Superior Court of Justice - Ontario

COURT FILE NO.: FS-14-00019285 DATE: 2015-07-03

RE: Jennifer Sandra Turk, Applicant AND: Stuart Bernard Turk, Respondent

BEFORE: Kiteley J.

COUNSEL: Harold Niman, for the Applicant Stephen Grant and Heather Hansen, for the Respondent

HEARD: June 30, 2015

ENDORSEMENT AT CASE CONFERENCE

Background

[1] In response to a 14B motion, on April 15, 2015, Paisley J. made an order that the Team Leader or her designate case manage the proceedings and give such directions and set such schedule as may be just. This case conference was held for that purpose.

[2] The parties married in 1989. They have children who are now 17 and 21. The parties separated in January 2008 and signed a Separation Agreement dated April 26, 2010.

[3] On March 11, 2014, the Application was issued in which the Applicant seeks, amongst other things, a declaration that the Separation Agreement is null and void. The grounds on which the Applicant seeks relief are lack of disclosure and duress.

[4] The Respondent has not filed an Answer. In May 2014, his counsel served a motion for summary judgment in which he sought an order dismissing the entire Application. Since then, the notice of motion has been amended and currently indicates that he is asking for an order that the claims contained in paragraphs 1 – 3 and 11 – 13 be dismissed.

[5] The paragraphs in the Application in question are as follows:

1. A declaration that the Separation Agreement dated the 26th day of April 2010 is null and void;

2. An order that the separation Agreement dated the 26th day of April 2010 be set aside in its entirety;

3. In the alternative, if necessary, an order specifically setting aside the child and spousal support provisions of the Agreement and specifically an order for appropriate support retroactive to the date of separation with credit for any support payments made to date;

4. An order for division of the parties’ net family property in accordance with section 5(1) of the Family Law Act or in the alternative, an order for an unequal division of the parties’ net family property pursuant to the Family Law Act;

5. An order if appropriate, requiring the Respondent to immediately pay to the Applicant the equalization payment which is found to be owing by him to her;

6. An order, if appropriate, requiring the Respondent to immediately reimburse to the Applicant any funds paid by her to him as a result of any previously incorrect calculation of the equalization payment.

[6] At the case conference held on June 16, 2014, Moore J. made a order on consent that provided for the following:

(a) The Applicant would bring her motion for disclosure and other ancillary relief on July 24, 2014 in the expectation that the timetable for delivery of materials would be followed;

(b) Within 20 days of the release of the decision in that motion, the Applicant would deliver responding material to the Respondent’s motion;

(c) Questioning would take place as follows: Respondent on September 22 and Applicant on September 24;

(d) Long motion for summary judgment to be heard November 17, 2014.

[7] Justice Darla Wilson heard the motion on July 24 and released her endorsement on July 28, 2014.[^1] She made an order requiring the Respondent to deliver “a properly executed Form 13.1 Financial Statement with supporting documentation” on or before August 15, 2014 and an order that the Respondent produce the disclosure listed in the letter of request from Wayne Rudson dated June 9, 2014 on or before September 30, 2014.

[8] Mesbur J. made an order on consent requiring the Respondent to pay costs of that motion in the amount of $12,000 inclusive of disbursements and HST.

[9] On October 30, 3014, Paisley J. made the following endorsement:

The Applicant moves for an order requiring the Respondent to fulfill his undertakings given on questioning, complete disclosure and re-attend for questioning at his own expense. The Applicant states that most of the undertakings were answered as of yesterday, a chart of unfilled undertakings was filed. Counsel for the Respondent states that the Respondent will re-attend for questioning and fulfill all unanswered undertakings. Counsel agree that the Respondent will attend on November 7, 2014 to complete questioning. A summary judgment motion has been scheduled to be argued November 17, 2014. The Respondent states that he will rely on a certificate of non-attendance with respect to the evidence of the Applicant. Costs of today are to be fixed by the judge who hears the summary judgment motion.

[10] As indicated above, Paisley J. made the order dated April 15, 2015 for case management.

[11] On May 5, 2015, McWatt J. dealt with multiple motions that had been arranged before her for a 90 minute hearing. As indicated in paragraph 10 of her endorsement, the submissions consumed 4 hours and essentially focused only on the Applicant’s motion for interim spousal support. On consent of counsel, she was asked to decide on the admissibility of certain audio tape recordings without oral submissions. At the conclusion of the submissions she made an order on consent that the Applicant would re-attend to complete her questioning within the next 37 days.

[12] In her endorsement dated May 20, 2015[^2] she made an order that the Respondent pay temporary spousal support in accordance with the terms of the Separation Agreement at $10,000 per month commencing May 1, 2015; and ordered the Respondent to pay $63,150 which represented the shortfall in support for the period January 2013 to April 30, 2015. McWatt J. also ruled that the evidence related to audio-recordings involving the children and the Applicant was inadmissible and, in paragraph 19, she ordered that specified evidence be struck from the record.

[13] Attached to that endorsement is a copy of a letter written jointly by counsel at her request that listed the matters that she had not dealt with and that would be before me for scheduling:

(a) The production by the Respondent of an up-to-date proper Financial Statement in accordance with the order of Justice Wilson.

(b) The return of the Applicant’s motion for support based on the Respondent’s income for support purposes and the Respondent’s cross-Motion to set temporary, without prejudice spousal support to the Applicant in the amount of $3,302 per month and to terminate child support.

(c) The return of the Applicant’s motion for interim disbursements.

(d) Answers to any outstanding production requests and undertakings and refusals of both parties.

(e) The return of the Respondent’s motion for the production of the file of Melanie Kraft, a lawyer with whom the Applicant consulted with respect to the separation agreement.

[14] In early June, the Respondent accepted the offer of the Applicant that he pay costs of that motion fixed at $18,500 to be paid by June 30, 2015.

[15] On or about May 26, 2015, the Respondent delivered a form 13.1 financial statement attached to which are 28 pages of documents: 16 pages of which are invoices and related documents for counseling and for tuition for the children; 3 pages of notices of assessment for 2011, 2012 and 2013; and, with respect to the three corporations (#396, Turk Management, and #954), a single page document purporting to reflect valuation at each of December 31, 2007, December 31, 2008, and December 31, 2013.

[16] For purposes of this case conference, counsel for the Applicant provided a brief that contained the following:

(a) 16 page case conference brief

(b) Separation Agreement dated April 26, 2010

(c) Endorsement of Justice McWatt dated May 20, 2015

(d) Correspondence with respect to costs of the motion before McWatt J.

(e) Correspondence between counsel between June 11 and June 20, 2015 with respect to the shortfall in payment arising from the endorsement of McWatt J.

(f) Respondent’s Net Family Property Statement prepared for the Mediation that preceded the separation agreement

(g) Analysis of Respondent’s income for support purposes prepared by Cohen Hamilton Steger dated January 15, 2015 for the period 2011 to 2013 and projected 2014

(h) Respondent’s Financial Statement Form 13.1 sworn September 8, 2014 (which had been due on August 15, 2014)

(i) Respondent’s Financial Statement Form 13.1 sworn May 26, 2015 with supporting documentation referred to above

(j) Organization Charts contained in the Income Report dated January 15, 2015 for 2011 to 2013

(k) Correspondence from Mr. Rudson dated March 18, 2015 to counsel for Applicant outlining the Respondent’s pro rata interest in the net book value of his business interests

(l) Letter from counsel for Applicant to counsel for Respondent dated Janaury 22, 2015 enclosing Mr. Rudson’s updated production list

(m) Letter dated February 4, 2015 from counsel for Applicant enclosing the Rudson production list dated January 21, 2015 and subsequent correspondence dated February 6 and February 18

(n) Exchange of correspondence between counsel dated February 25, 2015 and March 16, 2015 regarding outstanding disclosure

(o) Notice of Continued Questioning requiring Respondent to attend on April 20, 2015; and correspondence exchanged as a result

(p) Exchange of correspondence between counsel from March 15, 2015 to April 16, 2015 regarding the production of the file of lawyer Melanie Kraft

(q) Applicant’s 2014 Notice of Assessment.

[17] Counsel for the Respondent provided a brief that contained the following:

(a) 6 page Case conference brief

(b) Endorsement of McWatt J. dated May 20, 2015

(c) Correspondence in May and June 2015 about adjustments to interim support and other matters

(d) Excerpts from questioning of the Applicant and tables showing parenting time

(e) Excerpts from questioning of the Applicant and a table with respect to support and access

(f) Excerpts from questioning of the Applicant

(g) Correspondence in June 2015 about adjustments to interim support

(h) Excerpts from questioning of the Applicant

(i) Letter dated January 15, 2015 from Cohen Hamilton Steger which is the analysis of the Respondent’s income for support purposes

(j) List of Applicant’s outstanding disclosure.

[18] In his case conference brief, Mr. Niman indicated that the Applicant sought to establish a timetable to bring on the following motions:

(a) An order adjourning the Respondent’s motion for summary judgment until he complied with the order of Wilson J. dated July 28, 2014 and produced his undertakings and re-attended to be questioned on the undertakings and productions;

(b) An order requiring the Respondent to pay temporary monthly child support for the daughter in accordance with his income for support purposes, retroactive to the date of the Application in March 2014;

(c) An order requiring the Respondent to pay temporary spousal support in accordance with his income for support purposes, retroactive to the date of the Application in March 2014;

(d) An order requiring the Respondent to pay within 30 days, interim disbursements and interim costs in the sum of $150,000 pursuant to rule 24(12) of the Family Law Rules and s. 131 of the Courts of Justice Act;

(e) An order that the Respondent immediately provide an up to date properly sworn Financial Statement in accordance with the order of Wilson J.;

(f) An order requiring the Respondent to immediately comply with his outstanding production requests and undertakings as attached at Schedule A to the Applicant’s Supplementary Notice of Motion dated April 21, 2015.

[19] Mr. Niman was insistent that his client’s motion for increased spousal and child support in accordance with the Respondent’s income for support purposes be scheduled to be heard on the same occasion as the motion for summary judgment. Mr. Niman pointed out that the Respondent had failed to pay the remainder of $3000 as required by the order of McWatt J. dated May 20, 2015. He also advised that the day before the case conference, he had received an income report for the Respondent for 2014.

[20] Mr. Grant was equally as insistent that his client’s motion for summary judgment should take priority. He pointed out that his client intended to pursue a motion to reduce the amount of support that he was paying pursuant to the order of McWatt J. dated May 20, 2015 but he did not ask that that motion be heard on the same occasion as the motion for summary judgment.

[21] Counsel agreed that affidavits had been delivered in support of and in opposition to the motion for summary judgment. Mr. Niman observed that since the Respondent had delivered his Form 13.1 recently, that his client might want to deliver an affidavit in response.

[22] The case conference was originally scheduled for June 5 but I was unavailable and I had to change it to June 30. The summary judgment motion which had been adjourned to June 29 was further adjourned to a date to be set by me.

[23] The motion for summary judgment was brought before rule 16 was amended. Counsel had not discussed the impact of the amendment on the pending motion.

[24] That is the context in which this case conference was held.

Relevant Rules

[25] Pursuant to the recently amended rule 1(7.2) the court has broad jurisdiction to make orders giving directions and imposing conditions respecting procedural matters “as are just”.

[26] Pursuant to rule 2(2), the primary objective of the Family Law Rules 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.

[27] Pursuant to rule 2(4), the court is required to apply the rules to promote the primary objective, and the parties and their lawyers are required to help the court to promote the primary objective.

[28] Pursuant to rule 2(5), the court shall promote the primary objective by active management of cases, which includes the following:

(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.

[29] Pursuant to rule 17(4) the purposes of a case conference include the following:

(a) exploring the chances of settling the case;

(b) identifying the issues that are in dispute and those that are not in dispute;

(c) exploring ways to resolve the issues that are in dispute;

(d) ensuring disclosure of the relevant evidence;

(d.1) identifying any issues relating to any expert evidence or reports on which the parties intend to rely at trial;

(e) noting admissions that may simplify the case;

(f) setting the date for the next step in the case;

(g) setting a specific timetable for the steps to be taken in the case before it comes to trial;

(h) organizing a settlement conference, or holding one if appropriate; and

(i) giving directions with respect to any intended motion, including the preparation of a specific timetable for the exchange of material for the motion and ordering the filing of summaries of argument, if appropriate.

[30] Pursuant to rule 17(8), the court at a conference has broad jurisdiction to be exercised “if it is appropriate to do so” and includes making an order for document disclosure, questioning, setting the times for events in the case or giving directions for the next step or steps in the case.

[31] Pursuant to rule 16, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made. Pursuant to rule 16(5), the onus is on the moving party to establish that there is “no genuine issue requiring a trial” of the claim(s) in issue.

[32] Pursuant to the recently amended rule 16(6.1), in determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

(a) weighing the evidence;

(b) evaluating the credibility of a deponent;

(c) drawing any reasonable inference from the evidence.

[33] Pursuant to the recently amended rule 13, a party is obliged to provide additional financial disclosure and deliver a Certificate of Financial Disclosure Form 13A.

Role of the Case Management Judge

[34] At the outset of this case conference, counsel inquired as to the role that I intended to play. There is no “one size fits all” job description of a case management judge. Rather, the role and responsibilities should respond to the challenges presented in the individual case. In this case, I indicated to counsel that I would hear all motions and deal with all case conferences. I will not participate in settlement discussions. In accordance with rule 2(5) and 17(4), I encouraged the parties and counsel to initiate discussion about settlement and I indicated that if at any time there was a willingness to explore such options, I would appoint another judge to convene a settlement conference.

Analysis

[35] As indicated above, there are many procedural issues outstanding. After establishing my role in this case, I asked counsel if they had agreed how the procedural issues would be addressed and if they had agreed upon a timetable. The answer to both questions was no.

[36] On the basis of my review of the extensive materials contained in the case conference briefs, and the endorsement record and the apparent intractability of the case, I made a ruling that the next step would be the hearing of the summary judgment motion. I indicated that I would provide this detailed endorsement.

[37] The following observations inform the approach I will take as case management judge and are the basis for the order I made to establish the hearing of the summary judgment motion as the priority:

(a) the Application was issued on March 11, 2014. Almost 16 months later, the Respondent has not served an Answer. Instead, having served a motion for summary judgment in May 2014, more than 13 months have elapsed without that motion being heard. It was scheduled for November 17, 2014, was adjourned, and then adjourned again to June 29, 2015;

(b) disclosure by the Respondent has been a challenging issue. He resisted preparing a Form 13.1 and, although on July 28, 2014 he was ordered to do so by August 15, 2014, he failed to comply both as to timing and to content of Form 13.1. Inadequate time was allocated by counsel for the hearing before McWatt J. and she did not get to the motion to compel the Respondent to comply with the order of D. Wilson J. The Respondent did serve a Form 13.1 sworn May 26, 2015 and that means that, to the extent he did comply, it was 9 months late;

(c) compliance with undertakings and addressing refusals has also been a challenging issue. As the endorsement of Paisley J. indicates, the Respondent provided responses the day before the hearing of the motion and agreed at the time of the motion to re-attend to continue questioning. As indicated during the case conference and in his brief, Mr. Niman is still left with many subjects that he wants to explore in disclosure and questioning;

(d) there are 9 volumes in the continuing record, yet pleadings are not yet “closed” and the motion for summary judgment is outstanding. At this glacial pace, the case will take years to move through the system, assuming for the moment the summary judgment motion does not end in dismissal of key claims;

(e) even if the summary judgment motion is fully or partly successful, other claims will be outstanding. For example, if the separation agreement is found to be valid, it might not be enforceable. Indeed the alternative request by the Respondent that a trial of an issue be ordered is related only to validity not to enforceability. A trial as to enforceability may be inevitable;

(f) Mr. Niman is understandably concerned that his client has as much evidence as possible to defeat the summary judgment motion. However, the burden is on the Respondent to establish that there is no genuine issue for trial; the burden is not on the Applicant to establish that there is a genuine issue for trial. The Applicant has clearly signaled that the grounds for seeking to set aside the separation agreement or the support provisions of the separation agreement are the lack of disclosure and duress. On the issue of disclosure, the burden is on the Respondent to establish that there is “no genuine issue for trial” that he failed to fulfill his positive obligation to disclose.[^3] If the record of his disclosure on this motion for summary judgment is insufficient to meet that test, his motion may not succeed. On the issue of duress, the burden is on the Respondent to establish that there is “no genuine issue for trial” that the Applicant was subject to duress. If through lack of disclosure or refusal to respond to appropriate questions there is a vacuum in such evidence, he may not be able to meet the test of “no genuine issue” and his motion may not succeed;

(g) while a motion for summary judgment is important and could have significant impact on the case, including dismissal of key claims, it is not a trial. On the part of the lawyers and their clients, there has been considerable time and cost devoted to the issue of disclosure and questioning. At a point, the quest for documents and information has to end in favour of getting on with the summary judgment motion. Furthermore, there has been considerable use of judicial resources, this being the 5th court attendance without progress as to substantive matters having been accomplished. The court does not have unlimited judicial resources and must focus on steps that will achieve demonstrable outcomes;

(h) all of the issues raised by both parties may need to be addressed at some point. But the lack of progress on the motion for summary judgment has created a logjam that even experienced counsel such as are involved in this case were unable to address;

(i) the Applicant seeks to increase the amount of child and spousal support while the Respondent seeks to decrease it. McWatt J. made a temporary order dated May 20, 2015. Typically temporary orders are not subject to change pending a trial, and certainly not within a few months of the order dated May 20, 2015. A temporary status quo has been established. It is unlikely to change pending trial and I decline to include it as a priority issue at this stage.

[38] I concluded that it was appropriate to establish a timetable that would lead to the hearing and determination of the motion for summary judgment that was creating the logjam in the ability of the parties and counsel to progress. I am satisfied that the order that follows is just to both parties and will result in the court and the parties and their counsel collectively responding to the primary objective.

[39] Once I ruled that the motion for summary judgment would be the priority next step, counsel were able to agree on a schedule that would lead to the hearing of the summary judgment motion. Counsel thought that each would need a day for a total of two days for the hearing. As indicated above, the issues raised in the Application are twofold: lack of disclosure and duress. I am satisfied that if each has ½ day (or 2.5 hours) that each will have sufficient time to make comprehensive oral submissions in addition to the factum which each will prepare in advance.

[40] I did not agree with counsel that a motion for disclosure should be allowed in advance of the motion for summary judgment. I am however assuming that if either party gave undertakings, that she or he will comply without the necessity of an order.

[41] During the discussion about the timetable, it was acknowledged that the Respondent had recently delivered the financial statement Form 13.1 dated May 26, 2015. I did not take the time during the conference to review the Form 13.1 in the context of the recently amended rule 13. On further reflection, I cannot ascertain whether he has complied with rule 13(3.1) and (3.3) but he must take steps to do so as indicated below.

[42] After ruling that the summary judgment motion had priority, and establishing the timetable, I also set a date for a case conference expected to be after the ruling on the summary judgment motion at which time the other procedural issues outstanding would be considered.

ORDER TO GO AS FOLLOWS:

[43] The motion for summary judgment shall be heard by me on September 3, 2015 at 10:00 a.m. Each party’s counsel will have 2.5 hours including reply submissions and including submissions on any preliminary point that either seeks to raise.

[44] Any further affidavit by the Applicant will be served and filed by July 27, 2015. Moving party has no right to reply.

[45] On consent, the Respondent shall attend for questioning on July 31, 2015 at 2:00 p.m.

[46] Counsel for the Respondent shall serve and file a factum and book of authorities no later than August 13, 2015.

[47] Counsel for the Applicant shall serve and file a factum and book of authorities no later than August 27, 2015.

[48] Counsel for the Respondent shall ensure that paragraph 19 of the endorsement of McWatt J. dated May 20, 2015 has been complied with before the factum for the Respondent is served and filed.

[49] With respect to the Respondent’s Form 13.1 dated May 26, 2015, by July 20, 2015, (which is 7 days before the affidavit referred to in paragraph 44 above is due), the Respondent shall use best efforts to comply with rule 13(3.1) and (3.3), unless he has already done so. To the extent he does not comply, he shall by July 20, 2015 advise in writing what efforts he made to comply.

[50] Costs of this case conference are reserved to the submissions on costs arising from the summary judgment motion.

[51] Case conference before me on October 2, 2015 at 10:00 to discuss next steps. Further briefs not required by either counsel.

Kiteley J.

Date: July 2015

[^1]: 2014 ONSC 4490 [^2]: 2015 ONSC 3165 [^3]: Virc v. Blair 2014 ONCA 392