Justice Act, I make no other comments on the admissibility of the material contained therein, or about weight. Evidence will have to be introduced in the ordinary course, and objections may of course follow.
PART IV: OTHER PROCEDURAL DIRECTIONS AND COSTS
[128] At ¶ 110(g) of the decision of May 31, 2021, I directed the father to prepare a supplementary trial brief. I specified what should form part of the contents of that brief. I did so for the reasons set out in ¶ 86 and 87. I gave him 30 days to do so.
[129] I appreciate the busy demands of the practice of family law. However, I made the above Order, with the consent of the father, as a form of accommodation to the mother, and to hopefully shorten trial time. The father did not comply with that timeline.
[130] Counsel for the father has now asked for additional time to complete the task, to August 23, 2021. Counsel complained that the Court required the husband to present his “entire case” in writing. That is not what the Court did on May 31, 2021. I also note that the father said he was trial ready for the May 2021 sittings, when he opposed the adjournment and so the task that the Court actually ordered ought not have been that onerous.
[131] Nevertheless, I am granting that extension. The material, if delivered by August 23, 2021, will still be in the mother’s possession well in advance of the trial (almost 3 months in advance of trial, and almost one month in advance of the TMC). The amicus is also available to assist the mother. The same goals as those which I identified in the May 31, 2021 decision will still be met, despite this delay.
[132] The parties agreed that costs of the May 25, 2021 motion would be reserved to the trial. In the interests of efficiency and with Rule 2 in mind, I will also adjourn the costs of the further attendance on July 12, 2021 to the trial. As I am scheduled to be the trial judge, I will be in a position to rule on costs then, as I am now. There is no concern about a different judge being in an inferior position to deal with costs of this earlier step before me, later on.
PART V: ORDERS
[133] I make the following orders:
Re: Amicus Curiae
(a) Deborah Stewart is appointed as amicus curiae in this case;
(b) Ms. Stewart shall be paid at legal aid rates;
(c) Ms. Stewart is appointed to assist the Court respecting the matters in ¶ 57 to 66 above;
(d) Ms. Stewart shall not take instructions from the mother, but shall consider her views;
(e) Only the Court may terminate amicus, or change the terms and conditions of the appointment;
(f) Amicus may make opening statements, call evidence, file documentation, conduct examinations or cross-examinations and make submissions. Her role shall be to do so, to assist in getting the mother’s perspective and evidence before the Court. However, she may also address the other matters referred to above;
(g) Counsel for the father is to provide a copy of all trial records and exhibit books that the father prepared, to the amicus forthwith. This is to include the supplementary trial record that counsel prepared containing some of the material that has now been unsealed (she prepared this pending the ruling on this motion);
(h) Forthwith upon preparing the additional trial brief referred to on page 27, paragraph 110(g) of the May 31, 2021 decision, the father shall provide a copy to the amicus, in addition to the mother;
(i) The Court requests that amicus read a copy of the Court’s May 31, 2021 decision, as well as a copy of this decision;
(j) If amicus requires any additional information, then counsel for the father, or the mother, shall provide it to her forthwith upon request;
(k) If the mother disagrees with any decision that the amicus makes in her conduct of the TMC or the trial, the mother will be free to call other evidence and ask other cross-examination questions of her own, or make different submissions;
(l) If after reviewing this decision, the parties or the amicus feel the role should be changed, the Court invites those submissions at the Trial Management Conference, too, or as the trial unfolds;
(m) If the mother appeals to Legal Aid Ontario’s provincial office, if her appeal is allowed, if a new certificate is issued, and if the mother retains counsel for the trial, then the other parties and Ms. Chan are to be immediately notified once the lawyer is retained;
(n) The Trial Management Conference shall proceed before me, on September 17, 2021 @ 3 PM. Counsel for the father shall provide to Ms. Stewart a copy of the partially completed Trial Scheduling Endorsement that was before the Court at the time of the motion argued on May 25, 2021. Ms. Stewart is advised that the Court made modifications to the father’s case for the trial, in consultation with the father, as compared to what is on the draft TSEF. Those modifications are set out in the May 31, 2021 decision;
(o) Amicus should assist the mother to complete her part of the Trial Scheduling Endorsement to be presented at the TMC, but also to address the other trial readiness issues raised in this decision;
(p) The Court believes amicus is already aware of the trial dates in this matter. Out of an abundance of caution though, for the information of amicus, the trial is scheduled to commence on November 15, 2021;
Re: the Father’s Motion to Lift the Sealing Order
(q) The motion to lift the sealing Order dated October 23, 2019 is granted. Specifically, I make the Orders requested at paragraphs 2 and 3 of the father’s Notice of Motion dated May 21, 2021. A copy of that material, now no longer sealed, is to be given to amicus by counsel for the father, forthwith, to the extent it does not form already part of the additional trial record, referred to above, that will be given to amicus;
Re: Other Procedural Directions and Costs
(r) The father now has until Monday, August 23, 2021 to comply with paragraph 110(g), on page 27 of the May 31, 2021 decision; and
(s) Costs of the motion argued on May 25, 2021 and of the further attendance on July 12, 2021 are reserved to the trial.
[134] The Court is grateful for the assistance of Mr. Jenkins and Ms. Chan on the amicus issue. The Court also thanks Ms. Stewart in advance, for agreeing to act as amicus in this case.
Justice Alex Finlayson
Released: July 21, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
W.A.C.
Applicant father
– and –
C.A.F.
Respondent mother
REASONS FOR SUPPLEMENTARY DECISION
Justice Alex Finlayson
Released: July 21, 2021
[^1]: In the material that was sealed, the OCL referred to three incomplete or discontinued investigations. However, there were actually five different Orders to appoint the OCL made. Some may have been duplicated.
[^2]: Rule 25(19) of the Family Law Rules does provide authority for the Court to change or set aside an Order. See also Gray v. Gray, 2017 ONCA 100. However, one of the 5 enumerated circumstances listed in Rule 25(19) must be present, and none are in this case. Rule 25(19) does not assist me with the decision I must make.
[^3]: The father did not argue that this would actually be a legal error, just that the mother might appeal.