Superior Court of Justice - Ontario

Citation: Turk v. Turk, 2016 ONSC 828

Court File No.: FS-14-19285

Date: 20160202

Re: Jennifer Sandra Turk, Applicant

And:

Stuart Bernard Turk, Respondent

Before: Kiteley J.

Counsel: Harold Niman and Katharine Rajczak, for the Applicant

Heather Hansen, for the Respondent

Heard: in writing

Case Management Endorsement

[1] In a case management endorsement dated July 3, 2015 [2015 ONSC 4294] I made various orders including giving priority to the Respondent’s motion for summary judgment. In reasons for decision released September 30, 2015 [2015 ONSC 5845] I dismissed the motion brought on behalf of the Respondent to dismiss paragraphs 1-3 and 11-13 of the Application and to order bifurcation of the issue of the enforceability and binding nature of the parties’ separation agreement.

[2] As indicated at paragraph 12 of the July 3 endorsement, on May 20, 2015, McWatt J. made an order for temporary child and spousal support that required the Respondent to pay $10,000 per month and arrears of $63,150. At paragraph 13 of that endorsement I referred to the correspondence in which counsel listed the following outstanding motions that needed to be addressed at the case management conference scheduled for June 30, 2015, namely:

(a) motion by Respondent for production of the file of the lawyer who acted for the Applicant in the negotiations for the separation agreement;

(b) motion by the Applicant to vary the temporary order of McWatt J. dated May 20 to increase child and spousal support;

(c) motion by the Respondent to vary the temporary order of McWatt J. to decrease child and spousal support;

(d) motion by the Applicant for interim disbursements.

[3] At paragraphs 125 and 126 of the September 2015 endorsement, I indicated that at the case conference on June 30, 2015, I had scheduled a case conference to be held on October 2, 2015 to discuss next steps and:

At that case conference, I will expect counsel to have conferred and to provide a timetable for moving the matter toward a trial. Now that the logjam caused by the motion for summary judgment has been broken, there is no excuse for experienced counsel not to agree on which motions should proceed and in what order; on how to address disclosure in an orderly and reliable schedule; on expediting whatever experts’ reports are needed so as to meet the time requirements of the Family Law Rules, or agree to reduce those time requirements; on whether transcripts arising from questioning on affidavits filed in connection with this motion should be treated as questioning in the action; and whatever other procedural issues must be addressed.

I also expect counsel to include in that timetable an opportunity for an effective settlement conference. Indeed, now that the motion for summary judgment has been decided, if counsel are of the view that an immediate settlement conference would be productive, that can be arranged.

[4] At the case conference held on October 2, 2015 counsel for the Respondent advised that they had not agreed to costs of the summary judgment motion and would make written submissions; that the motions referenced by McWatt J. needed to be heard; that counsel were exploring a possible resolution of the differences between their clients as to the date of separation; that valuations of assets of the Respondent was not required as of the current date; that within 60 days, the valuator for the Respondent would provide a “loose update on production issues”; that conservatively it would take 8–10 months for the Respondent’s valuator to provide valuations of the over 50 properties that needed to be valued; that the Respondent would serve his Answer within 30 days but he asked for an extension of a further 30 days after the valuator provided his reports to prepare his form 13.1; that another round of questioning would be required; that affidavits of documents would be required. Ms. Hansen insisted that the motion by the Respondent for disclosure of the file of the Applicant’s lawyer on the separation agreement negotiations had to be decided before the settlement conference.

[5] Counsel for the Applicant did not agree that it would take 60 days to provide a “loose update on production issues”; that the Respondent should provide his form 13.1 within 15 days after his valuator provided reports; that further questioning and affidavits of documents needed to be addressed; that disclosure motions needed to be addressed; that the long trial (4–6 weeks) should be held in 2016; that counsel could work out the terms upon which an early settlement conference would be held and would advise in a week or so and send that to me.

[6] According to the Applicant, the valuation date is January 2, 2008 and according to the Respondent it is November 5, 2007. At the case conference on October 2, 2015, I urged counsel to agree on the valuation date in order to reduce the expert evidence that was required.

[7] During the October 2, 2015 case conference, I set aside December 11, 2015 either for a settlement conference or for motions and I adjourned the case conference to October 19 to determine whether counsel would agree on the next priority and how matters would proceed.

[8] In the endorsement I made arising from the October 19 conference call, I noted that counsel had not agreed to an early settlement conference on December 11, 2015. Mr. Niman and Ms. Rajczak took the position that February would be the earliest time after disclosure and experts’ reports had been concluded. I noted that since the settlement conference contemplated for December 11 would be earlier than would usually be the case, I would not order a settlement conference without agreement of counsel. The endorsement included the following:

Counsel had had preliminary discussions about a timetable for outstanding motions: Ms. Turk’s motion to increase temporary support; Mr. Turk’s motions to decrease temporary support and for an order for production of M. Kraft file. Counsel will attempt to resolve the timetable, failing which they will bring a 14B motion to my attention and I will decide the timetable. If December 11, 2015 is not used for a settlement conference, it is available for motions before me starting at noon. If that date is not agreeable to both parties, counsel must obtain alternate date(s) from Joanne Benedetto for a long motion before me and include such dates in the 14B motion.

Counsel have tentatively agreed to a resolution of the valuation date issue, but the details need to be resolved.

Counsel will advise me by October 26/15 how they will resolve issue of costs submissions on outstanding costs from motions I heard September 3, 2015.

[9] In a letter dated October 27, 2015, Ms. Rajczak advised that counsel had been unable to resolve costs and would make written submissions.

[10] On October 26, 2015, Ms. Hansen served and filed Submissions for Timetabling Motions. She proposed that her client’s motions for production of Ms. Kraft’s file and to reduce support should be heard on December 11 and that by December 1, 2015, each party would serve an updated affidavit, if any and by December 4, 2015, each party would serve and file updated factums and briefs of authority, if necessary. Ms. Hansen observed that since both parties had brought motions to adjust the level of support, it meant that the parties agree that the present support arrangement is inappropriate and fails to reflect the reality of their situation. She pointed out that the Applicant acknowledged in her questioning that there have been material changes to the parenting arrangement and that the impact of those arrangements on support should be addressed in a timely manner.

[11] In a letter dated October 28, 2015, Mr. Niman indicated that on October 26, they had been served with the Respondent’s submissions for timetabling motions “pursuant to the Endorsement of Kiteley J. dated October 19, 2015”. Mr. Niman advised that his firm had not received the October 19 endorsement. He did confirm that counsel had not agreed to a settlement conference on December 11 nor had they agreed to hearing any motions on December 11. Mr. Niman wrote that:

Therefore, as required by your endorsement we will obtain alternative long motion dates from Joanne Benedetto, discuss with Ms. Hansen and include such dates in our responding 14B materials.

[12] On October 30, 2015, counsel for the Applicant served Applicant’s Timetable Submissions. Counsel proposed that the motions of both parties to increase/decrease support and for interim disbursements be heard on February 11, 2016. He took the position that the Respondent’s motion for production of the Kraft file could be heard on a regular motions day. Counsel pointed out that following receipt of the Answer and form 13.1 financial statement (required by October 30), the Applicant would file a Reply and, on the basis of the Answer and Reply, further questioning might be required. He observed that none of that could be accomplished by December 11. He suggested that the parties exchange affidavit of documents by November 30, 2015; that questioning be scheduled in January after Mr. Cohen releases his reports and Mr. Rudson has completed his critique; that requests to admit be exchanged after questioning is completed. Counsel observed that according to the Respondent’s submissions, Mr. Cohen is “not doing any further investigation on the issue of income” and is also “not engaged to value current business interests”. Rather, Mr. Cohen “is only valuing historical business interests as of date of marriage and December 31, 2007”. Counsel for the Applicant disagreed that that would meet the Respondent’s obligations and that if the Respondent was refusing to provide current valuation and income reports it will take longer for the Applicant’s valuator to request and analyze relevant current information.

[13] Assuming that the Applicant received proper current information from the Respondent in a timely way, and assuming that the valuators have each released their respective reports and questioning has been completed, counsel for the Applicant proposed that by February 1, 2016 each party would serve an updated affidavit and by February 4, 2016 the parties would serve and file updated factums and briefs of authority if necessary and the interim support motions and interim disbursement motions would be heard February 11, 2016.

[14] Having reviewed the file to prepare this endorsement, I note that the Respondent did serve and file his Answer by October 30, 2015 but, as of February 2, he has not served and filed a form 13.1 financial statement. As indicated in paragraph 4 above, counsel asked for an extension. I did not authorize it but the Respondent has acted as if I had done so.

[15] I am assuming that the expectations of counsel with respect to delivery of experts’ reports and related questioning have occurred. The trial of this action should take place in 2016.

[16] The Applicant seeks to bring on her motion for increased support while the Respondent seeks to bring on his motion for decreased support. I appreciate that the order that McWatt J. made on May 20, 2015 was temporary. However, I see no basis for permitting either party to bring on such motions. I have sympathy for the Respondent’s request to reduce support particularly because there may be a material change in parenting arrangements that may impact the amount of support. But his support obligations are directly related to his income and other financial circumstances. As of February 2, 2016, 23 months after the Application was issued, he has still not delivered a form 13.1 in full compliance with the Family Law Rules. Any motion with respect to reduction in support would inevitably be sidetracked by that issue. As indicated in paragraph 37(i) of the July 2013 endorsement, temporary orders are not meant to be changed pending trial. At that time I declined to include the motions to vary support as a priority issue. I now decline to permit the motions to proceed. Both parties should be equally motivated to bring the matter to trial as soon as possible.

[17] I do agree that the Respondent’s motion for production of the Kraft file should be heard. I note Ms. Hansen’s submission that if the Kraft file is ordered produced, that the Respondent will provide his lawyer’s file to avoid the necessity of a cross-motion from the Applicant. The record for that motion is intact. I will hear that motion on February 11, 2016. I also agree that the Applicant’s motion for interim disbursements should be heard. That motion record is intact and can be brought on in the immediate future.

ORDER TO GO AS FOLLOWS:

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

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

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

[21] 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.

[22] 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.

[23] 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.

Kiteley J.

Date: February 2, 2016