ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 117-2014

DATE: 2015/10/23

BETWEEN:

CHANTAL SÉGUIN
Applicant

– and –

FRANK SCHEFFER
Respondent

Pierre Ranger, for the Applicant

Richard Kargus, for the Respondent

HEARD: October 9, 2015 (at L’Orignal)

REASONS FOR decision

Kane J.

[1] Pelletier J. on September 9, 2015, ordered a 2-hour hearing today regarding the following issues:

(a) Mr. Scheffer’s motion for contempt against Ms. Séguin and or her counsel for the alleged inability of the respondent to conduct questioning of Ms. Séguin;

(b) Mr. Scheffer’s claim of costs incurred in relation to his unsuccessful attempts to question Ms. Séguin;

(c) The costs of the September 9, 2015 ineffective trial management conference. as this proceeding was not trial ready. Implicit in this issue is who is responsible for failure of this proceeding not being ready for the September 21 to October 2, 2015 trial session; and

(d) To permit the court to exercise management as to issues of disclosure, obligations and set deadlines.

[2] Ms. Séguin by motion today seeks her costs for the failed TMC on September 9, 2015, and her costs of today.

Reasons September Trial Did Not Proceed

[3] A settlement conference was held on June 29, 2015. Pursuant to that endorsement:

(a) A final order was to issue as per Minutes of Settlement;

(b) A final settlement conference was to be conducted on September 9, 2015; and

(c) The remaining issues were to proceed to trial between September 21 and October 5, 2015.

[4] On August 28, 2015, Mr. Scheffer advised Ms. Séguin that he would be away on business and therefore unavailable for the scheduled final settlement conference of September 9, 2015.

[5] On September 1, 2015, Mr. Scheffer’s counsel wrote to the court and advised that he and his client were unavailable on September 9, 2015, and sought an adjournment thereof until the completion of questioning.

[6] Both parties agreed the final settlement conference on September 9 would not be useful. Ms. Séguin requested however that September 9, 2015 proceed as the trial management conference. The court directed the September 9 conference to proceed.

[7] Despite their previous unavailability, Mr. Scheffer and his counsel attended court on September 9, 2015.

[8] Mr. Scheffer’s counsel on September 9, 2015 advised the court that:

(a) The primary reason why the trial could not proceed between September 21 and October 5, 2015 was because Mr. Scheffer would be away on business from September 13 until September 30, or possibly October 5, 2015;

(b) A second reason why the trial could not proceed was because Ms. Séguin had repeatedly been asked for but had not provided dates to be questioned. Such questioning was needed before trial. Mr. Scheffer sought costs for his attempts to set up questioning of Ms. Séguin; and

(c) A third reason a trial adjournment was required was because Mr. Scheffer had served a motion for contempt against Ms. Séguin or her counsel, for failure to permit his questioning of Ms. Séguin. This contempt motion was originally returnable on August 6, 2015, but could not proceed as the applicant’s counsel was unavailable. Mr. Scheffer wished to proceed with that motion.

[9] The court was also advised that Mr. Scheffer had filed a complaint with the Law Society regarding the conduct of applicant’s counsel.

[10] Pelletier J. on September 9, 2015, stated the reasons why this matter could not proceed to trial between September 21 and October 5, 2015, as ordered on June 29, 2015, are:

(a) Primarily, the proceeding was not trial ready as questioning had not yet occurred; and documentary production was incomplete;

(b) Mr. Scheffer had brought a motion for contempt against Ms. Séguin and/or her counsel; and

(c) Secondly, Mr. Scheffer was to be away on business during the trial dates of September 21 to October 5, 2015.

Subsequent To September 9, 2015

[11] The events following the September 9, 2015 conference include the following:

(a) Mr. Scheffer was away on business only between September 13 and 18, 2015;

(b) Mr. Scheffer filed nothing today to confirm the dates of his travel or to support his counsel’s statement that he returned unexpectedly from this business trip;

(c) Counsel for Mr. Scheffer today advised his motion for contempt would not be argued today. In response to what that meant, counsel for Mr. Scheffer advised he was seeking an adjournment of this contempt motion to some future date; and

(d) Mr. Scheffer did not file a motion for contempt and an affidavit returnable today as required under the rules.

[12] This court reminded the parties and counsel that compliance with court orders is not optional.

[13] Mr. Scheffer’s motion for contempt:

(a) Was originally returnable August 6, 2015;

(b) Was apparently served again on Ms. Séguin on September 4, 2015, returnable on October 9, 2015 and is based on the failure by Ms. Séguin to produce documents requested and provide dates of her availability to be questioned;

(c) Was presented as a necessity in Mr. Scheffer’s September 9, 2015 request to adjourn the upcoming trial;

(d) Was ordered and scheduled on September 9, 2015, to proceed as part of a 2-hour motion today; and

(e) Mr. Scheffer only today advised, without reasons, that such motion would not proceed today.

[14] Judges are responsible to manage court proceedings. That includes consideration of the expenditure of public resources.

[15] Mr. Scheffer’s election to not comply with the September 9, 2015 order to present and argue his contempt motion today results in the dismissal of that motion.

Document Disclosure Lists

[16] Questioning should occur after production of relevant documents by the party to be examined. Income tax returns and Notices of Assessments are required to be filed in support claims such as this. Mr. Scheffer failed to provide that full documentation until October 9, 2015, and only then at the request of the court. Ms. Séguin was late in her production of that same documentation.

[17] Ms. Séguin asked for specific document production from Mr. Scheffer on April 21, twice on May 12, May 28, May 31, June 5, July 2, 7, 15 and 20 and August 3 and 18, 2015.

[18] Ms. Séguin asked Mr. Scheffer to list what documents he requested she produce on July 15, August 3, 18 and 31, 2015 but received no response thereto.

[19] In preparing for this motion, the court noted each party’s repeated prior requests for documentation disclosure from the other party. This court accordingly on October 8, 2015, directed counsel to exchange a list of documents they require for the trial by noon on October 9, 2015, and to bring available documents requested with them today.

[20] Attached as Schedules A and B are the list of documents sought by each party in response to the above court direction. Many of the documents listed in Schedules A and B were requested months ago.

[21] Production of relevant documentation is an obligation under the rules and not discretionary.

[22] Support is one of the issues listed in the April and June 2014 pleadings and required production of standard documents such as income tax returns and Notice of Assessments which are still being requested one-and-one-half years later.

[23] At the request of the court, Mr. Scheffer during argument today emailed his 2014 income tax return to Ms. Séguin.

[24] Both parties have failed to produce relevant documents required by the rules and requested by the opposing party.

Document Production By Mr. Scheffer

[25] Mr. Scheffer is ordered to produce the documents listed in items 1 to 11 on Schedule B by November 4, 2015, as clarified below.

[26] Mr. Scheffer agreed to produce items 1 to 9 on Schedule B.

[27] Mr. Scheffer objected to production of items 10 and 11 as irrelevant to trial issues and now moot given the court’s adjournment of the trial on September 9, 2015, for reasons including his unavailability because of work outside Canada between September 21 and October 5, 2015.

[28] Item 10 as to passport entries since June 30, 2013, may reflect travel for pleasure and thereby potentially relate to Mr. Scheffer’s statement of expenses and his financial capacity. Such passport entries are accordingly potentially relevant and must be produced.

[29] Credibility will be an issue at trial. Counsel’s September 9, 2015 statement to court that the trial needed to be adjourned primarily because Mr. Scheffer would be working out of the country until September 30 or October 5, 2015, needs confirmation. Mr. Scheffer is to request a letter from his employer as to item 11 which is potentially relevant to Mr. Scheffer’s credibility.

[30] The item 11 letter from the employer should confirm whether the travel between September 13 and 18, 2015 was for employment or personal reasons by Mr. Scheffer and why such travel did not extend beyond September 18, 2015.

Document Production By Ms. Séguin

[31] Ms. Séguin agrees to produce items 1 to 10 on Schedule A and is hereby ordered to do so by November 4, 2015.

Questioning

[32] Mr. Scheffer submits his counsel requested a date to question Ms. Séguin on November 24, 2014, March 20, April 1, April 21 and June 4 and 11, 2015. There is no request to set a date for questioning in the applicant’s November 24, 2014 or April 21, 2015 correspondence.

[33] Counsel for Ms. Séguin on April 1, 2015 proposed examining Mr. Scheffer on April 20 or 21, 2015, and offered that she be examined on April 22 or 29, 2015.

[34] Ms. Séguin asked for available examination dates again from Mr. Scheffer on April 7, 2015.

[35] Mr. Scheffer on April 13, 2015, agreed to be examined on April 20 or 21, 2015, as suggested by Ms. Séguin. Ms. Séguin did not respond to or fix either of those dates to examine Mr. Scheffer.

[36] Counsel for Mr. Scheffer on June 4, 2015, proposed June 19, 2015 for examination of the parties. That date was not available for counsel for Ms. Séguin who stated on June 11, 2015 that he might become available to do it on June 16, 2015.

[37] Mr. Scheffer on June 11, 2015 stated the final date he was offering outside of court to be examined was June 22, 2015. June 22, 2015 was not accepted by Ms. Séguin to examine Mr. Scheffer.

[38] On June 12, 2015, Ms. Séguin advised she was only available to be examined on Wednesdays and proposed June 17 or 24, 2015, for her examination. Those dates were not accepted and no subsequent Wednesday was proposed by Mr. Scheffer to examine Ms. Séguin.

[39] Mr. Scheffer on August 28, 2015, asked Ms. Séguin to provide dates she was available to be examined to the end of September. He further advised he would seek court approval to examine two other unidentified individuals. Although requested to identify who these other individuals are, Mr. Scheffer did not reveal their names or the reason why their examination was necessary before today.

[40] Mr. Scheffer on September 1, 2015, repeated his request that Ms. Séguin advise what dates she was available to be examined.

[41] On September 4, 2015, counsel for Mr. Scheffer advised he had filed a complaint with the Law Society against counsel for Ms. Séguin which thereby placed applicant’s counsel in a position of conflict. Counsel for Mr. Scheffer advised that he accordingly would take no further communication from Ms. Séguin’s counsel.

[42] The above chronology indicates that:

(a) The court authorized questioning in October, 2014;

(b) Both parties offered and pursued dates for examinations during the period April throughout June, 2015;

(c) Neither party communicated about questioning dates during July and until August 28, 2015;

(d) Ms. Séguin made no attempt to examine Mr. Scheffer after mid-June, 2015;

(e) Ms. Séguin offered to be examined on Wednesdays and proposed June 17 or 24, 2015, to do so;

(f) Mr. Scheffer made symbolic requests for available dates to examine Ms. Séguin on August 28 and September 1, 2015. Those two requests over four days were symbolic as Mr. Scheffer advised on September 4, 2015 that he had filed a complaint to the Law Society based on Ms. Séguin’s failure to provide her availability dates to be examined; would no longer speak to opposing counsel and served his motion for contempt returnable October 9, 2015. Serving that motion effectively prevented examinations in September 2015; and

(g) Ms. Séguin failed to question Mr. Scheffer by September 9 or by October 9, 2015.

[43] The August 28 and September 1, 2015 requests by Mr. Scheffer for dates when Ms. Séguin was available to be examined should have been responded to.

[44] Mr. Scheffer was advised however on June 12, 2015, that Ms. Séguin was available to be examined on Wednesdays. Knowing that, Mr. Scheffer elected to not serve Ms. Séguin with a notice of examination and obtain a certificate of non-attendance in her absence with the resulting options.

[45] Ms. Séguin is responsible for not conducting her examination of Mr. Scheffer prior to September 9, 2015. That lack of questioning was one reason Pelletier J. determined this proceeding was not trial ready on September 9, 2015.

[46] Serving an appointment to question, requesting a case conference to schedule questioning or a motion to strike pleadings, together with a claim for costs, are all methods to schedule and conduct questioning in the face of delay by opposing party.

[47] The parties were in court on May 25, June 29 and September 9, 2015. The court if asked on those dates, or at a case conference, would have fixed dates for questioning. No such scheduling request was made by either party.

[48] Neither party used any of the above options.

[49] Parties should not be rewarded with costs if they fail to exercise available alternatives to scheduling questioning.

[50] Filing complaints with the Law Society does not advance a proceeding to trial.

[51] Both counsel are responsible for the fact questioning was not completed by September 9, 2015.

Questioning

[52] The court today required the parties and counsel to schedule dates for questioning. The dates ordered and scheduled with the Special Examiner are:

(a) November 11, 2015 to examine Ms. Séguin. She is to arrange for an interpreter to be present; and

(b) November 12, 2015 to examine Mr. Scheffer.

[53] The examination of Mr. Scheffer is scheduled for one-half a day.

[54] Ms. Séguin requests the court limit Mr. Scheffer’s questioning of her to one-half a day.

[55] Mr. Scheffer responded that he needs additional time regarding his claim that Ms. Séguin has alienated Chloe from her father as that child now refuses to see or communicate with him.

[56] Ms. Séguin replied that custody and access are not in issue, were settled pursuant to the June 29, 2015 Minutes of Settlement and cannot therefore constitute relevant questioning.

[57] Custody and access are issues pled in the Application and/or the Answer. Mr. Scheffer specifically pleads that the mother has alienated Chloe away from her father and orchestrated her current refusal to spend time with him. Mr. Scheffer further alleges that Aimee, whom he has custody of, has refused contact with the mother since December 2013 and is in counselling.

[58] The Minutes of Settlement state that:

(a) Each of the parties shall have sole custody of one child;

(b) Access to the children shall (until further order of the court) be restricted to the wishes of the child and subject to the times and duration of the child; and

(c) Chloe shall receive counselling as early as possible.

[59] The above terms of settlement indicate the issue of access is temporarily settled until and subject to further court order. There otherwise is no need for or meaning to the above phrase: “(until further order of the court)”. There is no final order as to access.

[60] Alienation by Ms. Séguin and what remedy if any should be granted in relation thereto remain issues in this proceeding in addition to the financial support issues. Alienation may lengthen the examination of Ms. Séguin. The court accordingly will not reduce the scheduled limit of one day to examine Ms. Séguin.

Order Pursuant To Minutes of Settlement

[61] The order to incorporate the June 29, 2015 Minutes of Settlement has been another subject of complaint between counsel. It remains outstanding since June 29, 2015.

[62] Counsel are to exchange their version of such draft order by October 30, 2015. The final wording thereof, absent consent, will be settled by the court on November 18, 2015. Each counsel will include their draft order as part of that conference brief.

Section 7 Arrears Payment

[63] On October 23, 2014, Mr. Scheffer by consent order was obligated to pay Ms. Séguin $439.54 in relation to a s. 7 expense. That liability remained unpaid until today, notwithstanding prior letters requesting its payment.

[64] Chloe has received orthodontic services, the majority of which Ms. Séguin has been obligated to pay. The Minutes of Settlement requires Mr. Scheffer to pay 73.33% of s. 7 expenses.

[65] In response to the court’s request, Mr. Scheffer today paid his above liability to Ms. Séguin, totalling $2,965.76. That payment includes his share of Chloe’s orthodontic expenses to and including the month of October 2015.

November 18, 2015 TMC

[66] A TMC will proceed as scheduled before Pelletier J. on November 18, 2015. The parties shall serve and file up to date TMC briefs by November 13, 2015.

Respondent’s Right To Question Ms. Bouillard and Ms. Provost

[67] Mr. Scheffer today disclosed the name of the third parties he seeks to question. They and their roles are:

(a) Ms. Bouillard is a child counsellor who was to provide such service to Chloe but has not yet provided such services to that child. On that basis, the court on October 9, 2015, denied any right to question this third party.

(b) Ms. Provost is a family counsellor and has provided such service to Chloe, to Ms. Seguin and to the two of them together.

[68] Mr. Scheffer is seeking an order to question these people:

(a) Without bringing a motion under R. 20(5); and

(b) Which requires service under R. 20(9) on the third parties sought to be examined.

[69] This request is accordingly refused.

$200,000 Co-Operators Life Insurance Policy

[70] The June 29, 2015 Minutes of Settlement require Mr. Scheffer to obtain such insurance coverage on his life with Ms. Séguin as named beneficiary.

[71] Mr. Scheffer is to provide Ms. Séguin with a copy of such insurance policy within two weeks from the date of this decision.

COSTS

[72] Neither party has been successful because both counsel have failed to advance this litigation in a timely and cost effective manner.

[73] The orders today as to:

(a) document production;

(b) dates to question each party;

(c) payment of Mr. Scheffer’s share of Chloe’s orthodontic expenses;

(d) Mr. Scheffer’s previous delay in payment of $15,000 by July 31, 2015 to Ms. Séguin for non-real estate assets as required by para. B of the parties June 29, 2015 Minutes of Settlement;

are all matters the parties through counsel were capable of and should have resolved to permit the orderly, timely and cost effective preparation of this proceeding for trial.

[74] Personal criticism of opposing counsel and impolite comments in correspondence is inappropriate and counterproductive to the resolution of the interests of counsel’s clients.

[75] On the above facts, Mr. Scheffer’s request for costs incurred:

(a) to schedule his examination of Ms. Séguin;

(b) for the failed September 9, 2015 TMC conference; and

(c) for today’s motion;

is dismissed.

[76] For similar reasons, Ms. Séguin’s cost motion for the failed September 9, 2015 TMC and for today’s motion is dismissed.

Kane J.

Released: October 23, 2015

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHANTAL SÉGUIN

Applicant

– and –

FRANK SCHEFFER

Respondent

REASONS FOR DECISION

Kane J.

Released: October 23, 2015