Court File and Parties

Court File No.: FS-12-18268 Date: 2016-09-30 Superior Court of Justice - Ontario

Re: Nikole Marie Belanger, Applicant And: Ciro Luigi Pasini, Respondent

Before: Kiteley J.

Counsel: S. Grant and J. Watson, for the Applicant E. Flak, for the Respondent

Heard: September 21, 2016

Endorsement

[1] The trial is set for the week of October 17, 2016. At the Trial Management Conference held on September 21, 2016, I heard submissions with respect to the Applicant’s motion to adjourn the trial to March 2017 and I dismissed the motion with reasons to follow. These are the reasons.

[2] The Applicant and Respondent were married in June 1983. Their children were born in 1984 and 1988. They separated in 1998. They signed Minutes of Settlement dated May 20, 1999 and Justice Shaughnessy signed the consent divorce judgment dated July 22, 1999. The terms of the divorce judgment relevant to the motion to adjourn are as follows:

Paragraph 11 The Respondent was required to pay support for the older child who resided with the Applicant in the amount of $500 per month.

Paragraph 12 As long as the younger child resided with the Respondent, the Respondent assumed financial responsibility and the parties acknowledged that the support payment for the older child took that into account.

Paragraph 15 Annually commencing June 1, 2000, the parties were to exchange the documents required by the Federal Child Support Guidelines, inclusive of income tax returns and business records, to determine what variation, if any, was necessitated with respect to the support for the children.

Paragraph 16 The Respondent paid $25000 as lump sum spousal support and he was required to pay spousal support monthly in the amount of $1000. The Applicant agreed that the monthly periodic support would not be subject to variation or any increase whatsoever for a period of 3 years. The Applicant acknowledged her obligation to take all steps reasonably practicable to render herself self-sufficient. The parties agreed to review the quantum of spousal support in 3 years with a view to determining what variation, if any, was necessitated. The parties agreed to exchange all relevant financial information required at that time, to include all income tax returns as filed with Revenue Canada for the prior 3 years, financial statements for any corporations in which the parties were involved, and any other requested financial information to substantiate earnings.

[3] In June 2012, then counsel for the Applicant issued this Motion to Change in which she asked for an order for financial disclosure since 2000; for an order for variation of spousal support effective September 22, 2002 because of a material change in circumstances and undue hardship of the Applicant; an order to have the child support overpayments rescinded or stayed; and an order that the Respondent pay child support effective September 22, 2002 for both children who had resided with her since 2002. She did not ask for a specific amount of spousal or child support because she was “awaiting financial disclosure from the payor”.

[4] At the first case conference on October 30, 2012, Dispute Resolution Officer Judith Nicoll noted that the parties would exchange lists of required disclosure within 7 days with disclosure to be provided within 20 days.

[5] On February 25, 2013, Jarvis J. adjourned the settlement conference to May 1 at the request of the Applicant to give her then counsel time to review the Respondent’s expert report.

[6] The Applicant brought a motion returnable August 1, 2013 which Mesbur J. refused to hear because she Applicant had not filed a factum.

[7] On August 23, 2013, Justice Goodman attempted to conduct the settlement conference but there was insufficient time and she adjourned to October 21, 2013 for the day.

[8] On October 31, 2013, Justice Backhouse held a settlement conference and made an order on consent that required the Respondent to pay to the Applicant interim spousal support in the amount of $3000 per month commencing November 1, 2013 for 6 months and without prejudice. The consent provided that if the case was not reached for trial within 6 months, that either party could ask the court to deal with interim support if an agreement could not be reached. Mr. Pasini also agreed to pay $15,000 in interim disbursements. The examination of the Respondent was scheduled for December 4 and 5, 2013. The Respondent was ordered to make the disclosure requested at Tab 3 of the Applicant’s conference brief “from inception until wind up”.

[9] The examination of the Respondent occurred on December 4 and 5, 2013.

[10] On May 2, 2014 Justice Backhouse continued the settlement conference and indicated that the Applicant would deliver an offer to settle. It is not apparent whether it was on consent, but in her endorsement, Justice Backhouse directed that written interrogatories would be submitted within 30 days and the Respondent would make best efforts to provide answers within 30 days. She also ordered that the spousal support of $3000 per month would continue on a temporary basis without prejudice. She scheduled the Trial Management Conference for July 2, 2014.

[11] On December 19, 2014 Goodman J. held what appears to have been a Trial Management Conference. In her endorsement, she noted the Respondent’s frustration that two years had passed and a trial date had not been set on the Motion to Change. She also noted that in 2008, the Respondent had sold a company and had “apparently” after tax netted $6 or $6.5 million and that there was an issue about the extent to which he was required to value companies into which much of the money went. She scheduled a settlement conference before her on February 2 and directed the Respondent’s expert and any expert retained by the Applicant to attend. She also noted that the parties had agreed that the Applicant’s then counsel and/or the Applicant’s valuator could speak with the Respondent’s valuator “most particularly with a view of determining what happened to the company sale proceeds”.

[12] On February 2, 2015, Goodman J. noted that the TMC had been scheduled but that the parties wished to explore settlement and as a result, the TMC was adjourned.

[13] In an endorsement dated April 23, 2015, Goodman J. noted that having held the settlement conference, certain steps were to take place. She made a consent order that failing settlement by May 14, 2015, the TMC would be held on June 1st at which time a timetable for trial would be set which would include the requirement for the Respondent to produce a comprehensive financial statement (ie., one with values for his business/corporate assets) before the next steps.

[14] In an endorsement dated June 21, 2015, Justice Goodman set the trial for the week of April 11, 2016 for 2 weeks which she described as the “current estimate”. Justice Goodman also established a detailed timetable for delivery of expert reports and Form 13 and other documents. She scheduled a further TMC on October 16, 2015. In that endorsement, Goodman J. noted that “the parties are aware of the tight schedule set out above, upon which they have agreed in order to meet” the scheduled trial date. Both parties were represented by counsel who were subsequently replaced.

[15] It appears that the October 16 TMC did not happen.

[16] On March 11, 2016, Stevenson J. held the TMC. Mr. Grant acted for the Respondent. The Applicant had counsel other than Mr. Flak. Counsel expressed concerns regarding timing of experts reports and conceded that the timelines had not been followed. In her endorsement, Justice Stevenson noted that counsel for the Respondent asked for an order that the Applicant provide a list of issues that would be pursued at trial to determine the scope of the Respondent’s expert reports. On consent, Stevenson J. vacated the April trial date and set it for the week of October 17, 2016 for 10 days. She made an order directing the Applicant to prepare a list of issues by May 1, 2016 and she set the TMC/status update on May 23, 2016.

[17] It appears that then counsel for the Applicant brought a motion returnable March 24, 2016 to be removed but on the hearing of the motion, the Applicant filed a Notice of Change in Representation indicating that she was acting without counsel.

[18] In a letter dated May 2, 2016, the Applicant did deliver a list of issues which bears some relationship to the Motion to Change. It did not include setting aside the 1999 agreement.

[19] The May 23 event did not happen and appears to have been changed to June 1, 2016. On that occasion, Mr. Flak appeared as agent. He advised Justice Stevenson that he expected to be retained shortly. In her endorsement, Stevenson J. noted that most of the discussion centered around the timing of the questioning of the Applicant and the Applicant’s request for disclosure and leave to question the Respondent again. She noted that attached to the Applicant’s TMC brief was a lengthy request for disclosure but indicated that, at that time, she would not grant the Applicant’s request for leave to bring a motion for disclosure because Mr. Flak was not on the record and there was no indication when he would be. She made an order requiring the Applicant to attend for questioning on June 16; and she ordered that once Mr. Flak was retained, the Applicant could bring a 14B motion to her attention seeking leave to further question the Respondent and leave for a motion for further disclosure and an affidavit of documents. She scheduled a further TMC to be held no later than September 25 and directed the parties to complete the Trial Scheduling Endorsement one week in advance.

[20] On September 13, 2016, Mr. Flak filed a Notice of Change in Representation.

[21] At the TMC on September 21, Mr. Flak brought a motion seeking the following relief:

(a) An order, insofar as Mr. Flak’s firm became lawyer of record for the Applicant on September 13, 2016 and still lacks a complete file, vacating the current trial date in favour of a new trial date in March 2017 at the earliest;

(b) An order permitting the Applicant to bring a motion on notice requiring the Respondent to, within 10 days, deliver a fully complete, up-to-date Affidavit Listing Documents, together with copies of the documents that are, or should be listed in it, with all documents that are not in English officially translated into English, within 10 days, including if available and except as already provided, all documents requested in the attachments to the Applicant’s affidavit dated September 14, 2016;

(c) An order permitting the Applicant to bring a motion for an order that Mr. Flak may thoroughly question the Respondent concerning all matters in issue between the parties, including events leading up to the 1999 consent order and all of the Respondent’s corporate, personal and business activities and finances related to his companies’ or finances;

(d) An order for costs.

[22] The affidavit of the Applicant sworn September 14, 2016 has 21 exhibits attached, none of which were the Motion to Change. Exhibit D is the list of 90 documents referred to in paragraph (b) of the notice of motion. The Applicant also delivered a current Form 13.

[23] Counsel for the Respondent filed written submissions in opposition to the motion to adjourn the trial. The Applicant delivered a supplementary affidavit sworn September 19, 2016.

[24] The reasons for dismissing the motion heard September 21, 2016 are as follows.

[25] First, it is clear that the ultimate goal of the adjournment is to give the Applicant an opportunity to broaden, and indeed fundamentally change, the relief she is seeking. The list of 90 documents includes items that are beyond the scope of documentary disclosure required by paragraph 16 of the divorce judgment. Some items may be relevant to the issues raised in the Motion to Change but the list includes many that are not related. In paragraph 44 of her affidavit sworn September 14, 2016, she said the following:

Reports from investigators, if accurate, showed that Ciro made payments from Implo to foreign banks in his name “prior to the date of . . . separation and court order. . . so that Ciro, if the reports were accurate” had nearly eight million dollars in undisclosed funds offshore at the time of separation and original order” I wish to follow this issue up and if it can be supported, I will ask for permission to amend my claims to set aside the 1999 agreement and Consent order. At that time Ciro said that he had “virtually nothing”. NOTE: quotation marks are as in the original but appear not to be accurate.

[26] At paragraph 9 of her September 19 affidavit, the Applicant said as follows:

In my September 14, 2016 affidavit, I attached the same Statement of Issues for Trial as I produced for the June 1, 2016 Trial Management Conference. In my affidavit sworn September 14, 2016 I added a provision that emerged after re-reading reports, with Mr. Flak’s help, from Ciro’s valuator (Paula White) and my previous expert (Mr. Vandenberg), that provide corporate related values suggesting that the original settlement and Consent Order in 1999 may be subject to being set aside because Ciro appears to have failed to reveal his substantial corporate means at that time. His expert at that time, Mr. Dyson, valued Implo Technologies’ share value as nominal. If I get reliable or sufficient disclosure from Ciro, as long as it can be supported, I may ask the Court to seek that relief.

[27] In other words, the Applicant wants judicial authorization to conduct a fishing expedition in order to determine whether, 17 years after the consent divorce judgment and 4 years after starting this Motion to Change, she might launch a new proceeding (because it could not be incorporated into the Motion to Change) for an order setting aside the agreement made in May 1999. The court ought not to tolerate a delay of a trial on that account. (I leave aside the issue as to whether such a new proceeding might be subject to limitation periods.)

[28] Second, the court must balance fairness to the Applicant to be prepared for trial and fairness to the Respondent to have the matter resolved. The Applicant has had health issues apparently including one or more strokes in 2011. The affidavit of the Applicant sworn September 14 included two documents relevant to her health: Tab K was a letter from a physician dated February 5, 1998; Tab N is a form dated August 28, 2012 from a physician in which she provides a report which may have been in the context of an application for a CPP disability pension and which lists several conditions including two CVA’s in 2011.

[29] While Mr. Flak spoke of her current health issues particularly in the context of needing accommodation at trial for giving evidence, the only documentation was a 3 line letter from her family physician dated September 14, 2016 which provided no details but indicated that the Applicant is currently suffering from “a medical condition” and the upcoming court date was flaring her “already severe symptoms”. That vague letter is inadequate to support a request to adjourn on medical grounds.

[30] It is clear that disclosure has been discussed on virtually every court attendance. Except for a brief period when she did not have counsel of record but during which Mr. Flak was assisting her, the Applicant has had the ability to pursue disclosure. I have not dealt with the 90 item list except to observe that some items might be relevant to this trial. However, as the endorsements above indicate, the Applicant has had reasonable time to pursue it. I am confident that it was not in the contemplation of Justice Stevenson in her endorsement dated May 23, 2016 that Mr. Flak would go on the record September 13 for a trial scheduled for October 17 and then seek leave to bring motions such as those set out above. The request was made far too late.

[31] The Respondent has been exposed to the Motion to Change for over 4 years. He originally consented to an order that he pay triple the amount of spousal support required by the order on the basis that the trial would be held in 6 months. It is almost 3 years later. He is entitled to have his “day in court” that would allow him to defend against claims asserted in 2012 but going back to 2002.

[32] The court must exercise discretion to adjourn a trial in accordance with the principles of fairness and natural justice which explicitly requires that the court address fairness and natural justice to both parties. Adler v Adler 2015 ONSC 7806; 2016 ONSC 386. Given that the request to adjourn is based on the strategy to engage in a fishing expedition to fundamentally change the nature of the proceedings, the failure on the part of the Applicant to be more diligent in whatever disclosure claims she has that may arise from the existing Motion to Change and the vague medical letter, fairness and natural justice dictates that the rights of the Respondent be preferred to those of the Applicant.

[33] After making the order that the motion to adjourn was dismissed with reasons to follow, I met with counsel to conduct the Trial Management Counsel. Because of the distraction of the adjournment, counsel had made no effort to collaborate to provide a comprehensive Part 1 and Part 2 of the Trial Scheduling endorsement. It appeared that the duration of the trial based on their witness lists would significantly exceed 10 days.

[34] Rule 1(7.2)(q) of the Family Law Rules provides that the court may make an order limiting the trial to a specified number of days and allocating them between the parties. As I indicated at the TMC on September 21, the principles of proportionality and the primary objectives of the Family Law Rules warranted an order limiting the duration of the trial to the 10 days which had been repeatedly noted in the endorsements above. Assuming each day includes 5 hours, I indicated that each party would have a maximum of 25 hours for his/her part of the trial. I made an order that counsel collaborate and forward the completed TSE to my attention by September 28 at noon and I scheduled a telephone conference call with counsel on September 30 at 9:15.

[35] Having reviewed the TSE that counsel forwarded, it is clear that counsel for the Applicant has not complied with my order dismissing his request to adjourn to bring motions nor has he attempted to estimate his time for cross-examination that is anywhere close to a total of 25 hours.

[36] On September 21, Mr. Flak indicated that he intended to serve a request pursuant to rule 19(1) of the Family Law Rules. He did so on September 22. That does not require leave. Counsel for the Respondent is required to comply with the request provided that it is done in the context of documents relevant to an issue in the existing Motion to Change.

[37] In the Part 1 and 2 of the Trial Scheduling Endorsement on which counsel collaborated, in answer to the question as to whether requests to admit had been served, the answer is “no” and there is no timetable for delivery of them and no expectation of an agreed statement of facts. Mr. Flak did serve a Request to Admit which requires a response by October 19, two days after the anticipated commencement of the trial. I agree with Mr. Grant that on the eve of the trial, it is unreasonable to expect a response to an RTA consisting of 103 items.

[38] During the telephone conference call today, Mr. Flak indicated that his client was seeing her family physician this morning and that he expected to receive a report from the physician that would greatly expand on the 3 line letter dated September 14 and would include the physician’s clinical notes and records. He was not certain whether he would rely on it for purposes of again seeking a delay of the trial or to seek an accommodation for his client during the trial. He indicated on September 21 and again in the TSE just received that his client would require some accommodations, such as gaps of time in her evidence or shortened days during the time she is giving evidence. His expectation was that he would introduce such evidence at trial. As indicated above, I am fixing the duration of the trial and that is without consideration of any such accommodations. For that reason, Mr. Flak must make his request in advance of the trial in order for me to determine whether he has provided the basis for such an order. He agreed to provide to Mr. Grant whatever he received from the physician as soon as he received it and confirm in writing the purpose for which he intended to file it.

[39] The Applicant’s first language is French. Mr. Flak had indicated that she may have some challenges giving her evidence in English but he did not make any request. As I indicated, the Applicant has a right to give her evidence in French but the request needs to be made, if at all, immediately, so that the court can respond. Mr. Flak will confirm by Monday October 3.

Order

[40] The motion for the relief set out in paragraph 21 above is dismissed.

[41] The Respondent is not required to respond to the Request to Admit.

[42] The Respondent is required to provide an affidavit listing documents in accordance with rule 19(1)(a) and (b) of the Family Law Rules.

[43] The Trial Scheduling Endorsement amended by me is attached.

[44] The trial is scheduled for the week of October 17, 2016 for no more than 10 days on the following conditions:

(a) the Applicant and Respondent each have a total of 25 hours for all aspects of the trial including opening and closing statements, examination in chief and re-examination of his/her witnesses; cross-examination of witnesses called by the other party; reply evidence if any;

(b) the time used in dealing with objections will apply against the time quota of the party making the objection which shall include the time taken in making the objection, responding to the objection and the ruling by the trial judge;

(c) the trial judge has the discretion whether to allow Mr. Grant to be absent on October 20 and 28.

[45] By Monday October 3, 2016 at noon, Mr. Flak will confirm in writing to Joanne Benedetto, Trial Co-ordinator, (with a copy to Mr. Grant) whether his client expects to give her evidence in French at the trial. If so, the Trial Co-ordinator will arrange for an interpreter to be available for the evidence of the Applicant.

[46] Within 24 hours of receipt of any written communication from the Applicant’s family physician, Mr. Flak shall serve a copy of it to Mr. Grant along with written confirmation of the purpose for which the material is served. The issue of admissibility will be determined either by me at the next Trial Management Conference or by the trial judge.

[47] The Respondent is entitled to costs of the motion heard on September 21, 2016 with the amount to be fixed by the trial judge.

[48] Costs of the TMC on September 21 and in the conference call on September 30 are reserved to the trial judge.

[49] Counsel and the parties will attend a Trial Management Conference on Wednesday October 12, 2016 from 10:00 to 12:00, before me or Justice Stevenson.

Kiteley J. Date: September 30, 2016