NEWMARKET COURT FILE NO.: FC-10-034882-00

DATE: 20140603

CORRIGENDA: 20140616

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Rosario Figliano, Applicant

and

Raffaela Figliano, Respondent

BEFORE: The Honourable Mr. Justice R.P. Kaufman

COUNSEL: Rosario Figliano, Self-Represented

Raffaela Figliano, Self-Represented

HEARD: In Writing

REVISED endorsement

The text of the original endorsement has been corrected with the text of the corrigendum (released today’s date)

[1] The respondent wife has filed a 14B motion at tab 5, volume 7 of the Continuing Record, in which she seeks the dismissal of the applicant husband’s case. In the alternative, she seeks to have the husband comply with prior court orders, failing which his proceedings be stayed. In the further alternative, she wishes the husband to post security for costs in the sum of $75,000 given his refusal to comply with prior court orders and the fact that he has no assets in his name to satisfy any future costs award against him.

[2] Following the filing of the wife's motion, the parties appeared before me on April 9, 2014 wherein, on consent, they requested that the trial management conference scheduled for April 14, 2014, be adjourned to enable them to comply with disclosure requests of one another. I adjourned the trial management conference to October 20, 2014 on terms reflected in my endorsement. I also provided the husband fourteen days to serve and file a responding affidavit to the pending 14B motion.

[3] Not surprisingly, given the history of this matter the husband has now not only filed a responding affidavit, but his own 14B motion wherein he requests the dismissal of the wife's 14B motion, the right to continue to proceed with this case as he has abided by all orders to the best of his ability and an order staying the wife’s ability to participate in this case based on her noncompliance with outstanding court orders. As an afterthought, the husband also requests that the wife should post security for costs, although he believes it would be impossible for either party to do so, especially him, in light of his recent bankruptcy.

[4] Not to be outdone, the wife files a reply affidavit so as to assist the court in understanding that the husband is, yet again, lying.

[5] Let us begin by reviewing the history of this matter. For ease of reference, I repeat the history of the litigation as reflected in my Ruling released on May 1, 2013. Figliano, 2013 ONSC 2226 which I have updated to reflect the ongoing usage of valuable court resources by these litigants. Before me was a motion that was originally scheduled to be heard on December 22, 2010. It was preceded by an urgent motion on March 29, 2010, wherein Justice McGee ordered the husband to make the following payments:

(a) child support in the amount of $600 per month (on estimated income of $30,000.00);

(b) mortgage payments for the matrimonial home;

(c) car and home insurance; and,

(d) Montessori payment.

[6] The wife alleges numerous breaches of this order by the husband and states that as of the date of the husband's bankruptcy, he owed her $5,530.62. She states that he refused to pay the youngest child's Montessori fees for the school year 2010 to 2011, unless she paid for half of the fees. For the month of December he owed a further $3,901.67.

[7] On November 23, 2010, a consent order was granted by Justice Healey which reflected the written terms agreed upon by the parties on September 29, 2010. That order required the husband to make the following payments:

(a) One-half of the youngest child's Montessori fees;

(b) One-half of the middle child's before school care; and,

(c) One-half of the older child's karate.

[8] The wife alleges that as of the date of her original affidavit in December 2010, the husband had not paid any of the monies towards these expenses. The wife states that she owed her family and friends in excess of $58,000 to pay for expenses for her and the children.

[9] The motion referenced by Justice Healey is found at tab 1 of volume 2 of the Continuing Record. It was returnable on December 22, 2010. An order was granted permitting the wife to examine the husband’s father respecting an alleged debt claimed in the husband’s bankruptcy proceedings and the husband’s income. In addition, the wife was permitted to examine the husband’s sister, Anna Figliano, respecting an alleged debt claimed by the husband in the bankruptcy proceedings. The motion itself did not proceed that day as apparently the date was not agreed upon as ordered by Justice Healey. The relief sought by the wife as against the husband (and not the trustee) is reflected in paragraph 2 (child and spousal support), 3 (monies owed to the wife) and 4 (delivery of possessions) and was adjourned to January 26, 2011.

[10] The record reflects that the matter was presumably further adjourned to February 2, 2011 and thereafter, on consent, to April 6, 2011. On that date, a consent order was agreed upon before Justice Rogers, which provided for questioning and production. The remainder of the motion was adjourned to June 15, 2011, and on that date, no one appeared before Justice Graham and the matter was struck from the list.

[11] The next event took place on September 21, 2011, when Justice Olah granted an order with respect to the conduct of the questioning which provided that the husband would not be present in the same room when the wife was being examined. The pending motion still before the court, was further adjourned from September 28, 2011 to October 19, 2011 for one hour. It is that motion that commenced before me on October 19, 2011, continued briefly on October 24, 2011, wherein an order was granted with respect to the motorcycle and its insurance. The matter was further adjourned to November 15, 2011 for completion of the motion. At all times counsel were aware that the court had scheduled a one hour motion based on their representations and notwithstanding the voluminous material filed by the parties.

[12] On November 15, 2011, an order was granted which provided for the wife to attend, with the police, on November 17, 2011 at the husband’s residence to retrieve the motorcycle. It is the motorcycle which was the subject matter of paragraph 4 of the notice of motion. Pursuant to an earlier order I made, dated October 24, 2011, the wife is to preserve the motorcycle pursuant to section 12 of the Family Law Act subject to any rights pursued by the husband’s trustee in bankruptcy.

[13] A motion brought by the husband was scheduled for July 31, 2013 but was not confirmed. It proceeded on September 11, 2013 before Justice Healey and was dismissed.

[14] A further motion was brought by the husband before Justice Gilmore on October 16, 2013 and was adjourned to a case conference scheduled for December 30, 2013. Prior to that date, on December 11, 2013, the husband brought an urgent motion before Justice Douglas. The court noted “the father seeks substantial relief without notice to the mother. There is no reason to proceed without notice especially regarding such significant issues such as custody of the children. Also, the supporting affidavit refers to a “parenting plan” which has not been produced.” The motion was adjourned to a date to be arranged upon notice to the mother.

[15] The case conference proceeded on December 30, 2013 before Justice Nelson who noted “the parties are very far apart in their positions. It seems to me that their dispute over proper support, both child and spousal, can only be resolved by a trial of those issues.” Orders were made regarding disclosure and the trial management conference was scheduled for April 14, 2014. As noted, on consent that date was subsequently rescheduled for October 20, 2014.

[16] A further motion was brought on March 5, 2014 by the wife seeking disclosure orders. Justice Mullins’ endorsement contains considerable narrative with respect to the parties’ positions as to what disclosure has or has not been provided. The wife was ordered to file a sworn financial statement for the trial management conference. The husband was required to produce the hydro bills for the last six months for his residence. No other orders were granted.

[17] Let us continue by reviewing Rule 14(10) which states:

If a motion is limited to procedural, uncomplicated or unopposed matters, the party making the motion may use a motion form (Form 14 B) instead of a notice of motion and affidavit.

[18] The wife's affidavit, dated March 21, 2014, filed in support of her 14B consists of a seven page affidavit replete with twelve exhibits. The affidavit makes reference to a number of previous court orders which had been breached by the husband. The balance of her affidavit recites comments that she attributes to my sister judges Healey and Gilmore. It provides allegations that the husband has vandalized the wife’s parents business and vehicle and that he also provided a threatening letter to the wife’s former counsel which led to his departure from this litigation. She goes on to provide unsubstantiated evidence about the husband’s ability to purchase certain items. It is better suited as an opening address for trial provided, of course, the wife will be able to substantiate all of the allegations through independent evidence.

[19] The husband's affidavit, in response, dated April 22, 2014, consists of a seven page affidavit with, apparently, twenty-one exhibits. The husband submits that he is in compliance with all orders, other than the support orders made by me on May 1, 2013. He also references various complaints that he has made to the Law Society of Upper Canada regarding the wife’s former counsel. He specifically disagrees with the wife’s position that I had granted him a fair ruling on the motion for support. The affidavit takes the reader through the husband’s view of the history of this matter, much of which is totally irrelevant to the motion which accompanies the affidavit.

[20] I have already commented on the wife’s reply affidavit which has been filed contrary to rule 14(10.2), which states that a party who uses a 14B motion form and was served with a response to it, may not serve or file a reply.

[21] In Chiaramonte v. Chiaramonte, 2013 ONCA 641, 2013 CarswellOnt 14325, Justice Tulloch stated the following in allowing an appeal from an order striking pleadings:

In family law cases, pleadings should only be struck, and trial participation denied, in exceptional circumstances and where no other remedy would suffice: Purcaru v. Purcaru, 2010 ONCA 92, 75 R.F.L. (6th) 33 (Ont. C.A.), at para. 47. The exceptional nature of this remedy is rooted in the significance of the adversarial system, as this court recognized in Purcaru, at para. 49:

The adversarial system, through cross-examination and argument, functions to safeguard against injustice. For this reason, the adversarial structure of a proceeding should be maintained whenever possible. Accordingly, the objective of a sanction ought not to be the elimination of the adversary, but rather one that will persuade the adversary to comply with the orders of the court.

[22] In Ierullo v. Ierullo, 2006 33301 (ON CA), [2006] O.J. No. 3912, the Ontario Court of Appeal held that a trial, preceded by full financial disclosure, is required to resolve credibility issues between litigants. As Justice Nelson noted at the case conference, the parties were at opposite ends in their negotiations and a trial was required. I am unable, based on the competing affidavits, to determine which party is less truthful than the other. The fact that my colleagues have questioned the husband’s behaviour on several occasions will be more relevant at trial if the wife is successful in persuading the trial judge to draw the same conclusions.

[23] I have attempted to deal with these “14B” motions on their merits notwithstanding that neither motion falls within the ambit of rule 14(10). To do otherwise would have simply invited these parties to schedule yet another motion, utilizing the proper procedure, with the same result. This would have offended the primary objective of the Family Law Rules which is to enable the court to deal with cases justly, including ensuring that the procedure is fair to all parties, saving expense and time, dealing with the case in ways that are appropriate to its importance and complexity and giving appropriate court resources to the case while taking account of the need to give resources to other cases. In view of the propensity of the parties to bring motions, I am hereby ordering that there will be no further motions allowed in this case without the prior permission of the case management justice. Such permission may be requested by 14B motion on seven days’ notice to the responding party, who shall have seven days to file a responding affidavit. In both instances, affidavits are restricted to three pages.

[24] Further, I am making a further order that on the return of the trial management conference, both parties will file statements of outstanding disclosure relevant to the determination of this case at trial. The statement, in chart form, will detail the nature the requested disclosure and the date on which it was requested. Notwithstanding my ruling in this endorsement, the parties are forewarned that if either party has not provided all relevant disclosure, that party runs the risk of their pleadings being struck at the trial management conference. Finally, the parties are reminded that they are required to serve and file trial management conference briefs, trial management endorsement sheets, offers to settle and “will say” statements of all witnesses expected to testify at trial. If the parties continue to represent themselves, they should ascertain the appropriate procedure to ensure that their witnesses are available at trial. As previously noted, the husband is required to file the trial record by September 1, 2014 and he should carefully review Rule 23(1) in that regard. The wife may add to the trial record any document that is required by this rule for inclusion in the trial record seven days before the start of the trial scheduled for the trial sittings commencing October 14, 2014.

Justice R. Kaufman

Released: June 16, 2014

CORRIGENDUM

1. The citation number has been corrected to read “2014”.