Court File and Parties

COURT FILE NO.: FS-14-19614 DATE: 20160520 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: L.B., Applicant AND: L.T., Respondent

BEFORE: Kiteley J.

COUNSEL: Heather Hansen and Jason Goodman, counsel for the Applicant, Respondent in the Appeal Sarah Troper and Maneesha Mehra, for the Respondent, Appellant

HEARD: May 18, 2016

Endorsement at Conference Call

[1] The trial in the Ontario Court of Justice with respect to child support and s.7 expenses was heard over six days ending in May 2014 and was followed by reasons for decision released July 18, 2014 and a costs endorsement dated October 16, 2014. L.T. (the mother) appealed from both decisions. The hearing of the appeal for a full day is scheduled for June 13, 2016.

[2] The appeal has been perfected including appeal books, transcripts, compendium and factum of the Appellant. The Respondent has served the factum, compendium and book of authorities all on a USB key with hyperlinks to relevant records. Counsel forwarded a consent order in which they asked that the court order that either or both of the parties are free to conduct a paperless/electronic appeal, with counsel bearing responsibility for ensuring that the required technology is in place in the courtroom in the event that the court cannot provide an electronic courtroom. In reviewing the appeal record, all of which is currently in paper, I queried why such an order would be appropriate and I directed the Trial Co-ordinator to arrange a conference call with counsel. Ms. Goldhart was not available on short notice.

[3] During the conference call, counsel provided more information as to the nature of the record. Ms. Hansen prefers to deal solely in electronic documents. Ms. Troper and Ms. Mehra have completed their documentation on paper but they are still considering providing an electronic version of the factum and book of authorities with hyperlinks. I agreed that I would sign the order but on condition that Ms. Hansen provides a paper copy of her factum.

[4] I took the opportunity to discuss whether it would be productive to hold a settlement conference prior to the hearing of the appeal. The evidence in the appeal concluded approximately 2 years ago and there has been no judicial involvement since then. The work has all been done in preparation for the appeal and counsel and their clients are well informed as to the legal issues raised. I raised as possibilities that the outcome of the appeal could be as follows:

(a) appeal dismissed and the judgments at trial and as to costs would stand; (b) appeal allowed and sent back to the Ontario Court of Justice for another trial; (c) appeal allowed and the Superior Court substitutes a decision.

[5] On a preliminary basis, I thought it unlikely that the third option would occur, leaving (a) or (b) as the most likely outcomes, together with whatever costs might be associated with either outcome. In any of the 3 possibilities, there is considerable risk to both parties.

[6] Counsel agreed during the call that it would be beneficial if I arranged a settlement conference. During the call, the dates were narrowed to two and, as agreed, I subsequently heard from counsel that all parties and counsel are available on June 1, 2016 at 10:00.

[7] Counsel did agree that it would make the settlement conference more productive if the parties had served offers to settle in advance. I agree that the exchange of offers will be critical to the settlement conference.

[8] Given the fulsome record already filed in the appeal, it will not be necessary for the parties to prepare a settlement conference brief. The judge hearing the appeal will review the judgments under appeal and the facta.

[9] During the conference call, there was also a discussion about who might attend the settlement conference in addition to the parties. Ms. Hansen asked that her client’s brother be permitted to attend. In my view, counsel should consider whether each of the parties should be accompanied by a person who is involved in decision making. It will ultimately be the decision of the settlement conference judge. Typically when third parties are allowed to attend, it is as observers only with directions against body language or any other form of communication.

Order to Go as Follows

[10] Parties and counsel shall attend for a settlement conference on June 1, 2016 from 10:00 to noon before Justice Backhouse or Justice Stevenson if either is available.

[11] Counsel shall send in the usual confirmation by May 30, 2016 at 2:00 p.m.

[12] The parties shall serve offers to settle no later than May 27, 2016. Counsel shall confer as to whether the offers are served simultaneously or serially. If they do not agree, the Appellant shall serve her offer by 3:00 p.m. and the Respondent shall serve his offer by 5:00 p.m.

[13] Either or both of the parties are free to conduct a paperless/electronic appeal, with counsel bearing responsibility for ensuring that the required technology is in place in the court room in the event that the court cannot provide an electronic courtroom.

[14] The parties are permitted to electronically serve documents in this appeal by e-mail.

[15] The parties are permitted to electronically file documents in this appeal by filing a USB or USBs containing the electronic documents with the court.

[16] By Thursday June 9, 2016, counsel for the Respondent shall file a paper copy of her factum.

Kiteley J. Date: May 2016