Court File and Parties
COURT FILE NO.: FS-11-367261
DATE: 2015-12-11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Segal Adler, Applicant
AND:
Kerry Adler, Respondent
BEFORE: Kiteley J
COUNSEL: Donna Wowk, for the Applicant
George Karahotzitis and Patrick Schmidt, for the Respondent
HEARD: December 10, 2015
ENDORSEMENT
[1] This is a motion on behalf of the Respondent to adjourn the trial date from January 18, 2016 to April or May of 2016. For the reasons that follow, the motion is dismissed.
[2] The parties married in 1996 and have children born in 1997, 1999, 2002 and 2004. The second eldest has special needs. The date of separation appears to be in December 2010.
Procedural History
[3] The Application was issued on March 8, 2011. The issues in the case include custody, child and spousal support, equalization of net family property, exclusive possession of homes and related relief.
[4] The first case conference was held on April 14, 2011. There have been at least 22 events involving 10 judges including extensive involvement of Justice Czutrin.
[5] As a result of a motion before her, Conway J. signed a consent order dated October 16, 2014, in which she set the trial for April 20, 2015 for 10 days. The consent order also provided that the Respondent would pay $50,000 per month as undifferentiated support; he would pay $100,000 on two occasions within 3 months; he would continue to pay all section 7 expenses; all issues raised in the motion and specifically retroactive support were adjourned to the trial judge; the Respondent would deliver his expert’s valuation report calculating his business interests by November 21, 2014; the Applicant would attend for questioning by January 31, 2015; the Respondent would attend for questioning on his undertakings; the Applicant would deliver an expert report in response to the Respondent’s expert’s valuation report by February 15, 2015; Respondent would deliver reply report by March 21, 2015; costs were reserved to the trial judge. Justice Conway also included in her endorsement that counsel would schedule a SC/TMC at a mutually agreeable time at the beginning of April at which time all remaining steps will have been completed.
[6] Kruzick J. made a consent order appointing Linda Chodos and Dr. Susan Walker-Kennedy to conduct a s. 30 assessment.
[7] Perkins J. signed a consent order dated March 19, 2015 which provided as follows:
Trial adjourned to January 18, 2016 for 12 to 15 days.
The parties shall attend for mediation with Alf Mamo on a date to be agreed upon by counsel for the parties.
Respondent continue to pay $50,000 per month and all section 7 expenses.
All issues on the motions that were before Conway J. on October 16, 201 4 adjourned to be dealt with by the Trial Judge.
The timelines for the delivery of expert reports as contemplated in the order of Conway J. dated October 16, 2014 shall be modified as necessary and as agreed to by counsel or as ordered by the court.
The Applicant shall attend for the completion of her questioning on dates to be agreed.
Counsel shall schedule a settlement conference/trial management conference at a mutually agreeable time during the month of December 2015.
Reasons for the Adjournment
[8] The Respondent asks that the trial be adjourned to April or May, 2016 for these reasons.
[9] The s. 30 assessment was completed and the parties attended a disclosure meeting in August. The Respondent agreed with the recommendations but the Applicant did not. As a result, Ms. Chodos is preparing the written report which she committed to doing within 6 weeks of the Respondent paying the retainer, or early in January.
[10] The Applicant was questioned briefly on January 23, 2015 and again on December 3, 2015. She has given approximately 70 undertakings, one of which is whether she will be serving further expert reports for trial. The questioning was adjourned pending the receipt of undertakings.
[11] For personal reasons known to counsel for the parties, the Respondent’s expert will not be able to deliver his reply to the responding report of Andrew Freedman nor will he be able to deliver his costs of disposition report until sometimes in January and may not be available for trial in January.
[12] On November 23, 2015, Applicant’s counsel requested further questioning of the Respondent in relation to answers to his undertakings, his expert’s reports and the s. 30 assessment.
[13] A settlement conference has not been held but is scheduled for January 11, 2016.
[14] The Respondent takes the position that he will suffer prejudice if an adjournment is refused because a determination of the custody and access issues cannot be made on the merits in the absence of an assessment report and questioning in relation to those issues; the Respondent will be forced to proceed to trial without satisfaction of approximately 70 undertakings or having the opportunity to complete the questioning of the Applicant on the financial issues; expert reports are necessary to support his position and will assist the trier of fact.
[15] The Respondent takes the position that the Applicant will not suffer any prejudice if a brief adjournment is granted.
[16] The Applicant points out that it was the Respondent who requested the adjournment in March. She said that she agreed to adjourn subject to mediation in the interim. Mediation was scheduled but it had to be cancelled because of the eleventh hour delivery by the Respondent of additional expert reports by the fourth valuator he had retained. She asserts that the reasons for delaying the trial are without merit and intended to delay. She takes the position that she is prejudiced by the delay because of breaches of the order requiring the Respondent to pay s. 7 expenses and the looming deadlines. She also raises concerns about the child born in 1999 who at age 17 has serious emotional and education issues that must be addressed on an urgent basis.
[17] The Respondent’s counsel filed an affidavit of his law clerk in response on the issue of s.7 expenses in which the law clerk, on information and belief from the respondent, takes the position that there are no outstanding s. 7 expenses and the issues with their son are not urgent or are under control.
[18] Counsel for the Respondent relies on the decisions in Griffin v. O’Brien 2006 CanLII 413 (ON CA), [2006] 22 R.F.L. (6th) 134 (O.C.A.); Graham v Vandersloot 2012 ONCA 60; and Ariston Realty Corp. v. Elcarim Inc., 2007 CarswellOnt 2371 (Ont. S.C.J.)
Analysis
[19] I agree that rule 52.02 of the Rules of Civil Procedure applies by virtue of rule 1(7) of the Family Law Rules and that I have the jurisdiction to postpone a trial to such time as is just. I agree that the exercise of discretion in granting an adjournment depends on the specific circumstances of the case. That discretion must be exercised in accordance with the principles of fairness and natural justice. I acknowledge the perspective of Perell J. that courts should tend to be generous rather than overly strict in granting indulgences, particularly where the request would promote a decision on the merits, because it is in the public interest that whatever the outcome, a litigant should perceive that he or she had their day in court and a fair chance to make out their case.
[20] This is not a case where discretion should be exercised generously. The Respondent has twice consented to an order for a specific trial date with a specific timetable designed to achieve it. The Respondent has not complied with the timetable in either order. The explanations for non-compliance are unacceptable. If he had promptly paid the assessor the retainer to write the report, it would be available by now. It is the Applicant who does not agree with the assessor’s recommendations so she is more prejudiced in proceeding and yet she is willing to do so. The report will be available in early January. I am not satisfied that either party has a right to question on the conclusions and recommendations in a s.30 assessment.
[21] The Respondent has had four valuators. The report he delivered in the fall caused the mediation to be adjourned. The Applicant has delivered her responding report. What remains is the reply report. But counsel for the Applicant may agree to late delivery of the report and if not, the lack of it may circumscribe only a small portion of the expert’s testimony at trial. The personal circumstances of the fourth valuator are insufficient to cause an adjournment of the trial. The time needed to prepare a costs of disposition report is irrelevant. If the Respondent intended to deliver such a report, it was due no later than October 18, 2015 and there is no explanation for it having not been delivered months ago.
[22] The Applicant attended for questioning in January and then was asked in November 2015 to re-attend. There is no explanation for not having continued it long before November. The Respondent has lost the right to use the continuation of questioning as a reason to adjourn the trial. The Applicant has given undertakings. She is obliged to answer them.
[23] While counsel for the Applicant had indicated in November that further questioning of the Respondent was required, that was not pursued before me and is not an impediment to the trial date.
[24] The cases to which Mr. Karahotzitis referred are in different fact situations. In Griffin, the Court of Appeal held that the self-represented litigant was denied the opportunity to fairly present his case on the issue of his income. In Graham, the plaintiff sought a six month adjournment of the trial because she did not have up-to-date medical reports to prove her claim for damages. The motions judge refused the adjournment and consequently the trial judge dismissed the claim. The Court of Appeal held that the overall interests of justice called for a decision of the real matter in dispute and an adjournment was required to accomplish that in circumstances in which the defendant had admitted liability and there was no prejudice to the defendant. In Ariston, the Master held that the self-represented litigant had lost their right to examine for discovery the plaintiff and defendants by counterclaim. On appeal, Perell J. held that the right to examine the opponent and the right to an adjournment to properly prepare and present a case are all important elements of natural justice.
[25] In this case, the Respondent has been indulged when the trial was postponed from April 2015 to January 2016. He has failed to comply with the consent order that would have ensured preparedness. If now he and his counsel are in the position of having to work vigorously to do what has to be done to compensate for what he hasn’t done, that does not engage the rules of natural justice.
[26] I am satisfied that the Applicant will suffer prejudice if the trial is adjourned again. I will not attempt to decipher who is correct as to whether s. 7 expenses are outstanding or not. However, the exchange of emails between the parents demonstrates that the circumstances of the 17 year old need resolution. There is prejudice both to the Applicant and to that child if there is further delay, particularly when school decisions must be made. In addition, it is not in the public interest to condone the failure of a litigant to comply with the expectations of a trial not once but twice. As indicated in rule 2(2), the primary objective of the rules is to enable the court to deal with cases justly which includes ensuring that the procedure is fair to all parties. The court is required to promote the primary objective in a number of ways including setting timetables or otherwise controlling the progress of the case. The rules of natural justice apply to both the Applicant and the Respondent. In this case, it would be contrary to the primary objective, not in the public interest and violate the Applicant’s rights to natural justice if the trial was again delayed for the reasons identified by counsel on behalf of the Respondent. Unless the parties consent, I will not postpone the trial.
[27] As the endorsement of Perkins J. indicated, the parties consented to an order that there would be a settlement conference/trial management conference in December, 2015. It seems that both counsel ignored that expectation and have only recently scheduled a TMC for January 11, 2016. It is a rare case that is listed for trial for 12 to 15 days without having had a TMC that identifies the issues and the witnesses to be called. In the absence of the trial scheduling endorsement form, I intend to establish expectations for this trial. However, counsel are experienced and well informed as to the court’s expectations and that omission can be addressed as indicated below.
[28] The Applicant is successful on this motion and is presumed entitled to costs. Counsel have many other things to focus on, so, instead of calling for submissions as to the amount of costs, I will make an order as to costs based on the effort I perceived was necessary and appropriate for this motion.
ORDER TO GO AS FOLLOWS:
[29] Motion by Respondent to adjourn the trial set for January 18, 2016 is dismissed.
[30] Parties and counsel shall attend a settlement conference/trial management conference on January 11, 2016 at 2:30 p.m.
[31] Counsel shall serve and file settlement conference/trial management conference briefs no later than Thursday January 7, 2016 at 4:30 p.m.
[32] Pursuant to rule 1(7.2) of the Family Law Rules:
(a) by January 5, 2016 each party shall serve and file Form 13.1, 13B and 35.1.
(b) by January 8, 2016,
(i) counsel for the Applicant shall serve and file the Trial Record
(ii) each counsel shall serve and file the following:
• opening trial statement
• order requested
• net family property comparison.
[33] Assuming the trial takes 15 days at 5 hours per court day for a total of 75 hours, each party shall be allocated 37 hours for trial for all of the following purposes:
(a) opening statement
(b) examination in chief of all witnesses
(c) re-examination of witnesses
(d) cross-examination of other party’s witnesses
(e) reply evidence if any
(f) objections on evidence including submissions and ruling
(g) closing submissions.
[34] By January 8, 2016, the Respondent shall pay costs of this motion fixed in the amount of $3500.00.
Kiteley J.
Date: December 11, 2015