Court File and Parties

CITATION: Santos v. Pantelidis, 2016 ONSC 6979

COURT FILE NO.: FS-15-401573

DATE: 20161110

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Debbie Santos, Applicant

AND:

Jean-Philippe Pantelidis, Respondent

BEFORE: Kiteley J.

COUNSEL: Self-represented Applicant

David Anthony, for the Respondent

HEARD: October 26, 2016

ENDORSEMENT AT TRIAL MANAGEMENT CONFERENCE

on custody and access issues

[1] On January 7, 2016 I heard the motion by the Respondent for an order striking the Application of the Applicant and I issued an endorsement that day [2016 ONSC 164] in which the following appears:

13. The Application of the Applicant on all issues except custody and access is struck.

14. The claims raised in the Answer except those involving custody and access shall proceed on an uncontested basis.

15. With respect to the issues other than custody and access:

(a) Counsel for Mr. Pantelidis shall arrange a Trial Management Conference before me if I am available at which time his Trial Management Conference brief and endorsement will be reviewed and a trial date will be set for all issues except custody and access;

(b) The Applicant is not entitled to notice of any further proceedings with respect to issues other than custody and access;

(c) The Applicant is not prohibited from attending the trial referred to above but is prohibited from participating in any fashion.

16. With respect to the issues of custody and access:

(a) only Mr. Pantelidis may bring a motion with respect to custody and access and if he does, he must provide notice to Ms. Santos in accordance with the Family Law Rules;

(b) counsel for Mr. Pantelidis shall arrange a Settlement Conference/Trial Management Conference before me if I am available to address the custody and access issues. Counsel shall provide notice to Ms. Santos of the date at least 30 days in advance. Both parties shall serve and file settlement conference brief and trial management conference brief and trial management endorsement at least 7 days in advance.

[2] Counsel for Mr. Pantelidis served notice on Ms. Santos that the Settlement Conference/Trial Management Conference in the custody and access issues would be held on October 26 at 2:30. In addition, counsel for Mr. Pantelidis arranged for the Trial Management Conference in the financial issues to be held on October 26 at 3:30. Pursuant to the endorsement referred to above, he did not give notice to Ms. Santos of the second TMC.

Trial of the Custody and Access Issues

[3] Ms. Santos served her Settlement Conference Brief and her Trial Management Conference Brief and she attended on October 26 at 2:30. Each party had set out proposals for settlement of the custody and access issues which were discussed. After reviewing the proposals with the parties, I concluded that there was no prospect for settlement of the custody and access issues with respect to Nicholas born July 1, 2013 and I moved on to trial issues.

[4] Ms. Santos has 6 witnesses including herself. In her Trial Management Conference Brief, she estimated the time for the witnesses but did not distinguish between examination-in-chief and cross-examination. In the table below I have inserted my estimate of time for the witnesses. Ms. Santos also listed “Child Development Expert – to be determined”. I indicated that if she were to call an expert, she had to make all of the arrangements and she had to serve the report of the expert 90 days before the trial. As indicated below, the trial of the custody and access issues has been set to start January 3, 2017 for 9 – 10 days. If Ms. Santos does obtain such a report now, she will not be able to comply with that requirement. After serving it on counsel for the Respondent, Ms. Santos will need to obtain permission from the trial judge to introduce the evidence of the expert at trial. Ms. Santos will have to arrange for the expert to attend at the trial. Without permission of the trial judge, the expert will not be allowed to give evidence and the report will not be made an exhibit.

[5] Ms. Santos has listed 4 other witnesses and she must arrange to serve a summons on each of them to ensure attendance at the trial, particularly to arrange the attendance of the Child Protection Worker. In the table below, I have listed the witnesses she indicated she would call.

[6] I encouraged Ms. Santos to visit the Family Law Information Centre to ask for information about how to conduct a trial without a lawyer.

[7] In her Settlement Conference Brief and her Trial Management Conference Brief, Ms. Santos included considerable documentation that was inappropriate and irrelevant to the custody and access issues. In particular, she noted in her Trial Management Conference Brief that the issues for the trial were as follows: “custody and spousal support; possession of home and equalization of net family property”. I pointed out to Ms. Santos that she had the right to participate in the trial of the custody and access issues but no right to participate in the trial with respect to the financial issues. I referred her to the endorsement quoted above. She said that she thought that the order I had made on January 7, 2016 was a “temporary order”. I emphasized that it was not a temporary order and that she had lost the right to participate in the trial on financial issues. I have struck from her Trial Management Conference brief the list of issues other than custody. I returned all of her Settlement Conference brief because that material is not retained in the file and I pointed out that most of her material was inappropriate and irrelevant.

[8] I also emphasized for both parties that the continuing record would not be before the trial judge; that affidavits filed by persons in prior motions or letters “to whom it may concern” (such as those included in her Settlement Conference brief) would not be received by the trial judge; and that the trial judge would make decisions based on oral evidence given by the parties and witnesses that each will call.

[9] One of the steps that the Applicant is required to do is to prepare the trial record pursuant to rule 23. Mr. Anthony offered to do that but she insisted on doing it herself. Because the trial record she is required to prepare is only on custody and access issues and she may insert material that ought not to be there, I will order that both serve and file a trial record and the trial judge will decide which trial record is in compliance with rule 23.

[10] In reviewing the list of witnesses provided on behalf of Mr. Pantelidis, Ms. Santos objected to most of them because she said that they don’t know her. I indicated that Mr. Anthony could arrange for the attendance of witnesses and if she had an objection, she should raise it with the trial judge.

Trial of financial issues:

[11] At the conclusion of the Settlement Conference/Trial Management Conference on October 26, 2016, Ms. Santos left and I began but did not complete the Trial Management Conference on the issues other than custody and access. I have set the trial date for the financial issues for February 6, 2017 in the expectation that the trial of the custody and access issues will have been completed and a decision will have been made by the trial judge. If the decision on custody and access has not been released, the date of the trial of the financial issues may have to be postponed because, included in the trial of the financial issues, is whether the temporary order for child support and for spousal support should be terminated which may be affected by the decision as to whether the Applicant has custody of the child or the Respondent has custody of the child. As indicated in paragraph 1 above, paragraph 15(b) of the January 7 endorsement provides that Ms. Santos is not entitled to notice. By this endorsement, she will be informed that that trial date has been set. As indicated above in paragraph 15(c) she is not prohibited from attending the trial but is prohibited from participating in any fashion.

ORDER TO GO AS FOLLOWS:

[12] The trial of the custody and access issues is scheduled to be heard commencing January 3, 2017 for 9 – 10 days.

[13] The parties shall attend a final Trial Management Conference on a date to be arranged by Joanne Benedetto, Trial Co-ordinator. The Trial Management Conference judge will likely review this endorsement and readiness for trial and will explore again the possibility of settling the custody and access issues. Contact information for the Trial Co-ordinator is as follows:

Debbie Santos 647-209-0472

David Anthony 416-528-6140

[14] The Applicant may call the following witnesses on the custody and access issues:

Name	Topic	Estimate of Examination In Chief	Estimate of Cross-Exam
Debbie Santos	Parenting, the child’s needs and ability of the parties to communicate	1 day (5 hours)	3 hours
Iberia Santos Applicant’s Mother	Parenting; custody issues	2 hours	1 hour
Gabriella Ardito	Parenting, custody issues	2 hours	½ hour
Gloria Veiria	Parenting; custody issues	1 hour	½ hour
Pilar O. Hall, Child Protection Worker	Parenting	1 hour	45 minutes
TOTAL 18 hours		12 hours	6 hours

[15] The Applicant may not call any other witnesses without permission of the trial judge.

[16] The Trial Co-ordinator shall arrange for a Portuguese interpreter for the evidence of Iberia Santos.

[17] The Respondent may call the following witnesses:

Witness	Topic	Estimate of Examination In Chief	Estimate of Cross-exam
Jean-Philippe Pantelidis	Parenting	5 hours	4 hours
Eulalia Santos (Applicant’s sister)	Parenting	60 minutes	45 minutes
Mark Verdun (Eulalia’s husband)	Parenting	60 minutes	60 minutes
Josip Kucan (father of Applicant’s son Luke)	Parenting	120 minutes	60 minutes
Domenic Garaci	Parties’ behaviour/ temperament	45 minutes	60 minutes
Maria Stamatiou	Parenting	45 minutes	45 minutes
Sarah Fawzy	Parties’ behaviour/ Temperament	30 minutes	30 minutes
Nelson Rocha	Parenting	45 minutes	60 minutes
Ibe Rocha	Parenting	45 minutes	1 hour 45min.
TOTAL 24.5 hours		12 hours	12 hours

[18] The Respondent may not call any other witnesses without permission of the trial judge.

[19] The estimated duration of the trial is as follows:

Witnesses on behalf of the Applicant	17 hours
Witnesses on behalf of the Respondent	22 hours
Opening statements Closing statements Est. 1 hour each	2 hours
TOTAL	45 hours = 9 – 10 days

[20] By December 12, 2016 each party shall serve and file form 35.1.

[21] By December 19, 2016 each party shall serve and file:

(a) a trial record in accordance with rule 23 as modified by the endorsement dated January 7, 2016 referred to above;

(b) an opening trial statement;

(c) a draft of the order requested at the conclusion of the trial.

[22] Neither party may bring any motions before the commencement of the trial and, after the commencement of the trial, only with the permission of the trial judge.

[23] The costs of this Trial Management Conference are reserved to the trial judge.

Kiteley J.

Date: November 2016