Bortnikov v. Rakitova, 2015 ONSC 550

COURT FILE NO.: FS-11-368230

DATE: 20150126

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Aleh Bortnikov, Applicant

AND:

Marina Rakitova, Respondent

BEFORE: Kiteley J.

COUNSEL: Aleh Bortnikov, self-represented Applicant

Eric Shapiro, for the Respondent

HEARD: November 17, 2014 and December 10, 2014

ENDORSEMENT AT TRIAL MANAGEMENT CONFERENCES

[1] The Applicant and Respondent married on August 9, 2002 and separated on February 7, 2011. The Applicant asserts that they started living together on January 21, 2002. The Respondent asserts that they started living together when they married. The Applicant will be 50 years old in May 2015 and the Respondent will be 54 years old in February 2015.

[2] The Respondent owns the shares in 1291937 Ontario Inc. (129), a corporation that carries on business as The Grand Motel which is located at 4624 and 4626 Kingston Rd. in Toronto. The key issues in this trial focus on the value of the real estate and the motel business, the equalization of net family property, and the Applicant’s claim for retroactive spousal support.

[3] The Respondent was previously married to Te-Zen Liu who lives in Duncan, British Columbia. According to the Respondent, she and Mr. Liu owned the motel from 1998 and she became the sole owner on November 10, 2001. In 2011, Mr. Liu began proceedings against the Applicant, the Respondent and the corporation alleging mortgage default.

[4] In an order dated September 27, 2012, in anticipation of Mr. Liu’s summary judgment motion, Mesbur J. vacated the trial date in the family law proceeding then set for November 19, 2012. She also ordered that if the summary judgment motion was not granted, then the civil case and the family case would be tried together on the family team.

[5] On October 2, 2013, Corbett J. released an endorsement arising from the summary judgment motion brought on behalf of Mr. Liu which he had heard December 18, 2012. Corbett J. dismissed the motion.

[6] On October 16, 2013 and April 16, 2014, Czutrin J. (then as Team Leader of the Family Law Team) held conferences in both actions. On May 13, 2014, Backhouse J. made an order permitting Mr. Liu to amend his statement of claim. On September 12, 2014, Czutrin J. held a settlement conference in both actions. All parties signed Minutes of Settlement in the Liu action.

[7] On October 27, 2014, Czutrin J. held a Settlement Conference/Trial Management Conference in the family law action in which he noted that the case required that a trial judge be assigned to address certain issues in advance of the trial:

There are issues related to (1) expert evidence to be called by Respondent; (2) The Applicant’s intention to call a number of witnesses and the manner he wishes to have their evidence presented as follows: Mr. Te-Zen Liu was a party in a civil proceeding CV-11-436272 now settled between Mr. Liu (formerly the Respondent’s husband). Mr. Bortnikov wishes to file his affidavit of May 3, 2012. The Respondent objects and wants Mr. Liu produced to give evidence and be cross-examined. (3) Mr. Bortnikov wishes to call Louise Maheu and Mr. Gagovski about issues that may not be relevant to the issues between the parties. Each party to provide “will say statements” from all witnesses by November 17, 2014. (4) with respect to Representative of “Business Krug” (indecipherable) are witnesses from Russia, not sure if they will qualify as experts but the Respondent wishes to have them potentially attend.

I refer this to Team Leader to assign trial judge, fix trial date and arrange date to rule on preliminary issues.

[8] When the matter came before me on November 17, 2014 in my capacity as Team Leader, I made the following endorsement:

TMC continued as directed by Czutrin J. We covered a number of issues and did not conclude. Mr. Bortnikov wants to call witnesses dealing with the apartment owned by the Applicant in Moscow. He must file the report, curriculum vitae, certificate of independence and a translation and I will consider whether they are admissible next time.

Mr. Shapiro has contacted Mr. Crawford who is the expert business valuator retained by Mr. Bortnikov whose evidence the Applicant does not intend to rely on at trial. There are some issues as to whether Mr. Crawford is at liberty to be retained by the respondent and whether his evidence is admissible at the request of the respondent. Mr. Shapiro will consider those issues.

I have made rulings on some other issues which will follow in a separate endorsement.

ORDER TO GO: TMC to continue before me December 10, 2014 at 10:00. Neither party needs to file further material. Mr. Bortnikov will confirm.

[9] Although I had indicated that neither party had to file additional materials for the continuation of the TMC, the Applicant filed a Form 17E Trial Management Conference Brief with two attachments; a Form 14A affidavit dated December 1, 2014 attached to which were 13 exhibits; a Form 13.1 Financial Statement sworn December 1, 2014; and a Form 13B Net Family Property Statement.

[10] On December 10, 2014, I made this endorsement:

Trial Management Conference continued. There are several complex issues that I will address in a separate trial management conference endorsement. I have enough information to set a trial date.

ORDER TO GO AS FOLLOWS: (1) Trial set for the week of March 30, 2015 for 15 – 17 days. (2) TMC before me on February 2, 2015 at 2:30 at which time list of issues and witnesses will be finalized. Further briefs and Financial Statements not required. (3) costs of all TMC attendances in the discretion of trial judge.

[11] This endorsement is intended to address all of the other trial management issues canvassed at both of those Trial Management Conferences.

Trial Management

[12] Rule 17(6) of the Family Law Rules indicates that the purposes of a trial management conference include the following:

(a) exploring the chances of settling the case;

(b) arranging to receive evidence by a written report, an agreed statement of facts, an affidavit or another method, if appropriate;

(c) deciding how the trial will proceed;

(c.1) exploring the use of expert evidence or reports at trial, including the timing requirements for service and filing of experts’ reports;

(d) ensuring that the parties know what witnesses will testify and what other evidence will be presented at trial;

(e) estimating the time needed for trial; and

(f) setting the trial date, if this has not already been done.

[13] Pursuant to rule 17(8), at a trial management conference the judge may, if it is appropriate to do so, make any of the following orders:

(a.0.1) make an order respecting the use of expert witness evidence at trial or the service and filing of experts’ reports;

(a.1) order that the evidence of a witness at trial be given by affidavit.

[14] In applying those rules, the context established by rule 2(2), (3) and (4) is important, namely as follows:

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

(3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

(4) The Court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.

(5) The court shall promote the primary objective by active management of cases, which includes, . . .

(d) setting timetables or otherwise controlling the progress of the case. . . .

[15] In his endorsement dated October 27, 2014 Czutrin J. contemplated that I would assign a trial judge early in order that some rulings could be made in advance. At the TMC on November 17, 2014, I expected that I would be the trial judge. However, at the TMC on December 10, 2014, the Applicant and counsel for the Respondent reviewed the current settlement positions with a view to exploring settlement. Settlement was not possible and the discussion reverted to trial management functions. Since I have been privy to the state of settlement negotiations, I cannot be the trial judge. I will advise the parties at the next TMC whether the trial judge will be identified in advance of the trial.

Issues for Trial

[16] Pursuant to rule 17(6)(c) and (d), it is essential that both parties understand what the issues will be at trial and equally as important, what issues will not be considered by the trial judge. As indicated in the endorsement dated December 10, 2014, at the next TMC I expect to finalize the list of issues and witnesses. At this TMC, one of the key issues was clarified.

[17] The Applicant had at some point claimed that he was a beneficial owner of the shares in 1291937 Ontario Inc. (129). Mr. Shapiro pointed out answers to questions that the Applicant had made on an earlier occasion and statements made at the TMC on November 17 and this date. On

the basis of those answers on questioning and the position taken at TMC’s, the Applicant agrees and acknowledges that, vis-à-vis the Grand Motel and 129:

(a) he asserts a claim only for the equalization of net family property;

(b) he does not assert a claim as owner of the Grand Motel or as owner of the shares of 129;

(c) he does not seek to enforce the terms of a written agreement between the Applicant and the Respondent dated March 22, 2010;

(d) although not specifically discussed at the TMC, it follows from (a), (b) and (c) that the Applicant does not seek an order that the Respondent pay to the Applicant 40% of the rent income received by the Grand Motel commencing February 7, 2011;

(e) he does not assert a claim under the Ontario Business Corporations Act for an oppression or any other remedy;

(f) because he is not asserting an ownership claim, he cannot seek a remedy for sale under the Partition and Sale Act;

(g) as a result of his claim for an equalization of net family property, he will seek a judgment for the amount of the equalization payment.

Report by Wayne Crawford

[18] Rule 23(23) of the Family Law Rules indicates that a party who wants to call an expert witness at trial shall serve on the other party a report signed by the expert at least 90 days before the start of the trial. Pursuant to rule 23(25), the report must contain the expert’s name, address and area of expertise, the expert’s qualifications and employment and educational experiences in the area of expertise and the substance of the expert’s proposed evidence. Pursuant to rule 20.1, the expert must also sign the certificate that s/he will provide opinion evidence that is fair, objective and non-partisan; to providing opinion evidence that is related only to matters that are within the expert’s area of expertise; and to provide such additional assistance as the court may reasonably require to determine a matter in issue. Pursuant to rule 20.1(2), the duty of the expert as described in rule 20.1 prevails over any obligation owed by the expert to the party.

[19] Wayne Crawford is a valuator who was retained in 2011 by the lawyer who was then acting for the Applicant.

[20] Crawford prepared a report dated September 6, 2011 as to the estimated market value of the property known as 4626 Kingston Rd. as at August 9, 2002, February 7, 2011 and September 6, 2011. That report was served on the Respondent.

[21] The Applicant does not agree with the opinion of Crawford as to the estimated market value at any of those dates. The Applicant does not intend to call Crawford as a witness at the trial.

[22] The Respondent does agree with the opinion of Crawford as to the estimated market value. In August 2014, counsel for the Respondent asked Crawford to prepare an update of the valuation as at February, 2011 and September, 2011 to reflect the complete 2011 unaudited financial statements for the company and that year’s corporation income tax return.

[23] At the TMC on November 17, 2014, I raised these issues. The first was whether Crawford’s reports dated September 6, 2011 and September 19, 2014 had been served along with a curriculum vitae as required by rule 23(25), and a certificate of independence as required by rule 20.1. The second was whether counsel for the Respondent could retain Crawford given that he had earlier been retained by the Applicant. While it was not before me, the Applicant took the position that in his retainer agreement with Crawford, it was agreed that the report was provided only for the Applicant’s purposes. Mr. Shapiro confirmed on November 17 that he had not asked the Applicant to provide a waiver of that term of the agreement. Mr. Shapiro took the position that “there was no property in a witness” and he was free to contact Crawford and retain him (assuming Crawford was willing).

[24] At the TMC on December 10, 2014 Mr. Shapiro relied on these cases: St. Elizabeth Home Society v. Hamilton (City) 2004 9595 (ON SC) and Conceicao Farms Inc. v. Zeneca Corp. 2006 25345 (ON CA). Both those cases do speak to the proposition that “there is no property in a witness” but neither addresses the circumstances here in which counsel for the Respondent has retained the expert who prepared the original report at the request of counsel for the Applicant and whether there are professional or admissibility issues as a result of the subsequent retainer.

[25] On December 10, 2014 Mr. Shapiro also advised that Crawford had signed the certificate of independence (although Mr. Shapiro had modified it to suit the circumstances) and that he intended to summons Crawford as a witness. Mr. Shapiro advised that his instructions were to call Crawford as his witness as to the market value at date of marriage and as of valuation date. He is aware that if his client has to wait until the trial for a ruling as to whether the evidence of Crawford is admissible, his client risks a mistrial with significant costs implications. Mr. Shapiro asked that, in advance of the scheduled trial date, the trial judge be appointed and asked to make a ruling as to the admissibility of the evidence of Crawford. Mr. Shapiro pointed out that, without Crawford’s evidence, there will not be any opinion evidence as to the value of the most significant asset in the net family property calculation.

[26] Based on rule 17(6)(c), (c.1), (d) and rule 17(8)(a.0.1), I may have the authority as the Trial Management Judge to hear submissions and make a ruling as to the admissibility of the evidence of Crawford that would be binding on the trial judge. Given the central role that evidence will play in the trial, I will defer to the trial judge. I agree with Mr. Shapiro that it would be preferable to have the trial judge make such a ruling at an early opportunity. I will return to this issue at the continuation of the TMC on February 2, 2015.

[27] If the evidence of Crawford is admissible, his reports are not admissible unless the trial judge so rules.

Value of the Grand Motel (real estate and shares in 129) as at date of marriage August 9, 2002

[28] Both parties will consider whether an agreement may be reached that for purposes of trial, the Grand Motel (real estate and shares in 129) should be valued at $1,450,000 at the date of marriage. If the parties arrive at that agreement it will be on the basis that:

(a) the Respondent agrees with the value at date of marriage as calculated by Wayne Crawford in his report dated September 6, 2011;

(b) the Applicant does not agree with the value at date of marriage as calculated by Wayne Crawford but nonetheless agrees, based on his personal knowledge, that that is the correct value. The Applicant has been licensed as a real estate agent since November 8, 2013.

[29] If agreement is reached as to the value of the Grand Motel as at August 9, 2002, that agreement will not likely include an agreement as to the portion of the building that is categorized as a matrimonial home (and the value thereof) for which the Respondent is not entitled to a pre-marital deduction.

Evidence at trial

[30] As indicated by Czutrin J. in his endorsement dated October 27, 2014 there are some issues with respect to the witnesses that the Applicant proposes to call:

(a) Te-Zen Liu: Mr. Liu swore an affidavit dated May 3, 2012 in the civil proceedings. The Applicant proposed that that affidavit be filed and relied on by the trial judge. He did not intend to call him as a witness because he could not afford to pay for his travel and accommodation expenses to attend from B.C. Counsel for the Respondent objected.

As indicated above, pursuant to rule 17(6)(b) and (c) and rule 17(8)(a.1), I have the authority to make a ruling as to the method of presentation of evidence that will be binding on the trial judge. The Applicant attached a copy of the affidavit as Exhibit K to his affidavit sworn December 1, 2014. The affidavit of Liu consists of 102 paragraphs over 24 pages. It is made supplementary to his affidavit sworn January 25, 2012 and in response to the affidavit of Rakitova sworn February 25, 2012 and of Bortnikov sworn February 24, 2012. It includes evidence that is irrelevant to the trial of this family law action. That is not the nature of affidavit evidence contemplated by the Family Law Rules. I agree with counsel that the evidence is not admissible in that fashion and that the Applicant is required to provide Liu’s evidence in a manner that is admissible.

(b) Tom Gagovski: after the separation, the Applicant lived at the jointly owned cottage at 22 Pine Grove Dr. in Tiny Township. The Respondent obtained an order for sale of the property. Mr. Gagovski was hired by the Respondent and he provided an affidavit that was relied on by the Respondent in the motion for an order for sale. The Applicant did not appeal the order for sale and the property has been sold. The Applicant intends to call Gagovski in support of his allegation that Gagovski was stalking him, and he takes the position that his evidence is relevant to retroactive spousal support, equalization of net family property, “bad faith” and costs. I pointed out to the Applicant that “bad faith” is not a stand-alone cause of action and is not an issue for the trial. Counsel for the Respondent takes the position that his evidence is not relevant to any issue at the trial. During the trial, the trial judge will be asked to make a ruling as to relevance and admissibility.

(c) Louise Maheu: Gagovski obtained information from her that was referred to in Gagovski’s affidavit. Counsel for the Respondent takes the position that her evidence is not relevant to any issue at the trial. During the trial, the trial judge will be asked to make a ruling as to relevance and admissibility.

(d) Michael Sheyman: is the corporate accountant for 129 and he prepared the Applicant’s 2011 income tax return. Mr. Shapiro does not intend to call him as a witness. The Applicant advised that Mr. Sheyman has not responded to his inquiries. The Applicant will arrange to serve him with a summons to attend.

(e) Natalia Raiko: Raiko witnessed the signing of a domestic contract dated March 22, 2010. In her Answer, the Respondent alleges duress in relation to this contract. The Applicant intends to call Raiko in connection with that allegation as well as in relation to the date of cohabitation. As indicated above, the Applicant does not seek any remedy pursuant to this contract and accordingly, counsel for the Respondent takes the position that her evidence on that subject is not relevant or admissible. During the trial, the trial judge will be asked to make a ruling as to relevance and admissibility.

[31] It is apparent that the position that the Applicant takes on such issues reflects his lack of knowledge and understanding of the legal and evidentiary issues that will arise in a trial. I have urged him to retain a lawyer for trial but he will continue to represent himself.

[32] There is an additional challenge shared by the Applicant and counsel for the Respondent with respect to the value of the apartment in Moscow. The Applicant takes the position that the Respondent owns 100% of the apartment. The Respondent takes the position that she is the legal owner but she holds in trust for her mother who is the beneficial owner and who resides there. She will call her mother as a witness at the trial. The onus is on the Respondent to prove both ownership and value.

[33] Aside from ownership, there is an issue as to value of the apartment. Counsel for the Respondent has provided a document (which has been translated) on which he relies to establish value. In addition, Mr. Shapiro intends to try to rely on municipal documents (which appear to be similar to local municipal tax records). During the trial the trial judge will be asked to rule as to whether they are admissible as business records.

[34] The Applicant retained Aktivnye Business Konsultasii to prepare valuations of the apartment in Moscow. The Applicant has provided valuations at 2011 and 2013. At the TMC on November 17, 2014, I directed the Applicant to serve a report, curriculum vitae and a certificate of independence pursuant to rule 20.1 and provide translations of each of them. As indicated above, the Applicant provided an affidavit sworn December 1, 2014 attached to which were Exhibits which he described as follows:

Exhibit C: Report of Market Value of apartment located at 60 Volokolamskoe Shosse, unit 2, apartment 89, Moscow (and translation)

Exhibit D: Agreement between Applicant and Aktivnye Business Konsultasii dated November 22, 2011 regarding evaluation (and translation)

Exhibit E: Certificate of the Twelfth Integrated Rating of leading appraisal companies and groups in 2008 (and translation)

Exhibit F: Certificate of Rating of Appraisal Companies of Russia dated June 6, 2009 (and translation)

Exhibit G: Certificate of Compliance ISO 9001-2008 dated May 17, 2010 (and translation)

Exhibit H: Certificate of Accreditation in evaluation services dated June 15, 2011 (and translation)

Exhibit I: Certificate of Accreditation dated February 27, 2013 issued by Ministry of Property Relations of Moscow Region (and translation)

Exhibit J: Certificate of Rating of Business Potential of Appraisal Companies of Russia dated July 1, 2013 (and translation).

[35] The Applicant hopes that the foregoing will satisfy the trial judge and that the report of the market value of the apartment will be accepted by the trial judge. He does not intend to call as a witness anyone involved in the preparation of those documents.

[36] Counsel for the Respondent objects to the filing of such reports at the trial; takes the position that the report as of 2013 is irrelevant; and takes the position that the author of the reports is not a person who would be recognized as an expert in Ontario who would be permitted to give opinion evidence.

[37] As can be seen, on the issue of the value of the apartment in Moscow, there are significant issues as to admissibility on which the trial judge will be asked to rule.

[38] Subject to admissibility issues and finalization at the next TMC, the Applicant intends to call the following witnesses at trial:

Witness

Issue

Exam In chief

Cross- Exam

Applicant

All issues

2 days

1 – 2 days

Te-Zen Liu – will not be called as a witness

Grand Motel

N/A

N/A

Michael Sheyman corporate accountant

Corporate accounting Records

4 hours

½ day

Yan Bortnikau son of Applicant

Income during marriage; residence of Applicant after separation etc.

30 minutes

30 – 60 Minutes

Dzianis Bortnikau daughter of Applicant

Same as Yan

30 minutes

30 – 60 Minutes

Natalia Raiko

Involvement in domestic contract dated March 22, 2010; date of cohabitation in 2002

Tom Gagovski

22 Pine Grove Dr. Tiny Township

Louise Maheu

22 Pine Grove Dr. Income of Applicant

Applicant does not intend to call a witness but wants to rely on the documents provided by Aktivnye Business Konsultasii

Value of apartment in Moscow which Applicant asserts is beneficially and legally owned by the Respondent

N/A

N/A

TOTAL ESTIMATED TIME: 6 – 7 days

[39] The Applicant had included the Respondent on his witness list. Mr. Shapiro has given an undertaking to call the Respondent as a witness at the trial; the Applicant will have the opportunity to cross-examine the Respondent.

[40] Counsel for the Respondent intends to call the following witnesses at the trial:

Witness

Issues

Exam in chief

Cross- Exam

Respondent

All issues

2 days

1 – 2 days

Wayne Crawford Business valuator if evidence is admissible

Value of the Grand Motel at date of marriage and at valuation date. Submissions as to admissibility: ½ day + ruling = 1 day

½ day

½ day

Galina Rakitova mother of Respondent

She is the owner of apartment in Moscow; Russian interpreter

½ day

½ day

TOTAL ESTIMATED TIME: 7 DAYS

[41] The duration of the trial is estimated as follows:

Evidence on behalf of the Applicant

6 – 7 days+

Evidence on behalf of the Respondent

7 days

Oral submissions (subject to ruling by the trial judge that written submissions are required)

2 days

TOTAL

15 – 17 days

Other Issues:

[42] Mr. Bortnikov had filed a Trial Record which contained inappropriate documents. I noted that on the Trial Record and directed that he replace it.

[43] In his endorsement dated October 27, 2014, Czutrin J. directed each party to provide “will say statements” from all witnesses. The Applicant provided a “will say statement” for himself, Liu (based on the affidavit sworn May 3, 2012), his son Yan, his daughter Dzianis, Gagovski, Maheu, Sheyman, Raiko and the Respondent. Based on my review of those documents, the Applicant has included what he thinks the witness will say. It does not appear that he has reviewed those statements with the prospective witnesses. Indeed, as indicated above, Sheyman is not responding to him so he has clearly not been consulted. It seems that the Applicant does not understand that the contents of a “will say statement” is not what he thinks the witness will say but what the witness confirms that the witness will say.

[44] A “will say statement” is intended to give notice to the other party as to the substance of the evidence in order that the other party not be surprised by the evidence and an adjournment of the trial is caused. To accomplish that objective, for any witness who is co-operative, the Applicant must provide a will-say statement signed by the witness. The Applicant is not required to provide a will-say statement for a witness who is not co-operative, for example, Sheyman.

[45] The Respondent has not provided a will-say statement for Crawford but she is not required to do so because the reports replace the need for a will-say statement. The Respondent is required to serve a will-say statement of her mother along with a translation.

[46] The Applicant and counsel for the Respondent prepared Form 13B Net Family Property Statements. A net family property worksheet is typically prepared as a result of collaboration by counsel for both parties and illustrates where the differences lie. It is unlikely that such collaboration exists in this case. I encourage the Applicant to obtain legal advice as to the content of the worksheet.

[47] In his material for these Trial Management Conferences, the Applicant has included a statement of “undisputed facts” some of which are clearly disputed. I encourage the Applicant to obtain legal advice as to the content of “undisputed facts” so that he does not inappropriately include facts which are the subject of dispute at the trial.

ORDER TO GO AS FOLLOWS:

[48] Trial remains set for the week of March 30, 2015 for 15 – 17 days.

[49] The Trial Management Conference will continue before me on February 2, 2015 at 2:30. The agenda will include the following:

(a) review of this endorsement;

(b) finalize list of issues for trial;

(c) finalize list of witnesses for trial;

(d) appointment of trial judge and discussion of arrangements as to whether the issue of the admissibility of the evidence of Crawford may be resolved in advance of the trial date;

(e) whether further Trial Management Conference is required before the trial date and if so, setting that date.

[50] By February 23, 2015, the Applicant shall serve and file Form 13.1 Financial Statement and Form 13B Net Family Property Statement.

[51] By February 25, 2015, the Respondent shall serve and file Form 13.1 Financial Statement and Form 13B Net Family Property Statement.

[52] By February 27, 2015, the Applicant shall serve and file a Trial Record in accordance with rule 23(1) of the Family Law Rules. Rule 23(1) requires that the trial record include “any order relating to the trial”. In this case, the Applicant shall include in the Trial Record any order in this case and any order in CV-11-436272 that is relevant to this case.

[53] By March 23, 2015 the Applicant shall:

(a) serve (but not file) a will-say statement signed by any witness he intends to call who will co-operate in signing such statement;

(b) serve and file a brief that contains all documents on which he or any of his witnesses proposes to rely provided that the brief contains an index; each section has a tab; all pages within a tab are in chronological order and are paginated;

(c) serve and file a net family property worksheet;

(d) serve and file an opening trial statement attached to which is the draft order that the Applicant will ask the trial judge to make at the conclusion of the trial.

[54] By March 25, 2015 the Respondent shall:

(a) serve (but not file) a will-say statement in Russian signed by Galina Rakitova, together with a translation into English;

(b) serve and file a brief that contains all documents on which she or any of her witnesses proposes to rely, provided that the brief contains an index; each section has a tab; all pages within a tab are in chronological order and are paginated;

(c) serve and file a net family property worksheet;

(d) serve and file an opening trial statement attached to which is the draft order that the Respondent will ask the trial judge to make at the conclusion of the trial.

[55] No document included in a brief of documents is admissible. The trial judge will be asked to rule on the admissibility of any document on which either party proposes to rely.

[56] Pursuant to rule 17(6)(b) and (c) and rule 17(8)(a.1), the affidavit of Te-Zen Liu sworn May 3, 2012 is not admissible at trial. The Applicant is not permitted to rely on that affidavit. That affidavit may be used only in cross-examination of the witness if the witness attends at the trial.

[57] The Applicant and Respondent must provide certified translations of any document originally created in the Russian language.

[58] The Trial-Co-ordinator will arrange for a Russian interpreter for the evidence of Galina Rakitova which is expected to be heard during the week of April 6, 2015, with the expected date to be confirmed at the outset of the trial by the trial judge.

Kiteley J.

Date: January 26, 2015