Talisman v. Stryjak, 2015 ONSC 4588

Court File No.: FC-10-036497-00

Date: 2015-07-22

Superior Court of Justice – Ontario – Family Court

Re: Mike Talisman (formerly known as Mohammed Talebshariati), Applicant

And: Diana Stryjak (also known as Diana Szczepanska and/or Danuta Szczepanska and/or Danuta Stryjak), Respondent

Before: The Honourable Mr. Justice R. Kaufman

Counsel: Howard J. Feldman for the Applicant Respondent acting in person

Heard: In chambers

ENDORSEMENT

[1] This matter comes before me upon the request of the applicant for a final determination of the issues between the parties that were allegedly resolved before me in the course of an ongoing mid-trial conference.

[2] The respondent takes the position that there was no settlement. She indicates that settlement cannot exist when material terms are lacking or are insufficiently certain and definite. She complains that the applicant did not make closing written submissions at the end of the trial. She states that on January 29, 2014, Justice Rogers ordered that the former family residence be sold. She indicates that in April, 2014, the applicant obtained three appraisals and listed the house for sale. He rejected an offer in June, 2014 on the basis of its insufficiency. Since September, 2014, the house has not been listed for sale. The respondent maintains that the applicant is in breach of the Order of Justice Rogers in failing to sell the property and that for purposes of settlement he continues to rely upon the appraisals that are outdated and do not reflect the current value of the subject property.

Litigation Background (prior to trial)

[3] The Application was filed on October 19, 2010 and the Answer on December 14 of the same year. The pleadings reflect that the parties had resided in a common-law relationship although, throughout the litigation, the respondent attempted to resile from her admission of the relationship reflected in court documents. I was assigned to be the Case Management Justice. The application was consolidated with a civil dispute between the parties pursuant to Rule 12 (5).

[4] A lengthy Case Conference took place on December 24, 2010. I granted a detailed Order pursuant to Rule 17(8). The stated goal of the parties, both represented by counsel at the time, however optimistic, was to be on the trial list in the spring of 2011.

[5] A Notice of Approaching Dismissal was served by the Clerk of the Court on December 28, 2011 and, presumably to avoid dismissal, a Settlement Conference was scheduled for February 14, 2012. On that date it was readily apparent that my Order of December 24, 2010 had been ignored. New timelines for disclosure and questioning were provided and the Settlement Conference was rescheduled for May 15, 2012.

[6] The Settlement Conference resumed, as scheduled and concluded without resolution. The remaining issues were noted to be whether or not there existed a joint family venture, whether there was to be a sharing of debts and whether there was entitlement to spousal support including quantum and duration. A further detailed Order was granted regarding further timelines, disclosure and questioning.

[7] The Trial Management Conference was scheduled for October 4, 2012. On that date, the respondent appeared with new counsel. Disclosure was still outstanding by both parties. Further timelines were provided for the completion of disclosure. In that the respondent had recently retained new counsel, a further Settlement Conference was scheduled for January 10, 2013 with the understanding that if there were still disputes regarding disclosure, this date would be vacated and rescheduled when meaningful settlement discussions could occur. A new Trial Management Conference was scheduled for April 19, 2013. The matter was removed from the November, 2012 trial sittings.

[8] On January 10, 2013, the Settlement Conference could not proceed. The applicant requested an adjournment as Mr. Feldman was required to appear in the Court of Appeal on the same date. There were allegations of failure to comply with prior court orders. It appeared as if the respondent was again without counsel. The Settlement Conference scheduled for this day was adjourned to April 19, 2013 to be combined with the Trial Management Conference which was made peremptory on the parties. I noted that if there were outstanding disclosure requests or alleged noncompliance with prior orders, it was expected that the parties would bring the requisite motions in the absence of which it will be presumed that the parties are trial ready.

[9] On March 13, 2013, both parties brought motions regarding disclosure returnable before Justice McDermot. It was readily apparent to that court that based upon the material filed, the motion could not be heard within one hour, as scheduled. The parties were unable to present a more focused list of disclosure to be argued and they were remanded to an assignment court on April 10, 2013 to schedule a lengthy motion. Costs of $750 were awarded against the respondent due to her failure to voluntarily agree to re-attend for questioning.

[10] On April 10, 2013, I scheduled the long motion for disclosure returnable on July 23, 2013 and I provided specific timelines for the filing of material. The matter was removed from the May, 2013 trial sittings.

[11] The combined conferences were heard on April 19, 2013. Timelines for completion of questioning were provided and the parties were ordered to deliver Affidavit of Documents by May 10, 2013. In particular, the respondent was to provide documentation regarding an alleged disbursement of $128,000 prior to her questioning.

[12] The long motions were argued on July 23, 2013 before Justice Healey and the decision released on the following day. The relief sought by the respondent in her motions was dismissed save and except for some relatively minor disclosure which was to be produced by the applicant. The court noted that the respondent’s additional requests for disclosure from the applicant were dismissed based on the extensive documentation already provided by the applicant.

[13] Justice Healey ordered the respondent to produce 29 items of disclosure within 60 days which, the court noted, reflected the extensive claims made by the respondent touching upon virtually all aspects of the parties’ lives pre-cohabitation, during cohabitation and post-cohabitation. Of significance is the court’s comment that this is a case that cried out for amendments to Rule 16 (1) of the Family Law Rules to bring it in line with Rule 20 of the Rules of Civil Procedure in order that the court have broader powers to assess credibility, weigh evidence and draw factual conclusions. The court cautioned the respondent that the disclosure ordered should be viewed by her as a strong indicator of the degree of proof required to be successful in her claims. Subsequently, the court ordered the respondent to pay the applicant the costs of the motions fixed in the amount of $21,000, payable within 30 days.

[14] On December 18, 2013, the parties appeared before Justice Douglas on the first return of the applicant’s motion to strike the respondent’s pleadings for failure to pay the previously ordered costs awards totalling $21,750. The respondent sought an adjournment to secure counsel and prepare responding materials and given the potential consequences, the adjournment was granted to January 29, 2014 for argument provided that the outstanding costs awards were discharged by the respondent prior to that date failing which she would not be entitled to make submissions on the return date.

[15] On January 29, 2014, the parties returned to argue the motion before Justice Rogers. The court noted that the striking of pleadings is a most drastic remedy and should only be utilized as a last resort. All efforts should be made to fashion a remedy with a less drastic impact on the non-compliant litigant and to create a remedy that leads to compliance. The court noted that on January 28, 2014, the respondent served a Notice of Motion for leave to appeal the Order of Justice Healey being the Order for disclosure, dated July 24, 2013, in the above-noted costs Order of September 5, 2013 that arose out of the earlier ruling. The costs Order of March 13, 2013 of Justice McDermot was not being appealed. The court noted that the motion for leave and the extension of time to seek same came four and a half months after the costs Order and six months after the disclosure Order, on the eve of the motion to strike pleadings.

[16] Justice Rogers commented that the court would prefer to give the respondent her opportunity to put her case to the court at trial. However, the serious noncompliance with prior orders cannot be condoned. The court noted that the respondent had other property both within the jurisdiction of the court and in Poland that was presumably exigible for the payment of costs. The court noted that the applicant was in agreement that a lesser sanction is to be granted as an effort to bring compliance. The costs were therefore ordered to be paid by February 14, 2014, failing which the requested relief would be granted including the applicant obtaining vacant possession of the subject property pending its sale and the respondent advancing the sum of $1,000 towards appraisal costs of the property.

[17] Subsequently, on April 22, 2015, Justice Rogers reviewed costs submissions for the attendance before her; no submissions were received from the respondent. The respondent was ordered to pay the applicant his costs for the motion of December 18, 2013 (previously reserved by Justice Douglas) and on January 29, 2014, along with the preparation of the Order and the costs submissions in the amount of $7,000 plus disbursements of $236.37 with appropriate HST, all to be paid by May 30, 2015.

[18] On February 5, 2014, the parties again appeared at an assignment court before Justice Nelson who noted that the costs orders were still outstanding and that it appeared to the court that the motions had already been determined in the applicant’s favour, presumably based on the ruling of Justice Rogers and the continued nonpayment of costs. Justice Nelson awarded costs in favour of the applicant in the sum of $750 inclusive of HST and payable by February 14, 2014.

[19] On March 19, 2014, the parties appeared before Justice McGee on the return of the applicant’s motion for a stay of proceedings pursuant to Rule 1 (8) of the Family Law Rules, certain orders leading to vacant possession of the subject property, an award of costs for carrying on the case and security for costs. At this stage, title to the subject property remained registered in the sole name of the respondent. The court noted that there were two relevant trust declarations in favour of the applicant.

[20] The court’s endorsement reflected upon the history of the litigation. It noted that the applicant had the same counsel from the inception of the application and that the respondent had retained six different lawyers over the course of the proceeding, three of which have been on record. The court found the respondent’s breach to be clear and long-standing. The court rejected the respondent’s proposal to pay the costs or portions of the costs upon the hearing of her motion for leave to appeal the Order of Justice Healey. The court ordered that the respondent was not entitled to any further order of the court until such time as each of the following is in compliance:

I. payment of $23,500, being the outstanding costs and appraisal fee to be paid to applicant’s counsel in full,

II. the disclosure documents set out in Justice Healey’s July 24 decision to be delivered to applicant’s counsel,

III. the respondent has vacated the subject property (municipally known as 289 Elgin Mills Road West, Richmond Hill) and delivered keys for the premises to applicant’s counsel,

IV. the respondent has made the premises available to any real estate agents, appraisers and videographers designated by applicant’s counsel,

V. the respondent has and continues to maintain the expenses of 289 Elgin Mills Road West, Richmond Hill in good standing until sale.

[21] The court also ordered the respondent to post security for costs set in the amount of $50,000. It noted that the applicant has a meritorious claim that he has pursued on a diligent and timely basis and that his claim has the potential to be partially defeated by the respondent holding assets outside the country and by the respondent having placed a mortgage on the property to reduce its equity after having received notice of the applicant’s claim. The security was to be posted by April 15, 2014, failing which the motion to strike pleadings may be renewed before the same court. Partial recovery of costs was granted in the favour of the applicant in the amount of $5,000 payable by the respondent by April 19, 2014.

[22] The Trial Management Conference was scheduled for April 15, 2014. It could not proceed, as counsel recently retained by the respondent was unable to be present due to religious observances. In his absence, Mr. Feldman suggested a conference call with me which was scheduled for April 24. I rescheduled the Trial Management Conference for May 5, 2014 although I was not scheduled to be sitting that day and counsel were requested to confirm, in advance, to enable staffing requirements to be arranged.

[23] The conference call with counsel took place on April 24. In advance of the Trial Management Conference, the parties consented to an order requiring them to exchange Offers to Settle by April 29 and to exchange an outstanding issues list by May 2.

[24] The Trial Management Conference was completed at 6:30 p.m. on May 5, 2014. The applicant raised a new issue that may require an amendment concerning contribution or indemnity regarding a contingent debt. As the potential damages, if any, have yet to be determined, a Case Conference would be required which would preclude the matter proceeding in the May, 2014 trial sittings. Both parties neglected to file the Trial Management Endorsement sheets and an order was made to ensure this documentation would be completed for inclusion in the trial record. If the applicant wish wished to pursue the amendment to his pleadings, then on consent, the matter was to be removed from the May trial sittings. Any motion for amendment of the Application was required to be on notice to enable the respondent to argue a potential limitation defence. Once the motion was heard, if an order was granted then a Case Conference was to be scheduled; if the motion was denied, the case will proceed, as anticipated, to the November, 2014 trial sittings. There were to be no further Trial Management Conferences scheduled. I noted a potential concern in the trial proceeding in May, 2014, being the respondent’s motion for leave to appeal the disclosure Order granted by Justice Healey in July, 2013 which was currently scheduled for hearing on June 12, 2014.

[25] I held a further telephone conference with both counsel on May 14, 2014. The matter was removed from the trial sittings for May, 2014 and placed on the trial sittings list for November, 2014, due to the issue regarding the contingent debt, a lack of consensus of the value of and/or the need for repair and the fact that both Mr. Feldman and Mr. Karp were unavailable for several days during the sittings for religious observances. In consideration of the consent to have the matter adjourned, the respondent agreed to adjourn her request for leave to appeal the Order of Justice Healey to the Divisional Court until September, 2014 and similarly the applicant agreed not to bring a motion to strike pleadings until September, 2014. In light of the uncertain status of some of the issues, a revised Trial Management Endorsement form was required to be filed by September 8, 2014 for review and signature by the court and inclusion in the trial record.

[26] An urgent motion was scheduled for October 8, 2014, but was not confirmed. On October 22, 2014, a motion was scheduled before Justice McGee. Mr. Feldman attended for both parties; Mr. Karp did not oppose the relief sought in a Draft Order presented to the court. The essence of the Order required the respondent to produce to the applicant all books, documents and records relating to the family residence including but not limited to mortgage, utilities, insurance, rental, repair and collection records and it authorized the applicant to act with respect to the property to enable utility and service providers to reconnect utilities and services to the property and it enabled the applicant to make payments with respect to the property, subject to the applicant’s right to claim that any payments made by him be deducted from any entitlement of the respondent in the property. The balance of the issues referenced in the motion was adjourned to November 12, 2014.

[27] I held a further conference call with both counsel on October 23, 2014. It was noted that the matter would proceed to the trial sittings commencing November 17, 2014, subject to the outcome of the motion scheduled for November 12. It was further understood that there would be no more motions except for the one pending on November 12 unless the case was not reached during the November, 2014 trial sittings.

[28] On November 12, 2014, the motion could not be heard; it had not been properly confirmed and although the presiding Justice was prepared to hear the matter at the end of his list, counsel could not wait due to travel commitments. Accordingly, the motion was adjourned to the trial judge to be brought on at the beginning of the trial.

[29] On December 1, 2014, Justice Rogers heard two motions, one of an urgent nature. The applicant was present with counsel and the respondent was in Poland. Mr. Karp was removed as solicitor of record for the respondent. Prior to his removal he opposed the relief sought by the applicant in his motion. Apparently, counsel for the first mortgagee of the former family residence required a court order to enable the applicant to receive information with respect to the status of the mortgage and to take steps to bring the mortgage into good standing. Justice Rogers granted the Order to preserve the property that was the subject of a trust claim from being sold under power of sale. The court also granted the applicant permission to amend his application and provided a timeline within which the respondent could respond. Finally, the motion of the applicant to strike the pleadings of the respondent, for summary judgment and other relief was rescheduled and adjourned to be dealt with on January 21, 2015.

[30] On January 21, 2015 the applicant’s motion was heard by Justice McDermot and the decision released on January 23. The court noted the difficulty encountered by the respondent in following court orders. Justice McDermot made the following comments:

1. the respondent was unrepresented when she appeared before him and did not request an adjournment and filed no material;

2. she failed to provide ordered disclosure;

3. she owes costs of approximately $33,000;

4. she spent mortgage proceeds from the common residence in the face of a preservation of property order;

5. she failed to maintain the costs of the common residence when ordered to do so;

6. she failed to provide vacant possession when ordered to do so;

7. she does not deny her breaches of court orders;

8. she has failed to comply with eight orders made in these proceedings;

9. the particular motion to strike pleadings before Justice McDermot was the third such motion as several prior judges attempted to craft solutions to deal with the respondent’s defaults throughout 2014;

10. several motions brought by the applicant contained relief respecting a default under the mortgage by the respondent which the applicant wished to remedy but, for some unfathomable reason, the respondent with the property to be sold by way of power of sale rather than on the open market and the applicant needed an order allowing him to pay the mortgage and otherwise preserve the asset;

11. there was a trial estimated to last 10 to 15 days scheduled within a month of the motion and the applicant had or would be summonsing 15 witnesses for trial;

12. the respondent had brought a motion for leave to appeal Justice Healey’s disclosure Order although that was eventually abandoned;

13. the respondent sought leave to appeal Justice Rogers’ Order permitting the applicant to bring the mortgage into good standing;

14. the respondent had failed to post security for costs as ordered by Justice McGee on March 19, 2014;

15. the amended application sought damages against the respondent as she had apparently advised the Ontario Disability Support Program (“ODSP”), the agency that pays the applicant’s disability income, that he was no longer living in the common residence which resulted in the termination of his benefits because he was no longer living in an owner occupied home.

[31] Based on the aforesaid findings, Justice McDermot ordered that the respondent’s pleadings, specifically her Answer and Affidavits that she has filed, be struck. Due to the complexities of the matter, the court did not feel that having the applicant proceed by way of a Form 23C Affidavit would be appropriate and therefore ordered an oral hearing on an uncontested basis to take place during the trial sittings commencing February 23, 2015. The respondent was allowed to attend as an observer but was not allowed to participate in the uncontested trial. Costs of the motion were reserved to the trial judge as part of the applicant’s overall claim for costs.

Litigation Background (uncontested trial)

[32] The uncontested trial commenced before Justice Graham on February 18, 2015 and continued until February 25 when the evidence was completed. While addressing the scheduling of final submissions from Mr. Feldman, the parties requested an opportunity for a mid-trial conference before me, as the Case Management Justice. Discussions commenced over several hours and based on perceived progress, the mid-trial was adjourned until the following morning.

[33] On February 26, settlement discussions continued in my presence. The parties focused on the issue of whether or not a common-law relationship had ever existed between them. It appeared as if the respondent’s position was that she would not admit to such a relationship but that she would have no control over what the court decides. The parties, with the court’s assistance, also discussed the benefits of the parties entering into Minutes of Settlement or a Separation Agreement as an alternative to a court order based on the desire of the respondent to have a clean break from the applicant including a release of his spousal support claim and a release against the applicant pursuing the respondent for indemnity in the event that he encounters litigation from the ODSP, releases that the court had no authority to order.

[34] The potential agreement provided for a payment of funds to the respondent in consideration of the applicant acquiring full title to the former family residence. Provisions would be required that if the funds were not received within a specified time frame or if the applicant was unable to arrange for the respondent to be released from the covenant on the mortgage that the property would have to be sold. The respondent was concerned about any delay in receiving partial payment now with the balance upon the expiry of the mortgage so as to avoid the payment of the mortgage penalty for early discharge. The respondent expressed concern that she would have to hire a lawyer in two years’ time to litigate with the applicant for the remaining payment owing to her; and her words, “it mean for me the case is not going to be finished.” She proposed that the applicant simply pay to her the agreed-upon amount within 60 days to complete the file now rather than in two years.

[35] The parties also discussed an ongoing concern regarding a CD that had been in the possession of the respondent until she was ordered to file it with the court office. The applicant wished assurances that the CD had not been copied and that he would retain possession of the disc deposited with the court.

[36] Issues were also raised by the applicant concerning the return of a Persian carpet and some gold jewellery apparently in the possession of the respondent which she denied. She commented that the parties were not going to go through the case all over again so either the case was going to settle or “we are going to start to argue who gets what all over again.” In response, the court was required to remind the respondent that there would be no argument because she really didn’t have any standing before the court and, absent agreement, the case would return to Justice Graham for completion.

[37] In the end, the applicant proposed that he would pay to the respondent in a lump sum of $30,000 within 90 days and that if there was a problem with the wording of the order, the parties would arrange an appointment before me. The applicant also wished the respondent to have to consent to an order that she would not contact either ODSP or the Canada Revenue Agency with respect to the applicant. In consideration of the payment, the respondent would have to consent to an initial Vesting Order and declaration that the applicant had owned at least 50% of the family residence from December, 2000 and that he would receive her remaining 50% interest pursuant to the settlement.

[38] With the assumption that the applicant’s counsel would draft either Minutes of Settlement or a Separation Agreement, it was discussed that the respondent, upon receipt of the documentation would have seven days to obtain independent legal advice. The court emphasized to the respondent that she had to decide that day if she wanted to settle for the amount of $30,000 payable within 90 days with the remaining terms to be agreed upon or determined by me as the Case Management Judge familiar with the outstanding issues. On the record the respondent indicated that she was prepared to settle the case that day for $30,000. The court arranged for the respondent to consult with duty counsel. It was also agreed that the parties would re-attend upon Justice Graham the same day to determine if, based on the evidence that he had heard, he was able to determine whether or not a common-law relationship had existed and whether or not there was sufficient evidence before him to make a Vesting Order with respect to a 50% interest in the family residence in favour of the applicant.

[39] As arranged, Justice Graham returned to the courtroom in my absence. He indicated that on the civil onus of a balance of probabilities, he was completely satisfied that the applicant and respondent were in a common-law, intimate relationship from at least the commencement of 2001 until July, 2009. The court indicated that in an uncontested trial, the applicant’s testimony alone would have been sufficient to satisfy the court on a balance of probabilities that there was a common-law relationship between the two parties for that period of time. The court also indicated that there had been an abundance of corroborating evidence led during the uncontested trial from other individuals in support of this finding. The court had also heard evidence from David Rosen, the lawyer who oversaw the second trust declaration in May, 2009 which put into place an arrangement where legal ownership of the property remained in the name of the respondent but the beneficial ownership was equally shared between the parties. There was also evidence in the form of correspondence from a lawyer, Mr. Wojcik who was a lawyer consulted by the respondent after the separation of the parties in July, 2009. A letter written by this individual addressed to the applicant confirmed that the lawyer had been retained by the respondent with respect to her separation from the applicant, that the relationship had irrevocably broken down and that the respondent wished to resolve all outstanding issues by negotiating a Separation Agreement. There is no question in Justice Graham’s mind that the letter was written by a lawyer who had been instructed by a client that there had been a common-law relationship or other marital relationship that had broken down and it was time to negotiate a Separation Agreement. The court found that those terms are terms of art that are understood by judges and lawyers to refer to an intimate relationship and the legal significance of that relationship upon its breakdown.

[40] In addition, the Answer filed by the respondent which, in her own pleadings, indicated that there had been a common-law relationship between her and the applicant from 2001 to July, 2009 and her sworn Financial Statement of December 13, 2010 which was filed as an exhibit during the uncontested trial indicated that the parties had cohabited starting July, 1999 and the date of separation was July, 2009. The court noted that the evidence in support of a common-law relationship was so extensive that at the end of the trial the court chided Mr. Feldman for having taken so much court time to establish the relationship.

[41] The second issue before Justice Graham was whether, based on the evidence that he had received, the property at 289 Elgin Mills Road West was legally owned by the parties on a 50% shared basis. In this regard, the court was completely satisfied on a balance of probabilities that that is the case on February 26, 2015 and that had been the case since at least May, 2009 when the second Trust Agreement was entered into in the office of Mr. Rosen. It was at that time that the parties had changed the original Trust Agreement which had declared the applicant to be the sole beneficial owner of the property. Justice Graham found that the evidence supports that there was a joint family venture between the parties throughout the period of 2001 until July, 2009 wherein they were completely sharing their resources. The evidence heard by the court was that the party shared all of their expenses and pooled all of their income during the period of cohabitation and that they were cooperating with each other in terms of running a driver training business. The court indicated that it did not have the slightest of doubt that the legal effect of the second trust declaration based on all the evidence was that the property at 289 Elgin Mills Road West is legally owned half by the respondent and half by the applicant.

[42] Following Justice Graham’s findings, he departed the court and I re-attended upon the parties. Mr. Feldman apprised me of Justice Graham’s findings with respect to the common-law relationship and the ownership of the property. Mr. Feldman had drafted Minutes of Settlement for a review by the parties with the intention, following the execution of the Minutes, to return to his office and draft a final Separation Agreement for review by the respondent and her legal advisor. I did not feel it appropriate to burden duty counsel who had remained with the respondent throughout the morning with having to review this document with the respondent due to her minimal involvement in the case and I did not want the respondent relying upon duty counsel in the absence of obtaining her own independent legal advice. I chose to read out the Minutes to the respondent and indicated to her, in no uncertain terms that in the event the parties cannot finalize the settlement by either Minutes of Settlement or Separation Agreement that I would simply incorporate their resolution into a court order.

[43] The respondent indicated in terms of the financial payment of $30,000 that there was an agreement and that it would be payable to her within 90 days earlier subject to reduction only if there were any judgments registered against her on title. In view of the earlier power of sale proceedings against the respondent, she was confident that there are no judgments registered against her in December, 2014 and that none had arisen in the intervening period.

[44] The respondent expressed some concern that the document allowed the applicant recourse against her in the future other than if she contacted ODSP or Canada Revenue Agency. The respondent was made to understand that if it could be established that she breached the no contact provisions with those agencies that the penalty could be a finding of contempt. Although the purpose of the settlement was that each party could go his or her own way without turning back, the respondent was concerned that the applicant might turn back on her notwithstanding the financial repercussions against him in so doing. The respondent indicated that she wanted to settle her case. She clearly indicated to the court that she understood that if her liability to the mortgagee was not discharged in 90 days, the property had to be sold. She also indicated to the court her understanding that if the settlement documentation provided to her by Mr. Feldman was not returned within seven days, the court would still make a Final Order incorporating the settlement.

[45] Upon the respondent again confirming that in terms of the financial settlement she has agreed upon receipt of $30,000, I indicated that the case was settled. The respondent also confirmed her understanding that in addition to the $30,000 she gets, the applicant will be acquiring effectively 100% ownership of the home and that she has no further interest in it. Accordingly I indicated that that provision would also be included in my Order. The respondent again indicated that she didn’t want to be liable for payment of spousal support and wanted the court to await her meeting with her lawyer. In response, I indicated that I would be making the two Orders that have been agreed upon as otherwise Justice Graham would have to complete the trial and the respondent indicated that she was consenting to the trial before Justice Graham be deemed completed and that in the absence of negotiated Minutes of Settlement, the parties could return to me to implement a Final Order. It was indicated to the parties that all other claims were dismissed on a final basis subject to the final wording to be agreed upon or ordered. With the consent of the applicant, it was also agreed upon that the applicant would be consenting to a dismissal of all of his other claims including collection of the $34,000 in costs previously ordered against the respondent and his claim for damages arising from the respondent’s contact with ODSP.

[46] On April 16, 2015, the applicant with counsel appeared before me; the respondent was not present but also had not been served. The purpose of the attendance was to have me sign an Order reflecting the terms previously agreed upon. I indicated that the respondent should be present to enable me to determine if, as a self-represented litigant, she understood the ramifications of resiling from what is perceived to be an agreement. I indicated that I would be requesting an expedited transcript and adjourned the matter to April 24, 2015, to enable the respondent to be present. I also requested Mr. Feldman to prepare an Order for signature by Justice Graham reflecting the matters adjudicated upon the court by Justice Graham on February 26, 2015.

[47] The parties attended before me on April 24. The respondent declined an opportunity of meeting with the same duty counsel who had met with her on February 26. The purpose of the attendance was to settle the terms of an Order premised on the settlement agreed upon between the parties on February 26, specifically, that the respondent had agreed to accept a certain amount of money in satisfaction of the issues heard by Justice Graham. The transcript of that event, before me, readily confirms settlement.

[48] The respondent had the opportunity of obtaining independent legal advice to execute Minutes of Settlement which would have afforded her certain protection that a court order could not. Absent the execution of Minutes of Settlement, all that remained was to settle the terms of an order. Since February 26, the applicant has been successful in receiving a further award of costs of $7,236.37 awarded by Justice Rogers. The respondent indicated she wished to have Justice Graham render a Final Order and she wanted to resile from the settlement. The applicant, after hearing the respondent’s request, indicated a desire to concur with the respondent presumably so that he had the added benefit of seeking costs of the trial and for the attendance on April 24. On that basis, I indicated that I would take these requests under advisement recognizing that I had two options, namely, to sign an Order bringing finality to the matter or to return the matter to Justice Graham for determination of the remaining issues.

[49] Justice Graham was made aware at the onset of trial that the respondent had sought leave to appeal the Order of Justice McDermot striking her pleadings. In the course of the mid-trial, I was made aware that the respondent had sought leave to appeal the Order of Justice Rogers which enabled the applicant to bring the outstanding mortgage into good standing and to avoid power of sale proceedings being completed. I had also been made aware that the respondent had sought leave to appeal the Order of Justice Healey requiring her to provide disclosure in support of all of her claims against the applicant although her motion for leave was subsequently abandoned. Recognizing that the respondent might also seek leave to appeal the Order of Justice Graham of February 26, 2015 and any Order that I might make, I indicated that if I was inclined to grant a Final Order, the payment of funds to the respondent would be predicated upon in abandonment of all pending appeals or leave to appeal and a waiver of all appeal rights. The costs of the day were reserved and I indicated that in the event I do not sign a Final Order and return the matter to Justice Graham, than the costs of the trial in the mid-trials were also reserved.

[50] While this decision was pending, my judicial assistant received correspondence from the parties. On May 8, 2015, Mr. Feldman indicated that his client wished to proceed with the settlement provided that the settlement funds were not received by the respondent until she provided a waiver of all appeal rights. A copy of that correspondence was provided to the respondent.

[51] Soon thereafter, my judicial assistant received an undated letter from the respondent with no indication that it had been provided to the applicant’s counsel. It acknowledged receipt of Mr. Feldman’s letter. It further raised the following points:

1. The respondent stated that there was no acceptance of settlement;

2. It was not true that the respondent had invited me to conduct a mid-trial. She has no knowledge of court proceedings and did not know the rules and regulation to do so;

3. She emphasized that at the conclusion of court on February 26, 2015, she did not have legal advice and that she was seeking legal advice in regards to the Minutes of Settlement which were presented to her the first time that day. It was not her intention nor her willingness to settle;

4. Apparently she had received legal advice that she did not have necessary information to fully consider her positions on an offer and that the facts were misleading;

5. After trial, the information she was provided with was not based on Justice Graham’s oral submissions. The discussion, offer and calculation were based on oral submissions of Mr. Feldman and not on Justice Graham’s findings.

6. The value the property used for calculation was obtained one year ago and I did not reflect the recent value of the property. The current value of the property is over $1 million so the equity was in the area of $700,000;

7. Justice Graham in his oral submissions of February 26, 2015 did not release full details of his findings on all issues including:

a) which written trust declaration was utilized by the court,

b) the duration of the common-law relationship,

c) from what date had the applicant acquired a 50% interest in the family residence,

d) on the house purchase deduction,

e) on maintaining the property from its purchase until August, 2014,

f) on refinancing the property in September, 2009,

g) on the value and division of property,

h) disposition costs,

i) on spousal support including entitlement, commencement date and duration and quantum,

j) on repayment to ODSP, on what grounds and for what amount.

[52] The respondent also indicated that settlement cannot exist when material terms are lacking or insufficiently certain and definite. Every person should have all of the information that is necessary to figure out what’s a good deal and what’s a bad deal. There should be no pressure to reach an agreement on either party. She also noted that the applicant had not provided closing written submissions at the end of the trial.

[53] In addition, the respondent noted that on January 29, 2014, Justice Rogers had ordered the house to be sold. In April, 2014, the applicant had obtained value of three appraisals and listed the house for sale for $812,000 and two months later, he refused to sell it for $750,000 on the basis that the offer was less than the appraisals. Since September, 2014, the house was not listed for sale by the applicant and on three occasions in open court he confirmed that he was living in the property, interested in renovation and not a sale of the property. Justice Rogers’ Order, she submits, was quite clear that the “property shall be sold.” The applicant was in breach of that court Order in failing to sell the property and now after a year he is using the valuation of the house as a starting point for settlement. She repeats that the current value of the property is in excess of $1 million, that there are huge demands in the housing market, especially in the area of the former family residence and that the house next door sold, after one month on the open market, for $1,200,000. She gave further information about the sale of a house across the street.

[54] The letter continues by alleging that Mr. Feldman had indicated in court that she had failed to provide a recent value of the property but that she was advised on several occasions that she has no rights or voice in the matter anymore and was unable to take any steps in this proceeding. She believes that the best interests of the court are to do justice, just fairly. She requests that the court request a recent valuation and force the sale of the property and that it is the obligation of this court to follow the Orders of Justice Rogers dated January 29, 2014 and Justice McGee dated March 19, 2014. She states that only after there are proceeds of sale will the court have the opportunity to do justice fairly and calculate and dispose of a party’s interest or at least have the correct amount of money on the table in order to enter into a fair settlement.

[55] The letter concludes by stating that on or about March 9, 2015, the respondent advised the applicant that she was rejecting his Minutes of Settlement and that it was in her best interest to take the risk and await the Final Order of Justice Graham with full details on all issues and disposition. She believes that the applicant is continuing to delay this court proceeding and is continuing to incur more costs for her yet he, himself, did not provide any evidence of his legal costs that he has paid. Lastly, she stated that there were no findings with respect to Offers to Settle that were made during the court process.

Analysis

[56] In determining the manner in which to proceed in this case, it is important that the parties be reminded of the primary objectives of the Family Law Rules. Rule 2 states the following:

PRIMARY OBJECTIVE

(2) The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2 (2).

DEALING 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. O. Reg. 114/99, r. 2 (3).

DUTY TO PROMOTE PRIMARY OBJECTIVE

(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. O. Reg. 114/99, r. 2 (4).

DUTY TO MANAGE CASES

(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 cost;

(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. O. Reg. 114/99, r. 2 (5).

[57] The position of the respondent in her correspondence to the court as stated in paragraphs 51-55 herein seemingly reflects the respondent’s approach towards this litigation. Any analysis undertaken by this or any other court would result in a finding that the respondent has undermined the primary objective of the Rules in her attitude and her refusal to comply with court orders. In Justice Healey’s decision found at 2013 ONSC 4954, as cited above at paragraph 13, the court cautioned the respondent as follows:

The disclosure ordered should be viewed by the respondent as a strong indicator of the degree of proof required to be successful in her claims. If the evidence does not exist, she should reconsider her position and the potential devastation of a cost order being made against her after a lengthy and expensive trial.

[58] The response by the respondent to the court’s caution was to ignore the court order, provide none of the disclosure and avoid the payment of costs, as awarded by the court and then seek leave to appeal only to abandon her motion.

[59] An added position of the respondent in her correspondence to the court, as stated in paragraphs 51-55 herein is that the court should force the applicant to comply with the prior Orders of Justice Rogers and Justice McGee, notwithstanding her flagrant breaches of at least eight court Orders. Justice Rogers granted an Order to enable the applicant to preserve the property whereas the respondent, in opposition, preferred the property to be sold by the mortgagee under power of sale and yet in her correspondence to the court she complains that the applicant is not utilizing the highest price for the property and she asks this court to order that the family residence be sold.

[60] There is evidence before the court that following the granting of a Preservation Order, the respondent proceeded to increase the mortgage on the family residence and to receive the sum of $125,000 for which she has failed to account. This was of sufficient concern to Justice McGee such that in her endorsement dated March 19, 2014 that she ordered the respondent to post security for costs in the sum of $50,000 and yet the respondent’s response was to ignore that Order and avoid the payment of costs, as awarded and notwithstanding all of that, the respondent wishes the court to enforce Justice McGee’s Order in requiring the family residence to be sold.

[61] In his decision to strike the respondent’s pleadings found at 2015 ONSC 549, Justice McDermot considered the question posed by the applicant’s lawyer in his factum, “how many court orders can the respondent disobey before her pleadings and Affidavits are struck out?” Justice McDermot notes that unfortunately, the respondent has a problem in following court orders and that the respondent does not deny her breaches. At paragraph 14 of his decision, Justice McDermot states:

And it is not as if this Court has not warned the respondent of the consequences of a breach of the orders of this Court or made every effort to allow her to remedy her breaches of this order. Ms. Stryjak has had plenty of notice of the consequences of her failure to comply with various orders of this Court and judges of this Court have also attempted to give her every opportunity to redeem herself and purge her breaches of the orders.

[62] Finally, at paragraph 16, Justice McDermot describes the respondent’s litigation conduct as a “scorched earth” policy.

[63] The court, the lawyers and the litigants are all partners in promoting the primary objective of the Rules. It is an understatement to state that the respondent has not been a good partner. She has apparently had, on the record or consulted with, no less than seven lawyers. As noted, she has been forewarned on numerous occasions by a host of different justices of this court that her litigation behaviour was unacceptable and she has been given numerous opportunities to remedy that behaviour to no avail. She then writes to the court in an attempt to place evidence before the court as to the value of the family residence or the shortcomings of the applicant’s evidence in that regard while apparently ignoring the fact that her pleadings have been struck and that the matter would proceed on an uncontested basis.

[64] It is difficult to comprehend why the respondent would have sought leave to appeal the disclosure Order of Justice Healey since, as noted by the court, the disclosure was needed to support the claims which the respondent herself had placed before the court. It is difficult to comprehend why the respondent may have sought leave to appeal the Order of Justice Rogers which enabled the subject property to be preserved rather than sold under power of sale. One can understand why the respondent may have sought to appeal the Order of Justice McDermot in striking her pleadings so as to enable her to continue to participate in the court process notwithstanding her inability and/or unwillingness to comply with the previous court orders and costs awards. As noted by Justice Benotto in the recent decision of Roberts v Roberts 2015 ONCA 450 at paragraph 15:

The power to strike out the pleadings is to be used sparingly and only in exceptional cases. This is such a case. The appellant’s conduct in ignoring court orders and failing to follow the basic principles of family law litigation put him in the exceptional category of cases where the judge’s discretion to strike his pleadings was reasonably exercised.

[65] Furthermore, the respondent now attempts to take the position that she was an unwilling participant in the mid-trial process that followed the hearing of the evidence by Justice Graham. As noted herein, she continued to deny the existence of a common-law relationship for reasons known only to her which required Justice Graham to make a finding on the basis of the evidence heard by him which included the respondent’s Answer, filed by her counsel and from a different counsel, following separation, inviting the applicant to engage in negotiations for a Separation Agreement following the breakdown of her relationship with the applicant. She heard Justice Graham make a finding that she and the applicant were partners in the subject property, based on the evidence heard by the court and accordingly the court vested a 50% interest in the subject property in favour of the applicant.

[66] The transcripts reflect that the respondent understood that she was accepting the sum of $30,000 in exchange for her remaining 50% interest in the subject property and in settlement of all of the issues placed before the court. The benefits of negotiating Minutes of Settlement or a Separation Agreement were explained to the respondent in considerable detail and yet, at no time, did the respondent indicate to the court that she did not wish to participate in the settlement discussions held as part of the mid-trial process. She indicated to the court that she wanted closure. She indicated to the court that she did not wish to have the matter returned to Justice Graham. In view of all of the above it would now be a further affront to the primary objective of the Rules if the respondent was allowed to have the court and the applicant incur further expense and time on this matter. To do otherwise would negatively impact on the administration of justice and require the expenditure of unnecessary judicial time.

[67] Accordingly, I grant a Final Order on the terms reflected in the revised Draft Order submitted by the applicant on April 24, 2015 in paragraphs 1, 2, 3 (subject to the $30,000 being deposited on or before September 15, 2015), 4 (subject to the discharge being obtained on or before September 15, 2015 and the respondent’s first name in the fourth sentence to be deleted and replaced by “the respondent”), 5, 6 (subject to the date being changed to September 15, 2015), 7 (subject to the date in the third sentence being August 31, 2015) , 8 and 9.

[68] In addition, I order that the respondent shall not receive the $30,000 in settlement funds unless she provides a waiver of all appeal rights or until all pending and future appeals or leave to appeal are determined.

[69] Mr. Feldman is to file the Draft Order of Justice Graham dated February 26, 2015, with the clerk of this court with the entry of such Order to be expedited. The approval of the respondent is dispensed.

[70] This matter should have been resolved on February 26, 2015 or soon thereafter once the respondent had an opportunity of satisfying herself as to the sufficiency of the releases to be contained in any settlement document prepared by the applicant. From the court’s perspective, the only additional costs that have been incurred was in corresponding with the court. As such, notwithstanding the temptation to order otherwise, there shall be no further costs other than as reflected in paragraph 8 of the Draft Order.

Justice R. Kaufman

Released: July 22, 2015