Anderson v. McWatt, 2015 ONSC 254

COURT FILE NO.: FS-00-FP-255355FIS

DATE: 20150113

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Helen Anderson, Applicant

AND:

Roger McWatt, Respondent

BEFORE: Kiteley J.

COUNSEL: Patrick D. Schmidt, for the Applicant

Self-represented Respondent

HEARD: November 24, 2014

ENDORSEMENT AT TRIAL MANAGEMENT CONFERENCE

[1] I heard motions on September 9, 2014 and in an endorsement dated October 14, 2014[^1] I outlined the background and the issues and disposed of most aspects of the motions before me. As had been directed by Mesbur J., the Trial Management Conference started on October 22 and continued on this date. What follows was discussed at the November 24 TMC at the conclusion of which I adjourned to January 23, 2015 and I made a brief endorsement with this more detailed endorsement to follow.

[2] At the Trial Management Conference on October 22, 2014, the first priority was to set the trial date. Mr. Schmidt advised that he might not participate in the entirety of the trial but, for reasons of cost, he might provide “unbundled legal services” to the Applicant that might include opening trial statement, examination in chief of the Applicant, cross-examination of the Respondent and his witnesses, and closing submissions. Mr. Schmidt agreed that whatever decisions or orders were made while he was on the record, he would be responsible for compliance.

[3] At that TMC on October 22, 2014, after hearing from Mr. Schmidt that his earliest availability was the week of April 13, 2015, I made the following order:

(a) set the trial for the week of April 13, 2015 for 5 – 6 weeks ending on or about May 22, 2015;

(b) set the date of November 24, 2014 as the continuation of the TMC;

(c) made an order that neither party may serve or bring any motion for any relief before the conclusion of the TMC scheduled to continue on November 24/2014;

(d) directed that the parties comply with the following timetable:

(i) Respondent to serve all experts’ reports in accordance with the rules no later than January 15, 2015

(ii) Applicant to serve responding reports if any by February 15/15

(iii) if either party serves a notice of business records, it shall be served by March 2, 2015

(iv) both parties shall serve supplementary affidavit of documents by January 15, 2015 (corrected from original 2014);

(e) neither party to serve or file any documents or briefs with respect to the continuation of the TMC on November 24.

[4] At the TMC on November 24, 2014, Mr. Schmidt asked that the trial date be delayed to commence the week of May 11, 2015. Mr. McWatt was opposed to any delay in the trial. I did not make a decision on that occasion but indicated it would follow in this endorsement. In the endorsement dated November 24, 2014 I adjourned the TMC to continue before me on January 23, 2015 from 10:00 to 1:00 and indicated that I would set the agenda in this endorsement. I made an order prohibiting Mr. McWatt from serving Mr. Schmidt with any document briefs during any conferences at which any judge is present. I continued the order that neither party may bring any motion before the conclusion of the Trial Management Conference.

Trial date

[5] On May 21, 2014, Mesbur J. set October 22, 2014 as the date for the TMC at which time I would fix a trial date. As indicated in paragraphs 19 – 21 of the endorsement released October 14, 2014, the objective of Justices Czutrin and Mesbur was that the Trial Management Judge should set the trial date as soon as possible, bearing in mind that this action had started in 2000.

[6] On October 22, setting a trial date was the priority. At the outset, Mr. Schmidt indicated that he was not available until early April but he could commit to starting April 13. For purposes of setting the trial date, it was assumed that the trial would take 5 - 6 weeks. At that point, experts’ reports had not yet been completed and served and the requirement for service 90 days in advance had an impact on the trial date. In the end, it appeared that April 13 was a reasonable date to expect both parties to be ready and I set the timetable as indicated above in paragraph 3.

[7] At the TMC on November 24, Mr. Schmidt advised that when he had committed to starting the week of April 13, he had overlooked his commitment to do a 10 day trial in another action commencing the week of April 20. He asked to postpone the trial until the week of May 11, 2015. He suggested that if the trial did take 6 weeks, it would be completed by June 26.

[8] Mr. McWatt was opposed to any postponement.

[9] It is unfortunate that Mr. Schmidt’s calendar is so occupied that he cannot be available earlier than May 11, particularly when he advised on October 22 that he might not be retained for the entirety of the trial but he might provide “unbundled legal services” to the Applicant. I would prefer not to postpone the trial, partly because it poses serious scheduling challenges within the Family Law Team and partly because the trial must be completed before the end of the spring term which appears to be July 2. While Mr. McWatt is understandably opposed, he is not prejudiced by the postponement and for that reason, I will delay the start, subject to time restrictions as indicated below.

Duration of the trial

[10] In his TMC brief prepared for October 22, Mr. Schmidt identified the generic issues for trial but took the position that the TMC was premature because of ongoing disclosure and other issues. Mr. McWatt provided a list of issues for trial, issues for the TMC and made a list of witnesses whom he proposed to call as well as a list of other persons he might call depending on the evidence of the Applicant.

[11] In the endorsement dated October 22, I estimated the trial at 5 – 6 weeks based on the issues and the witnesses to the extent the parties had disclosed them in their TMC briefs.

[12] At the TMC on November 24, I indicated that a priority for the continuation of the TMC would be the issues and witnesses and that the parties would be expected to provide both in advance of the next date. Based on what is now known, the parties may be expecting to bring an endless list of issues (some not included in the existing pleadings) and an equally endless list of witnesses. The court will not tolerate that approach.

[13] This case has become complicated for a number of reasons but the fundamental legal issues are not that complex. In accordance with the primary objective in rule 2(2), rule 2(3) and rule 2(5) of the Family Law Rules, unlimited court time is a luxury this court cannot afford and a privilege to which parties are not entitled. I will allocate the amount of time that is reasonable given the issues and given the resources available to the court. Mr. Schmidt agreed to the imposition of time limits as indicated below. Mr. McWatt has been self-represented for much of this case and does not want to be “boxed in”. Having observed Mr. McWatt’s ability to represent himself, I am confident that he will comply with the order I am making.

Request on behalf of Applicant for leave to bring a motion for temporary spousal support

[14] In paragraph 54 of the endorsement dated October 14, 2014, I suspended the operation of paragraph 5 of the order dated October 3, 2000. As indicated in paragraph 39, I considered the expectation that the trial would proceed at the earliest opportunity.

[15] In anticipation of the TMC on October 22, 2014, Mr. Schmidt brought a motion for an order requesting reconsideration of paragraph 54, and in any event, granting the Applicant leave to bring a motion for temporary spousal support on a date to be set by the Court. Mr. Schmidt also served a financial statement sworn October 16, 2014 along with a financial disclosure brief.

[16] There was not sufficient time on October 22^nd for consideration of that issue. At the TMC on November 24, Mr. Schmidt again asked that I consider that request. He observed that his client could not survive until trial without an order for spousal support.

[17] In paragraphs 28 to 40 of the October 14 endorsement I explained the reasons for making the order in paragraph 54. Since that endorsement was released, the trial date was set at the earliest date available to Mr. Schmidt, namely April 13, 2015; and as of this endorsement, delayed further to May 11, 2015 to accommodate Mr. Schmidt’s schedule. The matter is on the trial list. I see no basis to reconsider the order made in paragraph 54, assuming I have the jurisdiction to do so since the order does not appear to have been signed and entered.

[18] On November 24, 2014, in the context of the request for leave to bring the motion for temporary spousal support, Mr. Schmidt raised the possibility that the matrimonial home be sold prior to trial. Mr. McWatt appeared to be interested in sale prior to trial. I will not make an order for sale unless it is on consent but I will add it to the agenda for the next TMC.

Matters outstanding from the endorsement dated October 14, 2014

[19] As indicated in paragraph 58, I deferred some items to be considered at the Trial Management Conference on October 22:

Respondent’s motion for disclosure:

Tab GG Item 6

Tab GG Items 23-25

Paragraph 5

Applicant’s motion for disclosure:

Paragraph 1(a)

[20] Since then, paragraph 1(a) of the Applicant’s motion for disclosure has been resolved.

Endorsement of Goodman J. dated May 13, 2013

[21] In the endorsement released October 14, 2014, I reviewed the orders that had been made during the proceeding. In paragraph 18, I summarized the endorsement made by Goodman J. dated May 13, 2013. Both Mr. Schmidt and Mr. McWatt confirmed that they had not received that endorsement at the time and did not know of its existence until I included it in my endorsement. In the motion returnable October 22, Mr. Schmidt asked for an order that I rescind paragraph 18. There was no time to consider that either on October 22 or November 24 and I will add it to the agenda for January 23, 2015.

Disclosure

[22] In her endorsements dated May 21, 2014 and June 5, 2014 Mesbur J. established the timetable for the delivery of the materials that each party would serve and file in relation to motions for disclosure which I heard on September 9, 2014. Issues of disclosure on the part of both parties continue to predominate. During his questioning in October, 2014, Mr. McWatt said that he had 500 boxes of documents. He produced some documents that belonged to Ms. Anderson such as pre-marriage RRSP documents and historic income tax returns. Mr. Schmidt advised that Mr. McWatt was insisting on a payment of substantial amount for photocopying documents that belonged to Ms. Anderson. During the TMC on November 24, 2014, I pointed out that the documents in the boxes that were related to Ms. Anderson’s personal circumstances were her property and Mr. McWatt could not charge Mr. Schmidt for the costs of photocopying. Indeed, the originals have to be made available to her.

[23] Mr. Schmidt took the position that for purposes of photocopying documents for exchange that the legal aid rate of 10 cents per page should apply.

[24] Mr. McWatt reported that he had last made an offer in June 2014. Mr. Schmidt said that his client had never made an offer and that she would not do so until he was satisfied that Mr. McWatt had produced the necessary disclosure.

[25] In her endorsement dated June 9, 2014, Mesbur J. made an order that each party could conduct questioning (in the nature of discovery) solely on the new claims raised in the amended petition. She directed that it be concluded prior to October 22, 2014 and that each party was limited to no more than 2 hours, unless the party obtains leave from the court or the consent of the other party to increase the time.

[26] I will prohibit motions pending the trial and accordingly, the only disclosure issues are those remaining from the hearing of the motion on September 9, 2014. In the discussion at the TMC on November 24, it appeared that both parties might consent to additional questioning and I will add that to the agenda for the next TMC.

ORDER TO GO AS FOLLOWS:

[27] The motion brought on behalf of the Applicant for reconsideration of paragraph 54 of the endorsement dated October 14, 2014 is dismissed.

[28] Trial Management Conference to continue before me on January 23, 2015 10:00 to 1:00.

[29] Trial date of April 13, 2015 cancelled.

[30] Trial set to commence the week of May 11, 2015 for 20 days.

[31] Subject to the discretion of the trial judge, the duration of the trial will be as follows:

(a) each party is entitled to use up to 10 court days calculated as 5 hours per day or 50 hours, including reply evidence, if any; and including opening statements and closing submissions;

(b) the 50 hours includes the examination in chief and re-examination of that party and all of his/her witnesses and the cross-examination by that party of the witnesses of the other party. For example, if the examination in chief of the Applicant takes 10 hours, the Applicant has 40 hours left. If the cross-examination of the Applicant takes 5 hours, the Respondent has 45 hours left;

(c) The Trial Judge will decide whether time for submissions and rulings (other than closing submissions) are allocated against the time allowed to one party or the other party or neither.

[32] For purposes of providing photocopies of documents by one party to the other or for preparing briefs for trial, each party may charge 10 cents per page payable within 10 business days of delivery of the documents.

[33] By January 20, 2015 at 4:30 p.m. Mr. Schmidt shall serve and file a Trial Management Conference Brief that contains only the following:

(a) detailed list of issues for trial;

(b) list of proposed witnesses and the subject on which each will give evidence;

(c) confirmation of delivery of experts’ reports by Mr. McWatt and delivery of supplementary affidavits of documents (by both parties) both required by January 15, 2015;

(d) position each takes with respect to the items in paragraph 19 above namely:

Respondent’s motion for disclosure:

Tab GG Item 6

Tab GG Items 23-25

Paragraph 5.

[34] By January 21, 2015 at 4:30 p.m. Mr. McWatt shall serve and file a TMC Brief that contains the same items as in paragraph 33.

[35] At the continuation of the Trial Management Conference on January 23, 2015, the following will be the agenda:

(a) review of the timetable set at the TMC on October 22 as to delivery of experts’ reports and supplementary affidavits of documents (both due by January 15, 2015);

(b) review of detailed list of issues for trial and finalize the list of issues;

(c) review of witnesses that each party proposes to call and the issue on which each will give evidence;

(d) whether the evidence in examination in chief of some of the witnesses should be presented by affidavit with the witness available for cross-examination and re-examination (if any);

(e) position each takes with respect to the items of disclosure remaining from the motion heard September 8, 2014 as listed in paragraph 33(d) above;

(f) consideration of the request brought on behalf of the Applicant that I rescind paragraph 18 of my endorsement dated October 14, 2014 with respect to the endorsement of Goodman J. dated May 13, 2013;

(g) whether the parties consent to additional time for questioning and if so, for how long and on what subjects;

(h) discussion about the prospects of an agreement to sell the former matrimonial home prior to the trial;

(i) unless he has already done so, establishing a timetable for Mr. McWatt to deliver to Mr. Schmidt any of the contents of the 500 boxes that are documents belonging to Ms. Anderson;

(j) date of continuation of the Trial Management Conference.

[36] Neither party shall serve or bring any motion prior to trial.

Kiteley J.

Date: January 2015

[^1]: Anderson v. McWatt, 2014 ONSC 5961