COURT FILE NO.: FC19-477
DATE: 20211116
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jason Sears
Applicant
– and –
Sarah Coristine
Respondent
Richard Bowles, for the Applicant
Ian Vallance, for the Respondent
HEARD: November 15, 2021
RULING ON MOTION
Justice H. Desormeau
[1] The Husband brings this motion for an Order pursuant to Rules 11(3) and 22 of the Family Law Rules (“FLR”) to amend his application by deleting paragraphs 9 and 10. He also seeks costs.
[2] The Wife also brings a motion seeking, inter alia,
An Order pursuant to Rule 1 (7.2) (a) and Rule 13 (11) of the FLR that the Husband shall forthwith consent to the authorization and release of information from all rental platforms, or alternatively dispensing with the Husband’s consent to the authorizations and release of information from all rental platforms, including Trip Advisor, Home and Away, Flipkey, and Airbnb, etc. and directing that information be provided to the Wife forthwith.
An Order pursuant to s.30 (11) CLRA to release records from Mr. Jack LaFleur to Dr. Rana Pishva for the purpose of completing her assessment.
An Order pursuant to s.21(1)(a) and 72 CLRA and s.16.1(2) DA that the children’s continued treatment with the following professional be facilitated by granting the Wife interim decision-making over the children’s healthcare pending trial: (a) Dr. Paula Moncion; (b) Ms. Tatiana Hunt; (c) the CHEO Pain Management pertaining to her injured ankle, injured finger, concussion, and management of pain symptoms and any medical professions recommended by this clinic.
An Order pursuant to Rule 11 (3) of the FLR that the Husband’s motion to delete the admissions in paragraph 9 and 10 of his application be dismissed with costs.
Costs for this motion on a full, substantial, or partial indemnity basis plus H.S.T. pursuant to Rule 24 FLR.
Issue 1: Amending the Husband’s application
[3] I am aware that the pleadings were commenced in March 2019, and an amended application was permitted pursuant to my Order of November 9, 2020.
[4] The FLR’s state that on a motion, the Court shall give permission to a party to amend an application, answer or reply, unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate. O. Reg. 114/99, r. 11 (3).
[5] I am mindful that the Court must promote the primary objective as set out in Rule 2(2) FLR and ensure procedural fairness to all parties, saving time and expenses, dealing with the case in ways that are appropriate to its importance and complexity and giving appropriate Court resources to the case while taking into account the need to give resources to other cases. I note that the parties and their lawyers are required to help the Court promote the primary objective.
[6] Rule 25.06(1) Rules of Civil Procedure states that every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defense but not the evidence by which those facts are to be proved.
[7] In the family context, the caselaw establishes the following test for the party seeking to withdraw an admission in a pleading:
a) That the proposed amendment is on a triable issue;
b) That the admission was a mistake and the party offers a reasonable explanation for the change of position; and
c) any prejudice caused by the withdrawal can be cured or compensated for in costs.
See Forget v. Forget, 2001 CarswellOnt 3271 (Ont. S.C.J.) at para. 17. See also Ramoutar v. Ramoutar, 2019 ONSC 2448 (Ont. S.C.J.) at para. 7.
[8] As set out in the Wife’s factum, in the current amended application, the Husband’s interpretation of the marriage contract is different than the Wife’s interpretation. However, the Wife’s position is that although she did not agree with the Husband’s interpretation, the Husband’s position regarding what the alleged to be material facts was relied upon to the extent of knowing what her liability would be if he were successful.
[9] Unlike what was presented in Ramoutar v Ramoutar, supra, the Court is not being asked to change a date of separation or address a limitations issue.
[10] Significantly, in this case, the matter has yet to proceed to a settlement conference or questioning, and this amendment would not be on the eve of trial (such as the case was for Moghimi v Dashti, 2016 ONSC 2115); nor does it appear to be advanced in bad faith. Further, contrary to the case of Lerus v Vilgrain, 2020 ONCJ 77, I am of the view that permitting the amendment would not have the parties essentially starting over again- though it would as suggested by the Wife change the benchmarks.
[11] Here, the amendment would be regarding the Husband’s potential interpretation of the marriage contract. His evidence is that he did not agree with his prior lawyer’s interpretation but did not speak up until now. He admits it was a mistake not to raise the issue beforehand. He does not proffer his former lawyer’s file to support his argument. I am not persuaded that his evidence constitutes a reasonable explanation for the change in position. If it were permitted to be amended, the Wife argues that her own financial affairs could be put in jeopardy given the late amendment and her reliance on the Husband’s admission, therefore there would be a prejudice caused which cannot be compensated for in costs.
[12] From my perspective, the amendment sought is more in the nature of change of legal argument regarding the interpretation of the marriage contract, rather than a change in position. I am of the view that the Husband should not be permitted to amend his application to remove what was already pleaded. However, I find that adding a prayer for alternate relief, specifically, alternate interpretation of the marriage contract is appropriate in these circumstances. I note that there is a consent Order underway regarding other issues originally scheduled for today’s motion. That draft Order includes, I believe, 45 days for the Wife to amend her answer. That timeline should be extended by another 20 days to permit the Husband to amend and deliver his application, and still permit the Wife sufficient time to respond to the amendment and provide her own amendments.
[13] The Husband is permitted to add an alternate interpretation of the marriage contract. The Husband is granted 20 days to make the amendment. The Wife is granted 45 days from the receipt of the amended application to deliver an amended answer.
Issue 2: Dispensing with the Husband’s consent for release of notes from counsellor:
[14] The Wife seeks an Order under s.30 (11) CLRA dispensing with the Husband’s consent to release records from Jack LaFleur to Dr. Rana Pishva for the purpose of completing her assessment. Her position is that the Husband has refused to sign the necessary consent.
[15] The Husband takes the position that he has signed all the consents requested by Dr. Pishva.
[16] He also states that the records from Jack LaFleur predate the parties having children, and the attempts at that time to help their relationship have no relevance to the task Dr. Pishva is completing. The Husband does not take issue with the law and the Court’s jurisdiction to make the Order sought. However, the Husband’s argument against disclosure regarding the marriage counselling is that it is simply not relevant, and the Court should not get involved in obtaining records from counselling services.
[17] There is evidence of a delay in providing consents by the Husband to Dr. Pishva.
[18] However, it is also uncontroverted that the Husband provided Dr. Pishva all the consents requested by her.
[19] Though the motion materials were voluminous (245 pages), I am left without direct evidence that Dr. Pishva requested consent from the Husband to speak to Mr. LaFleur, and that he refused to permit this communication or refused to sign a consent.
[20] The current Order for the s.30 assessment is clear, that the parties are to sign the consent to release information forms requested by the assessor to permit the assessor to obtain the necessary information or records pertaining to the parent, which includes counselling records. I am aware that the s.30 assessment is expected to be completed by the end of the year, and further delay must be avoided.
[21] I am aware that Mr. LaFleur would have been a counsellor for the parties some time around 2012, prior to their decision to have children together.
[22] I am cognizant that there may only be limited information available by Mr. LaFleur in his records. I am also mindful that the Husband’s position that counselling records should not be disclosed. However, the parties consented to the s.30 assessment taking place and consented to signing the necessary authorizations to permit the assessor to obtain the information relating to the parents, including counselling records.
[23] Further, when I apply the Wigmore test, while it is clear that there is a relationship of confidence with Mr. LaFleur, which was essential to the relationship when the communication occurred, and that relationship should be “sedulously fostered” in the public good, I am of the view that the interests of getting at the truth and disposing of this litigation correctly outweigh the interests in protecting the communication. (See Godwin v Bryceland, 2008 ONCJ 495) In this instance, the issues involve decision making responsibility and parenting plans, as well as the ability and willingness of each parent to satisfy the children’s needs outweigh the Husband’s privacy interests.
[24] Ultimately, I am of the view that if Dr. Pishva believes it is relevant to her assessment, then the Husband is hereby directed to sign such an authorization within 72 hours of a request being made. Failing which, this shall be Dr. Pishva’s good and sufficient authority to communicate with and/or obtain the Mr. LaFleur’s file.
Issue 3: Interim sole decision making responsibility regarding healthcare
[25] The Wife is seeking interim sole decision-making responsibility regarding healthcare.
[26] There is no doubt that the Court has the authority to make an interim Order pursuant to s.21(1) CLRA.
[27] I am aware that any decisions regarding the children must be in the children’s best interest.
[28] I have considered the case law submitted by both parties, including JM v PV, 2021 ONSC 7310, as well as Prentice v Prentice, 2019 ONSC 5676, Lyons v Lyons, 2020 ONSC 1850 and Baley v Basley, 2016 ONSC 5877.
[29] I am aware that there is significant dispute as to the children’s medical needs. The Court is being asked to assign this very important decision based on contradictory affidavit evidence which has not had the benefit of being tested at trial.
[30] I am aware that the s.30 assessment will soon be completed, which would likely shed a great deal of light many of the contentious issues.
[31] Given the contradictory nature of the evidence, I am not prepared to make the Order sought by the Wife.
[32] Taking into consideration the argument raised by the Husband of Dr. Moncion wading into the fray and allegations of conflict of interest, coupled with Vivian’s more immediate need to see a psychologist, I find that a new, neutral psychologist should be engaged to assist Vivian.
[33] The Wife argues that the Husband did not provide a relevant list of pediatric psychologists when he attempted to change the psychologist. Given these deficiencies, I am of the view that the Wife should provide three names of pediatric psychologists available to assist Vivian, and the Husband shall choose one of the three. Both parents shall be equally entitled to speak to the psychologist to provide information to her/him. The intake appointment shall be conducted by both parents, separately, one after the other, to ensure there is no appearance of bias or alleged undue influence.
[34] The Wife provided evidence of Vivian suffering from a recent concussion, an ankle injury and may be suffering recuring pain from lacerated finger, leading to referrals for treatment by physicians. These issues need to be addressed. I am of the view that treating doctors do not generally refer a child for services unless there is a need for same. Therefore, I hereby Order that Vivian shall continue to attend for treatment as required by her treating physician. The Wife is hereby granted authorization to take Vivian to the CHEO Pain Management pertaining to her injured ankle, injured finger, concussion, and management of pain symptoms. Both parents are hereby Ordered to cooperate with and follow the recommended treatment. Both parents are equally entitled to speak to the treating doctor/ facility.
[35] Regarding the dietician, based primarily on the evidence of Amanda Perumal and Daniel Scott, it appears that the Husband is following the necessary dietary restrictions for the children. Given same, I am not prepared to make any Orders regarding the dietician until I have the benefit of Dr. Pishva’s s.30 assessment. If Dr. Pishva recommends continuing with a dietician, it is expected that both parties will cooperate in accessing said services with Ms. Tatiana Hunt if she is still available at that time.
Issue 4: Disclosure
[36] The Wife advances that she has not received all the requisite disclosure as outlined in the October 23, 2019 Order. She alleges that the Husband may have destroyed the disclosure.
[37] The Husband’s evidence is he provided all he had available. However, his evidence at paragraph 95 of his Affidavit was also that he changed the password for info@tremblant.cc because the Wife allegedly refused to pay him back for purchases made on his credit card. His evidence at paragraph 98 was also that he “deleted the account from Microsoft as [he] no longer needed to pay for a licence we did not need. After 60 days all the cloud data was automatically deleted. I do not have control over this nor can I get it back.” Regarding TripAdvisor and VRBO, the Wife’s “counsel was unsuccessful in obtaining information from them regarding the account. These accounts likely expired as we were not using them, as we had stopped renting. I provided the Respondent with all login information.”
[38] Ultimately, at the end of argument, it was agreed that the Husband would sign the necessary authorizations for the disclosure to be provided directly from the service providers to both parties.
[39] An Order shall issue that pursuant to Rule 1 (7.2) (a) and Rule 13 (11) of the Family Law Rules, the Husband shall sign consents for the authorization and release of information from all rental platforms, including Trip Advisor, Home and Away, Flipkey, Airbnb, Vacasa, booking.com, hotels.com, Canada stays, sublet.com, VRBO, as well as Microsoft regarding info@Tremblant.cc, and directing that information be provided to both the Husband and Wife forthwith.
[40] Mid-motion, the Wife advanced a claim that Microsoft be Ordered to maintain any deleted emails from the Husband. This was not properly before the Court and therefore the claim is dismissed, without prejudice to it being advanced on proper notice to the Husband and if required, Microsoft.
Dispostion
[41] Pursuant to Rule 11(3) FLR, the Husband is permitted to add an alternate interpretation of the marriage contract. The Husband is granted 20 days to make the amendment. The Wife is granted 45 days from the receipt of the amended application to deliver an amended answer.
[42] If Dr. Pishva believes Mr. Jack LaFleur’s file is relevant to her assessment, then pursuant to s.30(11) CLRA, the Husband is hereby directed to sign such an authorization within 72 hours of a request being made. Failing which, this shall be Dr. Pishva’s good and sufficient authority to communicate with and/or obtain the Mr. LaFleur’s file.
[43] The Wife shall provide three names of pediatric psychologists available to assist Vivian, and the Husband shall choose one of the three. Both parents shall be equally entitled to speak to the psychologist to provide information to her/him. The intake appointment shall be conducted by both parents, separately, one after the other, to ensure there is no appearance of bias or alleged undue influence.
[44] It is hereby Ordered that Vivian shall continue to attend for treatment as required by her treating physician. The Wife is hereby granted authorization to take Vivian to the CHEO Pain Management pertaining to her injured ankle, injured finger, concussion, and management of pain symptoms. Both parents are hereby Ordered to cooperate with and follow the recommended treatment. Both parents are equally entitled to speak to the treating doctor/ facility.
[45] Pursuant to Rule 1 (7.2) (a) and Rule 13 (11) FLR, the Husband shall sign consents for the authorization and release of information from all rental platforms, including Trip Advisor, Home and Away, Flipkey, Airbnb, Vacasa, booking.com, hotels.com, Canada stays, sublet.com, VRBO, as well as Microsoft regarding info@Tremblant.cc, and directing that information be provided to both the Husband and Wife forthwith.
[46] The Wife’s request to give notice to Microsoft to ensure there are no deletions to the Husband’s emails was not properly before the court and as such is dismissed, without prejudice to it being brought on proper notice.
[47] Costs submissions, including submissions on compensation of any costs occasioned by the amendment to the application, shall be submitted within 20 days by the Wife, and 20 days thereafter by the Husband, with 10 days for the Wife to reply, if required.
[48] Given the imminent release of the s.30 assessment, counsel are directed to seek out a settlement conference date, such date shall not be before Desormeau J.
Justice H. Desormeau
Released: November 16, 2021
COURT FILE NO.: FC19-477
DATE: 20211116
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jason Sears
v.
Sarah Coristine
ruling on motion
Justice H. Desormeau
Released: November 16, 2021