Court File and Parties
Court File No.: FC-10-00000033-00
Date: 20131126
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CHRISTINA KALKANIS, Applicant
AND:
MICHAEL KALKANIS, Respondent
BEFORE: THE HON. MADAM JUSTICE S.E. HEALEY
COUNSEL:
R. Zaldin, as agent for the Applicant
R. Gillissie, for the Respondent
HEARD: November 25, 2013
ENDORSEMENT
Background and Disclosure Issues
1Yesterday was the ninth day of trial.
2From the outset of the trial on November 12, 2013, the applicant, who was self-represented for the first four days of trial, made submissions that the respondent’s disclosure remains outstanding. Disclosure issues had been raised before Eberhard, J. at the trial scheduling court on May 8, 2013, who determined that the matter should proceed, subject to the trial judge’s discretion to determine whether there was non-compliance sufficient to necessitate an adjournment. The matter was not reached during the May 2013 trial sittings.
3At the outset of trial, counsel for the respondent also raised issues about the applicant’s non-compliance with a later order made at a motion before Olah J. on September 20, 2013; in particular, that she had not provided will-say statements from her witnesses or filed an affidavit attesting to her satisfaction of earlier disclosure orders. The issue of the respondent’s non-compliance was also argued before Olah, J.. Ultimately she declined to review the extensive file to confirm compliance with all disclosure orders, but required that each party serve and file an affidavit confirming compliance with every requirement of Eberhard, J’s order and other disclosure orders.
4As earlier stated, the applicant did not serve and file such an affidavit.
5The respondent did file such affidavit, which is found at Volume 5, Tab 52. The respondent’s affidavit is untrue, a fact that should have been apparent to his counsel at the time that it was commissioned. At paragraph 3 the respondent deposed:
In accordance with paragraph 22(v) of the Order of the Honourable Madam Justice Olah dated September 19, 2013, I wish to advise that I have provided all documents in my possession and control relevant to the determination of the matters currently before the Court.
6The evidence of the respondent began on November 20, 2013. During the course of his testimony on November 20, 21 and 22, 2013, it became readily apparent that key documents were not available to be placed into evidence.
7The result was a series of orders now contained in the Endorsement Record from November 19, 2013 onward. They deal with production of missing documents relating to shareholder loan accounts, bank and credit card statements, a title search, and financing applications, among other critical items. They were ordered to be produced because they are essential documents required in order that this Court is in a position to render a just and proper verdict at the end of the trial. Most importantly, they had already been ordered by the case management judge on April 20, 2010.
8The state of the evidence proffered by the respondent up to yesterday has been less than satisfactory. Many relevant documents are missing. Particularly given that the respondent does not intend to call expert evidence on the issues of share valuation, income, or real estate value, it is imperative that the documentary evidence be thorough, accurate and as well organized as possible in order for the trial judge to attempt to quantify assets, liabilities and income without professional assistance.
9Yesterday morning, in response to orders made on November 21 and 22, 2013, Mr. Kalkanis produced three volumes of material (Trial Exhibit 53). The court was advised that substantial efforts were made over the weekend to compile such documents, and it is obvious that this is so given the number of documents found in Exhibit 53. In the absence of contrary proof being provided to this Court, I have concluded that none of these documents has ever been produced prior to yesterday.
10Absent still are backup source documents supporting the entries contained in the ledgers at Tab 1 of Exhibit 53. Mr. Zaldin remains adamant that the shareholder accounts have still not been produced; I defer making a decision on this latter point until Mr. Korkoris, the accountant for Kalkanis Enterprises and PPG Casket Company, has been examined or produced for trial. Finally, counsel for the respondent admits that further documents are expected to be produced this week in response to the recent orders, namely: 1) the estate tax return for Paul Kalkanis; 2) the application for the BOM account containing an overdraft facility of $25,000; 3) the application for a TD Commercial loan obtained in approximately 2009/10; and 4) bank statements for CIBC account 13-61236 for all of 2011 and 2012, to and including October.
11The net result is that: 1) this trial was not ready to be heard on November 12, 2013, and is not yet ready to be heard in its entirety; 2) an adjournment is necessary to allow Mr. Zaldin to review the documents in Exhibit 53 and the further documents to be provided; 3) the applicant has incurred thrown away for Mr. Zaldin a) attempting to prepare for cross-examination with only a few relevant documents; and b) constantly having to assess and bring to the court’s attention the deficiencies in disclosure.
12The trial must now be adjourned with a likely continuation date of May 2014. Justice is stalled, for no good reason other than disorganization, lack of attentiveness and non-compliance.
Adjournment and Disclosure Orders
13In the result, this Court orders:
The trial of this matter is adjourned, to continue on a date to be set by the trial co-ordinator. The parties’ counsel are to remain in contact with the trial co-ordinator until such time as they are advised as to a firm adjournment date;
The respondent shall pay the $750 in costs ordered by Wood, J. on October 20, 2013 by Thursday, November 28, 2013 at 5:00 p.m., by certified cheque or money order delivered to the applicant’s solicitor’s office;
The applicant’s solicitor shall advise the respondent’s solicitor of those documents or information that remain outstanding from his thirteen (13) Rule 20 requests that were delivered prior to trial, by Friday, December 6, 2013 at 5:00 p.m.;
Similarly, the respondent’s solicitor shall advise the applicant’s solicitor of any outstanding documents or information not yet provided by the applicant either pursuant to a Rule 20 request previously made, or a court order, by Friday, December 6, 2013 at 5:00 p.m.;
Each counsel shall respond fully and completely to the outstanding disclosure requests by Friday, January 10, 2014 at 5:00 p.m., by either:
i) Advising when the documents have been produced or information provided, with reference to a covering letter with proof of service, or with reference to a trial exhibit; or
ii) Showing proof that the document or information sought has been requested from a non-party; or
iii) If the document cannot be obtained, providing an explanation why it cannot be obtained; or
iv) Providing the document.
The respondent shall produce copies of all source documents for the ledgers at Tab 1 of Exhibit 53 that relate to the shareholder accounts by December 6, 2013 at 5:00 p.m.;
By no later than January 15, 2014, each party shall produce a sworn Affidavit of Documents to the other, with reference to where the document is located in the productions or trial exhibits;
The applicant shall have her costs thrown away as a result of the waste of lawyer’s fees and disbursements caused by the additional work outlined in paragraph 11 of this Endorsement, and any costs thrown away that are created by the adjournment, in a quantum to be fixed by this court pending written submissions from each counsel. The applicant’s are due Friday, November 29, 2013, response from the respondent by December 6, 2013 and any reply by December 10, 2013, each limited to two type written pages, double-spaced;
The applicant is granted leave to question the respondent and Mr. Korkoris, on written request made to them, any such examinations to occur before March 31, 2014;
Any undertakings arising from the questioning shall be answered within ten (10) days after completion of each individual’s examination; and
This order also binds the parties. In the event that they are no longer represented or assisted by counsel, they must abide by the order and the timelines set out herein.
Interim Financial Relief
14Both parties seek financial-related relief in order to continue to retain counsel in this litigation. The applicant resumes her request made by motion earlier in the trial for a payout of funds held in trust from the matrimonial home. The respondent opposes such a request. The respondent, without notice, requests relief from the non-dissipation order that restricts further encumbrances being placed on the industrial property. The applicant opposes such a request.
15The respondent’s request is dismissed because there is no motion before the court or sufficient evidence upon which to evaluate the merits of such a request. While the respondent’s counsel argued that the request was made on the basis of financial hardship, there has been an increase of only $3,800 in the respondent’s personal debt in the 6 ½ months between his two most recent financial statements, which debt has decreased overall since his first financial statement sworn 3 years ago at the outset of this proceeding. Given the state of the evidence, I am not able at this point to assess the extent to which he has had to access corporate funds, if at all, to meet his financial obligations.
16The applicant’s request has merit at this point in the trial. The respondent’s Net Family Property Statement contains an admission that he owes the applicant $93,700 by way of an equalization payment on his best day in court. There is presently approximately $68,000 in trust from the sale of matrimonial home. The respondent argues that his claims for a retroactive spousal support adjustment, plus reimbursement for joint expenses paid by him, plus a potential costs award, will be owed to him. As such, he argues that the money should remain in trust to satisfy such obligations.
17Even if his claims succeed, a clear equalization entitlement should not be held hostage by potential adjustments in support orders, or speculative cost awards. The respondent has now testified for three full days, and the applicant’s evidence is complete. On the basis of the evidence heard to date, there is no possibility that the respondent’s claims, on his best outcome, will approach anything close to $68,000. Further, there has been no order for security for costs that would warrant tying up the money; the respondent is attempting to achieve such without an order ever having been made. Accordingly, I order that a further portion of the sale proceeds from the matrimonial home shall be paid to the applicant.
18This court further orders that John Heacock, solicitor, shall forthwith release the sum of $40,000 to the applicant Christina Kalkanis from money held in trust from the sale of 1816 Moonstone Road, without the necessity of a direction signed by Michael Kalkanis.
HEALEY, J.
Date: November 26, 2013