Court File and Parties

NEWMARKET COURT FILE NO.: FC-21-560-00 DATE: 20230224 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

A.P. Applicant – AND – G.B. Respondent

Counsel: Meghann Melito, Counsel for the Applicant Karen Dosanjh, Counsel for the Respondent

HEARD: February 23, 2023

Amended Case Management Ruling

JARVIS J.

[1] A combined Settlement/Trial Scheduling Conference was scheduled on July 21, 2022, to proceed today. Detailed filing directions were given. These included the parties complying with all FLR settlement conference rules and instructions dealing with the preparation, exchange and filing of a joint Trial Scheduling Endorsement Form (“TSEF”). Two hours of court time were set aside. The goal was to make this matter trial-ready for the May 2023 sittings of the court.

[2] This is a high conflict parenting case involving a five-year old son of the parties who primarily lives with his mother. The father has supervised parenting time, the cost of which the court has been told is $4,000 a month. There are allegations involving the father’s mental health, parenting skills and possible exposure to sexually inappropriate behaviour. The other outstanding issues involve equalization of the parties’ net family properties and child and spousal support. The local child protection agency (“the Society”) has been involved as well as the Office of the Children’s Lawyer (“OCL”).

[3] When today’s date was set on July 21st this court noted that the event was scheduled as a settlement conference, but no fulsome conference could be held because there was outstanding disclosure (mostly medical and other expert evidence) and the parties were unaware of a letter dated two days earlier from the OCL. The Order granted leave to the parties for questioning (three hours each) after an updated report from the OCL was provided and the parties were required to sign any additional consents as might be needed for the release of information to the OCL.

[4] In July 2022 the father scheduled a parenting motion returnable March 29, 2023, and while this court is not entirely clear about what happened next, that court date was converted to a motion by the mother to appoint an expert to examine the father and provide a report to the court.

[5] On October 4, 2022, Bruhn J. dealt with a relocation motion by the mother. The relief sought was granted. Bruhn J. was aware of today’s date and noted what the next steps would involve:

[54] This matter is scheduled for a combined Trial Scheduling Conference/Settlement Conference on February 23, 2023 with the goal of getting the case trial-ready for the May 2023 sittings.

[55] Both the York Region Children’s Aid Society (“the CAS”) and the Office of the Children’s Lawyer (“the OCL”) have been involved in this matter.

[56] The OCL investigation was put on hold in September 2021 due to a CAS investigation and was reinitiated upon the completion of the CAS investigation in December 2021.

[57] On June 13, 2022, the OCL provided a discontinued report which did not include recommendations. The OCL stated that because new information had been obtained since the CAS was involved, a determination of whether the child is at risk of sexual harm if he has unsupervised parenting time with the Respondent needs to be made by the CAS prior to the OCL making recommendations on decision-making responsibility and parenting time. The OCL re-referred the matter to the CAS.

[58] On July 6, 2022, the OCL provided an addendum to their report stating that on June 17, 2022, the CAS advised that their investigation would be closed and they would not re-investigate the concerns because the Applicant is being protective and not supporting unsupervised parenting time and further that should the judge order unsupervised parenting time, then someone could contact the Society to report the concern.

[59] Supervised parenting time is usually a temporary measure. The Respondent’s parenting time has been supervised since at least April 2021. The Respondent is pursuing unsupervised parenting time. Although the Applicant is opposed to unsupervised parenting time, that issue will be determined by the Court. However, the Court needs to know if unsupervised parenting time creates a protection concern for this child. The CAS is therefore requested to reconsider reopening their investigation in light of the new information obtained by the OCL since their last involvement, and advise whether they have protection concerns with the Respondent having unsupervised parenting time.

[60] Provided the CAS reopens their investigation and advises whether they have protection concerns with the Respondent having unsupervised parenting time, the OCL shall then be requested to re-open their file and complete their s. 112 investigation and provide recommendations.

[6] By letter dated January 27, 2023 the Society advised that “after a thorough investigation…[it] could not verify the concerns of risk of sexual harm…[and that] the Society will be closing its file as this issue is being addressed in family court”. The parties dispute whether the other acted expeditiously in requesting the OCL to re-open its file to complete its investigation and provide recommendations as contemplated by Bruhn J. In any event that has not happened.

[7] As for today’s event, the parties have filed no settlement conference documents and they dispute whether the matter can be made trial-ready for the May 2023 trial sittings despite the court’s unambiguous expectations of them. The parties did file a joint TSEF. That document disclosed that, excluding the expert whom the mother wishes to become involved if that relief was granted on March 29th, the parties intended to tender expert evidence from four other medical experts involved in the father’s treatment and whose reports have (for the most part) been recently served.

[8] There has been no proper settlement conference.

[9] No expert reports have been filed with the court pursuant to FLR 20 (2) or 20 (14).

[10] No settlement conference briefs have been filed.

[11] No updated financial statements have been filed.

[12] No net family property statements have been filed.

[13] No comparative net family property statement has been filed.

[14] No consideration (obviously) has been given to FLR 1(7.2)k dealing with experts [1].

[15] The parties’ TSEF suggests little attention being given to properly focus the trial evidence.

[16] The fact is that there is a significant risk to the parenting issues in this matter being further delayed. The parties separated in December 2020 (the child was then two and one-half years old) and the father’s parenting time has been supervised since then. The lack of progress in this matter is unacceptable. So too is the risk of further delay. This court is skeptical why another expert needs to become involved at this late date, the certain consequence of which will be to delay a hearing to the November 2023 sittings. This does not appear to be in the child’s best interests, but the determination of that issue will be left to a motion judge.

[17] This case needs to be heard at the earliest opportunity.

[18] The foregoing narrative is intended to provide to the motion judge, the parties and counsel a background to the Order and directions set out below.

[19] The following is ordered:

(1) The OCL is requested to re-open its file, complete its s.112 investigation and provide recommendations. The parties will be provided with a copy of the court’s letter to the OCL;

(2) If so advised, the father shall deliver his parenting time motion by February 28, 2023. The mother shall deliver her responding material by March 7, 2023. Reply by the father to be delivered by March 10, 2023. No other motion than the father’s motion will be considered. The parties must comply with all Practice Directions for motions in terms of length and format (no exceptions);

(3) The date for the mother’s motion scheduled for March 29, 2023, is vacated. The parties have confirmed that the mother has served all the material (except for reply) upon which she will be relying. The father shall deliver his responding material by March 7, 2023. Reply by the mother shall be delivered by March 10, 2023. Mother’s counsel shall advise the judicial assistant when that has been done. Leave is granted to the mother to amend her Notice of Motion (which the court was led to understand was not substantively problematic and would not require further material being exchanged). If so advised, the mother shall deliver this amended Notice by February 28, 2023. Any dispute about this direction may be referred to this court by the parties requesting that by joint letter to the judicial assistant (Kelsey.Lowes@ontario.ca);

(4) Pursuant to s. 31 of the CER Practice Direction (June 2022) the parties’ motions in (2) and (3) above shall be heard in writing on a date to be assigned by the trial coordinator. Should the judge hearing the motions determine that oral submissions are required the parties will be notified;

(5) A Combined SC/TSC shall proceed on April 25, 2023 (11:00 am) peremptory to both parties. Two hours are set aside. The TSC will proceed first, followed by the SC;

(6) All SC rules are to be followed;

(7) No issues relating to disclosure will be considered at the SC. The parties are to have exchanged all expert reports before the SC and are reminded of the FLR and CER Practice Direction regarding the filing of expert reports and contents of the SCB;

(8) There shall be no questioning;

(9) The AM shall deliver to the RF her proposed TSEF by April 6, 2023;

(10) The RF shall complete those parts of the TSEF that pertain to his case and remit the TSEF to the AM’s lawyer by April 13, 2023;

(11) All Parts of the TSEF must be completed. Those about which there is a dispute between the parties can be left blank for discussion with, and completion by, the court at the TSC;

(12) The AM shall append the TSEF to her Form 17F when confirming the SC/TSC event. The TSEF shall be in WORD format;

(13) The AM shall also forward to the judicial assistant when she files her 17F confirmation a draft Trial Record Index, a draft proposed Joint Document Book Index and a draft Index for her Document Book containing those documents not referenced in the Joint Document Book Index, all of which shall have been provided to the RF by April 19, 2023;

(14) The RF shall forward to the judicial assistant his proposed Document Book Index when he files his 17F for the SC/TSC;

(15) Unless otherwise ordered, the trial in this matter will proceed during the May 2023 sittings of the court, peremptory to each party.

[20] Counsel should ensure that all expert reports upon which a party intend to rely are filed in the continuing Record: a summary of the expert’s opinion may accompany the filed settlement conference brief.

[21] The following guidelines shall apply to the TSEF:

(1) The direct evidence of all witnesses shall be provided by affidavit. Each party shall be entitled to no more than one and one-half hours to orally supplement their client’s affidavit evidence, thirty minutes for non-party evidence. The parties should consider appropriate re-examination times (not to exceed thirty minutes for each witness). Excluding exhibits, no affidavit from either party shall exceed twenty-five pages;

(2) The mother is to deliver her and her witness affidavits by April 21, 2023;

(3) The father shall deliver his and his witness affidavits by April 28, 2023;

(4) The mother shall deliver her reply affidavit by May 5, 2023;

(5) Subject to (6) below) expert reports shall be filed in lieu of their evidence-in-chief;

(6) Unless otherwise ordered at the combined conference (and subject to the trial judge) each party shall have no more than two hours to cross-examine the other party, one hour for cross-examination of any expert and forty-five minutes for any lay witness;

(7) All trial-ready financial statements and net family property statements shall be delivered by no later than April 28, 2023;

(8) A comparative Net family property statement shall be delivered by the mother by May 5, 2023.

[22] All material from the parties shall be filed with the court and uploaded to Caselines.

[23] The parties will have plenty of time between today and the May 15th start of the court’s trial sittings to prepare.

[24] As already noted in the court’s July 2022 endorsement, the parties are to be guided in the preparation of any Joint Document Book or their own Document Book by the directions of the Court of Appeal in Bruno v. DaCosta, 2021 ONCA 602 (paras 53-66) and the provisions of the Evidence Act.

[25] As also noted in the court’s endorsement made on July 21, 2022 a maximum of six days trial time will be allowed: strict time limits will be set at the TSC. Counsel should keep these considerations in mind when preparing their documents and preparing for trial.

[26] The parties may forward to the judicial assistant a copy of the parties’ approved drafts, and clean, copies of the court’s Orders for the review and timely issuance.

Justice David A. Jarvis Date: February 24, 2023 (amended)

Footnotes

[1] “Procedural Orders. [T]he court may make [an] order; (k) that any expert witnesses for the parties meet to discuss the issues, and prepare a joint statement setting out the issues on which they agree and the issues that are in dispute;”