CITATION: Herscovitch v. Chatelain, 2016 ONSC 2378
COURT FILE NO.: FS-15-00020527
DATE: 20160407
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Richard Lewis Herscovitch, Applicant
AND:
Jacinthe Chatelain, Respondent
BEFORE: Kiteley J.
COUNSEL: G. Carson, for the Applicant
F.P. Huard, for the Respondent
HEARD: in writing
ENDORSEMENT ON REQUEST FOR VIDEO CONFERENCING
[1] On November 13, 2015, the Applicant issued a Motion to Change final order. The main thrust of the Applicant’s Motion to Change is that the older child is in university in Guelph and that he ought not to continue to pay table amount of child support. On December 22, 2015, the Respondent provided her response and included her own Motion to Change final order. The Applicant resides in Toronto. The Respondent and the younger child live in Ottawa.
[2] On January 14, 2016, the parties and counsel for the Applicant attended a case conference with Dispute Resolution Officer in Toronto who made a notation that the Applicant may proceed to a Motion to Change support and address the change in circumstances given that one child is living at university and not with the Respondent mother. The DRO noted that the Applicant’s motion would be returnable March 8, 2016 and that the Respondent would produce the financial disclosure set out on page 9 of the Applicant’s case conference brief at paragraph 4 (a) to (i). The DRO also set out a timetable for delivery of affidavits and facta in the Applicant’s motion to change. The DRO did not specifically indicate that the motion would be heard on March 8 but I draw an inference that that was the case because if another location had been discussed, it would have been so noted.
[3] As Team Leader, Family Law, this matter was brought to my attention because a written request was made by counsel on behalf of the Respondent for leave to conduct the motion scheduled for April 14, 2016 so that her counsel could participate by video conferencing and the Respondent asked that a bilingual judge preside. On the first page of the Video Conference Request, Mr. Huard indicated that the event was a family case conference. On the page in which counsel provides an explanation for the request, he refers to the event as a motion and for that reason, I disregard the error on the first page. The following are the reasons for the request:
The parties’ 15 year old son has a drug addiction. He required constant supervision. Given the motion is at 10:00 a.m. the Respondent would have no choice but to leave her son unsupervised for an entire day and evening.
The cost for the solicitor’s attendance at this motion would be approximately $350 for a flight, $200 for a hotel for one night, along with the cost of attending the Motion. As this Motion is for an interim matter, the Respondent and her counsel feel that these costs are unnecessary at this time and could be reserved for a final hearing.
The Respondent is also requesting that a bilingual Judge reside [sic] for the scheduled Motion of April 14, 2016 as French is my client’s first language and disclosure provided in our Affidavit is in French.
[4] Ms. Goldhar filed an Objection to Video Conference in which she noted that on January 14, 2016, the parties agreed to the hearing of the motion in Toronto on March 8^th^. The Respondent retained counsel who requested an adjournment. The Applicant reluctantly agreed to adjourn to April 14, 2016. According to Ms. Carson, the Respondent then served a Notice of Change acting without counsel followed by a Notice of Change appointing her current counsel. I do not see those Notices to Change in the continuing record but I accept Ms. Carson’s input. Ms. Carson pointed out that Mr. Huard accepted the retainer knowing that the motion was scheduled to be heard on April 14, 2016 in Toronto. Ms. Carson summarizes her client’s position as to the first reason set out above. She noted that this event is not an interim hearing as suggested in the second reason set out above. She also took the position that a bilingual judge is not necessary for the reasons explained.
[5] Pursuant to s. 125 and s. 126 of the Courts of Justice Act, the official languages of the courts of Ontario are English and French and a party to a proceeding who speaks French has the right to require that it be conducted as a bilingual proceeding. Whether the Respondent speaks, writes or works professionally in English as suggested by Ms. Carson is not the issue. I accept that French is her first language and the court is required to facilitate a bilingual proceeding.
[6] I do not grant the request for the hearing to be conducted using video conferencing. I agree with Ms. Carson that this is a hearing of the Applicant’s Motion to Change final order. It is expected that the outcome of the hearing will be a final order, not a temporary order or an interim order. These costs will only be incurred once. And I agree that the Respondent engaged Mr. Huard and that Mr. Huard accepted the retainer knowing that the hearing would be in Toronto.
[7] I have reviewed the continuing record in order to consider the request and the objection. I note that in its relatively short life, it consists of 5 volumes, although 2 volumes include only disclosure. I note as well that it is the Applicant’s motion to change which is scheduled to be heard on April 14. It may be that, notwithstanding the notation by the DRO to that effect, that the parties anticipate that both the Applicant’s and the Respondent’s Motions to Change will be heard that day. Whether it is one or both, the material is of such volume that it will be a challenge for the counsel and the judge to manage with one counsel attending remotely. If counsel did anticipate that both motions to change would be heard, that will likely cause the hearing to take longer than one hour on the regular motion list. However, the court is able to accommodate a hearing of two hours if both motions to change are to be addressed. I will require counsel to submit their confirmation forms earlier than usual in order to inform the Trial Co-ordinator as to the duration of the hearing. I do not see that a factum has been filed by either party and I will set a deadline for that to occur.
ORDER TO GO AS FOLLOWS:
[8] Request by the Respondent for a bilingual hearing of the Motions to Change is granted.
[9] Request by the Respondent for a hearing in which counsel for the Respondent participates through video-conference is dismissed.
[10] Counsel shall send in their confirmation forms no later than Monday April 11, 2016 at noon to advise whether the hearing consists of the Applicant’s Motion to Change only, or as well, the Respondent’s Motion to Change. If only the Applicant’s Motion to Change, it will be on the regular list for not more than 1 hour. If both Motions to Change, it will be treated as a long motion for not more than 2 hours.
[11] Counsel for the Applicant shall serve and file her factum no later than Tuesday April 12, 2016 at noon. Counsel for the Respondent shall serve and file his factum no later than Wednesday April 13, 2016 at noon.
[12] Neither party shall recover costs incurred as a result of the Request and Objection.
Kiteley J.
Date: April 2016