SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-14-00394522
DATE: 20150707
RE: Jane Knop, Applicant
AND:
William Reza Nezami, Respondent
BEFORE: Kiteley J.
COUNSEL: Gary Joseph and Elissa Gamus, for the Applicant
Meysa Maleki, for the Respondent
HEARD: June 30, 2015 and July 3, 2015
ENDORSEMENT from TELEPHONE CASE CONFERENCES
[1] In an endorsement dated December 9, 2014, I heard a motion for an order that the matter be case managed. I made an order that I would case manage the file and that no motions may be brought before any other judge and that no motions may be brought unless I first establish a timetable. The question of whether another judge will deal with conferences was postponed. In an endorsement dated December 15, 2014 (2014 ONSC 7233) dealing with an immediate motion I summarized the background of the file which demonstrates that it has been a high conflict case since inception.
[2] Counsel and the parties attended a case conference on June 1, 2015 during which most of the outstanding issues were discussed. As my endorsement indicated that day, counsel intended to immediately draft an agreement on the issues of summer camp/activities, summer vacation by each parent with the child and an alternate transition location. Agreement on all those points had not been reached during the conference but the parties and counsel were all optimistic. Each party had been insisting on the other signing a confidentiality agreement, the terms of which had been a source of conflict and was impeding disclosure from both sides. At that case conference, counsel agreed to aim to have reciprocal confidentiality agreements signed by June 26, 2015. In addition, by June 26, 2015, counsel for the Applicant intended to make a proposal for modifications to the parenting schedule. Sale of the former matrimonial home had also been the source of considerable conflict.
[3] In the endorsement dated June 1, 2015 I noted that the Respondent continued to ask for a motion date to address some parenting issues which I indicated I would not consider that day. The s. 30 assessment, originally ordered on consent on July 10, 2014 had finally started in May, 2015 and the parents had made a commitment to the assessor that neither would bring motions dealing with parenting until the conclusion of the assessment. The assessor is optimistic about completing the assessment and holding a disclosure meeting in the fall of 2015. On June 1, 2015, I declined to allow the Respondent to bring any parenting motion. Counsel asked that I set a trial date on the parenting issues and I set that date tentatively for the week of February 29, 2016 for 15 days.
[4] In order to maintain momentum on what appeared to be considerable progress and good will, I scheduled a conference call with counsel only on June 30, 2015 for a status report on the issues referred to in paragraph 2 on which consensus was likely to be achieved. At the request of counsel, I allowed the following to be included in the agenda for that call: the Respondent’s request for a motion date to address certain parenting issues; outstanding costs orders; whether there should be any consent modification of the restraining order.
[5] Mr. Joseph and Ms. Gamus and Ms. Maleki participated in the June 30, 2015 conference call. It was clear that the progress and good will that had been demonstrated on June 1st had evaporated and instead there was a resumption of the very high conflict. It was meant to be a brief status report call but lasted about 35 minutes by which time I had to leave to attend in court. The outcome of that telephone conference call was frustrating for all concerned. The main outcome was that I set the date of July 14 for a motion to deal with the summer parenting schedule since that issue could not wait. When I had the opportunity to reflect on it later that day, I made an endorsement directing counsel to continue the case conference by telephone on July 3 and Ms. Gamus and Ms. Maleki were able to accommodate that time.
[6] At the outset of the conference call on July 3, Ms. Maleki and Ms. Gamus indicated that they had been in communication following the June 30th conference call and had agreed that the matter was getting off the rails and they had resolved to collaborate to help their clients. That was a good starting point for the case conference.
Summer schedule
[7] Counsel had not yet resolved the schedule for the summer. However, enough progress had been made that Ms. Maleki thought that the July 14 motion was not necessary. Ms. Gamus was not so confident but had discussed with her client the cost benefit analysis of a motion date that was already 4 weeks into the child’s summer vacation and the challenges of not being able to establish a schedule for so long. Counsel agreed that I would not set a date for that motion.
Confidentiality agreement
[8] On the June 30th case conference, Mr. Joseph agreed that there was an issue about the extent to which the court has jurisdiction to order a party to sign a confidentiality agreement. However, in the absence of agreement, he asked that I set a motion date for the Applicant’s motion to compel the Respondent to provide long outstanding disclosure. The issues discussed on June 30 and July 3 included the consensus that had been reached on June 1 that the confidentiality agreements would be signed; the introduction by her U.S. legal advisors into the agreement proposed by the Applicant of terms that the Respondent insisted were unnecessary and inappropriate; the impact of the amendment to rule 13 and specifically rule 13(3.3) and whether either of the parties wanted this to be a test case for the interpretation of that rule; whether counsel for the Applicant might arrange for a conference call involving the U.S. legal advisors and counsel for the Respondent to determine whether the differences were resolvable.
[9] At the conclusion of the discussion, I did not set a date for a motion for disclosure. If the confidentiality issues are not resolved, both parties will be bringing a motion for disclosure which will be discussed at the next case conference.
Power of sale with respect to the matrimonial home
[10] As mentioned above, there has been considerable conflict with respect to the matrimonial home. The Respondent has resided in it along with his parents. His parents have moved out and he is in the process of moving out. The Respondent has been in charge of the arrangements for sale and the listing agreement has expired. Pursuant to the consent order dated July 10, 2014, the Applicant is now in charge. This creates issues about selling a vacant property and whether insurance will continue to be available. In addition, the Respondent, who is required by the order of Backhouse J. to pay the carrying charges has not paid for 4 months and the Applicant (who is the registered owner) received a demand from the mortgagor that if all arrears and costs are not paid by July 13, 2015, power of sale proceedings will be initiated.
[11] One of the motions the Respondent has long sought to bring is to vary that order of Backhouse J. With counsel there was discussion about the prospects of success of such a motion to vary an interim order. Ms. Maleki confirmed that if brought, the Respondent would seek to vary the interim order prospectively, not retroactively.
[12] The considerable conflict associated with the disposition of this valuable property cries out for a resolution. I suggested various approaches to counsel that would obviate the need to bring a motion. Ms. Gamus indicated that if I did allow the Respondent to bring such a motion, she wanted to bring on her motion to strike his Answer and Claim on the basis of his violation of several outstanding orders. I declined again to allow such a motion because, even if it were successful, it would not solve the immediate issues surrounding the disposition of the matrimonial home. In the end, given that the failure to comply with the demand by July 13 will have such significant repercussions, I indicated that I would permit the Respondent to bring a motion. Since counsel for the Respondent was not able to specify the relief to be sought, I indicated that I would describe the motion in a generic way that would allow a motion if necessary. On the assumption that counsel for the mortgagor would allow some leeway beyond July 13, I set July 16 as the motion date.
[13] Ms. Gamus also indicated that she sought leave to bring a motion to compel the Respondent to do various things related to the sale. I declined to grant leave to bring a motion because (a) there was an issue as to the jurisdiction of the court to make such orders when opposed; (b) that would be a long motion for which there was not likely time available quickly enough to make any difference.
Case Management
[14] As indicated in paragraph 1 above, I have been case managing the file and have heard all motions. Having dealt with an extensive case conference on June 1st (and continued on June 30 and July 3) at which most issues were discussed, my role now will be limited to conferences. I will preside over motions where counsel consent. The order I made on December 9 that no motions may be brought unless grant leave and I establish a timetable continues.
[15] At the conclusion, I set a date for a case conference at which next steps would be discussed.
ORDER TO GO AS FOLLOWS:
[16] The Respondent has leave to bring a motion returnable July 16, 2015 “related to the power of sale proceedings” provided that counsel shall serve the motion record by July 10; counsel for the Applicant shall deliver responding material by noon on July 14; no reply evidence is permitted; counsel shall serve and file their factums by noon on July 15, 2015.
[17] I will continue to manage this case but I will hear motions only if both counsel consent that I do so.
[18] Neither counsel may bring any motion for any relief unless I grant leave to do so and establish a timetable for the motion. When I establish the timetable, I will assign a motion judge.
[19] Counsel and the parties shall attend a case conference before me on September 16, 2015 at 2:30 for purposes of planning next steps. Neither party need file an additional case conference brief. In the confirmation form, counsel may provide a status report as to the issues that are outstanding.
[20] Costs of the case conference held June 1, 2015 and continued June 30 and July 3 are reserved.
Kiteley J.
Date: July 2015