SUPERIOR COURT OF JUSTICE – ONTARIO

DATE: 2012-11-19
DOCKET: 06-FD-322394 FIS

RE: Joshua Josephson, Applicant

AND:

Michelle Hanna, Respondent

AND:

Howard Creek Properties Limited, Added Party

BEFORE: Czutrin J.

COUNSEL:
Harold Niman and Deborah MacKenzie , for the Applicant

Francine Sherkin , for the Respondent

Jonathan L. Rosenstein , for the Added Party

HEARD: October 9, 2012

ENDORSEMENT

[ 1 ] This case has been bogged down in questioning and disclosure and repeated appearances before me for further directions arising from the questioning that has taken place between the parties.

[ 2 ] This case began in 2006, soon after the parties’ separation.

[ 3 ] On December 30, 2008 I made my first ruling on matters related to the scope of pre-trial disclosure and questioning.

[ 4 ] The parties are engaged in two actions arising from their “alleged oral” and written agreements made prior to and during marriage. This litigation now has dragged on longer than their marriage.

[ 5 ] My efforts at resolving the issues have proved unsuccessful and I am obliged under Rule 2 to promote the primary objectives of the rules:

PRIMARY OBJECTIVE

(2) The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2 (2) .

DEALING WITH CASES JUSTLY

(3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. O. Reg. 114/99, r. 2 (3) .

DUTY TO PROMOTE PRIMARY OBJECTIVE

(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. O. Reg. 114/99, r. 2 (4) .

DUTY TO MANAGE CASES

(5) The court shall promote the primary objective by active management of cases, which includes,

(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial;

(b) encouraging and facilitating use of alternatives to the court process;

(c) helping the parties to settle all or part of the case;

(d) setting timetables or otherwise controlling the progress of the case;

(e) considering whether the likely benefits of taking a step justify the cost;

(f) dealing with as many aspects of the case as possible on the same occasion; and

(g) if appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference. O. Reg. 114/99, r. 2 (5) .

[ 6 ] In that first ruling I identified that one of the issues arises from the wife’s (Respondent) disputing that she owes money to the husband (Applicant) arising from a Promissory note and Agreement the parties entered into to fund the renovations to the home owned by the wife prior to and during the marriage. She disputes that the funds are owed and asks that the court to declare the agreements as invalid and unenforceable based on her allegations of the husband’s breach of good faith, breach of fiduciary duty and material misrepresentation in relation to the documents in that he failed to disclose to her that he was having an extra marital relationship.

[ 7 ] At this time I make no reference to the civil action concerning her claims to a 3% interest in a company that the husband has an interest in.

[ 8 ] In my earlier ruling I concluded that it would be inappropriate to decide relevancy but would leave it to the trial judge “after the discovery process to conclude whether relevant.”

[ 9 ] In the motion now before me the husband is seeking to re-visit my earlier ruling on the extent of the questioning.

[ 10 ] The husband is to re-attend for no more than one hour and to answer questions refused at page 703 questions 3686 and following concerning the husband’s extra marital relationships.

[ 11 ] This should be done this year and once done I will set a trial date and timelines after counsel on this case and the civil case complete a trial scheduling endorsement.

[ 12 ] I am advised that the parties resolved the wife’s proposed amendment to reflect the endorsement of the court of appeal.

[ 13 ] Regardless of the validity of the agreements between the parties, the wife is entitled to the detail of the accounting and the calculation made to support the amount of the husband’s claim. It is fair to request and give an answer to the question of how the current chart (5th dated July 15, 2010) differs from the earlier chart (4th) including what was added, deleted and amounts changed and explanation for change.

[ 14 ] The effort to obtain information as to the value of the alleged 3% promise to the wife of the husband’s interest in “No No” (the Added Party issue) is a fair request. The husband’s financial worth apart from the “No No” does not seem to be in issue and see no reason for him to answer in any greater detail what has already been provided. No request is made to set aside the Marriage Contract or to claim support.

[ 15 ] Costs will be in the cause.

Czutrin J.

Released: November 19, 2012