SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-15-FS-49853 DATE: 2022/10/07

RE: Autumn Marie Fernandes, Applicant AND: Richard Dominic Fernandes, Respondent

BEFORE: Justice J. Breithaupt Smith

COUNSEL: Applicant is Self-Represented Respondent is Self-Represented

HEARD: September 7, 2022 (DURING TRIAL – ORIGINALLY RELEASED THAT DATE)

ENDORSEMENT

Background

[1] The parties were married on June 4, 2005 and separated on February 1, 2014. They are the parents of two children, Reilly Marie Fernandes born August 25, 2006 (“Reilly”), and Jordan Lucas Fernandes born October 18, 2008 (“Jordan”). They have a Separation Agreement between them dated February 18, 2014. This proceeding was commenced by way of Application issued on February 1, 2015. Although Ms. Fernandes was originally represented by Mr. B. Paquette on the Application, both parties have been self-represented for some time.

[2] The trial of this matter commenced during the April Trial Sittings on April 11, 2022 (with the evidence starting on April 12, 2022) and continued, with some adjournments, to April 28, 2022. The cross-examination of Mr. Fernandes was scheduled to commence on that date; however he sent an email that morning to the Trial Co-ordination Office indicating that he had admitted himself to Cambridge Memorial Hospital to address suicidal thoughts (see Exhibit 102). The trial was therefore adjourned to the September Trial Sittings, having Trial Scheduling/Speak To Court on Monday, August 29, 2022. As a condition of the adjournment and having regard to Mr. Fernandes’ representations about his mental instability, I ordered on an interim, without prejudice basis that the children would remain primarily with Ms. Fernandes who would have sole decision-making authority until further Order of the Court. I wrote (at paragraph 5 of my Endorsement of April 28, 2022):

[5] It is in the best interests of the parties’ two children, Reilly and Jordan, for a temporary order to be made regarding decision-making and parenting time on a without prejudice basis pending the continuation of the trial. Mr. Fernandes, being in the midst of a deteriorating mental health situation, is not in a position to care for them at this time. Based on the evidence presented by Ms. Fernandes and by the Participant Expert witnesses, and having reviewed Mr. Fernandes’ evidence in chief (submitted in writing), it is clear that Ms. Fernandes has consistently supported the children’s relationship with their father (and his family), that she will encourage them (being teenagers) to make decisions regarding their medical care and education in a manner that is age-appropriate and provides them with agency, and that she has a loving and stable household ready for them in this time of crisis.

[3] On Monday, August 29, 2022, Madam Justice L. Madsen (Local Administrative Justice), conducted the Trial Scheduling/Speak To Court for the September sittings in the usual course. Mr. Fernandes did not attend; Ms. Fernandes did. Her Honour confirmed that the trial would continue commencing September 6, 2022 as planned; the Endorsement with the correct Zoom videoconference link (which is the same as it was in April) was sent by email per Her Honour’s instructions. Both parties attended yesterday accordingly.

Tuesday, September 6, 2022

[4] At the outset of yesterday’s proceedings, Mr. Fernandes asked to adjourn this trial. He emphasized that, in his view, the Temporary Without Prejudice Order made by me was hurtful to the children and that he wasn’t going to allow Family Court to ruin his life, as it does with so many other families. He indicated that he had already been in contact with Regional Senior Justice P. Sweeny and with Senior Family Justice S. Stevenson (although his purpose in communicating with them was not clear). After some discussion, he remained in the videoconference and his cross- examination by Ms. Fernandes commenced.

[5] As the lunch break approached, Mr. Fernandes indicated that he was going to “drop off the call” at 2:00 p.m. to collect the children from school. Both parties confirmed that, in accordance with the Temporary Without Prejudice Order, they had arranged for Mr. Fernandes’ partner (Ms. Jennifer Ellis) to collect the children from school. After some last-minute contact by each party with his or her partner, the plan for Ms. Ellis to collect the children from school was confirmed.

[6] When we resumed after the lunch break, Mr. Fernandes again attempted to remove himself from the proceedings, this time on the basis that he had to take the parties’ son, Jordan, to hockey practice at 4:00 p.m. Again, after a delay whilst partners were contacted, it was confirmed that Ms. Ellis would be able to take Jordan to hockey practice.

[7] I confirmed for Mr. Fernandes, both at the outset of yesterday’s proceeding and throughout the day as these issues arose, that:

a) it is best for his evidence (inclusive of the evidence from his supporting witnesses) to be provided to the Court, although the Court can still make a final decision in the absence of such evidence;

b) specifically, his observations regarding his allegation that the children are suffering as a direct result of the change in the parenting schedule which arose from the Temporary Without Prejudice Order would be helpful to the Court;[^1]

c) the trial would proceed in his absence if necessary, and if he provided no evidence, my decision would be based on the evidence that was made available throughout the trial;

d) an adverse inference could be drawn if he failed to call evidence to support positions advanced to other witnesses during his cross-examination of them when he said that he would do so; and

e) as Trial Judge, I was in control of the scheduling of the trial proceeding.

[8] I pause here to note that, throughout the proceedings yesterday, Mr. Fernandes was calm, alert and engaged. He was fully capable of carefully answering questions put to him by Ms. Fernandes. He was able to articulate his views in a sophisticated manner, including his contention that he was being denied a fair hearing because:

a) as Trial Judge, I did not permit him to call the 33 witnesses originally set out at the Trial Management Conference in August of 2021 (see TSEF dated August 27, 2021);

b) Family Court is focused on finances and has no concern for the best interests of the children; and

c) there exists some sort of bias against him.[^2]

[9] At no time was he visibly emotional or otherwise struggling. His expression, overall, was mild, and he was precise in the words that he chose in response to questioning. Having observed his demeanour throughout the day, I had no concerns whatsoever about the clarity of his evidence.

Today’s Proceedings

[10] This morning at 8:32 a.m., Mr. Fernandes sent an email, attached as Appendix “A” hereto, to the Trial Co-ordination Office and the general Family Court Inboxes. It will be further entered as Exhibit 118. That email came to my attention at 10:18 a.m. in response to my request that the Registrar contact Mr. Fernandes by email at 10:15 a.m. to inquire as to his whereabouts. Mr. Fernandes copied Ms. Fernandes with his email at 10:18 a.m. In part, the email sent by Mr. Fernandes reads:

Unfortunately I won’t be able to resume with this trial today as again I am having suicidal thoughts due to this trial. I am going to get help but cannot proceed with this trial at this time. I have realized the trial and family court process are causing and triggering my suicidal thoughts so I won’t be attending today.

[11] Court was opened at 11:00 a.m. today. Ms. Fernandes was present; Mr. Fernandes was not.

Trial Evidence to Date

[12] Ms. Fernandes has completed her case as Applicant (subject to reply evidence). Five Participant Expert witnesses have testified: Counsellor for Jordan Ms. Jerilyn Hurwitz; privately- retained legal consultant for the children, Ms. Phaedra Klodner; OCL Clinician Ms. Barbara Dyszuk; Teacher Mr. Shawn Zarudny; and Family Physician Dr. Chase Reaume.

[13] The Court has Mr. Fernandes’ evidence in chief by written document which was affirmed in open court and is marked Exhibit 101, together with a full day of his cross-examination by Ms. Fernandes. At the conclusion of the court day yesterday, it was agreed that: (1) Mr. Fernandes would produce the reporting letter from the sale of 99 Newport Drive, Cambridge (a property addressed in the parties’ Separation Agreement) this morning; and (2) although only one day had been allocated for his cross-examination, due to time lost throughout the day, his evidence would continue this morning at 10:00 a.m.

[14] Originally, Mr. Fernandes had expressed his intention to call two further Participant Experts: Ms. Sonya Dennis, Executive Director of Family & Children’s Services of Waterloo Region; and Detective Constable Steven Careless of the Waterloo Regional Police Service. In total, on the basis of the Trial Plan (Appendix “A” to my Endorsement of April 11, 2022), Mr. Fernandes was scheduled to call five more witnesses. Mr. Fernandes provided brief summaries for the evidence of six potential witnesses in support of his case, and I made it clear to him that the selection amongst those witnesses was entirely in his discretion. All of the witnesses he proposed seemed to have directly observed and/or interacted with the parties and the children.

Ms. Fernandes’ Submissions and Mr. Fernandes’ Evidence in Cross-Examination

[15] Ms. Fernandes asks that the trial continue or, at a minimum, that she be permitted to provide her evidence with respect to the events of the last four months. She notes that Mr. Fernandes admitted that he has not, and will not, follow the Orders of the Court. She argues that there are pressing issues to be resolved which are not addressed in the Temporary, Without Prejudice Order such as the need for a Restraining Order and the inconsistency of child support.

[16] In support of her submission that the trial ought to continue, she points to the following admissions made by Mr. Fernandes during his cross-examination yesterday:

a) after the trial was adjourned on April 28, 2022 due to his representations that he was mentally unable to function, he went back to his usual “full life” and appeared to be fully functional in that:

i. he vacationed with and parented the children[^3];

ii. he had two interviews for a new job, one of which took place in Chicago, Illinois, U.S.A.; and

iii. he scheduled the staff and ordered the ice cream for the small business (an ice cream shop) that he operated with his partner; and

b) he declined to disclose to her the medical records from his hospital stay in April claiming that they were “not relevant.”

[17] She further points out that:

a) Mr. Fernandes did not attend Trial Scheduling Court although both parties were ordered to do so; and

b) when he asked to adjourn or delay the proceedings at various points yesterday, his primary reason was because he did not want to participate in the trial, not because he was incapable of doing so; and

c) she will not be available to continue the trial in the November sittings because the parties’ daughter, Reilly, has been invited to an international dance competition taking place in Germany.

[18] The following evidence provided by Mr. Fernandes yesterday regarding his mental health after April 28, 2022 is also relevant for today’s purposes:

a) he was discharged from hospital on his own representations (presumably of mental wellness);

b) no follow up appointment or other treatment was recommended by hospital professionals;

c) he was “totally mentally capable” of caring for the children on the weekend immediately following his discharge from hospital;

d) his family physician did not refer him for further treatment or counselling as there were “no concerns about [his] mental health”; and

e) he has had three counselling appointments (on his own initiative with his existing counsellor) throughout the Summer.

[19] Ms. Fernandes urges the Court to continue with this trial so that she and the children can obtain closure and move on from this litigation.

Discussion and Conclusion

[20] Rule 52.01(b) of the Rules of Civil Procedure[^4], to which family courts in Ontario are directed in the absence of specific guidance in the Family Law Rules,[^5] confirms that the trial judge may dismiss any counterclaim and continue the trial in the absence of a Respondent. The Trial Scheduling Endorsement Form completed by Madam Justice J. Walters on August 27, 2021 in the presence of both parties clearly confirms (at page 8) that both parties were informed that “If a party does not attend trial, an order may be made in the party’s absence.” As noted above, Mr. Fernandes was repeatedly advised by me that his absence would not automatically discontinue the trial.

[21] In Moudry v. Moudry[^6], the Court of Appeal ordered a new trial, on terms, where the Applicant Mother had not attended at the trial. The facts of that case are dramatically different from the facts in this matter. The distinctions include:

a) There, both counsel had been advised that the first attendance date was for a “mini pre-trial” which was not expected to proceed in front of the Trial Judge as no such judge was available, however when they attended, the presiding judge took on the role of Trial Judge and immediately forced the matter forward to trial commencing that same day. Here, there was no confusion about the resumption of this matter on September 6, 2022 as the date for the continuation and a term requiring both parties to attend at the Trial Scheduling/Speak To Court on August 29, 2022 were included in my Temporary, Without Prejudice Order of April 28, 2022.

b) There, the adjournment sought by Mother’s counsel was overnight to allow her to obtain instructions and prepare. Here, Mr. Fernandes seeks an indefinite adjournment.

c) There, in refusing the adjournment, the Trial Judge revised the estimated time allotted for the trial, stating: “It won’t be eight days if the other side isn’t appearing.” Here, the original adjournment to September included sufficient time for the Trial Plan to come to fruition, and there is still ample time for this trial to be completed in the September 2022 sittings, which run through to September 29th.

d) There, the absent party was the primary caregiver of the young child; and the other party (Father) was being denied parenting time. Here, the children reside between both households; they historically have spent almost equal time with Father; and they currently spend extended alternate weekends in his household.

e) There, a motion seeking to stay the Ontario proceedings and move the matter to Québec was outstanding when the trial purported to commence, and almost two days were devoted to arguing that issue. Here, there are no such concerns and in fact this matter has been ready for trial since the Trial Management Conference on August 27, 2021.

f) That litigation had been ongoing for two years, a paucity in the experience of today’s family courts. This one is in its eighth year.

g) There, no evidence was tendered on behalf of the absent party at all, and there was no evidence from any independent third party. Here, five Participant Experts have testified, and Mr. Fernandes has submitted his evidence in chief by written document and has been cross-examined for almost a full day.

[22] The Court of Appeal confirmed that a Trial Judge must consider any harm or prejudice to either party in determining whether an adjournment should be granted. The question is not one of convenience, but rather one of actual impact upon a litigant’s right to procedural fairness. The assessment is whether a litigant has been “in effect, denied the right to be heard, a right which is fundamental to our justice system.” The seriousness of the issues raised in the proceeding are to be considered, especially in matters involving children where “the issues involved [go] beyond the interest of the two parties.”[^7]

[23] It cannot be said that Mr. Fernandes has been denied the right to be heard. His evidence has largely been provided to the Court. There is no clear evidence that he is, in fact, unable to continue this trial, and the evidence suggests that he was fully capable of managing his day-to-day obligations throughout the summer months without any mental health treatment plan. Having observed his demeanor during yesterday’s proceedings, I find that he presented himself in a cogent and capable manner. I prefer this assessment, based on live testimony, to the evidence that he submits in writing via Exhibit 118. I do not find his purported reason for failing to attend today credible, and I find rather that he is choosing not to attend. Having regard to the significant amount of evidence from Mr. Fernandes personally which will be available to the Court in reaching a decision on the merits, I find that there is little to no prejudice to Mr. Fernandes should this trial continue in his absence.

[24] I further find that the issues raised are extremely serious. This litigation has been ongoing for eight years, more than half the lifespan of the parties’ younger child, Jordan. It is undisputed that Jordan is suffering from Anorexia Nervosa for which he is receiving ongoing treatment. Mr. Fernandes admitted that he has used Jordan as a conduit for communication between the parties around contentious issues, most recently in the very late return of the children’s Passports to Ms. Fernandes. Mr. Fernandes admitted that he will continue to flout Court Orders that he believes run contrary to his assessment of the best interests of the parties’ children. The Temporary, Without Prejudice Order was intended to be just that: Mr. Fernandes’ request to adjourn this trial further is counter-intuitive considering his view that the current parenting arrangements are hurting the children. Having regard to Reilly’s international dance competition in November, the trial continuation could be further delayed until the January 2023 Sittings, which is not in the children’s best interests. I find that a delay of this trial is likely to have severe negative consequences for the Fernandes children.

[25] Finally, I note that Rule 4(1)(c) authorizes the Court to grant leave to a party to be represented “by a person who is not a lawyer.” Ms. Fernandes will be testifying as to her observations over the last four months as part of her reply evidence. Mr. Fernandes may wish to have an agent attend to cross-examine her on that evidence. Appreciating that a lawyer may be impossible to retain mid-trial on short notice, I hereby grant Mr. Fernandes permission to have a non-lawyer represent him for the balance of this proceeding. For greater clarity, that non-lawyer can include any adult person who is not a witness in the proceeding, provided that his or her authorization to act in this regard is confirmed by means of a clearly-dated document signed by Mr. Fernandes (i.e. signed and dated letter or similar written document) which will be entered as an Exhibit.

[26] Pursuant to my discretionary authority as Trial Judge and for the foregoing reasons, I find that a completion of this trial at this time is not procedurally unfair to Mr. Fernandes.

[27] An adjournment to tomorrow morning, being September 8, 2022 at 10:00 a.m., is provided so as to enable Mr. Fernandes either to reconsider whether he will attend personally or to instruct any other person to attend on his behalf.

Temporary Order

[28] Temporary Order to issue:

1. The request by Richard Dominic Fernandes, Respondent, to adjourn this trial is denied. For greater clarity, the trial will proceed in his absence should he choose not to attend.

2. The trial will continue commencing Thursday, September 8, 2022 at 10:00 a.m., to be conducted via videoconference at the following connection details:

[redacted]

3. Pursuant to Rule 4(1)(c) of the Family Law Rules, permission is granted to the Respondent, Richard Dominic Fernandes, to have a non-lawyer represent him for the balance of this proceeding on condition only that such person produce a clearly-dated document signed by Mr. Fernandes confirming that he or she is authorized to act in that regard.

4. A copy of this Endorsement is to be delivered to the parties by Court Staff via email to:

a. The Applicant, Autumn Fernandes, at: [redacted]; and

b. The Respondent, Richard Fernandes, at: [redacted].

5. Notwithstanding Rule 25 of the Family Law Rules, this endorsement is effective from the date it was made and enforceable as an order of the court without the need for an order to be prepared or approved by the parties and then issued by the court. No formal order is necessary unless an appeal or a motion for leave is brought, or alternatively unless one is necessary for enforcement by a third party.

6. In the event that a formal order is prepared, approval of the draft by self-represented parties is waived.

J. Breithaupt Smith, J.

Date: October 7, 2022

Appendix "A" to the Endorsement of Breithaupt Smith, J. dated October 7, 2022

Breithaupt Smith, Madam Justice Jennifer (SCJ)

From: Bartia, Simran (MAG) Sent: September 7, 2022 10:20 AM To: Breithaupt Smith, Madam Justice Jennifer (SCJ) Subject: FW: Fernandes vs Fernandes trial

From: Rick Fernandes [email address redacted] Sent: September 7, 2022 10:18 AM To: Bartia, Simran (MAG) [email address redacted] Cc: Autumn Fernandes [email address redacted] Subject: Fwd: Fernandes vs Fernandes trial

CAUTION -- EXTERNAL E-MAIL - Do not click links or open attachments unless you recognize the sender.

Good morning,

Please see email below regarding the trial sitting for today that was sent to the courthouse. My apologies but I didn’t have your email.

Regards, Rick

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From: Rick Fernandes <[email address redacted]> Sent: Wednesday, September 7, 2022 8:32 AM To: Cox, Melissa (JUD) <[email address redacted]> Subject: Fernandes vs Fernandes trial

Hello,

Unfortunately I won’t be able to resume with this trial today as again I am having suicidal thoughts due to this trial. I am going to get help but cannot proceed with this trial at this time.

I have realized the trial and family court process are causing and triggering my suicidal thoughts so I won’t be attending today.

As it is is Suicide awareness month and I am getting help I am hoping that me or my children will not get punished again by me admitting to this and getting help. Mental health issues are very serious and are sometimes masked on the outside but very prevalent on the inside.

My two children are suffering as a result of this process and I have to take care of myself so I can take care of them. I have some very serious concerns with this trial that I am addressing and asking this trial gets put on hold until then.

1

I would ask that my childrens best interest are put first and an order is not made without me being able to defend myself or them at this time.

I have also just recently lost my job due to this trial which is causing more stress in my life.

There are many capable parents who are able to care for their children while getting help for mental health issues and I am asking again that they don’t get punished as a result.

My children are being used as pawns in this trial and as also mentioned it is taking a toll on their mental health. This is a very serious concern and I’m hoping family court will have empathy on them.

Thank you

Rick Fernandes

2

[^1]: I confirmed with the parties that they would each have the opportunity to present their evidence regarding the last four months. Mr. Fernandes was encouraged to provide as much information as possible in the context of responding to questions in cross-examination, with additional time to be allocated immediately after the conclusion of his cross- examination should he have any points left unaddressed. Ms. Fernandes was to provide her evidence in Reply, along with the usual scope of permissible reply evidence (i.e. addressing any matters raised in Mr. Fernandes’ case that could not have reasonably been foreseen. See R. v. G. (S.G.) 1997 CanLII 311 (SCC), [1997] 2 S.C.R. 716 at paragraph 39).

[^2]: As he did not provide any detail to substantiate this allegation, which seemed to incorporate the Family Court in its entirety, I make no comment on it at this time. Should Mr. Fernandes raise the reasonable apprehension of bias as a legal issue in any closing submissions to this Court, or on Motion, I will address it at that time.

[^3]: Mr. Fernandes’ evidence on September 6, 2022 was that he: i. travelled to the Dominican Republic with the children on vacation; ii. went to Canada’s Wonderland and on other daytrips with the children; iii. spent a further week’s vacation time with the children in his care; and iv. planned Reilly’s 16th birthday party.

[^4]: R.R.O. 1990, Reg. 194.

[^5]: per Rule 1(7) of the Family Law Rules, O. Reg. 114/99 as amended.

[^6]: 2006 CanLII 33542 (ON CA), hereinafter Moudry.

[^7]: Moudry, supra note 7 at paragraphs 25 – 30.