Court File and Parties

Court File No.: FC-24-476 Motion Heard: 2025-07-28

Superior Court of Justice - Ontario

Re: James Bonaparte, Applicant And: Michelle Opthof, Respondent

Before: Associate Justice Kamal

Counsel:

• Beverley Johnston, for the Applicant
• Sonia Smee, for the Respondent

Reasons for Decision

Background and Positions of the Parties

[1] This matter was scheduled for a Trial Management Conference before me on July 28, 2025. The Applicant served a 14B motion returnable at the Trial Management Conference. This endorsement is only related to the 14B motion. A separate endorsement will be released as it relates to the Trial Management Conference and trial management issues.

[2] The Applicant brings a motion under Rule 20(5) of the Family Law Rules for an order that Dr. Brad Booth, Psychiatrist, be questioned for no more than five (5) hours, prior to the trial, which is on the September 2025 trial list. Dr. Booth has reserved August 18, 2025 for questioning.

[3] The Applicant submits that questioning of Dr. Booth will assist the trier of fact and adjudicative process generally, will likely narrow the issues in dispute and therefore save trial time, will allow the Applicant to obtain information relevant to the parenting issues in this case, allow his counsel to properly advise him on the issues prior to the trial and will provide both parties with a better understanding of the strengths and weaknesses of their respective positions and may lead to settlement discussions.

[4] The Respondent opposes the motion, arguing that the Applicant has not met the test set out in the Family Law Rules and the caselaw. Particularly, the Respondent argues that the information is easily accessible by other methods, and it would cause unacceptable expense to the Respondent.

[5] The parties started living together in 2019. They have one child. The parties separated on March 22, 2024.

[6] The application was issued on March 27, 2024, on an urgent basis, after the Respondent left home with the child and would not disclose his location. The child was brought home on March 29, 2024, by the Ottawa Police after the Applicant obtained a court order. Since March 29, 2024, the Applicant has been the child's primary caregiver. The Respondent has regular unsupervised parenting time with the child.

[7] The Respondent brought an ex-parte motion. As part of the ex-parte motion, leave for questioning was granted. However, the ex-parte motion was not pursued by the mother, and therefore, questioning did not proceed. Justice Audet noted in a recent endorsement that she was of the view that the mother did not actively and diligently take all steps necessary to have her long motion heard following the March 17, 2025 Case Management Conference.

[8] Justice Audet made two orders related to the Respondent's production of her medical records and other documentary disclosure on April 30, 2025, and June 11, 2025.

[9] As mentioned, this matter is on the trial list for September 2025. The issues for the trial are:

1. Decision-making responsibility for the child, including change of the child's surname to include the Applicant's surname;
2. Parenting schedule for the child and ancillary relief;
3. Child support payable by the Respondent for the child;
4. Life insurance to secure support obligations;
5. Respondent's claim for spousal support; and
6. Whether the ex-parte order needs to be vacated.

[10] The Respondent has a history of mental health struggles dating back to her teenage years, which continues into the present. Some of this history is addressed in Dr. Booth's report. The Respondent's mental health history and the conclusions Dr. Booth has drawn in his report are relevant to the parenting issues in this matter. The Respondent's counsel provided Dr. Booth's report to the Applicant's counsel on June 20, 2024.

Dr. Booth

[11] The Respondent's counsel hired Dr. Booth to perform an Independent Medical Examination on the Respondent.

[12] The Applicant submits that Dr. Booth's report is based on information self-reported by the Respondent in interviews and on an incomplete medical record provided by the Respondent. At the end of the report, Dr. Booth provides a diagnosis and some opinions and recommendations.

[13] The Respondent's counsel provided a list of 46 questions to Dr. Booth, which he answered individually starting at page 29 of his report. The range of questions asked by the Respondent's counsel is broad. She asked some questions about the qualifications of psychologists, types of bipolar disorders, and the distinction between suicidal ideation and death thoughts. However, she also asked questions about the parties' relationship and the Respondent's ability to parent.

[14] The Applicant also submits that Dr. Booth's report contains some inaccurate information that was provided to him by the Respondent and her counsel.

[15] The Applicant also submits that the Respondent did not provide Dr. Booth with her complete prescription history, and yet her counsel asked Dr. Booth to make conclusions on the topic.

[16] Moreover, the underlying documents relied on by Dr. Booth were not provided to counsel.

[17] The Applicant also submits that because Dr. Booth was not given the Respondent's complete medical record, it is important to provide Dr. Booth with an opportunity to revise his opinion based on previously undisclosed information, as he has a duty to do.

[18] Dr. Booth did not attach the evidence that he reviewed and relied upon to prepare his expert report.

[19] Dr. Booth reportedly did not have access to critical collateral information, including interviewing family and friends, CAS notes, or police reports, all of which appear to be violations of the CPSO policy on Third Party Medical Reports. Dr Booth appears to dismiss nearly all of the Respondent's past medical files and relies solely on self-reporting.

Analysis and Discussion

[20] Rule 20(5) provides that:

Order for questioning or disclosure

(5) The court may, on motion, order that a person (whether a party or not) be questioned by a party or disclose information by affidavit or by another method about any issue in the case, if the following conditions are met:

1. It would be unfair to the party who wants the questioning or disclosure to carry on with the case without it.
2. The information is not easily available by any other method.
3. The questioning or disclosure will not cause unacceptable delay or undue expense.

[21] All three prongs of this test must be satisfied by the moving party.

[22] The threshold to meet for the court to make an order to permit questioning is very low. See Birdi v. Birdi, 2015 ONSC 1974, at paragraph 20.

[23] In Birdi v. Birdi, 2015 ONSC 1974, Emery J. provided a non-exhaustive list of the functions that questioning is intended to fulfil:

It is helpful, if not constructive to consider the issue of questioning in terms of the functions it should provide. In my view, the purpose of questioning includes, but is certainly not limited to:

1. the new facts;
2. test the facts of the other party, including matters of credibility;
3. narrow the issues in the case; and
4. in all respects, assist the trier of fact and the adjudicative process generally.

[24] In an adversarial system, questioning allows parties to test the strength and weakness of their own case, and assists with settlement and narrowing the issues. See Pizarro v. Kretschmann, 2019 ONSC 3143 at para 11.

[25] The potential for questioning of a non-party to lead to settlement discussions is also a factor to be considered when an order for questioning is requested: Elgner v. Elgner, 2010 ONSC 5238, at para. 35, see also Cohen v. Cohen Estate, 2020 ONSC 88 at para. 27.

[26] In the context of the issues of disclosure and questioning, the importance of fairness to all parties and proportionality cannot be minimized.

[27] As Perell J. stated in Boyd v. Fields, [2006] O.J. No. 5762 (S.C.J.), at para. 12:

Full and frank disclosure is a fundamental tenet of the Family Law Rules. However, there is also an element of proportionality, common sense, and fairness built into these rules. A party's understandable aspiration for the outmost disclosure is not the standard. Fairness and some degree of genuine relevance, which is the ability of the evidence to contribute to the fact-finding process are factors. I also observe that just as non-disclosure can be harmful to a fair trial, so can excessive disclosure be harmful because it can confuse, mislead, or distract the trier of fact's attention from the main issues and unduly occupy the trier of fact's time and ultimately impair a fair trial.

[28] The purpose of questioning and disclosure is not to satisfy the suspicions and speculation of the Applicant. We must avoid a "fishing expedition." Resendes v. Maciel, 2023 ONSC 2283 at para 25.

[29] The purpose of r. 19 (11) and 20 (5) are to provide relevant disclosure, not to provide a right to cross-examine a potential witness before trial. The onus is on the Applicant to prove that the disclosure and questioning is necessary. Resendes v. Maciel, 2023 ONSC 2283 at para 27.

[30] Questioning is not automatic and should be the approach of last resort. It should not be attempted until all reasonable requests for documentary disclosure have been attempted and exhausted: see Zafir v. Diamond, 2008 CarswellOnt 2030 (Ont. S.C.J.), at paras. 19, 22, and 24-25.

It would be unfair to the Applicant to carry on without questioning Dr. Booth

[31] When addressing the first part of the three-part test under r. 20(5), how is potential unfairness to be assessed? In Tsakiris v. Tsakiris, D.M. Brown J. (as he then was) held that the focus in answering this question is the materiality of the information sought, and whether preventing a party from securing the evidence would have a material effect on the determination of an issue. Or, as he put it in the alternative, "without the information from the non-party would the party lack material evidence lying outside his or her control that would be required to establish an element of its claim, whether on a motion or at trial?"

[32] In my view, it would be unfair to the Applicant to carry on with the case without questioning Dr. Booth. The evidence of Dr. Booth is material to the issues before the Court. Preventing the Applicant from securing the evidence would have a material effect on the determination of an issue. It would be both prejudicial to the Applicant in engaging in settlement discussions and prejudicial to the Applicant to proceed to trial without this information.

[33] Dr Booth's report is missing information. The Applicant seeks to question Dr Booth to obtain the following information:

• what information was provided to Dr. Booth;
• what information he relied upon;
• what weight he gave to specific information; and
• the factual basis for some of his assumptions, conclusions and opinions.

[34] Because Dr. Booth was not given the Respondent's complete medical record, it is important to provide Dr. Booth with an opportunity to revise his opinion based on previously undisclosed information, as he has a duty to do. Dr. Booth did not attach the evidence that he reviewed and relied upon to prepare his expert report.

[35] In my view, having this information will assist in clarifying or narrowing the issues, addressing credibility, and hopefully assist with settlement discussions. All of that is in line with the purposes of questioning set out in the case law. See Birdi v. Birdi, 2015 ONSC 1974 and Cohen v. Cohen Estate, 2020 ONSC 88.

[36] In my view, questioning Dr. Booth in advance of trial would ensure that this case is not being approached as litigation by ambush. The parties are entitled to know the full case before them.

[37] On June 11, 2025, Justice Audet endorsed, "Despite detailed court orders, I find that the respondent mother has not complied with her obligation to provide full disclosure, as per orders previously made. More specifically, the mother has failed to provide signed directions allowing the applicant father's counsel to obtain full disclosure from third parties (health professionals and the Ottawa and Gatineau police forces), or at least satisfy herself that what has been provided so far is all that is available. She was ordered to do that at the last CMC held on April 15, 2025. The Respondent has not been forthcoming with all her medical documentation despite being ordered to produce it in 2024. Most recently, Justice Audet was required to make another order related to the Respondent's production of her medical records and other documentary disclosure."

[38] Questioning Dr. Booth would allow the parties to fact-find and test the assumptions and conclusions reached by Dr. Booth in his report.

[39] Questioning will also help the parties obtain material facts in advance of trial and will provide the parties and counsel with information necessary to consider the strengths and weaknesses of their case and, in particular, issues related to parenting.

[40] However, a complete review of the records demonstrates numerous disclosure orders relating to the Respondent's medical records, which she did not comply with. Some of these orders are as recent as March and June of 2025. Accordingly, the Applicant had no choice but to wait to bring this motion, in hopes that the Respondent would comply with the disclosure orders.

[41] Furthermore, as discussed above, the Applicant would have had this information if the Respondent had proceeded with the ex-parte motion. But she did not – this can not be used to prejudice or disadvantage the Applicant.

[42] In my view, all reasonable requests for documentary disclosure have been attempted and exhausted by the Applicant. This request for questioning is the last resort for the Applicant.

[43] The first prong of this test has been satisfied by the Applicant.

The information is not easily available by any other method

[44] The Applicant submits that questioning Dr. Booth will give him an opportunity to confirm what information he relied upon and will give him an opportunity to qualify his opinion based on relevant information presented to him.

[45] This information is simply not available by any other method.

[46] The Respondent argues that her counsel has shared with the Applicant's counsel all records that Dr. Booth relied on in producing his evaluation of her mental health. Most importantly, Dr. Booth received copies of all of the Applicant's pleadings and affidavits from all affiants, and fulsome records from the Gatineau Hospital where the Respondent was admitted on or about 2013. He had the Respondent's full prescription history.

[47] While the Respondent has already provided some information, due to the nature of Dr. Booth's evidence, the information provided is insufficient and questioning is the best method to discover him. Courts have found that even when some information is shared, questioning may be ordered when the information provided is insufficient. See Aslam v. Aslam, 2018 ONSC 223 at para. 10.

[48] The second prong of this test has been satisfied by the Applicant.

The questioning will not cause unacceptable delay or undue expense

[49] The Applicant seeks limited questioning of Dr. Booth. Specifically, the Applicant seeks five hours of questioning to take place on August 18, 2025.

[50] Dr. Booth has reserved this time.

[51] Therefore, I do not find that the questioning will cause a delay.

[52] The time limit also keeps costs down.

[53] In Pizarro v. Kretschmann, 2019 ONSC 3143, the Applicant objected to the Respondent's request for questioning because it would be both expensive and cause undue delay. Justice Shore ordered questioning in that case, which was a high conflict with a number of material facts in dispute, and credibility was an issue.

[54] Dr. Booth's credibility is a key issue in this case. In my view, the cost and time to question Dr. Booth are proportionate to the issues in this case, and an order granting leave to question Dr. Booth is consistent with the primary objective of the Family Law Rules set out in Rule 2, namely to ensure that cases are dealt with justly.

[55] In Cohen v. Cohen Estate, 2020 ONSC 88, Corthorn J. ordered questioning of a third-party on the basis that it was a proportionate, cost-effective, and efficient method for the parties to ascertain the types of information they seek from the third-party and will allow them to meaningfully carry out pre-trial steps, including settlement discussions and trial preparation.

[56] In the present case, permitting questioning of Dr. Booth is also a proportionate, cost-effective, and efficient method for the parties to ascertain critical information they both need to allow them to meaningfully carry out pre-trial steps, including settlement discussions and preparation for trial.

[57] With respect to the consideration of costs, I do not interpret this prong to mean that any cost for questioning is a barrier to obtaining such an order. The request for questioning must cause undue expense. In the present case, the expense is not undue because the information from Dr. Booth should have been provided. The cost of this questioning could have been avoided if Dr. Booth and the Respondent had provided this information earlier. However, this is the Applicant's last resort to obtain such information, and therefore, I find that the cost of questioning is not an undue expense.

[58] I am cognizant of the timing of this request as it is very close to the trial date. It is only in rare circumstances that questioning is appropriate close to a trial. In the present case, I am prepared to permit leave for questioning of Dr. Booth because the Applicant should have received this information earlier.

[59] In my view, the Court should only permit questioning right before trial when there is serious dispute about facts that are central to the case, the information needed is not available through other means, the issues are complex and questioning would narrow the issues or reduce trial time, or one party has changed their position in a way that needs to be explored before trial.

[60] I must clarify that questioning right before trial is not appropriate when the party simply wants to go on a "fishing expedition." Similarly, questioning right before trial is not appropriate when the motion is brought too close to the trial date without good reason, the issue could have been resolved earlier with proper disclosure or communication, or if the request is meant to delay proceedings.

[61] Allowing a short, constrained questioning is appropriate in these circumstances because it would help narrow the issues, manage credibility, and/or avoid trial by ambush (while not causing delay or derailing the trial).

[62] The third and final prong of this test has been satisfied by the Applicant.

Conclusion

[63] Having considered the materials filed, the submissions of both parties, and the proximity of the trial date, I am satisfied that it is appropriate to grant leave for five hours of questioning of Dr. Booth.

[64] Accordingly, pursuant to Rule 20(5) of the Family Law Rules, the Applicant is granted leave to question Dr. Booth for a maximum of five hours on August 18, 2025.

Costs

[65] The parties made cost submissions at the conclusion of the motion.

[66] The Applicant's position was that if he was successful, he would be entitled to $1,500.00 in costs.

[67] The Respondent's position was that she was successful, she seeks $1,000.00 in costs, but if she is not successful, she should not have to pay anything.

[68] Modern costs awards are designed to foster four general purposes, as set out in Mattina v. Mattina, 2018 ONCA 867 at para. 10:

a) To partially indemnify successful litigants for the costs of the litigation.

b) To encourage settlement.

c) To discourage and sanction inappropriate behaviour by litigants.

d) To ensure that cases are dealt with justly, in accordance with Rule 2(2).

[69] The case-law has also made it clear that costs awards must be reasonable and proportionate. See Beaver v. Hill, 2018 ONCA 840.

[70] However, Rule 24(10) also provides that, where a party has acted in bad faith, the Court "shall" decide costs on a full-recovery basis and order them payable forthwith.

[71] Finally, there is a general presumption that the successful party is entitled to costs. To determine which party is successful, the Court generally asks the question "who got what they asked for". See Scipione v. Scipione, 2015 ONSC 5982.

[72] In this case, the Applicant is the successful party and presumptively entitled to at least some of his costs. Having considered the submissions of the parties, the applicable caselaw, and the modern costs principles, in my view, the request for $1,500.00 is reasonable.

[73] The Respondent shall pay costs in the amount of $1,500.00 within 30 days.

Associate Justice Kamal

Date: July 30, 2025