Court File and Parties

COURT FILE NO.: FS-11-17176

DATE: 20141229

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Samuel Wolf, Applicant

AND:

Gisela Wolf, Herman Amiel Wolf, Tally Claudia Wolf, Amalia Renat Wolf, Lorie Adina Wolf, Respondents

BEFORE: Kiteley J.

COUNSEL:

Andrea B. Scharf, for the Applicant

Self-represented, Respondent Gisela Wolf

HEARD: November 20, 2014

ENDORSEMENT

[1] This is a motion on behalf of Mr. Wolf pursuant to Rule 1(8) of the Family Law Rules for an order striking the pleadings filed by his former wife Gisela Wolf. For the reasons that follow, the motion is granted.

[2] Samuel and Gisela married in 1974. They separated in July 2007 and were divorced in 2009. The Respondents Herman, Tally, Amalia and Lorie are their adult children. Samuel was born in May, 1946 and is now 68. Gisela was born in 1943 and is not 71 years old.

Procedural Background

[3] As a result of an Application launched by Mr. Wolf in 2008, the parties were divorced.

[4] In January 2011, Mr. Wolf initiated this Application against Ms. Wolf in which he sought spousal support, equalization of net family property or alternatively an unequal division in his favour, freezing assets, sale of family property, and an order pursuant to s. 21.1 of the Divorce Act and s. 2(4) of the Family Law Act for removal of all barriers that are within Ms. Wolf’s control that would prevent his remarriage within Judaism. According to his Application, title to the matrimonial home municipally known as 79 Elise Terrace was held jointly prior to the separation and following separation, Ms. Wolf had demanded that, in return for her acceptance of the ghet, he transfer his interest in the home to her. He alleged that he had reluctantly transferred his interest but she had not accepted the ghet. He alleged that there were three income-producing rental properties and that, since Ms. Wolf collected and kept all the rental income, he had been reduced to living with his mother. He alleged that the family assets consisted of 79 Elise Terrace, 34 Plum Treeway, 3 Candy Courtway, 887 Davenport Road and other liquid investments. The Application does not indicate that Mr. Wolf had a lawyer.

[5] In January 2011, the Application was amended, amongst other things, to claim an order for “an equitable distribution of the Respondent’s property to include such property held by her as an actual, constructive or resulting trust” as well as a restraining order.

[6] On January 25, 2011, Sachs J. dismissed the motion brought by Mr. Wolf for a non-dissipation order on the basis that it had to be on notice to Ms. Wolf.

[7] In her Answer dated March 4, 2011, Ms. Wolf disputed all of his claims. In her Claim, she asked for spousal support, equalization of net family property, exclusive possession of the matrimonial home and other orders including an unequal division of net family property to include an order that Mr. Wolf owned 34 Plum Treeway on specified terms, a declaration that she owned 79 Elise Terrace and a declaration that he had no interest in 887 Davenport Road and 3 Candy Courtway. She also asked for an order requiring Mr. Wolf “to comply with the parties’ settlement agreement reached with the assistance of the Beit Din in September 2008 (only partially completed) and the decision of the Beit Din dated June 15, 2010”. She alleged that they had negotiated a settlement agreement with the assistance of their Rabbi the terms of which were that she would consent to the ghet, he would transfer his interest in 79 Elise Terrace and 34 Plum Treeway to her and she would be responsible for the mortgage on 34 Plum Treeway, he would retain the $60,000 that he had removed from the parties’ joint account and neither would pay spousal support to the other. While he had transferred his interest in 79 Elise Terrace, he had refused to transfer 34 Plum Treeway and as a consequence, the ghet had remained “on hold”. A lawyer filed the Answer and Claim on behalf of Ms. Wolf.

[8] On March 23, 2011, O’Neill J. held a case conference and directed both parties to make disclosure. On June 15, 2011, Backhouse J. held a settlement conference and made a consent order that the parties “shall do everything necessary to obtain a Jewish divorce (“a Ghet”)”.

[9] On August 15, 2011, Sachs J. continued the settlement Conference. She directed that Mr. Wolf provide specific disclosure. She made an order that the adult children, (in whose names title to 3 Candy Courtway and 887 Davenport were registered), were added as parties. She ordered that the matter be on the trial list for the week of February 13, 2012 for 5 days. In a separate endorsement she directed the Respondent to serve a Request to Admit within 60 days and gave the Applicant the option to do the same.

[10] On November 15, 2011, Jarvis J. made an order on consent that, by December 31, 2011, the Applicant could serve and file an amended Application.

[11] On December 22, 2011, Herman J. dismissed a motion brought by the Respondent on the basis that the relief sought was part of the imminent trial.

[12] On January 17, 2012, Goodman J. heard a motion brought by Ms. Wolf to adjourn the trial. Mr. Wolf was represented by duty counsel and Ms. Wolf was self-represented. The endorsement contains the first (of many) comments about the manner in which Ms. Wolf disregards the Family Law Rules by: filing one affidavit but providing an affidavit of service referring to two affidavits and insisting that she had served two; handing up a bundle of unorganized documents which did not consist of evidence to be used on a motion; and not including in her confirmation form the documents in the continuing record on which she intended to rely. Mr. Wolf did not file responding material but he did consent to the adjournment. Goodman J. adjourned the trial to the week of May 14, 2012 for an estimated two weeks and scheduled a Trial Management Conference on March 19, 2012 which was after the time for responding by the children. She directed that the parties provide a Trial Management Conference Brief with specific instructions for what it should contain. Goodman J. adjourned Ms. Wolf’s motion sine die but permitted her to bring it back after the TMC with additional affidavit evidence and directed her to serve all of the evidence at least 6 days before the motion and file it all at least 4 days before the motion. She ordered that, in her confirmation form, Ms. Wolf identify every document on which she was relying.

[13] It appears that the TMC was changed to March 21 and then March 23 at which time Goodman J. made an endorsement changing it to April on account of the death of Mr. Wolf’s sister.

[14] On April 24, 2012, Goodman J. held a settlement conference at which three of the children attended but left before Mr. Wolf and Ms. Wolf arrived. She noted in her endorsement that the children wish for the litigation to end, “whatever the outcome”. Mr. Wolf did not have a lawyer while Ms. Wolf had an agent. Goodman J. permitted Mr. Wolf to amend his already amended Answer to Ms. Wolf’s Claim and, on that account, she vacated the trial date and adjourned the settlement conference/trial management conference to May 10 and directed each party to serve and file an affidavit listing documents.

[15] In her endorsement dated May 11, 2012, Goodman J. noted that there was no resolution arising from the settlement conference notwithstanding “lengthy discussion of the merits of the parties’ positions”. She set the TMC for June 8, 2012 and set the trial for the week of November 13, 2012 for 2 – 3 weeks. Mr. Wolf did not have a lawyer while Ms. Wolf was represented.

[16] The endorsement record contains a detailed TMC endorsement dated June 25, 2012 prepared by Goodman J. which confirms the trial for the week of November 13, 2012 for 3 or 4 weeks. She directed another TMC on August 17, 2012. Mr. Wolf did not have a lawyer while Ms. Wolf was represented. In that endorsement, Goodman J. directed that service of documents could be effected by email which was deemed effective 72 hours after the email is sent.

[17] In an endorsement dated August 17, 2012, Goodman J. noted that the case had not settled and that Mr. Wolf had brought a motion returnable August 23, 2012. Goodman J. noted that she had tried to maintain further control over compliance with the timelines set out in the TSC endorsement but it was not possible, “given the level of emotion in this case”. She wrote that she had insisted that the parties comply with the timelines and confirmed the trial set for the week of November 13, 2012. Neither party was represented.

[18] Justice D.A. Wilson made an endorsement arising from Mr. Wolf’s motion for security for costs and a restraining order. She noted that such motions were not contemplated by the TMC Endorsement; that Ms. Wolf apparently intended to bring 2 additional motions for relief including fixing a new date of separation and a motion for contempt based on allegations that Mr. Wolf had forged evidence in the divorce file. Ms. Wolf had not filed materials responding to Mr. Wolf’s motion. D.A. Wilson J. declined to hear the motions brought by Ms. Wolf because service by e-mail was not proper; insufficient time had been allotted; because the motions were not contemplated by the TMC endorsement; and because the relief sought by Ms. Wolf should be left for trial. She dismissed Mr. Wolf’s motion for security for costs. She admonished the parties to adhere to the timelines set out by Goodman J.

[19] In an endorsement dated November 7, 2012, Goodman J. adjourned the trial to the week of May 20, 2013 (for 4 weeks) peremptory to Ms. Wolf. Mr. Wolf had retained Ms. Scharf but was not seeking an adjournment of the trial. Goodman J. repeated her earlier recommendation that both parties have counsel for trial. She adjourned it so that Ms. Wolf could do so. She directed questioning between January 15 and 30, 2013; ordered each party to provide a complete sworn affidavit listing documents by January 10, 2013; she permitted Mr. Wolf to bring a motion “to secure funds (in some way)”. She prohibited both parties from bringing motions before trial without leave from her, unless the matter was urgent. She directed that there be a further TMC before her at the end of January. She authorized service by email.

[20] In an endorsement dated April 5, 2013, Goodman J. noted that at that TMC, Ms. Wolf was represented by another lawyer who was acting as agent. The parties agreed than disclosure obligations were suspended until the TMC was completed on April 15, 2013.

[21] In her endorsement dated April 15, 2013, Goodman J. noted that her June 25, 2012 TMC endorsement (and all others since then) remained in force. She pointed out that Ms. Wolf had not yet served her affidavit listing documents. Goodman J. ordered that if Ms. Wolf failed to provide her Affidavit Listing Documents and supporting documents by April 19, 2013, Mr. Wolf could bring a motion for such information and documents. She directed that the case remain on the trial list for the week of May 20, 2013 peremptory to Ms. Wolf.

[22] There is no endorsement vacating the May 20 trial date.

[23] In an endorsement dated November 27, 2013, Czutrin J. noted that the trial was scheduled for the following week and it needed a minimum of 4 weeks. He adjourned that date so that he could assign a trial judge who would set a date to meet with the parties and give specific directions as to the trial. He authorized Mr. Wolf to bring a motion for a CPL in advance of trial and authorized Ms. Wolf to bring a motion for summary judgment before the trial judge on the basis that the parties had reached an agreement. Ms. Scharf represented Mr. Wolf and Richard Parker attended on behalf of Ms. Wolf (“for advice only”).

[24] In an endorsement dated December 12, 2013, Czutrin J. assigned Mesbur J. to do the trial and to meet with the parties and counsel the week of January 6, 2014 to set dates for the trial and make binding orders for the conduct of the trial. His endorsement included the following:

I worry about the Respondent understanding what is relevant and admissible evidence and her ability to proceed to trial.

While the Respondent has filed a mountain of material, as presented it will be challenging to determine relevancy and admissibility.

[25] In advance of the meeting with Mesbur J., Czutrin J. gave detailed directions about the Trial Record; lists of witnesses each party intends to call and a brief description of what evidence each will provide; an opening statement; a proposed draft order; and a proposed list of documents on which s/he intended to use at the trial.

[26] In an endorsement dated January 23, 2014, Mesbur J. adjourned Mr. Wolf’s motion for a CPL because he had not included the Application in the record and she was unable to determine whether a request for a CPL had been pleaded as required by rule 42.01(2) of the Rules of Civil Procedure. Mesbur J. noted that Ms. Wolf wanted to bring a motion for summary judgment “alleging an agreement of some kind” and expressed a concern about allocating court resources to a summary judgment motion “which it would appear is not really appropriate”. She observed that it would be more practical to get the case trial ready. She adjourned the motion for CPL to January 28 and permitted Ms. Wolf to file responding material to that motion by noon on January 27. She set April 25 for the TMC and listed the objectives for the TMC including canvassing the issues to be tried; finalizing witness lists and determining duration of the evidence; and fixing a trial date. She outlined in detail what each party was required to prepare in advance. She noted that “each party’s material will be bound in a brief, indexed and tabbed. No other material will be filed for this conference”. She granted leave to Mr. Wolf to bring a motion for fees and costs under rule 24(12).

[27] In her endorsement dated January 28, 2014, Backhouse J. ordered as follows:

Pleadings are deemed noted closed against (the children). Summary judgment may not be brought and their interest to various properties should be dealt with by the trial judge.

CPL’s may issue as per para 3 of Motion with proper legal descriptions to be included in draft Order and approved by Mr. Parker. Costs reserved to trial judge.

[28] On the occasion of that motion, Ms. Scharf represented Mr. Wolf and Richard Parker attended as “advice counsel”. The CPL’s were to be registered against 887 Davenport, 79 Elise Terrace and 3 Candy Courtway.

[29] On May 1, 2014, Backhouse J. heard submissions by Ms. Scharf in connection with Mr. Wolf’s motion for an order that Ms. Wolf pay $70,000 for legal fees and disbursements as an advance on his equalization payment. Richard Parker attended court as an advisor to Ms. Wolf. On behalf of Ms. Wolf, he asked for an adjournment which Backhouse J. denied. Ms. Wolf made submissions with respect to Mr. Wolf’s motion and with respect to her own motion in which she sought 10 heads of relief including an order to set aside the certificates of pending litigation and an order setting aside the noting of pleadings closed against the adult children. In her endorsement released May 2, 2014, Backhouse J. summarized the positions each had taken including Ms. Wolf’s position that:

These proceedings are all a conspiracy between Ms. Scharf and Mr. Wolf. Mr. Wolf never filed the settlement agreements with this court which he was supposed to do, falsely asserted that she would not cooperate in giving him a Get and filed a forged Ketubah (prenuptial agreement) which left out the part which obliged him to pay her monies.

[30] Backhouse J. held as follows:

[14] I am not satisfied that any of the arguments advanced by Ms. Wolf against Mr. Wolf’s entitlement to receive an equalization payment are sufficiently likely to succeed so as to be a basis for denying him the relief he seeks. I find that Mr. Wolf has a prima facie case to an amount well in excess of the $70,000 that he seeks to have advanced to him for interim legal fees and disbursements.

[15] It is unreasonable to expect Mr. Wolf to represent himself. The proceedings are complex and lengthy. Ms. Wolfe has a legal advisor. Mr. Wolf should not be left in a situation where a considerable receivable owing. I find that the funds are necessary.

[16] Ms. Scharf charges at the rate of $300/hour. This is reasonable. Mr. Wolf is incapable of funding the fees and disbursements alone. Ms. Wolf has helped herself to $100,000 from the equity in one of the properties. The order requested is necessary to level the playing field. Ms. Wolf shall pay to Mr. Wolf $70,000 within 30 days, to be accounted for. This can be done on consent by a mortgage or a line of credit secured against the Plum Treeway. As Ms. Wolf controls all the properties and receives the rent, I consider it appropriate that she carry the mortgage or line of credit until trial.

[17] In my view, having the income from the properties and having previously taken $100,000 from the Davenport property, Ms. Wolf has not established that she needs a further $100,000 nor does Mr. Wolf have the ability to pay it. If Ms. Wolf objected to the January 29, 2014 order, she should have appealed it. The appeal period has expired. An issue cannot be relitigated endlessly. The other amounts claimed are issues for trial. Her cross-motion is dismissed.

[31] On June 9, 2014, Mesbur J. continued the Trial Management Conference. She noted that Ms. Wolf asserted that she was not ready to proceed because she had focused her energy on her motion for leave to appeal the May 2, 2014 order of Backhouse J. which was scheduled in the Divisional Court for June 17, 2014. Mesbur J. ordered that the TMC would continue before her on August 25 and she again gave detailed directions to Ms. Wolf as to what was required of her in advance of the TMC.

[32] On June 16, 2014, Divisional Court Justice T. Lederer dismissed Ms. Wolf’s motion for leave to appeal the order of Backhouse J.

[33] In her endorsement dated August 24, Mesbur J. noted that Ms. Wolf had failed to comply with the order dated June 9, 2014; that the motion for leave to appeal had been dismissed on June 16, 2014; that Ms. Wolf was seeking to have that order reviewed by a full panel of the Divisional Court which was likely not to happen before the new year. Mesbur J. noted that it was impossible for her to fix a trial date and allocate appropriate and proportionate resources to the trial since Ms. Wolf had failed to comply with her order of June 9, 2014 and the order of Czutrin J. dated November 27, 2013. She also noted that Mr. Wolf intended to seek leave to bring a motion to strike Ms. Wolf’s pleadings because of her failure to comply with orders dated November 27, 2013, January 23, 2014 and June 9, 2014. Mesbur J. gave leave to bring the motion for leave. She noted that “until Mrs. Wolf complies with the outstanding orders, the case cannot proceed.” She ordered Ms. Wolf to pay costs fixed at $250 for an event that was “a waste of time” due to Ms. Wolf’s non-compliance. She ordered that the conference “can continue only when Ms. Wolf has done what she has been ordered to do.”

[34] On August 29, 2014, Nordheimer J., as Administrative Judge for the Divisional Court, quashed Ms. Wolf’s motion in which she requested a review of the order of Lederer J.

[35] On September 30, 2014, Mesbur J. dealt with Mr. Wolf’s motion for leave to bring a motion to strike Ms. Wolf’s pleadings. Ms. Wolf had not responded to the motion and she granted an adjournment to another date:

To permit Ms. Wolf to serve & file a proper response to this motion. A proper response will be a sworn affidavit & factum, both of which shall be served & filed at least 5 days before the return of the motion.

Mesbur J. adjourned the motion to October 21, 2014, peremptory to Ms. Wolf and directed her to serve and file responding material no later than October 15, 2014; she prohibited her from sending letters or correspondence to her or to any other judicial official; and she reserved costs of the day to the judge hearing the motion.

[36] The motion came before me on October 21, 2014 and after hearing submissions from Ms. Scharf and Ms. Wolf, I granted leave to Mr. Wolf to bring the motion to strike Ms. Wolf’s pleadings. In setting the timetable for the hearing of the motion, Ms. Wolf asked for at least one month to prepare the long overdue TMC brief. I noted that while that was only one of the items on which she is in default, Ms. Scharf agreed to adjust her proposed timetable to accommodate that request. I also noted that Ms. Wolf had filed materials for the motion for leave but she had not complied with the Rules. My order included the following:

1. Leave is granted to the applicant to bring the motion attached as Schedule A to this endorsement.

2. The motion shall be heard on November 20/14 (before me if I am available) for 1 hour and 30 minutes.

3. The applicant shall serve the respondent with the notice of motion and affidavits by October 30, 2014.

4. The respondent shall serve the applicant by November 13, 2014 with an affidavit responding to the notice of motion provided that the affidavit complies with the Family Law Rules and identifies and attaches exhibits. The respondent shall file the affidavit by November 13, 2014.

5. The applicant shall serve and file a factum by November 14, 2014.

6. The respondent shall serve and file a factum by Nov. 17/14.

7. Counsel for the applicant shall confirm the motion by November 17, 2014.

8. Court staff are directed not to accept any documents from Mrs. Wolf other than the affidavit referred to in para 4 and the factum in parag 6.

9. Costs of today reserved to the hearing of the motion.

10. Court staff to arrange an amplifier[^1] for November 20, 2014.

Material filed on this motion

[37] On October 29, 2014, Ms. Scharf served on all of the Respondents by email the following documents:

Affidavit of Samuel Wolf sworn October 29, 2014 which supplemented his affidavits dated September 17, 2014 and September 28, 2014

Exhibit A: Materials filed by Ms. Wolf on October 15, 2014 in response to the motion for leave which consists of the following:

Table of Contents listing 10 items

Notice of Responding Motion returnable October 21, 2014 (12 pages)

Affidavit of Gisela Wolf described as UNFINISHED COPY Respondent Affidavit in Support of Counter Motion: Dismiss Applicant Motion for Striking Pledges (sic) October 21, 2014 (10 pages including unsworn jurat; 136 paragraphs

Adjustments to the Equalization/NFP (3 pages)

Adjustments to Equalization/NFP Statement noted Analysis of an attempted scam for extortion: An impertinent line of demands added to the corrupted NFP Gila 8/12/2014 (16 pages)

“Adjustments to the Equalization/NFP schedule for property and monies of the Respondent not declared” SCHARF ESCHEW ANY ATTEMPT TO DISCLOSE THE SOURCE OF THIS CORRUPTED INFORMATION AND WHOS (sic) HAND WAS IN $997,928.04 TOTAL AMOUNT OF ASSETS RESPONDENT WAS ENRICHED WITH, BY THE MAGIC WAND OF MRS. SCHARF Sam [pick the date] (14 pages)

Handwritten notes containing list of numbers and notations (9 pages, indecipherable)

Recycled 2008 SAM Financial Statement (5 pages)

Net Family Property Statement This NFP statement was prepared by Respondent based on Applicant NFP of January 13, 2014 David Weisman (SOFTWARE STANDARD FORM USED) June 8 2014 (13 pages)

Emails between Ms. Wolf and Ms. Scharf many of which are duplicates (57 pages)

Exhibit B: endorsement of Mesbur J. dated September 30, 2014

Exhibit C: order of Backhouse J. dated January 28, 2014

Exhibit D: confirmation form 14C for the hearing August 25, 2014

Exhibit E: draft order of Mesbur J. dated August 25, 2014

Exhibit F: endorsement of Kiteley J. dated October 21, 2014

Exhibit G: Notice of Motion of the Applicant dated October 29, 2014 returnable November 20, 2014

TMC Endorsement by Goodman J. dated June 25, 2012.

[38] The material filed by Ms. Wolf for the November 20 motion consisted of the following:

Form 14 Notice of Responding Motion dated November 19, 2014 returnable November 20, 2014 (16 pages)

Affidavit of Service indicating that on October 21, 2014 she served a Notice of Responding Motion and Respondent Affidavit in support of Counter Motion; dismiss the Applicant Motion for Striking Pledges (sic); Exhibits

Affidavit of Gisela Wolf described as Respondent Affidavit in Support of Counter Motion: Dismiss Applicant Motion for Striking Pledges (sic) November 20, 2014 (21 pages including jurat which indicates that it was sworn in April 2014)

Receipts of Children’s TD Canada Trust term deposit withdrawal for 887 Davenport closing down payment Gila 9/12/2012 (10 pages)

TD Bank investment statements for children GIC used for Davenport purchase together with Canada Trust term deposits Found in archives Gila 1976-1999 (7 pages)

Untitled documents that include an attack on Ms. Scharf (31 pages)

Document with the beginning sentence: “Gila ambushed in vulnerable time from a concealed position by a person in position of trust” (6 pages of calculations)

SAM’s RBC hidden accounts . . . (12 pages)

EXHORBITANT COSTS ABSORBED BY WIFE (6 pages)

OVERALL SUMMARY OF INCOME/EXPENSE 2007-2013 for 34 PLUMTREEWAY (5 pages including two pages on the Ketubah)

RESPONDENT GISELA WOLF RESPONSE TO FACTUM OF SAMUAL WOLF for the Appeal of Order for Costs given May 2, 2014 (30 pages)

Net Family Property Statement revised This NFP statement was prepared by Respondent based on Applicant NFP of January 13, 2014 David Weisman (SOFTWARE STANDARD FORM USED) June 8 2014 (10 pages)

Respondent Adjustments to revised Applicant NFP And supportive exhibits To Form 13B: Net Family Property Statement (20 pages)

Affidavit of Sam Wolf sworn November 24, 2013 (4 pages plus 4 pages not part of the affidavit)

“Adjustments to the Equalization/NFP schedule for property and monies of the Respondent not declared” SCHARF ESCHEW ANY ATTEMPT TO DISCLOSE THE SOURCE OF THIS CORRUPTED INFORMATION AND WHOS (sic) HAND WAS IN $997,928.04 TOTAL AMOUNT OF ASSETS RESPONDENT WAS ENRICHED WITH, BY THE MAGIC WAND OF MRS. SCHARF Sam [pick the date] (14 pages)

Form 20: Request for Information (38 pages)

Factum of the Respondent for Motion Returnable on November 20, 2014 (12 pages) along with the following:

Affidavit of Sam Wolf sworn November 24, 2013 (1 page) along with Respondent Answer to November 24, 2013 affidavit (18 pages)

Respondent proposed Draft Order (7 pages)

Net Family Property Statement revised by Respondent This NFP statement was prepared by Respondent based on Applicant NFP of January 13, 2014 David Weisman (SOFTWARE STANDARD FORM USED) June 8 2014 signed on page 8 by Gisela Wolf Nov. 15, 2014 (8 pages)

Respondent Adjustments to revised Applicant NFP And supportive exhibits To Form 13B: Net Family Property Statement (17 pages)

No heading – excerpt from a document that appears to be Respondent Answer to November 24, 2013 affidavit (6 pages)

SAM WOLF CONFIRMS: THERE WAS AN AGREEMENT IN 2008, HE BREACHED (12 pages)

November 25, 2013 “Motion, Affidavit, NFP adjustment. Rar (10MB)” for CPL (15 pages)

Adjustments to Equalization /NFP Statement noted Analysis of an attempted scam for extortion: An impertinent line of demands added to the corrupted NFP Gila 8/12/2014 (17 pages)

According to most halachic authorities, the ketubah is a rabbinic ordinance (10 pages)

Andrea Scharf: “The chart was prepared through my office with the assistance of Mr. Wolf” including emails from Ms. Wolf to Ms. Scharf (43 pages)

That “Little house in the Golan” (14 pages)

The theoretical matrimonial property division chart Gila September 11, 2008 (6 pages)

Sam letter to children (3 pages)

Affidavit of Service of the Factum on November 17, 2014

[39] Ms. Scharf filed an affidavit dated November 16, 2014 of her assistant attached to which were 13 pages consisting of emails including Ms. Scharf’s email dated November 14, 2014 in which she declined to accept service of any of the documents served later than allowed in the timetable set on October 21, 2014.

Analysis

[40] The relief sought in the Notice of Motion is as follows:

1. An order to strike the pleadings, including the Answer and Claim, filed by the Respondents, and to strike any other documents filed by the Respondents in the above noted action; pursuant to Rule 1(8) of the Family Law Rules.

2. An order that:

(i) The Respondents are not entitled to any further notice of steps in the case, except as provided by sub-rule 25(13) (service of order);

(ii) The Respondents are not entitled to participate in the case in any way;

(iii) The Court may deal with the case in a party’s absence;

(iv) A date is set for an uncontested trial of the case.

3. An order for costs on a full recovery basis pursuant to Rules 24 of the Family Law Rules.

4. Such further and other order as Counsel may advise and this Honourable Court deems just.

A. Adult Children Respondents

[41] As indicated above, in her endorsement dated January 28, 2014, Backhouse J. made an order that the pleadings were deemed noted closed as against the adult children. She ordered that a summary judgment motion could not be brought and that their interest to various properties should be dealt with by the trial judge. As a result of that order, there are no pleadings by the adult children that this court could strike. The motion vis-à-vis the adult children is dismissed.

B. Family Law Rules

[42] The motion is brought pursuant to rule 1(8) which is as follows:

(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(a) an order for costs;

(b) an order dismissing a claim;

(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;

(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(f) an order postponing the trial or any other step in the case; and

(g) on motion, a contempt order.

(8.1) If a person fails to follow these rules, the court may deal with the failure by making any order described in subrule (8), other than a contempt order under clause (8)(g).

(8.2) The court may strike out all or part of any document that may delay or make it difficult to have a fair trial or that is inflammatory, a waste of time, a nuisance or an abuse of the court process.

(8.3) For greater certainty, a court may make an order under subrule (8), (8.1) or (8.2) at any time during a case, and the power to make such an order exists unless these rules expressly provide otherwise.

(8.4) If an order is made striking out a party’s application, answer, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise:

1. The party is not entitled to any further notice of steps in the case, except as provided by subrule 25(13) (service of order).

2. The party is not entitled to participate in the case in any way.

3. The court may deal with the case in the party’s absence.

4. A date may be set for an uncontested trial of the case.

[43] Rule 2 contains principles which inform the manner in which the Family Law Rules are to be interpreted and applied:

2(2) The primary objective of these rules is to enable the court to deal 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.

(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.

(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 costs;

(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.

[44] In considering whether to strike the Answer and Claim of Ms. Wolf and permit the Applicant to proceed on an ex parte basis, the court must apply the following three part test[^2]:

• is there a triggering event that would allow consideration of rule 1(8)?

• is it appropriate to exercise discretion in favour of the non-complying party?

• the judge, having determined not to exercise discretion in favour of the non-complying party, then decides the appropriate remedy pursuant to the provisions of rule 1(8).

C. Is there a triggering event with respect to Ms. Wolf?

[45] I agree with counsel for the Applicant, that there are many triggering events:

(a) the order of Czutrin J. dated November 27, 2013 which directed financial disclosure and a trial management conference brief that included an opening statement, witness list, and an NFP statement;

(b) the order of Mesbur J. dated January 23, 2014 that incorporated all of the requirements from the November 27, 2013 order;

(c) the order of Backhouse J. dated May 1, 2014 which required Ms. Wolf to pay to the Applicant $70,000 as an advance on the equalization payment to enable him to pay legal fees and disbursements. Backhouse J. gave her the option of mortgaging Plum Treeway which she did not pursue. There is no question about Ms. Wolf’s ability to comply with that order;

(d) the order of Mesbur J. dated June 9, 2014 that continues and incorporates her order of January 23, 2014;

(e) the order of Lederer dated June 16, 2014 in which he ordered Ms. Wolf to pay $4,000 as costs arising from her motion for leave to appeal the order of Backhouse J. dated May 1, 2014;

(f) the endorsement of Mesbur J. dated August 24, 2014 in which she ordered Ms. Wolf to pay $250 in costs as a result of the TMC that was a “waste of time” due to the failure of Ms. Wolf to comply with outstanding orders;

(g) the failure of Ms. Wolf to comply with my order dated October 21, 2014 as to the content and timing of delivery of her materials for this motion.

D. Should the Court exercise its discretion in favour of Ms. Wolf?

[46] In deciding whether to exercise discretion in favour of Ms. Wolf and not strike her Answer and Claim, I consider relevant the following observations of the almost 400 pages of material filed by Ms. Wolf:

(a) it reflects a stream of consciousness as to subject matters referred to;

(b) it has recurring themes that demonstrate how she believes she has become the victim of her former husband and others;

(c) it includes her views on matters unrelated to the motion at hand including her demand for a complete criminal investigation;

(d) it is not organized. Ms. Wolf had been told repeatedly to provide a proper record in accordance with the Family Law Rules and had been told to include specific reference to exhibits. Although she referred to “exhibits” in an affidavit of service, none of the many items referred to in the list above were properly referred to in the text of an affidavit and cross-referenced accordingly;

(e) it includes venomous attacks on Ms. Scharf;

(f) on October 21, 2014 when I set the schedule for delivery of materials in advance of the motion on November 20, 2014, Ms. Wolf had requested a month to prepare the long overdue TMC endorsement. To the extent that she prepared any new documentation for that purpose it was not possible to identify and in any event did not respond to the directions of any of Justices Goodman, Czutrin or Mesbur;

(g) it consists of material previously created and re-cycled;

(h) Ms. Wolf did not serve and file a current affidavit that responds to the motion to strike her Answer and Claim;

(i) Ms. Wolf served and filed the factum on time but she did not serve any of the other material in accordance with the timetable I established. The factum bears no resemblance to a factum but is a regurgitation of her barrage of criticism of her former husband and his lawyer.

[47] Ms. Wolf’s oral submissions on November 20, 2014 were consistent with the presentation and content of the material which she had filed in advance.

[48] I decline to exercise my discretion in favour of Ms. Wolf for these reasons.

[49] First, Ms. Wolf is in default of an order to pay $70,000 as an advance on the equalization payment (which she has the ability to pay but refuses to pay) as well as other costs orders made from time to time.

[50] Second, notwithstanding clear and repeated instructions about how to present material to the court and how to prepare for a Trial Management Conference, she has failed to do so. The fact that she is self-represented is no excuse. Every litigant is expected to comply with the Family Law Rules. As she demonstrated, she was able to navigate her way into a motion in the Divisional Court for leave to appeal the order of Backhouse J. and when that was not successful, she sought to have the order “reviewed”. While neither step was productive for her, it showed how she can resort to the Rules of Civil Procedure and inform herself and act accordingly when it suits her agenda.

[51] Third, Ms. Wolf expresses no concern, remorse or apology for her non-compliance. She makes no commitment to comply in the future. She remains steadfast in her non-compliance. While willfulness is no longer a pre-requisite to a motion to strike, Ms. Wolf’s own material demonstrates that she is willfully defiant of all of the orders.

[52] Fourth, Ms. Wolf is rude and abusive of Ms. Scharf who is an officer of the Court. In both her written material and her oral submissions, she makes unfounded allegations against Ms. Scharf.

[53] Fifth, Ms. Wolf has been given every indulgence this court could provide: repeated specific directions as to how to file evidence on motions; clear order for payment of $70,000 as an advance on the equalization payment along with an option that allowed her to mortgage a property in order to comply; and adjournments to enable her to prepare. In the meantime, five trial dates have been abandoned.

[54] A “just determination of the case” as indicated in rule 1(8) and in rule 2(2) requires the court to consider three perspectives: the non-compliant party; the compliant party; and the court. The five reasons listed above mean that Ms. Wolf, the non-compliant party ought not to be entitled to any more indulgences. In addition, a just determination means that Mr. Wolf, the compliant party, is entitled to proceed to trial. The integrity of the administration of justice is at stake when Ms. Wolf conducts herself as she has while Mr. Wolf has been deprived of the right and the opportunity to prove his case to a trial judge.

[55] Pursuant to rule 1(8), I consider it necessary for a just determination of the matter that the Answer and Claim (and any amended Answer and any Amended Claim) be struck out.

E. What is the appropriate remedy?

[56] Pursuant to rule 8.4, the listed consequences are presumptive unless the court orders otherwise. The onus is on the non-compliant party to persuade the court to order otherwise.

[57] Ms. Wolf made no attempt to suggest that consequences other than those listed should be imposed.

[58] There are cases where a non-compliant party whose pleadings have been struck is granted some limited rights such as the right to notice of events. It would be inappropriate to do so in this case. Ms. Wolf shows every intention to carry on the way she has in the past, including non-compliance with orders and the Family Law Rules; and including abusive rhetoric aimed at Ms. Scharf. If Ms. Wolf is permitted notice of events, I am confident on the record before me that she will do what she can to cause delay and disruption.

[59] As the unfortunately long history of the events in this case demonstrates, several judges have struggled for almost three years in an effort to get the matter on to trial. Most recently, in her endorsement dated August 24, 2014, Mesbur J. effectively gave up on trying to bring Ms. Wolf to the point where a trial could proceed in an orderly fashion. This is the watershed moment. The court has invested substantial judicial resources, arguably too much of scarce judicial resources, in efforts to persuade and to order compliance. It is a hopeless exercise. As a result of her conduct, Ms. Wolf has lost the opportunity to participate in any way in the determination of the dispute between her and Mr. Wolf.

[60] The fact that there is a list of consequences of the striking of an Answer and Claim does not mean that others are not available. Ms. Scharf did not make this request, but after reviewing much of the material including the emails sent by Ms. Wolf, this is a case where steps should be taken to stop that conduct. Ms. Scharf is entitled to stop such communications which will likely continue in Ms. Wolf’s barrage, perhaps with heightened invective after the release of this endorsement.

F. Costs

[61] Mr. Wolf is entitled to costs of this motion. But I see no point in dealing with those costs now. I intend to leave the amount of costs for this motion as well as the attendances on September 30, 2014 and October 21, 2014 to the discretion of the trial judge.

ORDER TO GO AS FOLLOWS:

[62] The motion vis-à-vis the Respondents Herman Amiel Wolf, Tally Claudia Wolf, Amalia Renat Wolf and Lorie Adina Wolf is dismissed.

[63] Those Respondents are entitled to notice of further proceedings. The Applicant shall give notice of any future steps by email as directed by Goodman J. in her Trial Management Conference Endorsement dated June 25, 2012.

[64] Court staff shall send a copy of this endorsement to the Respondents Herman Amiel Wolf, Tally Claudia Wolf, Amalia Renat Wolf and Lorie Adina Wolf at the email addresses directed by Goodman J. in her Trial Management Conference Endorsement dated June 25, 2012.

[65] The Answer and Claim and any amended Answer and any amended Claim of Gisela Wolf are struck from the court file.

[66] All other documents filed by Ms. Wolf are struck subject to the discretion of the trial judge as to whether any are relevant and admissible, for example, Form 13 and Form 13.1 financial statements.

[67] Pursuant to rule 10(1) and (5) of the Family Law Rules and rule 19 of the Rules of Civil Procedure, all of the Respondents are deemed to admit the truth of the allegations of fact set out in the Application and any amended Application.

[68] Ms. Wolf is not entitled to notice of steps in the case, except as provided by subrule 25(13) as to service of the order arising from this endorsement.

[69] Ms. Wolf is not entitled to participate in the case in any way.

[70] The Registrar of the Superior Court is directed to refuse to accept any filings of any nature or kind by Ms. Wolf or on behalf of Ms. Wolf in this proceeding.

[71] Counsel for the Applicant shall arrange with the Trial Co-ordinator for a Trial Management Conference before me at which time I will set the date for an uncontested trial.

[72] Ms. Scharf is at liberty to:

(a) block emails from Ms. Wolf or anyone on her behalf;

(b) decline to accept service of any documents by Ms. Wolf or anyone on her behalf;

(c) refuse to accept any communications from Ms. Wolf or anyone on her behalf.

[73] Costs of the following are reserved to the Trial Judge:

(a) September 30, 2014: the adjournment of the motion seeking leave to bring a motion to strike the Answer and Claim;

(b) October 21, 2014: the motion seeking leave to bring a motion to strike the Answer and Claim;

(c) November 20, 2014: the motion to strike the Answer and Claim.

[74] Counsel for Mr. Wolf may have the order issued and entered without approval by Gisela Wolf.

Kiteley J.

Date: December 2014

[^1]: Ms. Wolf asked for an amplifier because she says she has a hearing deficit.

[^2]: Ferguson v. Charlton 2008 ONCJ 1, [2008] O.J. No. 486 (Ont. C.J.); Myers v Myers 2014 ONSC 1804