In Rikhye v. Rikhye, Justice Bloom addresses the question of whether a non-party may be allowed to attend a cross-examination as a moral support person for an older adult who is the alleged victim of elder abuse.
One of the important factors considered by Justice Bloom on this motion was the vulnerability and impressionable state of the Plaintiff, who was to be the witness at the subject cross-examination. The challenge here was not just deciding whether the Plaintiff required a support person to attend at an examination but also to consider which of the elderly Plaintiff’s two adult children would be more likely to influence her answers.
The Plaintiff was an 84-year-old woman who suffered from depression and anxiety. She lived with her son and daughter-in-law between 2012 and 2016 at a property in Brampton. In 2016, she moved out of the subject property and began living with her daughter.
Soon after moving in with her daughter, the mother commenced an action seeking to set aside the transfer of the Brampton property to her son and daughter-in-law “on the basis of elder abuse”. The Plaintiff also served a motion for Certificate of Pending Litigation (“CPL”). At around the same time, the Plaintiff and her daughter (now caregiver), attended at a police station and reported her son to the police. The police arrested the son for “elder abuse” but ultimately there were no charges laid against him.
The mother filed two Affidavits in support of the CPL motion. Her cross-examination on those Affidavits had been scheduled to take place on August 16, 2017. The mother wanted her daughter to be present at the cross-examination as a moral support person.
The parties brought cross-motions on the issue of whether the daughter should be permitted to attend.
The mother’s counsel contended that his client was an 84-year-old “nervous wreck” who was on medication for anxiety and depression. She was easily manipulated, and it was difficult for her to sit across from her son who had allegedly looted her assets. Counsel also took the position that there was no one other than the daughter who could give her the support she needs.
The Defence agreed that the Mother was easily manipulated but argued that the manipulation may arise from her daughter’s presence. Another son testified that the mother “is very loving and trusting of her caregivers . . .[and] will go to extreme lengths to avoid upsetting . . .her caregiver.” The son also described the mother as “needy and doesn’t want to offend anyone”. Defence counsel argued that the daughter is now the mother’s caregiver and had already demonstrated her views by arranging for the Defendant son’s arrest. They also pointed out that credibility was an important issue on the CPL motion and that the cross-examination would include questions about the mother’s attendance at the police station.
It was conceded that the Court could properly permit the presence of an appropriate support person but the Defendants argued that the daughter was not the appropriate person.
Justice Bloom, relying on the decision of Master Dash in Poulton v. A.& P. Properties Limited, 2005 CanLII 4105 and the judgment of Master Muir in DeGrandis v. 1123951 Ontario Limited, 2016 ONSC 4335, noted the following principles with regard to allowing a non-party to attend cross-examinations:
- a non-party may attend to assist a party only on the consent of the other side or on the order of the court;
- the onus to prove entitlement to attend is on the party seeking such an order;
- the non-party should not be a witness at the subsequent trial;
- the attendance of the non-party must not disrupt the examination process; and
- the non-party must not take the role of witness or assist the witness in answering questions.
To the above, Justice Bloom added the principle that a Court deciding on whether to allow the presence of a non-party must consider both substantive fairness to the parties and the appearance of fairness.
Justice Bloom found that while he would not hesitate to approve the attendance of a qualified support person to assist with a proper cross-examination, in this case, having regard to the principles set out above, the Plaintiff had not discharged her onus to obtain such an order.
Given that the daughter had secured the son’s arrest, the son could not have confidence in the fairness of the cross-examination if she was in attendance.
Justice Bloom also referred to the timing of the commencement of the action, being shortly after the mother moved in with her daughter and noted that allowing the daughter to attend the cross-examination created both a danger of substantive unfairness and the appearance of same.
Ultimately, Justice Bloom dismissed the Plaintiff’s cross-motion and granted the Defendant’s motion, holding that the daughter may not attend the cross-examination.
The Court can approve the attendance of an appropriate support person at a cross-examination to assist that party, especially when the party is vulnerable. Given that cross-examinations are not a public process, a non-party can only attend the proceeding with consent or by Order of the court. The onus of proving entitlement to attend is on the party seeking that order. In deciding whether to allow a non-party’s attendance at a cross-examination the Court must not only consider substantive fairness to the parties but also the appearance of fairness.
However, if the non-party seeking an order to attend has the potential to unduly influence the witness, which is a real threat with vulnerable older adults who may be susceptible to manipulation by family members, he or she is not likely to obtain the Court’s approval.