Court File and Parties
COURT FILE NO.: 1391/22 DATE: 2024-11-26
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Ivy Sham, Applicant – and – Chien-Pan Lee, Respondent
Counsel: Adenike Aderibigbe, Counsel for the Applicant Scott Wodhams, Counsel for the Respondent
HEARD: November 22, 2024
Judgment
THE HONOURABLE MR. JUSTICE A. PAZARATZ
[1] When it comes to deciding children’s lives, doing it cheap is no substitute for doing it right.
[2] Endless motions to re-argue temporary parenting orders – with no apparent inclination to ever seek a final order at a trial – do a disservice to children who deserve proper consideration of all the best interest factors, based upon a thorough presentation and testing of all relevant evidence at an oral hearing.
a. For parents: Motions – even an endless succession of temporary motions -- may seem quicker and cheaper than trials.
b. For lawyers: Motions are less work than trials. Less disruptive to busy caseloads. Motions let the lawyer multi-task, servicing multiple clients on the same day. In contrast, trials require the lawyer’s undivided attention, sometimes for days or weeks at a time. So motions are often a better business model than trials.
c. But for judges: Complex, bitterly contested motions based on incomplete and untested affidavits usually make it impossible to make necessary credibility and factual determinations -- let alone fully understand the personal situation and needs of each parent and each child. Affidavits simply don’t give us all the information we need to make proper determinations.
[3] In the early stages of a family dispute, motions are often unavoidable.
a. Time is limited.
b. Things are in flux.
c. Children are disrupted. Often in despair. Sometimes in danger.
d. Emotions are high.
e. Decisions have to be made.
f. Finances and parenting issues need to be stabilized.
[4] Judges do the best they can with imperfect affidavit evidence on crowded motions lists -- because something has to be done. Quickly.
[5] But once a temporary order is in place, that should be the end of the “motion stage.”
a. The focus should switch to achieving a final resolution for the family. That’s why we offer comprehensive case management.
b. The best result for everyone is usually a negotiated settlement. A consent order. And that’s how most cases conclude.
c. But in a small number of cases, an oral hearing will be required. Where witnesses will testify and be cross-examined. Where all the issues will be thoroughly reviewed and a decision will be made, once and for all.
[6] Except an increasing number of litigants appear to have no interest in a once and for all resolution.
a. They don’t want to settle.
b. But they don’t want to go to trial either.
[7] So our court system gets bogged down with people engaging in half-hearted litigation.
a. They keep talking tough about all the things they’re going to do at trial – except they never seem to want to get to trial.
b. They pretend they want to advance the file to a final resolution. But in reality they allow the file to languish.
c. Adjournments become the litigation strategy of choice. Preferably sine die adjournments. (In Latin sine die means “no definite date or period to resume”, but in family court it could easily be mistaken to mean “I hope this doesn’t come back for a long time.”)
d. They ignore the Rules and court-ordered deadlines.
e. They allow months – even years – to go by with little or nothing being accomplished.
f. They complain the court system is too slow – but refuse to schedule next steps in the process.
[8] And then suddenly – often when they discover their case is about to be dismissed -- one of the parties will bring an “urgent” motion seeking yet another temporary order. And so it starts again.
a. More affidavits (often asking the judge to refer back to earlier affidavits as well).
b. More cross-motions.
c. More allegations (and blame-shifting for the delay).
d. More unsworn exhibits and attachments.
e. More untested evidence.
f. More impossible demands on the motions judge.
[9] There is absolutely no excuse for this.
a. There is generally a finite period of time within the early stages of a family court file when motions for temporary orders are appropriate.
b. In some instances – where litigants are actually paying attention – there might even be justification for subsequent motions pending an anticipated trial. Sometimes new information or disclosure becomes available. Sometimes things change.
c. But the older the court file – the longer the period since the initial temporary orders were granted – the greater the onus on lawyers and parties to explain why they are still litigating by motion and affidavit.
d. Particularly where children’s issues are involved, it’s unfair to keep asking motions judges to struggle with incomplete, untested, and highly conflictual affidavit evidence. We’ll do it at the beginning, when there’s no alternative. But there’s a tipping point where you can no longer ask judges to struggle through repetitive volumes of imperfect materials – for the sake of yet another temporary order -- when in reality the parties could have already had (or at least scheduled) their trial.
e. On financial issues, this lackadaisical approach is a wasteful nuisance.
f. On parenting issues, asking judges to engage in guesswork because you’ve neglected your file is unconscionable.
[10] A brief summary of the timelines on this file will explain why on a busy November 22, 2024 motions list, I refused to hear complicated motions and cross-motions primarily involving two children ages 12 and five; but also involving financial and property issues.
[11] April 21, 2022: The parties separated. The children remained with the mother. The next day the father was charged with assaulting the oldest child.
[12] November 29, 2022: The mother commenced an Application.
a. Her claims included sole decision-making; restrictions on the father’s parenting time; child and spousal support; exclusive possession; equalization of net family property; and a freezing order.
b. She made serious allegations of physical and verbal abuse of herself and the children.
c. The financial issues were somewhat complex.
[13] February 7, 2023: The father filed his Answer:
a. He categorically disputed the mother’s claims and allegations. He made his own allegations against the mother.
b. His claims included a divorce, sole or joint decision-making, parenting time, child support, equalization, exclusive possession, disclosure, and a request that the Office of the Children’s Lawyer (“OCL”) become involved.
[14] February 9, 2023: The mother filed an urgent motion, primarily in relation to parenting and protection issues.
[15] February 13, 2023: I heard the mother’s urgent motion.
a. I determined it was not urgent and scheduled an early Case Conference.
b. I noted that a Cantonese interpreter is required for all future court dates. This was for the mother who is a native of Hong Kong.
c. At the November 22, 2024 motion, a Cantonese interpreter was present and translated the entire proceeding for the mother. And yet, for that motion the mother filed extensive affidavit materials – all in English – without any indication or certification that the document was translated for the mother. Indeed, during a break, the mother’s lawyer indicated she requires the assistance of an interpreter to communicate with her client. All of this added yet another dimension to my concern about being asked to make important decisions about children based on the affidavit materials I was presented with.
[16] March 6, 2023: The parties had a Case Conference.
a. Justice Kril’s endorsement directed the parties to ensure that all disclosure issues were addressed quickly and in time for a May 16, 2023 Settlement Conference. But as of the November 22, 2024 motion, both counsel acknowledged that there was still significant disclosure outstanding by both parties.
b. The father was ordered to produce, within 30 days, documentation tracing the proceeds of sale from a property. But as of the November 22, 2024 motion, this still hadn’t been done.
c. The father was ordered to produce, within 30 days, an accounting of funds applied to the purchase of another property including the source of all such funds. But as of the November 22, 2024 motion, this still hadn’t been done.
d. The father was ordered to produce, within 30 days, an accounting of all monies contributed to the matrimonial home from the date of purchase, with supporting documentation. But as of the November 22, 2024 motion, this still hadn’t been done.
e. The mother was ordered to produce, within 30 days, extensive financial disclosure and proof of assets and liabilities on the date of marriage and on the date of separation. But as of the November 22, 2024 motion, this still hadn’t been done.
f. Leave for Questioning was granted. But as of the November 22, 2024 motion, neither party had arranged or even requested Questioning -- even though there were enormous credibility issues and factual disputes relating to the best interests of the children.
g. A referral was made to the OCL.
[17] May 16, 2023: The parties had a Settlement Conference.
a. Nothing was settled.
b. Justice Kril’s endorsement included: “The parties are not ready for a trial scheduling conference. Questioning has not taken place....Counsel may arrange a continuing Settlement Conference, combined Conference or Trial Scheduling Conference at the appropriate time.”
c. At the parties’ request, the matter was adjourned to the timelines, with no specified return date.
d. After that date the parties never scheduled a further Settlement Conference or Trial Scheduling Conference. They made no effort to advance the main application toward a final resolution.
[18] Then nothing.
a. Up to May 16, 2023 the file moved fairly quickly through our court system. As it should.
b. Had the parties been ready at their May 16, 2023 Settlement Conference, they could have scheduled a Trial Scheduling Conference – which, in Hamilton, would likely have been scheduled within three to four months. And if they had their TSC by September 2023, they could have had their trial by the spring of 2024. They could have had a comprehensive oral hearing and final order long ago.
c. If the parties had worked diligently after the May 2023 Settlement Conference to complete the remaining disclosure and Questioning, they could have asked for a Trial Scheduling Conference as soon as they were ready. They still could have had their trial and a final order by now.
[19] Sept 29, 2023: While the main application was in limbo, the parties brought another motion.
a. The OCL had appointed a lawyer for the oldest child. That lawyer then asked to be removed from the record, in favour of the OCL proceeding by way of a s.112 clinical investigation. Justice Walters made that consent order.
b. As well, Justice Walters made a consent temporary order allowing the father extremely limited supervised time with the children (one hour per week during the first month, two hours per week during the second month, etc., working up to 5 hours per week in the sixth month). Temporary child support was also ordered pursuant to minutes of settlement.
[20] Then more months of no discernible effort by either party to advance the resolution of this high conflict case. No compliance with disclosure orders. No Questioning. No effort to get a new court date.
[21] January 2024: The parties had a disclosure meeting with the OCL s.112 clinician.
a. The OCL apparently confirmed the mother’s position, that the children had negative views about the father and didn’t want to see him.
b. The investigation was complete. The OCL’s information would have been available – and fresh – had the parties scheduled a spring or summer 2024 trial, as they could have.
c. The parties were advised that a formal s.112 report would be issued in the near future.
d. But inexplicably, the OCL never issued a written report. The parties made periodic inquiries of the OCL, asking about the report. But as of the November 22, 2024 motion hearing, neither lawyer had any explanation for why they didn’t have this important report. Nobody seems to have followed up with diligence.
[22] Then many more months of nothing.
[23] Nov 8, 2024: The father brought this current motion.
a. His requests included increased parenting time; a change in supervision arrangements; make-up parenting time (for a year’s worth of alleged denials); reimbursement for certain supervision-related expenses; and costs.
b. The father’s November 8, 2024 affidavit was 31 pages long including multiple typed, single-spaced supervision observation notes. At the outset of the November 22, 2024 hearing the father’s lawyer proposed that we review each supervision note, spanning many dates. (All of this on my Friday list with six other motions – and with this motion proceeding at half-speed as a result of the involvement of the Cantonese interpreter for the mother.)
c. He said his criminal assault charge was resolved by peace bond on October 16, 2024. He acknowledged some inappropriate behaviour but not to the extent alleged by the mother.
d. He acknowledged there were problems with the children’s reaction to early visits, but he said things have improved.
e. The father characterized his motion as being contemplated by Justice Walters’ September 29, 2023 order. That order stated that parenting time could be reviewed after six months “depending on the comfort level of the children, the notes of Brayden Supervision Services Inc. and the Section 112 Report of the Office of the Children's lawyer, if available.” But clearly, that important s.112 report was not yet available, and counsel should have done more to obtain it. More to the point, the father knew the OCL clinician’s verbal report was unfavourable to him, but he didn’t include that information in his affidavit.
f. The father blamed the mother for continually blocking his parenting time and causing delay. So why did he sit back and allow the main application to sit in limbo for a year and a half? Why didn’t he at least do those things that he was supposed to do, in order to be trial-ready?
[24] The father filed a further affidavit dated November 19, 2024 in reply to the mother’s materials. He offered more denials and counter-allegations. But no explanation about why he had failed to pursue the claims in his Answer more diligently.
[25] Nov 15, 2024: The mother brought her cross-motion.
a. She opposed the relief sought by the father.
b. Her requests included sole decision-making; primary residence; child support based upon imputed income to the father; spousal support; travel permission, equalization of net family property (on a motion?); disclosure, and costs.
c. The mother’s November 18, 2024 affidavit was 60 pages long with multiple exhibits (including more typed single-spaced supervision observation notes; an unsworn doctor’s letter; and numerous self-serving communications exchanged between the lawyers).
[26] As stated, family court judges are used to dealing with conflicting, untested and often incomplete affidavit evidence at motions brought at the outset of a proceeding.
a. In those circumstances factual and credibility determinations can be difficult or impossible.
b. Judges struggle to do the best they can, with inadequate and often unreliable information.
c. No matter how deficient the evidence, at the early motion stage Judges generally have to make at least some decisions, particularly where the best interests and protection of children require immediate attention.
d. Quite often the most a temporary order can achieve is a reasonably acceptable short-term solution, until the parties are able to assemble better information, make full disclosure, and test the evidence at an oral hearing.
[27] In this case, so much time has elapsed that we should be well beyond the “temporary reasonably acceptable short-term solution” stage.
a. The father insists supervised parenting has gone well and should be expanded.
b. The mother insists things have gone poorly and parenting time should be reduced or further restricted.
c. They also bitterly disagree about financial issues.
d. The competing narratives couldn’t be more diametrically opposed.
e. In a court case that’s now two years old, why are we still trying to sort all of this out by affidavits? Why are we still only seeking temporary orders? When will this end???
[28] These parents never should have adjourned their case to the timelines for a year and a half. They shouldn’t have put the determination of their children’s lives “on hold”. And when they finally decided to do something, they should have put more effort into getting to trial, rather than simply typing up some affidavits and asking a motions judge to put another temporary bandage on it.
[29] As much as we owe it to the parents to help them escape a litigation morass of their own creation, we have an even greater legal and moral obligation to their two young children. They deserve better. They deserve adults who pay attention and act decisively. They deserve to have their issues and lives determined in a comprehensive, sensitive and timely manner. They deserve clarity and finality.
[30] When a highly contentious file is adjourned to the timelines following an unproductive Settlement Conference, it is not an invitation for the parties to go into hibernation. The expectation is that the parties will immediately correct any disclosure or other deficiencies, so the matter can quickly be returned to the litigation stream in a “trial-ready” state. The goal should be to end the litigation, not paralyze it.
[31] Parties should not be permitted to eschew opportunities to go to trial, and then attempt to litigate triable issues by way of complicated motions for temporary relief. It’s a lazy substitute for a proper determination.
a. Such late-stage motions impose impossible expectations on judges. The volume of contentious and untested materials is usually enormous. Quite often these motions simply reinforce the magnitude of the long-standing rift between the parties, without giving the judge the quality of information and evidence which would be available at trial.
b. As well, needless late-stage motions create an unnecessary burden on limited judicial resources. We already have too many unavoidable motions. We can’t absorb extra work simply because a party suddenly wakes up and decides they’d better do something.
c. (And there is little danger that forcing parties to proceed to a trial list will overburden our system. Litigants who allow their files to become dormant usually do so because they have no intention of ever going to trial. Adjournments allow parties to procrastinate and saber-rattle. Facing the prospect of having to prepare for an imminent trial will encourage most of these cases to settle very quickly.)
[32] I expressed all of these concerns to the parties and their lawyers. I stood them down to talk. For a long time. Upon their return they advised me that they were withdrawing their respective motions, and they wanted to schedule a Trial Scheduling Conference. (It’s amazing what can happen when lawyers actually talk.)
[33] Today’s order:
a. On consent, the respective motions of the Applicant and the Respondent are withdrawn.
b. Adjourned to March 6, 2025 at 12 noon for a Trial Scheduling Conference with Justice Kril. This will be an in-person attendance in the family court building.
c. A Cantonese interpreter will be required for this event. The court would recommend that Paul Ip be enlisted in this respect as he did an excellent job at the November 22, 2024 motion.
d. At the Trial Scheduling Conference the parties are to present a Joint Trial Scheduling Endorsement Form and a witness list (with summaries of the evidence to be provided by their witnesses).
e. Both parties shall immediately contact the OCL to have the s.112 report issued, and they shall follow-up regularly until the report has been received.
f. Both parties shall comply with any outstanding disclosure orders or requests no later than December 16, 2024.
Justice Alex Pazaratz Released: November 26, 2024
COURT FILE NO.: 1391/22 DATE: 2024-11-26
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Ivy Sham, Applicant
- and - Chien-Pan Lee, Respondent
Reasons for Judgment
The Honourable Mr. Justice A. Pazaratz Released: November 26, 2024