SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-10-356335

DATE: 20140916

RE: Maria Greco-Wang, Applicant

AND:

Charles Wang, Respondent

BEFORE: Kiteley J.

COUNSEL: Susan Adam Metzler, for the Applicant

Self-represented Respondent

HEARD: September 15, 2014

ENDORSEMENT AT TRIAL MANAGEMENT CONFERENCE

[1] The parties separated on March 17, 2008 and this action was commenced in 2010. My first involvement with the parties was on November 14, 2011. As the many endorsements demonstrate, I have endeavoured to manage this proceeding to ensure the disclosure issues were appropriately addressed and to explore settlement. It is now imperative that a trial take place at the earliest opportunity.

[2] Rule 2.09 of the Family Law Rules requires the court, the parties and their lawyers to promote the primary objective, which is to enable the court to deal with cases justly. Dealing with a case justly includes 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.

[3] The issues involved in the trial include equalization of net family property; an unequal share of the value of the net family property claimed by the applicant; constructive trust claims; spousal support; the “tail end of a child support claim”; and costs. The applicant takes the position that the respondent’s credibility is lacking and she intends to try to call many witnesses to help in establishing that. At an earlier conference, counsel for the applicant provided a list of 95 persons whom she intended to call as witnesses at the trial. I said then and I repeated today, the applicant will not be permitted to call that number of witnesses. Members of the public who are users of civil courts are not entitled to unlimited access to trial judges. The duration of the trial must be proportionate to the issues at stake and the judicial resources available. It is for that reason that, based on my knowledge of the legal and factual issues gained over the last three years, I have established an estimated duration of the trial as set out below.

[4] On August 29, 2014 at the conclusion of a settlement conference, I set today as the date for a Trial Management Conference for purposes of setting the trial date. Pursuant to rule 17(6) of the Family Law Rules, the purposes of a trial management conference include arranging to receive evidence by a written report, an agreed statement of facts, an affidavit or another method, if appropriate; deciding how the trial will proceed; exploring the use of expert evidence or reports at trial, including the timing requirements for service and filing of experts’ reports; ensuring that the parties know what witnesses will testify and what other evidence will be presented at trial; estimating the time needed for trial; and setting the trial date. Pursuant to rule 17(8), the court has considerable latitude in the orders that can be made to ensure that the trial unfolds in such a way as to meet the primary objective.

[5] Pursuant to rule 23(23), a party who wants to call an expert witness at trial shall serve on the other party a report signed by the expert and containing the information listed in subrule (25) at least 90 days before the start of the trial. A party who wants to call an expert witness in response shall serve a report at least 60 days before the start of the trial. At various attendances, the issue of the preparation of experts’ reports has been discussed. Accordingly, the key issue in setting the trial date is the availability of experts’ reports.

[6] The onus is on Mr. Wang to establish the value of his shares in System Drywall and Acoustics. At this Trial Management Conference he provided to Ms. Metzler a copy of a report from Soberman. As Ms. Metzler pointed out, the report is signed and is accompanied by a cv, but it does not have the certificate of the expert required pursuant to rule 4.1.01 of the Rules of Civil Procedure. Mr. Wang will provide that certificate to Ms. Metzler. When he does so, that will be the effective date of service of the report.

[7] Some time ago, the applicant had retained Melanie Russell for purposes of providing a report critiquing the Soberman valuation report. The onus is now on the applicant to do that. Ms. Metzler said that Ms. Russell expected to provide the critique report within 4 to 6 weeks of receiving the Soberman valuation, or by about the end of October, 2014.

[8] The applicant does not accept the income that the respondent has disclosed. She has a spousal support claim and the “tail end of a child support claim”. She has retained Ms. Russell to provide a report on the respondent’s income. Ms. Metzler advises that Ms. Russell has not yet started because she wanted all documents before beginning the work. Ms. Metzler pointed out that the redacted general ledgers were only provided to her in August. The respondent pointed out that the general ledgers would have been provided earlier but the Applicant had not signed the confidentiality agreement. The Respondent has not yet provided the redacted general ledger for Axiom Drywall and Acoustics but he committed to doing so by September 30, 3014. On that assumption, Ms. Metzler advised that Ms. Russell expected to provide the report on income within 3 to 4 months, or by the end of December or January.

[9] Accepting those estimates from Ms. Metzler, it is reasonable to expect the applicant’s two key reports to be available by October 30, 2014 and January 30, 2015. It is therefore reasonable to schedule the trial date 90 days after the latest of those dates, namely the first week of May, 2015.

[10] There are other possible expert reports. Title to the matrimonial home is in the name of the applicant. The respondent has asserted a claim based on constructive trust in which case, he will need evidence of current value.

[11] The parties agree that the value of the matrimonial home at valuation date on March 17, 2008 was $910,000. The agreement of the applicant to that value is predicated on the respondent using the same appraiser should he obtain a current valuation. The respondent agrees to use the same appraiser, namely Jim Parthenis. In order to have an appraisal of current fair market value for trial, the respondent’s appraiser will need access to the former matrimonial home. The conflict between the spouses remains high and consequently, neither spouse may be present. The applicant may arrange for an agent to attend at the home. The respondent will not send an agent. I have set out those arrangements below.

[12] This endorsement addresses the timing of the delivery of experts’ reports. It does not address the admissibility of experts reports, nor does it address whether the reports will be admitted into evidence or whether the expert will give oral evidence without his or her report being admitted.

[13] On August 26, 2013, I made an order that no motion could be brought without leave from me or the then team leader, Justice George Czutrin. Since this matter is now on the trial list and he is no longer the team leader, I will modify that order.

ORDER TO GO AS FOLLOWS:

[14] Trial is set for the week commencing May 3, 2015. The trial is peremptory against both the applicant and respondent, whether each has counsel or not.

[15] Estimated duration is 20 days, at 5 hours per day, allocated as follows:

(a) For the applicant: 9 days of evidence at 5 hours per day or 45 hours including evidence in examination in chief and in cross-examination; 1 day of submissions including reply submissions on her application;

(b) For the respondent: 9 days of evidence at 5 hours per day or 45 hours including evidence in examination in chief and in cross-examination; 1 day of submissions including reply submissions on his claim.

[16] The estimated duration will be considered again at the next TMC after each party has provided a witness list.

[17] By September 30, 2014, the respondent shall provide to Ms. Metzler a redacted version of the general ledger for Axiom Drywall and Acoustics for the year ended December 31, 2013.

[18] The applicant shall serve the following:

(a) By October 31, 2014, the critique of the Soberman report;

(b) By January 30, 2015, the expert report on the respondent’s income.

[19] For witnesses other than the parties, each party shall provide no later than April 20, 2015 a will say statement signed by the witness.

[20] At the next TMC, the issue of non-party witnesses who will not co-operate and sign a will-say statement will be discussed.

[21] At the next TMC, at the suggestion of Ms. Metzler, the issue of the parties each signing an affidavit (attached to which is all relevant documents) to be used in lieu of examination in chief will be discussed.

[22] If the Respondent retains Jim Parthenis by September 30, 2014, the respondent shall notify Ms. Metzler in writing and ask for a date in October 2014 for Mr. Parthenis to attend at the matrimonial home to prepare an appraisal of the matrimonial home at current value, on these conditions:

(a) Ms. Greco-Wang shall not be present in the home or outside the home for the duration of the attendance by Mr. Parthenis;

(b) Ms. Greco-Wang may be represented by an agent who may be present in the home for the duration of the attendance by Mr. Parthenis;

(c) Mr. Wang shall not be present in the home or outside the home for the duration of the attendance by Mr. Parthenis and he is not permitted to send an agent as a substitute;

(d) If Mr. Parthenis needs to take photographs of any part(s) of the former matrimonial home, he shall not take photographs that include the applicant’s personal belongings;

(e) Mr. Greco-Wang shall serve the report by January 30, 2015.

[23] For purposes of the trial, the parties agree to the following fair market valuations as at valuation date March 17, 2008:

(a) Former matrimonial home 11 Graydon Crescent $910,000

Applicant’s agreement is on condition that if respondent obtains a current value appraisal, he will retain Jim Parthenis for that purpose.

(b) Former cottage 120 Lucille Wheeler Crescent, Collingwood $448,635

(c) Rental property 3 McAlpine St. #202 $340,000

(d) Rental property 18 William Carson #603 (Hillside property) $275,000

(e) Rental property 20 Burkebrook Place #101 (Kilgour Property) $300,000

[24] The parties have not agreed to the costs of disposition on those properties listed in paragraph 23 or any other real property or personal property. Ms. Metzler will in writing propose to the respondent an approach for agreeing on the costs of disposition. If no agreement is reached by October 30, 2014, then the party owning the asset(s) must obtain an expert’s report no later than December 8, 2010 (applicant) and December 10, 2014 (respondent).

[25] Trial Management Conference before me on December 15, 2014 from 10:00 to noon provided that:

(a) By December 8, 2014, the applicant shall serve and file her Trial Management Conference brief and proposed Trial Management Conference endorsement;

(b) By December 10, 2014, the respondent shall serve and file his Trial Management Conference brief and proposed Trial Management Conference endorsement;

(c) Counsel for the applicant shall confirm the Trial Management Conference in the usual way.

[26] No motions may be brought by either party without leave from me.

Kiteley J.

Date: September 2014