Court File and Parties
Court File No.: FC586/19-01 Date: October 27, 2023
Superior Court of Justice – Ontario Family Court
Re: E.P., Applicant And: D.P., Respondent
Before: Tobin J.
Counsel: E.P., in person Erin Burns for the Respondent
Heard: October 27, 2023
Endorsement
[1] I am considering appointing amicus curiae in this case.
[2] The parties are the parents of two children now ages 9 and 7. They separated in December 2017.
[3] The case now before the court was started in April 2021. It was called for trial starting October 24, 2023.
[4] The issues to be decided in this case include decision-making responsibility and parenting time. The Applicant also wants a restraining order against the Respondent without a termination date.
[5] In this case, the Applicant mother is self-represented. The Respondent father is represented by counsel.
[6] Over a period of three days, the Applicant completed her examination in chief and was cross-examined by the Respondent’s counsel.
[7] In her examination in chief, the Applicant testified about family violence that she stated was perpetrated upon her by the Respondent. The nature of the family violence included sexual assault, stalking, and coercive controlling behaviour. The Respondent was charged with a number of criminal offences as a result. He was also charged with assaulting one of the children.
[8] While the criminal case was ongoing, the Respondent was subject to an order prohibiting him from communicating with the Applicant.
[9] When giving her evidence before me about the family violence and in particular the sexual assault, the Applicant was emotionally distraught. She broke down in tears and needed time to compose herself.
[10] In cross-examination, the Applicant’s evidence was that she was aware the Respondent was acquitted of all the family violence charges against him.
[11] Though not in evidence, the Respondent’s counsel stated that the criminal charges were withdrawn after the Applicant testified in that trial. In her opening, the Applicant identified that there are different burdens of proof in a criminal trial and civil trial.
[12] After the cross-examination by the Respondent’s counsel, the Applicant began her reply. It was late in the day. I allowed the Applicant to review her notes overnight so that she could provide any reply evidence she wished to tender in a focused manner.
[13] The Applicant stated that she would not be calling any other witnesses.
[14] She will very shortly be put into the position of having the opportunity to cross-examine the Respondent.
[15] For some time, the parties have only communicated through the OurFamilyWizard parent communication application.
[16] The Applicant’s evidence is that she remains fearful of the Respondent. She does not want to reveal the address of her home or places of employment to him. She does not want to have in-person conversations with him.
[17] It is in all of these circumstances that I wish to consider appointing amicus curiae.
[18] The Applicant will be put in the position of cross-examining the person she claims sexually assaulted her and perpetrated other acts of family violence. I am concerned about the consequences to both the Applicant and the Respondent of an emotionally charged cross-examination.
[19] I am also concerned that trial efficiency and fairness may be adversely affected.
[20] The matter is therefore adjourned to November 3, 2023 at 10:00 a.m. by video conference to address this issue. The parties, the Attorney General for Ontario, and Legal Aid Ontario will be at liberty to make submissions. These submissions may address whether it is appropriate or not to appoint amicus curiae, and if appointed, how the role should be defined. To be clear, I am inviting submissions about an amicus curiae appointment generally, but also how the role should be defined, if amicus curiae is appointed.[^1]
[21] A copy of this endorsement is to be sent to West District – Director General Kaitlyn McCabe on behalf of Legal Aid Ontario, by email at […] and to the Ministry of the Attorney General, Crown Law Office Civil.
[22] It is requested that Ms. McCabe also ensure that the AGO is made aware of the endorsement.
“Justice B. Tobin”
Justice B. Tobin
Date: October 27, 2023
[^1]: W.A.C. v. C.V.F. 2021 ONSC 3942 at para. 93