Rokach v. Rokach, 2020 ONSC 5596

CITATION: Rokach v. Rokach, 2020 ONSC 5596

DIVISIONAL COURT FILE NO.: 660/19

DATE: 20200917

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Rokach v. Rokach

BEFORE: D.L. Corbett J.

COUNSEL: Ester Rokach, self-represented Appellant Laurie Pawlitza, for the Respondent

ENDORSEMENT

[1] This endorsement reflects a case management teleconference held on September 16, 2020.

[2] By endorsement dated August 21, 2020, this court gave further directions for this case to move forward (2020 ONSC 5037). The endorsement was emailed to the parties to the email addresses by which the parties had been communicating with the court. Because of continuing difficulties communicating with Ms Rokach, the court directed as follows at the end of the endorsement:

Court staff is directed to telephone Ms Rokach and to read to her paragraphs 7-10 of this endorsement and also to provide Ms Rokach the call-in details for the teleconference. A copy of this endorsement will be sent to Ms Rokach by email to the email addresses through which she previously communicated with the court, by regular mail, and a copy will be left for Ms Rokach at Judges’ Administration where she can pick it up in person. It is Ms Rokach’s responsibility to obtain a copy of this endorsement forthwith.

[3] Court staff reported back that Ms Rokach had been reached by telephone and the instructions set out above were carried out. Court staff reported that they understood Ms Rokach during the telephone call, and that they were understood by Ms Rokach on the basis of the questions she asked and the responses she gave. Among other things, there was a discussion between court staff and Ms Rokach about materials that should be provided to the court at the end of which staff advised Ms Rokach to deliver another copy of motion materials Ms Rokach had provided to the court back in March 2020. This advice was in error: those materials are not needed by the court now, but the advice was given and clearly it was heard and understood since Ms Rokach did arrange to have these materials delivered to the court.

[4] Ms Rokach has a hearing disability. The question is how best to accommodate this disability while moving forward with Ms Rokach’s appeal. In my view, this matter may now be dealt with in writing until all appeal materials have been served. The appeal itself will not be argued until 2021 and may take place in-person.

[5] In the endorsement of June 17, 2020, I directed as follows:

It is Ms Rokach’s responsibility, as the Appellant, to serve her appeal record and factum. The record is limited to the materials that were before Justice Diamond. She shall serve her appeal record by July 31, 2020. It shall not include any materials that were not in evidence before Justice Diamond.

I understand that Ms Rokach has indicated that she wishes to file materials that were not before Justice Diamond. She may only file such materials for this appeal if either the Respondent consents to the materials or the court orders that the materials may be filed as “fresh evidence”.

(a) Ms Rokach shall, by July 3, 2020, serve on counsel for the Respondent a list of any materials she wishes to file on the appeal that were not before Justice Diamond;

(b) Counsel for the Respondent shall advise Ms Rokach in writing by July 17, 2020 if she consents to any of the items from (a) being filed for the appeal. Ms Rokach shall serve a Supplementary Record by July 31, 2020 containing any such additional documents for which counsel for the respondent has consented;

(c) Ms Rokach shall then serve a request to be permitted to file the documents described in (a) for which consent has not been provided in (b). This request need not be a formal motion – she may make this request by way of a letter. In this request she should explain:

(i) Why these materials were not available to be put before Justice Diamond; and

(ii) What difference these materials could have to the result of the issues decided by Justice Diamond.

By way of explanation, Ms Rokach should understand that an appeal is not a chance to argue the original case all over again. It is a review of the decision of the judge below, and it is based on the evidence that was before him. Only in rare circumstances will the court permit a party to add to the record that was before the court at first instance. There are many reasons for this, not the least of which is the importance of finality in litigation. The parties are expected to raise all issues and put before the court at first instance all evidence material to the case: R. v. Palmer, 1979 8 (SCC), [1980] 1 SCR 759; Sengmuller v. Sengmuller (1994), 1994 8711 (ON CA), 17 OR (3d) 208; Centre City Auto Sales Inc. v. Kalsatos, 2013 ONCA 3737.

[6] Ms Rokach did not serve her appeal record by July 31, 2020 as directed and has not yet served it.

[7] Ms Rokach shall serve her appeal record, factum and brief of authorities by November 20, 2020. She may also file a brief of “Proposed Fresh Evidence” as described below by November 20, 2020. Ms Rokach shall file these documents with the Divisional Court office with proof of service by November 25, 2020. Ms Rokach was told during the teleconference that these are firm deadlines. This appeal has already dragged on too long. The court gave directions for these documents to be filed on June 17, 2020, and Ms Rokach had a copy of this direction by mid-August. During the teleconference she asked for 60 days to complete this step and the court has given her the time she requested. If Ms Rokach fails to meet these deadlines, she should expect that the court will dismiss her appeal on request from Mr Rokach.

[8] I have concluded that any attempt to refine issues respecting fresh evidence will only prolong the period required to ready this case for a hearing at additional expense to the parties and further judicial case management time. The motion before Diamond J. was on a written record. The underlying support order was made back in 2005. The issue of fresh evidence should be straightforward. Therefore, instead of the process set out in my endorsement of June 17, 2020, Ms Rokach shall do as follows:

a. Her appeal record shall not include any materials that were not filed on the record before Diamond J.

b. Ms Rokach may file any additional documents she wishes to rely upon in this appeal in a bound brief entitled “Proposed Fresh Evidence”. Ms Rokach shall include, at the front of this brief, a document explaining why she says that these documents that were not in the record before Diamond J. should be before this court on the appeal from the decision of Diamond J. I have explained to Ms Rokach the general principles that apply to the issue of fresh evidence: she will have to explain why the proposed fresh evidence was not available to put before Diamond J., and why she says it is material to the appeal. “Material” in this context means “very important” and “likely to affect the outcome” of the appeal. Ms Rokach should also include in her factum any legal argument she wishes to make concerning why the fresh evidence ought to be admitted into the record for the appeal.

[9] The respondent shall serve his responding record, factum, brief of authorities on the appeal and his response to Ms Rokach’s fresh evidence materials by January 22, 2021, and shall file them with proof of service in the Divisional Court office by January 25, 2021.

[10] In respect to the issue of fresh evidence, the respondent shall provide his position respecting whether the proposed fresh evidence ought to be admitted into the record for the appeal in his factum on appeal.

[11] This appeal shall be heard in-person on February 16, 2021 for an estimated 1.0 days. I do not believe that oral argument should require a full day, but I have set aside this much time to be on the safe side. Each side should understand that this means that they will be limited to roughly 2.0 hours to make their oral submissions to the court. This should be more than enough time for an appeal of this kind.

[12] It is not clear where matters will stand respecting in-person hearings in the Divisional Court in mid-February 2021. I am satisfied that an in-person hearing is a reasonable accommodation because of Ms Rokach’s hearing disability based on the letters she has provided to the court respecting the nature and extent of that disability. The disability did not preclude Ms Rokach from participating in today’s case management teleconference, which she candidly acknowledged at the conclusion of the call. However, an oral hearing on the merits is a far more involved and complicated process than is a procedural teleconference for directions.

[13] It may be that the court is unable to safely conduct an in-person hearing before a panel of three judges in February 2021, in which event the court will seek a direction from the court’s executive that the appeal be heard in-person before a single judge of the Divisional Court, which is permitted by the Rules of Civil Procedure in exigent circumstances.

[14] Ms Rokach has, in fact, two appeals rather than one – the first from the substantive order of Diamond J. and the second from Diamond J.’s costs order. These appeals shall be heard together and the parties shall include all of their submissions on all issues within one factum. Ms Rokach asks that the maximum length of factums be increased to reflect that two appeals are being argued. She asked for 45 pages. I grant that request, which shall apply to both sides, and note that in addition to the two appeals, the parties may also be required to address the issue of fresh evidence on appeal within the 45 page limit. In granting this request, the court notes that a long factum is not generally more persuasive than a concise one, and on an appeal of this kind the court would expect that the parties would not need 30 pages, let alone 45. However, if the parties choose to file factums of up to 45 pages, they will be accepted and considered by the court.

[15] Ms Rokach has not brought a motion for leave to appeal the costs order. In the unusual circumstances of this case, this court directs that the leave issue be addressed at the same time as the merits of the appeal.

[16] A few additional issues were raised at the teleconference. Ms Rokach wishes to rely on a transcript from the hearing before Diamond J. Ordinarily such a transcript would not be relevant: there was no oral evidence in this case and so the transcript should only be a record of argument. Ms Rokach feels that the transcript is important, and she has already obtained it. If Ms Rokach is relying on the transcript then she shall include it in her Appeal Record.

[17] Ms Rokach is also seeking a transcript of proceedings before J. Wilson J. at the time that the parties negotiated a settlement back in 2005. She advises that she has made inquiries of court personnel and that they say they are trying to determine if such a transcript may be possible to obtain. Ms Rokach told me that things were said during the process before J. Wilson J. that bear on the question of whether the support order could be changed later. I have advised Ms Rokach that the order made in 2005 speaks for itself and says what it says. Its contents are not subject to interpretation on the basis of things said in a settlement conference fifteen years ago. If Ms Rokach obtains a transcript of events before J. Wilson J., she may include that in her brief of proposed fresh evidence (since this transcript was not before Diamond J.) and the court hearing the appeal will decide whether to add it to the record for this appeal. However, the appeal schedule will not be modified to permit Ms Rokach more time to obtain this transcript.

[18] There has been difficulty with ongoing support payments. It appears that funds are available for Ms Rokach but that she has concerns about the form of a receipt that counsel requires from Ms Rokach to evidence the payment. This is not the sort of issue that this court will ordinarily address. However, in the course of an hour-long conference this issue arose at the end and required only a brief time to resolve. The form of release read to the court by Ms Rokach is just a receipt. It is not an acknowledgment by Ms Rokach that the order of Diamond J. is correct, and it does not compromise her appeal rights. Ms Rokach will attend at the office of Mr Rokach’s counsel on September 23, 2020, to pick up the outstanding support payments and will sign receipts in the form read during the conference to confirm her receipt of payment.

[19] Ms Rokach will require accommodation during the in-person hearing. It is her responsibility to make the nature of this accommodation known to Divisional Court staff in a timely way and in any event no later than January 22, 2021. My direction that this hearing take place in-person is subject to the court being able to accommodate Ms Rokach on the basis of her requests for accommodation. If Ms Rokach is not satisfied with the accommodations the court is able to provide and the court cannot provide further accommodations that Ms Rokach says that she needs, then this issue will be addressed in a further case management teleconference (with me if I am available) for directions on how the hearing will proceed on February 16, 2021.

[20] Costs for all steps taken in this appeal for which costs have not already been ordered shall be in the discretion of the court hearing the appeal.

[21] A copy of this endorsement is to be sent to both sides by email, to Ms Rokach by regular mail, and a copy is to be left for Ms Rokach at Judges Administration for pick-up by Ms Rokach or on her behalf. It is Ms Rokach’s responsibility to ensure that she obtains a copy of this endorsement, and she should inquire of Divisional Court staff if she does not receive it in a timely way. The deadlines and directions given in this endorsement were made orally at the case management teleconference and are effective from the time they were stated by me to the parties. Ms Rokach was told that a copy would be available at Judges Administration on September 18, 2020, and it is expected that she may pick it up on September 23, 2020 when she is scheduled to attend at counsel’s office to pick up support cheques.

[22] An unsigned version of this endorsement is provided to the parties by the Divisional Court office. As the parties were instructed during the teleconference, the directions set out in this endorsement are effective as of the time they were pronounced orally during the teleconference. A sighed copy of the endorsement will be provided to the parties in due course.

“D.L. Corbett J.”

September 17, 2020