ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 3337-04
DATE: 2012-09-18
B E T W E E N:
NANCY CHAN
Novalea M. Jarvis, for the Applicant
Applicant
- and -
KENNETH TOWN
Peter Callahan, for the Respondent
Respondent
HEARD: September 17, 2012, at Milton, Ontario
Price J.
Endorsement
NATURE OF PROCEEDING
[ 1 ] The settlement conference has been held in this proceeding which involves motions by each of the parties to change previous final orders made in this proceeding.
BACKGROUND FACTS
a) Mr. Town’s motion to vary access
[ 2 ] Mr. Town moves to change the final Order of Justice Murray made December 6, 2007, which provided for custody of, and access to, the parties’ children, Megan Town, who is now 15 years old (born April 15, 1997) and Jessica Town, who is 12 (born November 28, 1999). Mr. Town seeks to expand his access and modify the process for resolving disputes that arise from time to time regarding access.
[ 3 ] Justice Murray’s Order contemplated that the parties would retain a parenting coordinator, Jacqueline Vanbetlehem, BSW, MS, RSW, Acc F.M. Ms. Chan was unable to work effectively with Ms. Vanbetlehem and their interaction ended with Ms. Chan making a complaint of professional misconduct to Ms. Van Bettleham’s governing body, with the result that Ms. Vanbetlehem is no longer available as a resource to the parties.
[ 4 ] The parties later agreed to consult Barbara Anderson, who, though no longer acting as a parenting coordinator, was willing to assist the parties in her capacity as a mediator, to negotiate a resolution of their parenting issues. She wished to begin by meeting with the parties children and Mr. Town was unwilling to permit this until the parties had first met with Ms. Anderson themselves, apparently to ensure that her terms of reference were agreed upon before she canvassed the children for preferences that Mr. Town feared may have been influenced by Ms. Chan. The parties reached an impasse on this procedural issue, which prevented Ms. Anderson from assisting them at that time, although Mr. Town insists that he remains willing to explore mediation with Ms. Anderson.
b) Ms. Chan’s motion to vary support
[ 5 ] Ms. Chan moves to change the final Order of Justice Herold dated September 3, 2009, which required Mr. Town to pay Ms. Chan child support in the amount of $2,179.00 per month for the support of the two children based on income in the amount of $166,129.00 imputed to him. She also seeks interim remedies requiring disclosure of information that she believes will enable her to establish that Mr. Town is earning significantly higher income, which she estimates at $296,000.00.
[ 6 ] Mr. Town’s reported income had diminished when, in 2006, he and his partner, Paul Watzinger, had ended the operations of a company, Sherwattosing Inc., which theu had operated from 2004 to 2006. Ms. Chan later discovered that Mr. Town and Mr. Watzinger had become directors of a new company, Clear Spider Inc., which was incorporated in August 2006, and which Mr. Town failed to disclose in examinations in this proceeding in November and December 2006. Ms. Chan sought disclosure of information regarding that company and I made an Order on May 22, 2009, requiring Mr. Town to request the Articles of Incorporation and Shareholder Register of that company by June 15, 2009, and, in the event they were not produced, granted leave to Ms. Chan to bring a motion, on notice to the company, for their production. Mr. Town produced the documents, which disclosed that his mother, Mary Poore, who had not been a shareholder of Sherwattosing Inc., was now a 49% shareholder of Clear Spider Inc. Ms. Chan then sought financial disclosure from that company.
c) The issue of a timetable
[ 7 ] On July 5, 2012, Justice Fitzpatrick granted the parties leave to conduct questioning on August 8 and 9, 2012, but that examination was adjourned, at Mr. Town’s request, at a time when Ms. Chan represented herself. Ms. Chan is now represented by counsel and seeks a new timetable for disclosure of documents counsel requested in a Request for Information in form 20, served on Mr. Town on about September 13, 2012, followed by questioning, followed by a long motion to deal with the issue of variation of child support.
[ 8 ] Justice Fitzpatrick also, as part of his Order dated July 5, 2012, scheduled Mr. Town’s motion to vary the access terms of Justice Murray’s Order for hearing as a long motion on October 29, 2012. Mr. Town, while being willing, he says, to explore a resolution of custody/access issues with Ms. Chan by employing the services of Ms. Anderson as mediator, wishes to retain the October 29, 2012 hearing date for his motion, in the event that the parties are unable to reach agreement.
[ 9 ] In establishing a timetable for the steps required to enable the parties to resolve their issues, if possible, by negotiation/mediation or complete the evidentiary record if they require a decision from a judge, the court is constrained by the parties’ stated commitments. These include, in particular, Mr. Town’s plans to re-marry at a ceremony this coming weekend of September 22, 2012, after which he will be away until October 1 st , and his counsel, who is committed to other trials during the blitz sittings of the court commencing mid-November.
[ 10 ] I mention these constraints only to explain the compressed timetable which it will be necessary to fashion in order to permit Mr. Town’s motion to vary access to proceed, as he wishes, to a hearing as a long motion on October 29, 2012, while enabling Ms. Chan to secure the financial disclosure she requires and to proceed, as she wishes, to a hearing of her motion to vary to be heard at the next long motion date of February 19, 2013, when both counsel indicate they are available.
d) The children’s preferences
[ 11 ] Ms. Chan has sought Mr. Town’s consent to two events for the parties’ eldest daughter, Megan, which she says were initiated by Megan’s school. One is a competitive curling tournament which is scheduled to take place from January 11, 12, and 13, 2013, when Mr. Town is scheduled to exercise access to the children. The other is a music trip that Megan’s school is planning to Munich, Vienna, and Salzburg, which is scheduled to take place from March 10 to March 19, 2013. The latter will entail a cost in excess of $4,000.00 to which Ms. Chan would like Mr. Town to contribute.
[ 12 ] Mr. Town indicated at the Settlement Conference that he is prepared to consent to Megan attending her curling tournament and that he will undertake the necessary transportation during his access to make this possible. The issue of the music trip can be addressed through mediation and, failing agreement, at the hearing on October 29, 2012, as it is an aspect of access.
[ 13 ] The parties have differing views as to what the children’s preferences are with regard to their residence with their mother and the access which their father should be exercising to them and as to how their preferences may be influenced by their mother. Various alternatives were discussed at the Settlement Conference. Because of the time constraints, it is not practicable to request the involvement of the Office of the Children’s Lawyer at this time. However, the parties consented to an Order directing them to consult a child psychiatrist who, if he is able to accommodate them in time, may be able to provide counseling to them to assist them in their communication with each other and the children and to provide a letter which may serve as a “mini-section 30 assessment” to form part of the evidentiary record on the access motion.
ORDER
[ 14 ] Based on the foregoing, it is ordered that:
Mr. Town shall, by September 21, 2012, advise Ms. Chan’s solicitor in writing as to how his mother, Mary Poore, and Mr. Town’s partner, Paul Watzinger, wish to be served with a motion, if required, for production of documents from them, and leave to question them as non-parties. Mr. Town shall, by September 21 st , provide proof to Ms. Chan’s solicitor that he has made this request and shall provide to her Ms. Poore’s and Mr. Watzinger’s responses forthwith upon his receipt of them.
Mr. Town shall, by October 18, 2012, produce to Ms. Chan the following documents and information requested in her Request for Information dated September 13, 2012:
(a) Items 1 to 15, inclusive, from her Request for Information;
(b) Items 30 to 52, inclusive, from her Request;
(c) Items 56 and 57 from her Request;
If any of the information or documents required by paragraph 2, above, is not provided by October 18, 2012, Mr. Town shall, by that date, provide a sworn affidavit setting out in detail, for each document and item of information, the steps he took to obtain it and the reasons it was not produced, and a signed direction to any non-parties who may be in possession of it, authorizing and directing them to produce it, at his expense, directly to Ms. Chan’s solicitor.
Mr. Town shall, by September 21, 2012, make the following requests in writing and provide proof that he has done so to Ms. Chan’s solicitor and, forthwith upon receipt, the replies that he receives:
(a) Request to Megan and Jessica Town and anyone else holding such accounts, for the documents listed as item #16 of Ms. Chan’s Request for Information dated September 13, 2012;
(b) Request to Clear Spider Inc. and Paul Watzinger for the information and documents set out as items #17 to 29 of Ms. Chan’s Request for Information;
(c) Request to Mary Poore for the information and documents set out as items 53 to 55, inclusive, and item 58, of Ms. Chan’s Request for Information.
In the event that any of the requests referred to in paragraph 4, above, does not result in the information and documents being produced by October 18, 2012, Ms. Chan has leave to move, after that date, on notice to Mr. Town and to the non-party to whom the request was made, the latter by service at the address where they wish to be served, as communicated pursuant to paragraph 1, above, for an order for production of the information and documents required from them, and for examinations of them as non-parties in this proceeding.
The parties shall, if they deem it necessary, conduct questioning of the other, beginning with Ms. Chan’s questioning of Mr. Town, from 10 a.m. to 1 p.m., followed by Mr. Town’s questioning of Ms. Chan, from 2 p.m. to 5 p.m., on October 22, 2012, pursuant to a Notice of Examination which may be served on each other before that date in accordance with the Rules and, if necessary, based on the productions made by October 18, 2012, cancelled on October 19, 2012, without cost penalty, other than the examiner’s cancellation fee, which the party making the appointment shall bear, subject to re-apportionment by a costs order to be made following the trial of this proceeding.
Ms. Chan shall advise Mr. Town by October 22, 2012, whether she requires him to obtain a valuation of his current income from a certified income valuator for purposes of a determination of his child support obligations and, if Ms. Chan requires, Mr. Town shall forthwith retain a certified income valuator to obtain the valuation. Mr. Town shall forthwith provide proof of the retainer to Ms. Chan’s solicitor, together with a direction authorizing the valuator to provide any information or documents to Ms. Chan’s solicitor as she may require. The valuator’s fees and disbursements for the valuation, including the disclosure to Ms. Chan’s solicitor, shall be paid initially by Mr. Town, subject to re-apportionment by a costs order to be made following the trial of this proceeding.
Either party has leave to bring motions arising from this Order and the production of information and documents required by it, after October 18, 2012. Such motion, including a motion to compel a non-party to produce information or documents or for leave to examine a non-party, shall be heard on December 4, 2012.
Mr. Town’s motion to change the access provisions of Justice Murray’s Order dated December 6, 2007, shall proceed in accordance with the following timetable:
(a) Mr. Town shall deliver any remaining material he intends to rely on by September 21, 2012.
(b) Ms. Chan shall deliver her responding material by October 1, 2012.
(c) Mr. Town shall deliver his reply, if any, by October 5, 2012;
(d) Examinations, if any, shall be conducted on October 20, 2012, in accordance with the timetable referred to in paragraph 6, above.
(e) Factums shall be exchanged by October 24, 2012;
(f) The hearing shall take place as a long motion on October 29, 2012, as provided for by the Order of Fitzpatrick J. dated July 5, 2012.
On consent, Mr. Town shall take Megan to her curling tournament on the weekend of January 11, 12, and 13, 2013, and facilitate her attendance at all of the competitions set for her and her team.
The issue of whether Megan shall participate in her school music trip to Munich, Vienna, and Salzburg from March 10 to 19, 2013, shall be among the issues to be determined at the motion to be heard on October 29, 2012.
On consent, the parties shall forthwith obtain a referral from their family doctor or walk-in-clinic (Ms. Chan for herself and Megan and Jessica; Mr. Town for himself) to Dr. Gerard Kimmons of Toronto/Woodbridge, a child psychiatrist, for joint counseling in communication regarding issues affecting the children and, if Dr. Kimmons can accommodate them and finds them to be suitable candidates, shall undertake such counseling as he directs. Such counseling shall be open counseling, such that either party has leave to request a letter from Dr. Kimmons, on the issue of the resistance, if any, being expressed by Megan or Jessica to access by their father and whether such resistance can or should be overcome and how, and as to its source. Such letter, if Dr. Kimmons agrees to provide one, and can do so within the timetable set by paragraph 9, above, shall be deemed to be a mini-assessment pursuant to section 30 of the Children’s Law Reform Act , R.S.O. 1990, c. C. 12, as amended. Each of the parties shall obtain their referral to Dr. Kimmons by September 21, 2012, and provide proof to the other and shall also, by that date, consult Dr. Kimmons as to his availability.
On consent, the parties shall jointly retain Barbara Anderson as mediator to assist them to negotiate the access and parenting issues in accordance with the following timetable:
(a) Ms. Anderson shall meet with Megan and Jessica alone, if she is able to accommodate them, at some time from September 18 to October 1, 2012.
(b) Ms. Anderson shall meet with the parties, individually or together, between October 1 and 24, 2012, as her and their schedules may permit;
(c) The above mediation shall be closed, and no reference shall be made to it by either party in the present proceeding, either as to the process or the discussions, unless agreement is reached and reduced to writing and signed by both parties with certificates of Independent Legal Advice from their respective counsel.
- Ms. Chan’s motion to change the support provisions of Justice Murray’s Order dated December 6, 2007, shall proceed in accordance with the following timetable:
(a) Ms. Chan shall deliver her remaining material by November 2, 2012.
(b) Mr. Town shall deliver his responding material by November 8, 2012.
(c) Ms. Chan shall deliver her reply, if any, by November 15, 2012.
(d) The parties shall conduct any further examination, if required, during the periods from December 4 to 6, or December 11 to 14, 2012, on a date to be arranged by counsel by September 21, 2012, and on a schedule to be arranged between them.
(e) Factums shall be exchanged by February 12, 2013.
(f) The motion shall be heard on February 19, 2013, commencing at 10 a.m., and a full day shall be set aside for its hearing.
Either party has leave to apply to the court for directions regarding the implementation of this Order, by a motion to me, which may be in the form of a letter from counsel, on notice to the other, with appropriate attachments, addressed to my judicial secretary, for hearing by teleconference between 9 and 10 a.m. on a mutually agreeable date when I am sitting, to be arranged in advance with my secretary.
Costs of this Conference (at 5 p.m.) are reserved to the trial judge.
Price J.
Released: September 18, 2012
COURT FILE NO.: 3337/04
DATE: 2012-09-18
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N: NANCY CHAN Applicant
- and –
KENNETH TOWN Respondent
ENDORSEMENT
Price J.
Released: September 18, 2012