Knop v. Nezami, 2016 ONSC 531

CITATION: Knop v.Nezami, 2016 ONSC 531

COURT FILE NO.: FS-14-394522

DATE: 20160121

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jane Knop, Applicant

AND:

William Reza Nezami, Respondent

BEFORE: Kiteley J.

COUNSEL: G.S. Joseph and E. Gamus, for the Applicant

Meysa Maleki, for the Respondent

HEARD: January 13, 2016

ENDORSEMENT AT TRIAL MANAGEMENT CONFERENCE

[1] The Applicant and Respondent were married on March 21, 2008. They have one child Mariana born February 15, 2012. The parents differ on the date of separation: the Applicant asserts it was April 30, 2014 and the Respondent asserts it was May 6, 2014. The relevant fact is that Mariana was just 2 years old at the time.

[2] At a case conference held on June 1, 2015 I accepted counsel’s joint submission and I set a trial date on the parenting issues only for the week of February 29, 2016 for 15 days. I qualified that by ordering that it was a tentative date to be confirmed at the TMC which I scheduled for January 13, 2016. In June 2015, the parties assumed that the s. 30 assessment report would be available by the end of November.

[3] At the TMC on January 13, counsel reported that the s. 30 assessor had provided written recommendations (which had been discussed at the disclosure meeting) but that the written assessment report would not be available until January 30.

[4] In their TMC briefs, counsel had provided extensive witness lists. As indicated below it became apparent that the trial would take 24 to 25 days, not 15. On that basis, I indicated that I would not confirm the trial date unless counsel took steps to ensure that the 15 days available would suffice. During a recess and at the end of the TMC, counsel prepared detailed Minutes of Settlement which I have now reviewed. I do not have confidence that the trial can be heard in 15 days. I will not vacate the trial date at this point to allow counsel the opportunity to resolve the significant issues identified in their briefs, and during the TMC, and in the Minutes of Settlement.

[5] The issues for this trial include: custody of Mariana born February 15, 2012; access; Applicant’s request for leave to move Mariana to California; related parenting issues; costs.

[6] In creating their respective lists of witnesses, each identified the issues on which the witness was expected to testify. I have reduced the details of those issues to more generic descriptions and in some cases have not specified the topic because it is obvious.

[7] The witnesses proposed by the Applicant are as follows:

Witness

Topic

Exam In Chief

Cross

Exam

Jane Knop

All issues

1 day

Roman Knop*

1 hour

Galina Knop

1 hour

Police officers: Eduardo Cruz,

Kevin Neil, John White

Access exchanges

1 hour+

Nechama Coleman

Access exchanges

1 hour

Ali Nezami

1 hour

Jannette Casimiro

½ day

Ms. Parnell

Therapist recommended

by assessor for ongoing therapy for the Applicant

1 hour

Emily Roorda

Parenting concerns

1 hour

Margarita Golod*

Life in San Francisco

1 hour

Catherine Villegas*

Life in San Francisco

1 hour

Milana Targan*

Life in San Francisco

1 hour

N. Melamed*

Life in San Francisco

1 hour

Yulia Petrenko

1 hour

Natalie Boutet - closed mediation

Admissibility in issue

1 hour

Jocelyn Valdez, Mariana’s teacher

Transitions

½ hour

Representative of the Financial

Services Commission of Ont. –

to be named

Conduct of the Respondent

½ hour

David Zerad (former boyfriend of

Applicant)

Conduct of the Respondent

2 hours

Receivers of email from the Respondent

and First Swiss – to be named

Conduct of the Respondent

½ hour

Jacqueline Vanbetlehem - s. 30 Assessor – both counsel entitled to cross-examine

1 day

Dr. Holloway – psychological assessment

for the s. 30 – both counsel entitled

to cross-examine

½ day

TOTAL ESTIMATED TIME: 12+ days

*request to give evidence by skype

[8] The witnesses proposed by the Respondent are as follows:

Witness

Topic

Exam In Chief

Cross

Exam

Reza Nezami

All issues

1 day

Farideh Yavari

(Respondent’s Mother)

Respondent’s

Parenting

1 hour

Ahmad Nezaminia (Respondent’s

Father)

Respondent’s

Parenting

1 hour

Yousef Nezaminia (Respondent’s

Brother)

Respondent’s

Parenting

1 hour

Maryam Behzadineko

(Respondent’s sister in law)

Respondent’s

Parenting

1 hour

Dr. Nichole Inch,

Pediatrician

Proposed as “participant” witness

1 hour+

Dr. Rezvani, former

Pediatrician

Proposed as “participant” witness

1 hour

Delos Santos Marites Bagro,

Former nanny

1 hour+

Dr. Yaroshevsky, Mariana’s

Therapist

Proposed as “participant” witness

1 hour+

Suzanne Dennison, therapist

1 hour+

Natalie Boutet – closed mediation

Admissibility in issue

1 hour

Police officers: Cruz, Neil, White

Access exchanges

2 hours+

Police officers: Oppal, Granberg, Bachley

Applicant’s attempts to have

Respondent charged

2 hours+

JF and CS workers (possibly the Applicant’s

Social worker, Pam Calderone)

Jocelyn Valdez, Mariana’s teacher

Parenting and transitions

1 hour

Charissa Zoetmulder, Mariana’s

Ballet/dance instruction

Parenting and transitions

1 hour

Charissa Kanatkin, Mariana’s

School principal

Parenting and transitions

1 hour

Patrick Dookram

Conduct

1 hour

Steve Pottins, in house lawyer at First Swiss

Conduct

1 hour

Yana Papanian, employee at

First Swiss

Conduct

1 hour

Dr. Phil Stahl

Critique of assessment as it relates

to assessor’s impartiality; leaving

open the possibility that critique might be broader

½ day

TOTAL ESTIMATED TIME: 10 days +

[9] If counsel for the Respondent retains Dr. Stahl to prepare a report on issues related only to impartiality, counsel for the Applicant does not expect to challenge late delivery of the report. However, if the report of Dr. Stahl is broader, then counsel for the Applicant indicated the likelihood that there will be an objection. Counsel for the Respondent cannot decide on the scope of Dr. Stahl’s work until the written s. 30 assessment is provided. This issue could lead to an adjournment of the trial at the last moment.

[10] There are many unresolved issues including: duplication of witnesses; unnecessary witnesses; disclosure from JF and CS and Toronto Police Services; undertakings and refusals; further questioning; proposed amendment to the Application; production of the file of the Assessor.

[11] The following is a summary of what each counsel proposed in their TMC briefs as modified during the TMC:

Evidence on behalf of Applicant

12+ days

Evidence on behalf of Respondent

10+ days

Possible reply evidence to Dr. Stahl

Unknown

Opening of Applicant and Respondent

½ day (total)

Closing of Applicant and Respondent

1 day (total

Miscellaneous “down time”

2+ days

ESTIMATED TIME:

24 -25 DAYS

[12] That amount of court time is not available before September, 2016 and perhaps not available then. Mariana was just two years old when her parents separated and will be 4 years old by the tentative trial date. Over 7 months ago I was persuaded by counsel to schedule a tentative trial date in order to bring the parenting issues to a conclusion as soon as possible. In general, trials involving parenting issues have priority. However, much remains to be done before February 29, 2016. Rule (7.2)(f),(i),(j),(q) of the Family Law Rules gives the court discretion and authority to make procedural orders including establishing time limits on the parties and I intend to do so to ensure that the trial proceeds efficiently and maximizes the available judicial resources.

ORDER TO GO AS FOLLOWS:

[13] The trial set for the week of February 29, 2016 remains tentative. It is scheduled for 15 days on the basis that each trial day is 5 hours for a total of 75 hours and:

(a) each party is entitled to use 37 hours in opening and closing statements; examination- in-chief of her/his witnesses; cross-examination of opposing witnesses; objections and submissions as to admissibility of evidence;

(b) neither party will be permitted to call the witnesses listed above;

(c) counsel shall do what is necessary to reduce the evidence such as by agreement to substitute affidavits for oral examination-in-chief provided that all rules of evidence (such as hearsay and opinion and the Rule in Brown v. Dunn) are observed; agreed statements of fact; admissibility of documents to eliminate the attendance of a witness; agreeing on which party will call which witness.

[14] Counsel and the parties shall attend before me on Monday February 8, 2016 at noon for the conclusion of the Trial Management Conference. Supplementary TMC briefs are not required but counsel will forward to my attention a copy of the s. 30 assessment report. If I am not satisfied that this trial can be completed within 15 days with the allocation of time indicated above, I will vacate the trial date. If I am satisfied that this trial can be completed within 15 days with the allocation of time indicated above, I will confirm the trial date.

[15] Counsel shall take out an order consistent with the contents of the Minutes of Settlement. Counsel may forward approved draft order to my attention.

Kiteley J.

Date: January 21, 2016

Jane Knop v. William Reza Nezami, 2016 ONSC 531

Case Summary

Knop v. Nezami, 2016 ONSC 531

ENDORSEMENT AT TRIAL MANAGEMENT CONFERENCE

ORDER TO GO AS FOLLOWS:

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues