Superior Court of Justice - Ontario

CITATION: Turk v. Turk, 2016 ONSC 2813

COURT FILE NO.: FS-14-19285

DATE: 20160428

RE: Jennifer Sandra Turk, Applicant

AND:

Stuart Bernard Turk, Respondent

BEFORE: Kiteley J.

COUNSEL: Katharine Rajczak, for the Applicant

Heather Hansen, for the Respondent

HEARD: April 26, 2016

ENDORSEMENT AT CASE CONFERENCE

[1] In a case management endorsement dated February 2, 2016 [2016 ONSC 828] I made the following orders:

Neither party may bring on a motion to vary the temporary support order dated May 20, 2015.

The Respondent’s motion for production of the Kraft file shall be heard by me on February 11, 2016 at 2:00 p.m.

The Respondent shall serve and file his form 13.1 financial statement by February 22, 2016 completed in accordance with the Family Law Rules.

The Applicant’s motion for interim disbursements shall be heard by me on February 25, 2016 at 10:00 a.m. for no longer than 2 hours, or at such other date as counsel may agree and as the Trial Co-ordinator confirms my availability.

The Settlement Conference/Trial Management Conference shall take place not before me on Monday April 25, 2016 from 10:00 a.m. to noon, or at such other date as counsel may agree and as approved by me through the Trial Co-ordinator.

The trial is set tentatively to begin the week of September 19, 2016 estimated at 20 days subject to confirmation at the settlement conference/trial management conference as to the estimated duration.

[2] The Respondent’s motion for production of the Kraft file was scheduled for February 11 but was settled between counsel.

[3] The Applicant’s motion for interim disbursements was scheduled for February 25 but was adjourned with a new date to be set.

[4] On April 18, 2016 Ms. Hansen sent in her confirmation of the April 25 settlement conference and trial management conference. In her confirmation form, Ms. Rajczak asked that the April 25 date be postponed. Because of the disagreement, I held a telephone case conference on April 19 at which time counsel for the Respondent indicated that later that day, she would serve 10 valuators’ reports; Form 13.1; updated NFP; affidavit listing documents; and updated disclosure. Ms. Hansen acquiesced in a brief adjournment of the settlement conference/trial management conference. On that occasion Mr. Niman took the position that he would not commit to another date until he received and assessed the material and determined how long it would take him to be in a position to respond.

[5] On April 19, 2016 I made an endorsement adjourning the TMC/SC and set aside times on both June 29 and June 30 when it would be held. I also directed counsel and their clients to attend a case conference on April 26 to review the implications of the delivery of materials on April 19.

[6] The two issues for this case conference were the request to bring forward the Applicant’s motion for interim disbursements and a discussion about readiness for the TMC/SC at the end of June.

[7] As is the norm for this case, counsel did not agree to the logistics for dealing with the motion for interim disbursements. I do not intend to outline the various positions that each took. Suffice it to say that the Applicant is entitled to bring her motion for interim disbursements; that in view of the delivery of the material on April 19, the existing affidavit in support of the motion will have to be updated; Ms. Rajczak will be away from May 5 to June 11 but she committed to preparing the updated affidavit prior to her departure leaving Mr. Niman to argue the two hour long motion on May 17. As usual, that required a detailed review of the commitments of both counsel. May 17 is not available as a long motion date. The available dates were: May 19, 30, June 2, 6, 20 and 28. Ms. Hansen is available at most of those dates but based on Mr. Niman’s schedule, the earliest date both counsel would be available is June 20.

[8] As indicated below, the TMC/SC is scheduled for June 30. It will be too late to hear the motion for interim disbursements on June 20. Having now considered the timing challenges, I have concluded that it is in keeping with the primary objective of the Family Law Rules that the motion for interim disbursements be dealt with in writing.

[9] In advance of this case conference, counsel for the Respondent had served and filed what has become volume 10 of the continuing record that contains her trial management conference brief attached to which are two financial statements form 13.1 and the documents served on April 19. Neither counsel should replicate any of that material in the affidavits filed in connection with the interim disbursements motion. The affidavits should refer to whatever document is relevant without attaching it. Ms. Hansen had filed a USB key that I returned to her on April 26 however, she should re-file it when she complies with the schedule below.

[10] As for the TMC/SC, Ms. Rajczak expressed a concern about whether it will be productive given the recent delivery of the materials referred to above. As indicated in the endorsement dated July 3, 2015 the Applicant seeks, amongst other things, a declaration that the Separation Agreement dated April 26, 2010 is null and void on the grounds of lack of disclosure and duress. The Application was issued over 2 years ago and there has never been a settlement conference on that threshold issue. Furthermore, Ms. Hansen confirmed at the case conference held on April 26 that her client will not be serving any additional expert evidence. For that reason, the record as to the Respondent’s evidence on the issue of disclosure during the negotiations leading up to the separation agreement and currently is complete, excepting only the issue of the file of the mediator. Counsel for the Applicant will have over 60 days to digest the documentation and have at least a preliminary response at the settlement conference and should have sufficient information to make an offer to settle as required by the Family Law Rules.

[11] As indicated above, I have set the trial date to begin the week of September 19 estimated at 20 days subject to confirmation at the settlement conference/trial management conference as to the estimated duration. The tentative nature of the date was with respect to the estimate of 20 days, not whether the trial would proceed at that time. Mr. Niman advised during the conference call on April 19 that upon receipt of the February 2 endorsement, he had informed the Trial Co-ordinator and Ms. Hansen that he acted for a client whose trial had previously been scheduled for that same week but he had not taken steps to address the conflict. On April 19 and on April 26, there was a discussion about the conflict in his schedule but neither counsel made formal submissions as to whether the trial date should be adjourned. I make no ruling today with respect to adjourning the trial. I did point out to counsel that if it is adjourned, the earliest date available for a 20 day case would be the week commencing November 14, 2016. I directed them to diarize that as a possibility while confirming that the date remained as the week of September 19.

[12] At the conclusion of the case conference, Ms. Hansen asked that I reserve costs to the trial judge. Ms. Rajczak objected. In the endorsement released July 3, 2015 [ONSC 4294] I reserved costs of the June 30 case conference to be dealt with in the costs of the summary judgment motion. I held a case conference on October 2, 2015 that continued by telephone on October 19 and in the endorsement dated October 19, I did not mention costs of October 2 or 19. The telephone conference call on April 19 and the case conference on April 26 were necessary because of the request to adjourn the imminent settlement conference. If I reserve costs to the trial judge (which might be me), it will mean some months hence counsel will have to make submissions as to the reasonableness of these case conferences which will involve controversy over whether the delivery of significant long anticipated documentation meant that the TMC/SC scheduled for 3 business days later had to be adjourned. As I have commented on other occasions, counsel are unable to agree on what should be straitforward scheduling issues. If I reserve costs, it may serve to communicate a message that ultimately one party will be punished and one rewarded. Under these circumstances, I decline to do so.

ORDER TO GO AS FOLLOWS:

[13] By May 9, 2016, counsel for the Applicant will serve and file (in paper and USB) the notice of motion for interim disbursements and affidavit(s) in support and factum (but not the book of authorities).

[14] By May 16, 2016, counsel for the Respondent will: (a) serve and file (in paper and USB) responding affidavit(s) and factum; (b) serve and file in USB only the authorities on which both counsel rely.

[15] By May 23, 2016, counsel for the Applicant will serve and file (in paper and USB) the reply affidavit if any and a confirmation form that lists all of the documents on which either party relies including volume 10 of the continuing record.

[16] The Trial Management Conference/Settlement Conference is scheduled for Thursday June 30, 2016 from 10:00 a.m. to 2:00 p.m. provided that counsel and the parties maintain flexibility as to the end time.

[17] By Monday June 27, 2016 at 2:00, counsel for the Applicant will serve and file a Trial Management Conference Brief and a Settlement Conference Brief.

[18] On June 30, 2016 counsel shall bring Part 1 and Part 2 of the Trial Scheduling Endorsement on which they have collaborated in order to assess the duration of the trial that is currently estimated at 20 days.

[19] Neither party shall recover costs of April 19 or April 26 conferences.

Kiteley J.

Date: April 28, 2016