Court File and Parties

COURT FILE NO.: FS-16-409757 DATE: 20170322 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: ELEANOR MARIE NORRIE McCAIN, Applicant AND: JEFFREY JAMES MELANSON, Respondent

BEFORE: C. Horkins J.

COUNSEL: Don H. Jack and Jacqueline M. Mills, for the Applicant Harold Niman and Richard Niman, for the Respondent

HEARD at Toronto: In Writing

Endorsement

[1] The applicant brings this motion to change the schedule that I ordered on February 9, 2017 (see 2017 ONSC 916).

[2] On February 9, 2017, I ordered the applicant to pay the respondent $125,000 on account of his interim costs. I also ordered active management of the application because it is “required to ensure that this case proceeds in a just and timely manner.” I made specific orders to achieve the primary objective of the Family Law Rules. I found that the orders were necessary as explained in para. 69 of my reasons:

[69] The respondent has every reason to be concerned with the future cost of this litigation. He has had to borrow money from friends and family, use his line of credit and sell his condominium to access the net value. He is unemployed and cannot find a new job. The applicant does not deny that she “has embarked on a vindictive path … and she will stop at nothing to ruin [the respondent] professionally and financially.”

[3] The February 9 2017 order directed parties to do the following at paras. 74 (4) to 9):

4. The parties shall immediately agree to a timetable to complete questioning and a date to conduct a settlement conference.
5. The settlement conference shall be heard by Justice A. Harvison-Young or Justice S. Stevenson. Counsel shall agree on a date when either judge is available. The date will be chosen and booked with the trial co-ordinator and included in the timetable.
6. The questioning and settlement conference shall be completed by June 23, 2017.
7. The timetable shall be filed with the court by February 24, 2017.
8. If the parties do not reach a final settlement before or at the settlement conference, they shall fix a date at the settlement conference for a final hearing of the dispute. The final hearing shall be completed by the end of 2017.
9. No further motions may be brought unless they are scheduled with Justice C. Horkins. Counsel may schedule necessary motions with Justice Horkins by conference call, to be set up with the trial co-ordinator.

[4] The applicant did not seek leave to appeal my February 9, 2017 order.

[5] The applicant commenced this application on March 2, 2016. Since then she has done very little to move her application ahead. The applicant brought a motion in September 2016 seeking to disqualify Mr. Niman and the law firm Niman Gelgoot & Associates, from continuing to act for the respondent. On October 18, 2016 Justice Kiteley dismissed her motion. The applicant’s motion for leave to appeal was also dismissed.

[6] Justice Kiteley ordered the parties to attend a case conference before her on October 31, 2016. An agenda was set for the case conference that included narrowing the issues in dispute, exploring settlement and establishing a timetable for next steps.

[7] After the case conference, Justice Kiteley issued an Endorsement setting out a timetable for the respondent’s rule 24(12) motion that I heard on January 26, 2017.

[8] In addition, Justice Kiteley ordered on consent that the parties would be permitted to question each other in the application (not for the purpose of the rule 24(12) motion). The parties were ordered to attend questioning on dates to be agreed for 2-3 days each (not to exceed 18 hours each) with the respondent being questioned first. According to the motion material now before me, no steps were taken to schedule this questioning until I ordered the timetable on February 9, 2017.

[9] On January 19, 2017, the applicant brought a motion before me for an order requiring the respondent to produce documents and for leave to question him. On January 23, 2017, I dismissed the applicant’s motion. I found that the applicant had not complied with Justice Kiteley’s timetable and her motion was contrary to para. 4 of Justice’s Kiteley’s order.

[10] Further, while questioning in the application was ordered on consent by Kiteley J, I found that this did not include the right to question the respondent for the pending rule 24(12) motion. At para. 36 I stated:

[36] Given the respondent’s disclosure and the excessive, unnecessary and disproportionate nature of the applicant’s request, it is not unfair to require the applicant to proceed with the respondent’s rule 24(12) motion, without questioning. Questioning would cause unacceptable delay to the respondent’s rule 24(12) and cause him undue expense.

[11] After my February 9 decision was released, counsel started to correspond about the timetable that I ordered.

[12] Ms. Mills emailed Mr. Niman on February 15, 2017 asking for available dates. She followed up again on February 17. The same day Mr. Richard Niman proposed a conference call for the next week to set the timetable. Mr. Jack replied by email that day. While he was not available the following week, he understood that Ms. Mills was in Toronto.

[13] On February 21st, Mr. Niman’s office emailed to suggest that the conference call take place on February 23 at 5:30 pm. An assistant for Ms. Miehls (one of the applicant’s lawyers) emailed to advise that Ms. Miehls was not available at 5:30 pm. She asked that the call take place earlier that day. Later the same day, Ms. Mills requested that the call take place sooner, given the pending deadline of February 24 in my order. No time for an earlier call was suggested.

[14] The conference call between counsel finally took place on February 23, 2017. Before the call took place, counsel had not exchanged any dates for questioning.

[15] During the conference call, Ms. Mills advised Mr. Niman for the first time that the applicant could not conduct the questioning and settlement conference by June 23, 2017. Mr. Niman requested that the applicant’s position be set out in a letter.

[16] In a letter dated February 24, 2017, Ms. Mills explained that the applicant cannot comply with the June 23, 2017 deadline because she has been “working on the Canadian Songbook Project for three years culminating in the release of the album and the book. Between now and July 1, Ms. McCain is extremely busy with concerts, meetings rehearsals in order to meet the deadline and complete the project”.

[17] In the letter Ms. Mills proposed that dates be set for September 2017 and added that they should “easily be able to schedule the settlement conference for a date in September and still be able to have a trial prior to the end of the year.” Finally, Ms. Mills stated that the dispute between the parties was not a custody case, nor a matter that is time sensitive”.

[18] Mr. Niman responded on February 27, 2017. He refused to consent to a change to the court ordered deadline and correctly pointed out that the applicant had never previously advised that she was unable to meet the deadline. Further Mr. Niman disagreed with Ms. Mill’s statement that the matter between the parties was not time sensitive.

[19] On March 3 2017, Mr. Niman served Ms. Mills with a Notice of Questioning of the applicant fixed for May 3 and 4, 2017. He also suggested June 12, 16, or 19, 2017 for a settlement conference.

[20] On March 6 2017, Ms. Mills advised the court that a motion was required to address her client’s request to amend the court ordered timetable. I directed that the motion be heard in writing and set a timetable for filing motion materials.

[21] The applicant filed an affidavit describing the nature of her involvement in a “very significant national project in celebration of Canada’s 150th anniversary of Confederation.” The project is called “True North: The Canadian Songbook” and the release date is May 12, 2017. The applicant has been working on the project for three years. There is also a short documentary film being released. The applicant states that this project will be promoted heavily until Canada’s 150th birthday on July 1, 2017 and throughout the rest of the summer.

[22] The applicant explains that this has been a “hands on” project for her. She is the executive producer and every aspect of the project involves her. May is the busiest part of the release of the project. The applicant is performing as a guest artist on May 6 and has rehearsals leading up to this date. She is attending a fundraiser on May 9. She states that she has other media events, but no dates are provided.

[23] In addition to her project, the applicant states that she cannot attend questioning until September 2017 because she has been diagnosed with chronic fatigue syndrome. She is receiving treatment from Dr. Fred Hui and has attached a brief half page letter from this doctor dated March 7, 2017. Dr. Hui has not filed an affidavit. The letter states that Dr. Hui has been treating the applicant since September 22, 2016 and that the applicant is undergoing intravenous treatments at his clinic. Dates of treatment are not provided.

[24] Dr. Hui states that the applicant is advised “to lessen exposure from any form of stress in order to attain maximal benefit of therapy”. Further he states that based on what the applicant has told him regarding her project and her litigation with the respondent, “she is advised to avoid the stress of dealing with both of these matters simultaneously”. Based on this letter, the applicant argues that her application must be put on hold until September.

[25] I accept that the project is important to the applicant and as a result she has various commitments. I do not accept that the applicant is unable to comply with the February 9 order. My reasons follow.

[26] While the applicant states that she is too busy to attend questioning, specific details and dates of her various commitments are lacking. Of note her affidavit reveals very few actual dates on which she is committed to attend an event.

[27] While the applicant states that she is committed to dates in April to launch her project, the actual dates are not revealed. Of note the applicant does not say that she has any scheduled commitments on May 3 and 4, the dates that Mr. Niman fixed in the Notice of Questioning.

[28] The applicant has been balancing the demands of her project and dealing with this application at the same time for over a year. She started this application in March 2016 and has involved herself in the motions that she has chosen to bring. At no time did she ever raise concerns about managing the project and her litigation.

[29] The applicant’s twitter profile, as revealed in the respondent’s affidavit, shows that her True North book was “officially at the printer” on February 27, 2017. On March 8, 2017 another tweet from the applicant celebrated the release of her song that is available on Spotify.

[30] The applicant now claims that she can no longer juggle both obligations and for the first time she suggests that there is a medical reason for the delay that she requests. If the applicant must lessen her exposure to stress and if she cannot continue to manage the project and her application, then it is time for her to prioritize the application that she commenced.

[31] Ms. Mills argues that this application is not time sensitive. I disagree. The respondent is unemployed. As I stated in my February 9, 2017 reasons, the applicant has pursued a vindictive, time consuming and costly approach to her application. At paras. 31-33 I reviewed this evidence that was not challenged by the applicant and therefore accepted as fact:

[31] The respondent explains that since their separation, the applicant “has embarked on a vindictive path … and she will stop at nothing to ruin me professionally and financially. She will use her vast financial resources to cause me to be unable to properly prepare my case”. [32] The respondent explains that the applicant commenced her Application for an annulment “in bad faith with the clear intention to harm me.” Further in her Application, the applicant asserts “[w]holly irrelevant and inaccurate anecdotes that have no bearing on an annulment analysis.” [33] Since issuing the application on March 2, 2016, the applicant has created “as many cost-consuming obstacles as possible”.

[32] This application was commenced more than a year ago and virtually no progress has been made. The applicant’s failed attempt to try and remove the respondent’s counsel delayed the case. Justice Kiteley allowed questioning on consent and the applicant has had months to schedule dates for questioning. She has done nothing to set up her questioning of the respondent that was to proceed first. Given the applicant’s delay and failure to move her application ahead, it is no longer necessary that the applicant’s questioning of the respondent proceed first.

[33] The applicant’s project has been ongoing for three years and it has not interfered with her ability to start this application, bring various motions against the respondent and attend in court for case conferences and motions.

[34] It is not up to the applicant to decide if she will comply with a court ordered timetable. She did not comply with Justice Kiteley’s timetable and is now in breach of the February 9 timetable.

[35] Timetables are routinely set by the court because they “enable the court to deal with cases justly”. This is the primary objective of the Family Law Rules. Rule 2(4) states that the "court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective."

[36] Ms. Mills states that if the questioning is delayed to September 2017 the parties could easily complete the settlement conference the same month and conduct a trial by the end of 2017. This is not realistic. The trial date will be set at the settlement conference, assuming no settlement. By September, dates for trial in 2017 may no longer be available.

[37] The parties requested questioning in October 2016. Requiring them to complete the questioning and the settlement conference by June 23, 2017 is fair and reasonable.

[38] Further delay of the application is prejudicial to the respondent. As I stated in paras 25-26 of my February 9, 2017 reasons, the applicant has not complied with the Marriage Agreement:

[25] As noted, the respondent has advanced his own claim for relief. He has clearly established the merit of his claim under the Marriage Agreement. As noted, the applicant did not file any affidavits in response to this motion. As a result, the following key facts are not disputed. [26] The applicant insisted that the respondent sign the Marriage Agreement. Before the Marriage Agreement was signed, the parties had independent legal advice and exchanged financial disclosure. The applicant has not made a claim to set aside the Marriage Agreement. The respondent has a right under the Marriage Agreement to the $5 million payment and a share of the increase in the value of the matrimonial home, regardless of whether the marriage is annulled or a divorce granted. The respondent is entitled to the lump sum of $5 million within 120 days of the marriage breakdown. The applicant has not complied with the Marriage Agreement.

[39] Applicant’s counsel has tried unsuccessfully to schedule a date for the settlement conference. Mr. Niman has suggested June 12, 16 or 19 2017.

[40] In summary, I make the following orders:

1. The applicant’s motion is dismissed.
2. The applicant shall attend questioning on May 3 and 4 2017 pursuant to the Notice of Questioning.
3. If the applicant intends to question the respondent it must be completed before the settlement conference, failing which no questioning shall be allowed.
4. If the parties do not reach an agreement on a date for the settlement conference by March 31, 2017, I order that the settlement conference shall take place on June 12, 2017 at 10 am before Justice Harvison-Young.
5. The parties shall exchange offers to settle and file them with their settlement conference briefs. They shall also file a completed Trial Scheduling Endorsement Form so that a date for trial can be fixed at the settlement conference.
6. If the parties cannot agree on the costs of this motion, they shall exchange brief costs submissions and file them with the court by April 18, 2017.

C. Horkins J. Date: 20170322