Spiegel v. Zigelstein, 2015 ONSC 7592

CITATION: Spiegel v. Zigelstein, 2015 ONSC 7592

DIVISIONAL COURT FILE NO.: 435/15 DATE: 20151207

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

HEIDEE SPIEGEL

Applicant

– and –

DAVID ZIGELSTEIN

Respondent

Elliot Birnboim, for the Applicant

Stephen M. Grant, Melanie Battaglia, for the Respondent

HEARD at Toronto: November 8, 2015

M.A. Sanderson J.

Reasons For Decision

Introduction

1This is a motion in writing by the Applicant Heidee Spiegel (hereinafter “Spiegel”) for leave to appeal to the Divisional Court from the interlocutory order of McWatt J. dated August 18, 2015, dismissing her motion seeking leave to bring a motion prior to the first case conference scheduled in her Application and for an order that Mr. Zigelstein, the Respondent, (hereinafter “Zigelstein”) deliver a properly executed Financial Statement in accordance with Rule 13.3 of the Family Law Rules before that case conference was held.

2The affidavit supporting Spiegel’s motion was that of a legal assistant in the office of Spiegel’s lawyer. It mentioned that although Zigelstein had filed an answer, he had not filed a financial statement as required under the Family Law Rules.

3In her Application, the Applicant Spiegel pleaded that she and the Respondent Zigelstein were common law spouses, they had shared a unique and loving marriage-like relationship, he had financially provided for her in many ways and that their work and home lives had been intertwined. She claimed spousal support and damages of $2.2million for unjust enrichment.

4In his Answer, the Respondent pleaded that they were never married, had never continuously cohabited for a period of three years, had never had a relationship of any permanence, had not had children together and had not been business partners.

5He denied that they had ever shared a unique and loving marriage like relationship. He pleaded that he had not supported Spiegel or her children financially.

6He pleaded that Spiegel had wanted a relationship and that he had not.

7He pleaded that they ended their friendship in September 2014 as a result of her escalating harassing and abusive behaviour toward him, and her refusal to seek help for her mental health issues, including her apparent obsession with him.

8He pleaded that they were never business partners.

9After the Respondent filed his Answer, counsel for the Respondent indicated to her lawyer that he had no obligation to file a financial statement; he had no financial liability to her; any liability should be determined before he had to make disclosure; they were never in a relationship of economic dependency; she had sustained no economic disadvantage.

10Her counsel launched the motion for leave to bring a motion before a case conference and for an order to compel him to make financial disclosure because without disclosure before a case conference, the case conference would be unproductive and wasteful.

11The motion before McWatt J. was heard on August 18, 2015.

The Reasons of McWatt J.

12McWatt J. noted that the motion was to bring a motion prior to a case conference scheduled for September 14, 2015.

13She noted that the Applicant had not shown the “urgency” required to bring this motion before the case conference. She proffered no evidence of dire financial circumstances that could not wait until September 14, 2015.

14She noted that the Respondent “maintains that he has no liability to the Applicant and that his counsel intended to bring a summary judgment motion or a motion to bifurcate the application to determine the entitlement issue.”

15She wrote: I agree with the submission of Respondent’s counsel that this is not “traditional” family law litigation requiring an automatic right on the part of the Applicant to production of the Respondent’s financial information, although that disclosure may be necessary at some point in the matter if the Applicant establishes some entitlement as a spouse.

16She held that the Respondent’s financial disclosure obligations are part of the substantive issues in this case, which are to be dealt with at the case conference.

The Test For Leave to Appeal

17Rule 62.02(4) sets out the test to be applied on a motion for leave to appeal. Leave to appeal shall not be granted unless

(a) There is a conflict in decision by another judge or Court in Ontario or elsewhere on the matter involved in the proposed appeal and it is desirable that leave to appeal be granted; or

(b) the judge hearing the motion is satisfied that there is good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that leave to appeal ought to be granted.

Analysis

18The purpose of Rule 14 is to encourage litigants to attend a case conference before proceeding with a motion, to lessen the number of interim motions that occur in family law matters. [see Rosen v Rosen (2005) 480].

19McWatt J. noted that the Applicant did not file any affidavit evidence on urgency.

20I have already noted that the supporting affidavit was that of an assistant in the office of the Applicant’s counsel.

21Generally speaking, motions are not to be brought before case conferences except in exceptional circumstances.

22Generally speaking, it would have been premature for the Respondent to have brought a bifurcation or summary judgment motion prior to the case conference.

23There is no good reason to doubt the correctness of the reasoning of McWatt J. in that regard, nor are there conflicting decisions on the point.

24This is an interlocutory order. The disclosure matter could have been dealt with at the case conference on September 14. If it could not have been consensually resolved, then it would have been open to the Respondent to bring a bifurcation motion or to move for summary judgment.

25As Callaghan ACJHC observed in Greslik v. Ontario Legal Aid Plan 1988 4842 (ON SCDC), 65 O.R.(2d)110, leave to appeal an interlocutory order of a judge should only be granted where there was both good reason to doubt the correctness of the decision and the matters involved were of general importance to the public and to the development of the law and the administration of justice, not matters of importance only to the litigants.

26I do not accept the submission of counsel for Spiegel that because financial disclosure is at the heart of many family law cases, this matter is of broad general public importance in family cases.

27In my view, the observation of McWatt J. that this is not traditional family law litigation was apt.

28While in most traditional family litigation requiring production of the financial information of both parties is essential, it is evident from the pleadings that there is a real issue here about whether traditional family law principles apply at all.

29This would be untrue in the vast majority of family cases where the existence of spousal relationship is a given.

30In the unusual circumstances of this case, the Respondent’s financial disclosure obligations are uncertain because it is very unclear whether the Applicant and the Respondent had a relationship that would give rise to any disclosure obligations under the Family Law Rules.

31In summary, there is no good reason to doubt the correctness of McWatt J.’s factual conclusions that there was no urgency requiring immediate financial disclosure and that Spiegel’s request should not be granted before the case conference was held.

32Her decision was interlocutory, primarily about timing of Spiegel’s request, and did not involve matters of general public importance.

33The Applicant has not satisfied the test under Rule 62.02(4) (a) or (b).

Disposition

34The Applicant’s motion for leave to appeal is dismissed.

35Although I have costs submissions of the Respondent, I have none from the Applicant.

36Costs submissions may be made in writing on or before December 11, 2015.

___________________________ M.A. Sanderson J.