Court File and Parties

COURT FILE NO.: FS-15-404715 DATE: 20170111 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Julia Michelle Bolland, Applicant AND: David Drew Bolland, Respondent

BEFORE: Kiteley J.

COUNSEL: David Seed, for the Applicant Harold Niman and Erin MacKenzie, for the Respondent

HEARD: December 1, 2016

Endorsement

Background

[1] The parties were married in June 2010 and have a daughter L. born August 19, 2013. They now agree that they separated in September 2014. In April 2015, the Respondent commenced a Petition for Dissolution of Marriage in Florida. On August 20, 2015, the Applicant issued an Application in Toronto. The first case conference was held on December 21, 2015 and on subsequent occasions, the court and the parties focused on jurisdictional issues. On May 30, 2016, Hood J. heard the motion and made an order dated July 6, 2016 (Bolland v. Bolland, 2016 ONSC 4390) that Ontario had jurisdiction. Subsequently the court in Florida granted the Applicant’s motion and dismissed the case. In an endorsement dated August 17, 2016, Hood J. ordered the Respondent to pay costs fixed in the amount of $20,000 payable on or before September 16.

Order of Perkins J. October 20, 2016

[2] From the outset of the proceedings, the Applicant wanted to bring a motion to address issues including custody, access and child and spousal support. Shortly after the July 6 order was released, the Applicant launched her motion originally returnable October 20, 2016 supported by her affidavit sworn September 13. She subsequently delivered a financial statement form 13.1 dated October 12, 2016.

[3] On October 20, at the request of the Respondent, Perkins J. adjourned to December 1, 2016 and made an order that the Respondent pay an uncharacterized amount of $75,000 by the 25th of October (inclusive of the $10,000 he had been paying) and that he continue paying $75,000 monthly until the motion was heard and decided. Perkins J. also established a timetable that required the Respondent to serve and file an Answer, financial statement, form 35.1 affidavit and his responding motion materials and cross-motion materials by November 4; the Applicant was required to serve and file her response and reply by November 14; the Respondent was required to serve and file his reply by November 18; questioning “if desired” would occur by November 23; and factums were required by November 28. Perkins J. reserved the costs of that attendance to the costs of the motion.

[4] The Respondent did not meet the November 4 deadline. On or about November 7, 2016 his Answer and form 13.1 financial statement, his form 35.1, his cross-motion for temporary custody and other relief and his affidavit dated November 7 were served along with the affidavit of his mother sworn November 4, 2016 and the affidavit of a private investigator T.K. sworn November 6, 2016.

[5] On or about November 17, counsel for the Applicant delivered her responding affidavit sworn November 16 along with the affidavits of R.D. and A.S. both sworn November 16 and the affidavit of C.B. sworn November 15.

[6] Counsel for the Respondent delivered reply materials consisting of the Respondent’s affidavit sworn November 22 and the affidavit of C.L. sworn November 22.

[7] Mr. Seed tried to arrange for questioning but counsel had a difference of opinion about the contents of the Applicant’s November 16 affidavit. On about November 25 counsel for the Respondent served a motion returnable November 29 for an order that the Applicant produce the unredacted ambulatory care report that was found at Exhibit J as well as related medical files and for an order for the production of the full text message conversation found at Exhibit F. I directed the Applicant to provide an unredacted version of the report but otherwise dismissed the motion and ordered no costs.

[8] Counsel also had a difference of opinion about the contents of the Applicant’s September 13, 2016 affidavit although it had not been raised by Ms. MacKenzie on October 20 and had not been incorporated into the timetable. Because of the controversy over those issues, questioning did not occur. Mr. Niman took the position that he would not conduct questioning of the Applicant until passages were withdrawn from her affidavit because to do so would constitute a “fresh step” that would impair his client’s ability to bring a motion to strike. I accept that explanation but note that there was no impediment to the Respondent attending for questioning but declining to answer questions about the challenged content.

[9] At the outset of the hearing on December 1, counsel for the Respondent brought an unscheduled motion to strike parts of the Applicant’s affidavits on the basis of settlement privilege. After hearing submissions I made an oral ruling striking the following: from the September 13 affidavit: paragraphs 25, 91, 92 and Exhibit R and paragraphs 93 and 94; from the November 16 affidavit: paragraphs 44 and Exhibit E, paragraphs 51 and 52. Mr. Niman had asked that the paragraphs of the factum that referred to those passages also be redacted. I did not specifically note that but I agree that they should be disregarded.

[10] In giving the oral ruling, I crossed out in red the passages and exhibits and indicated that I would give directions as to whether the affidavits in question needed to be removed and refiled. On reflection, given the nature of the objection that I have sustained, it will not be necessary for the Applicant to redact and refile.

Orders sought

[11] In her Notice of Motion, the Applicant seeks the following: interim custody; interim child and spousal support in accordance with the Spousal Support Advisory Guidelines and the Child Support Guidelines; lump sum payment of arrears of child and spousal support from August 2015; release of the proceeds of sale of the matrimonial home in London, Ontario; disclosure from the Respondent; costs.

[12] In his Notice of Motion, the Respondent seeks the following: that he be granted temporary sole custody or alternatively an order for temporary shared custody; that on a temporary basis the child reside with him primarily in Florida; an order that the Respondent could travel with the child outside of Canada without the Applicant’s consent; that on a temporary basis, the Applicant shall exercise supervised access; that the court make an order for an assessment pursuant to s. 30 of the Children’s Law Reform Act.

Conflicts in the evidence

[13] At the outset of the hearing, Mr. Niman took the position that the court should adjourn for purposes of questioning and a s. 30 assessment and make only temporary orders in the meantime. After hearing brief submissions I declined to adjourn.

[14] As indicated above, the parties have filed their own affidavits along with affidavits of others. I note that it was the Respondent who first filed such affidavits designed to support him in his many allegations about the Applicant’s lifestyle during cohabitation and since the separation and that when the Applicant was forced to provide a response, it was more balanced than the Respondent had been. I agree with Mr. Niman and Mr. Seed that there is significant conflict in the evidence. However, this is a motion that the Applicant sought to bring for over a year but she had been precluded from doing so by the Respondent’s unsuccessful jurisdiction motion. In the meantime, a status quo had evolved with respect to support by which the Respondent paid $10,000 per month, an amount that he dictated. While he did make some other payments such as first and last months rent, based on his income, it appeared that he had been significantly underpaying child and spousal support. The status quo with respect to the child also needed immediate attention because of the continuing issues of her crossing the border to go to Florida to visit her father where he had challenged jurisdiction.

[15] Much of the evidence relied on by the Respondent was hearsay and had been filed without complying with rule 14(19)(a). Not only did his evidence violate that rule in many respects but the affidavit of T.K., the private investigator whose employees conducted surveillance of the Applicant on June 7, 2016 and on October 21, 2016 was hearsay in all material respects and, as I indicated during submissions. I would not rely on it.

[16] Having concluded that the motions needed to be heard without waiting for questioning or an assessment, I intend to take a cautious approach to the evidence on which I rely for purposes of making this temporary order.

Custody and parenting time

[17] The history of the Respondent’s professional hockey career is as follows:

• 2006-2007: AHL: Norfolk Admirals
• 2007-2008: AHL: Rockford Icedogs NHL: Chicago Blackhawks
• 2008-2009: NHL: Chicago Blackhawks
• 2009-2013: NHL: Chicago Blackhawks 4 years of 5 year contract
• 2013-2014: NHL: Toronto Maple Leafs 5th year of 5 year contract
• 2014-2016: NHL: Florida Panthers years 1 and 2 of 5 year contract
• 2016: NHL: traded to Arizona Coyotes. Contract is guaranteed until the end of 2018-2019 season but permanently sidelined due to an injury

[18] The Applicant takes the position that they began living together when the Respondent began playing in Chicago. The Respondent takes the position that they began living together shortly before their June 19, 2010 wedding. The difference need not be resolved for purposes of this motion.

[19] In April 2013 the parties had purchased a home in London, Ontario registered in the name of the Applicant. On August 19, 2013 the child was born 6 weeks premature and spent 22 days in hospital during which time her mother was with her constantly. Starting in September of that year, the Respondent had to report for training camp and he rented a condo in Toronto and the Applicant stayed in London with the child. He says that after he was injured he was able to spend more time in London. During that first year of the child’s life, the unchallenged evidence indicates that the Applicant was the primary caregiver.

[20] At the end of the 2014 season, the Respondent’s 5 year contract with Chicago expired and he was a free agent. The evidence is that the Applicant and Respondent discussed options and agreed that he should accept the offer from the Florida Panthers and on July 1, 2014 he signed a 5 year contract.

[21] The parties purchased a jointly owned home in Boca Raton. In September 2014, the Applicant and Respondent and the child went to that home. The parties differ as to what occurred for the two weeks that the Applicant was there. They agree that the Applicant and the child returned to Toronto but disagree as to why. Those differences need not be resolved on this motion particularly because the Respondent now accepts September 14, 2014 as the date of separation.

[22] Based on the unchallenged evidence, I find that the Applicant was the primary caregiver in the second year of the child’s life between August 2014 and August 2015.

[23] In the period between August 2015 and the hearing of this motion, the Respondent continued to live in the home in Florida and had re-partnered. Because of the jurisdictional issue and concerns about the child crossing the border, the parents eventually settled into a schedule which was based on the Respondent’s mother (who lives in Toronto) taking the child to Florida by plane, staying with the child and her father and returning the child to Toronto to the Applicant. Prior to the hearing of the motion, the child had been with her father in Florida on six occasions for about a week on each trip and he had taken her to the Caribbean for a week in August and to Disney World in September. In addition, the Respondent has seen the child in Toronto. The Respondent’s parents are a regular part of the child’s life in Toronto. The evidence, including the pictures, indicates that the child is bonded with her father and enjoys being with him. The Applicant fully supports and encourages the relationship between the child and her father, albeit with some hesitation in making the travel arrangements as long as the jurisdictional issues were unresolved.

[24] During the period August 2015 to the present, I find that the Applicant has been the child’s primary caregiver.

[25] The parties have significantly different perspectives on their shared lifestyle before the separation and their distinct lifestyles since separation. He describes the Applicant in very negative terms while the Applicant asserts that they were both equally engaged in negative behaviour. Each says that whatever was happening before L. was born, each has changed. Neither accepts that evidence from the other. The affidavits that each has filed support the position that each takes and each party has provided affidavits from others that appear to support those positions. In these motions I need not resolve those conflicts.

[26] In his Petition for Dissolution of Marriage that he commenced in Florida in April 2015, the Respondent stated at page 5: “There is no dispute that the Wife is a loving mother who is fully capable of caring for the child”.

[27] Mr. Seed suggests that the Respondent only recently became critical of the Applicant’s parenting because of the motion that she had brought for child and spousal support.

[28] In his affidavit sworn November 7 the Respondent said at paragraph 30 that he had initially believed that the Applicant was a good mother but her behaviour since the separation was becoming increasingly troubling and he expressed “very serious concerns” about the child being in the Applicant’s care as he detailed in paragraphs 57 to 61. He drew conclusions at paragraph 61 that I will not quote. I have rejected the evidence of the private investigator on which the Respondent relies to arrive at those conclusions. And I have the affidavits of two persons involved in the surveillance each of whom provides explanations for what appeared to be happening during the surveillance. Having rejected the evidence on which he relies so heavily, it follows that I do not accept the basis of his concerns about the Applicant’s current parenting capacity.

[29] As indicated in his notice of motion, the Respondent has taken a very aggressive position that he should be the custodial parent or the primary residential parent on the basis of his criticisms of the parenting of the Applicant and the fact that, while he must remain in the U.S. to comply with his contract, he is involved in long term rehabilitation for his injury and is not playing hockey so he is available to be a primary caregiver of the child. He also asked for an order that the Applicant have only supervised access. The positions asserted in his notice of motion were tempered during submissions and the draft order proposed by Mr. Niman provides for joint custody with the parents having the child on a temporary and without prejudice basis for alternating weeks so that the child spends a week with her mother in Toronto followed by a week with her father and his partner in Florida.

[30] There are two issues: custody and parenting time.

[31] I am satisfied that the Applicant has been the primary parent of the child since her birth. I agree with Mr. Seed’s submission that the Respondent’s more recent challenges to the Applicant’s parenting must be taken in the context of a year long battle over jurisdiction that he lost and an imminent motion for a significant order for child and spousal support. The child would not be “happy, healthy and active” as he described her in paragraph 4 of his affidavit sworn November 7 if the assertions made by the Respondent about the Applicant were reliable. Based on the evidence, there is considerable conflict between the parents particularly because the Respondent is so disparaging of the Applicant and so lacking in regard for her parenting capabilities. In the immediate future, the period covered by this temporary order, I see no prospect that the parents will be able to jointly parent this child. Now that the jurisdictional issues have been resolved, there should be less concern about the child crossing the border. However, it remains unpredictable. Furthermore, the Respondent’s position in his notice of motion that he should have sole custody and the Applicant should have supervised access reflects an unrealistic position driven by unreliable “evidence”. This is a case where it is in the best interests of the child that the Applicant have temporary custody so as to make the legal responsibility clear.

[32] As for the schedule of parenting time, given her age (almost 3.5 years) I am not persuaded that it is in her best interests that she travel in alternate weeks between Toronto and Florida by plane (which would involve four air travel events each month) so as to accommodate the equal parenting time alternate weeks schedule that the Respondent proposes.

[33] In her notice of motion the Applicant asked for an order setting terms of access to the child for the Respondent. At paragraph 23 of the factum counsel on behalf of the Applicant request “an order that provides some structure” for access but does not suggest a schedule.

[34] In my view it is in the best interests of the child that there should be a schedule that contemplates one week each month (two plane trips per month) with the Respondent in Florida. If he is in rehabilitation and not playing hockey, there is no evidence why he cannot be in Toronto for extended periods at which time he could see the child here. If he does make those arrangements, then the alternate weeks would be possible. I am satisfied that it would be in the best interests of the child to have such extended periods of time with the Respondent in the immediate future when the schedule does not have to accommodate the routine of school.

[35] There are two areas in the evidence on which counsel for the Respondent relied heavily, namely the medical evidence about the child and about the Applicant. I need not be more specific in this endorsement. With respect to L. I am satisfied that the evidence reflects an attentive mother and does not reflect on her parenting capacity. With respect to the Applicant, I do not agree with the interpretation urged by Mr. Niman about the cause of the symptom and, while the ambulatory care report suggests follow up, I am not persuaded that it has an impact on her parenting capacity.

Assessment pursuant to [s. 30 of the Children’s Law Reform Act](https://www.ontario.ca/laws/statute/90c12)

[36] The Respondent included in his notice of motion a request for an order for an assessment although there does not appear to be evidence in his affidavits that provides the basis for the request. I infer that based on what he does say that it is his position that the court needs a person of technical or professional skill to assess and report on the needs of the child and the ability and willingness of the parties to satisfy the needs of the child.

[37] In submissions, Mr. Niman advised that Dr. Butkowsky had been informed that the Respondent and his partner lived in Florida and he had agreed, through his assistant, that he would conduct the assessment. Mr. Niman agreed with my suggestion that a s. 30 assessment would likely take 6 months and given the distance issues, probably much longer. Mr. Niman also agreed that the cost of such an assessment with those geographic challenges could be $100,000. Mr. Niman took the position that his client would pay the entire cost subject to an order by the trial judge that the Applicant would be required to contribute. When I raised the considerable difference in their respective financial circumstances, Mr. Niman altered his position and indicated that his client would accept responsibility for the entire cost without adjustment. In his submissions, Mr. Seed indicated that he had only been told the evening before the motion that Mr. Niman was proposing Dr. Butkowsky and he had not consulted with his client.

[38] Given the conflicting evidence on parenting issues, it may be that an assessment would be helpful to the court. However I decline to make an order on this record for these reasons. The first is that I do not have the consent required by s. 30(4) and so can have no expectation as to when the report might be available. Second, I require a specific consent in writing that Dr. Butkowsky (or any other assessor) accepts the mandate knowing that it will involve the Respondent residing in Florida. Third, it is reasonable to give Mr. Seed the opportunity to canvass other possible assessors.

[39] I indicated to counsel that I would not grant the motion on this record but if counsel agreed as to the assessor, the timing of the assessment and report and the responsibility for payment, that they could forward it by form 14B motion to my attention and I would consider it.

Spousal and child support

[40] There is no question that the Respondent is obliged to pay child support. The question is the amount.

[41] In his submissions, but not in his factum, counsel for the Respondent conceded that the Applicant is entitled to an order for temporary spousal support. The question is the amount.

[42] In his form 13.1 financial statement sworn November 7, 2016 the Respondent indicates that “last year” i.e. 2015, his gross income from all sources was $5,147,746. In his U.S. Individual Income Tax Return for 2015 attached to his financial statement, that figure appears at line 22 as the total of employment income, capital gains and qualified dividends.

[43] In his submissions, Mr. Seed took the position that his income should be found to be $6.6 million CDN. On that basis, he pointed out that the Respondent could be required to pay the low end of spousal support or $179,810 per month and child support of $48,993 or approximately $230,000 per month. However, he asked that I make an order effective August 2015 for less than half that amount calculated as $90,000 spousal support and $22,000 child support for a total of $112,000 per month.

[44] In submissions, Mr. Niman took the position that the Respondent should pay $25,000 per month spousal support and $7,000 per month child support.

[45] It is implicit in Mr. Seed’s position that he agrees that the SSAG’s and the CSG’s ought not to be applied in this motion for temporary spousal and child support.

[46] The factors that are relevant to arriving at the amount of temporary child and spousal support are the following.

[47] First, from the separation in September 2014 until May 2015, the Respondent says that the arrangement was a continuation of what had occurred before that time. They shared the same debit card account and, according to the Respondent, the Applicant withdrew thousands of dollars which he said exceeded their prior agreed budget and she received the $10,000 per month that he provided to her directly. He says he transferred $60,000 to her on January 22, 2015. Commencing in May 2015 he used a new debit account and left her with the existing account and between May and November 2015, he says that she charged almost $100,000 USD at which point he stopped her authority to use it. In total, he says he has given her or given her access to over $700,000.

[48] However, absent full disclosure, probably from account statements from his financial advisor and from credit card statements, it is not possible to arrive at a comprehensive understanding of what she has received and how it relates to what he should have paid.

[49] Second, whatever funds she has had access to have not been subject to tax either in the U.S. or in Canada. There is no evidence that demonstrates the tax implications of any order that might now be made.

[50] Third, the Respondent has still not fully disclosed his income and assets and has failed to provide a budget that would allow the court to make a comparison of his standard of living to hers. His form 13.1 indicated total monthly income of $421,397 that appears to be in U.S. funds. He completed only the portions of the expenses dealing with automatic deductions, housing and utilities with all other expenses noted as TBC. Accordingly I am unable to reflect on their respective expenses except to note that he pays far more on housing than the Applicant does. She lives in rental accommodation and he lives in the jointly owned home in Florida.

[51] Fourth, it stands to reason that the Applicant has been required to reduce her standard of living and that of the child because the Respondent has controlled access to funds. It is not reasonable that the child should be exposed to two such different standards of living.

[52] Fifth, motions for temporary support are not intended to involve a detailed examination of the budgets and resources. Nor is it necessary to make a specific finding as to his income when the Applicant requests an order that is significantly less than the SSAG’s and CSG’s suggest. On the inadequate record before me, that is largely attributable to the delayed financial disclosure of the Respondent, I conclude that the amount that Perkins J. ordered as a condition of the adjournment of the motion should continue.

[53] The court is required to make a Support Deduction Order. However, the Respondent lives in the United States and implementing it through inter-country processes may take months. I am confident that he will comply with the order set out below because of the risk that his Answer will be struck if he fails to do so. I will not make a Support Deduction Order in this case.

Retroactive child and spousal support

[54] In this case, the steps taken by the Respondent to insist on the resolution of the jurisdiction issue meant that the Applicant could not bring on her motion for temporary child and spousal support sooner than the fall of 2016 and on that basis, it is appropriate to consider an order for support retroactive to August 2015. I have decided not to do so for these reasons. As indicated above, the amount ongoing from October 20 to trial is not based on the SSAG’s and the CSG’s; nor is it based on his budget or her budget or on a finding as to his income. It is based on what appears to be a reasonable amount taking into consideration the standard of living attracted by having an income of approximately $6 million CDN, living in a $3million USD house in Florida, and not working on a daily basis but focusing on rehabilitation for an injury. In these unique circumstances, I leave the issue of retroactivity to the trial judge.

Health insurance

[55] The Respondent has health coverage through his NHL contract and he agrees to maintain the Applicant and the child as beneficiaries so long as it is available. There was no evidence that it would become unavailable before the expiry of his contract, sometime in 2018. Accordingly, on a temporary basis, he should be required to maintain the coverage.

Divide net proceeds of sale of former matrimonial home

[56] As indicated above, the Applicant held title to the former matrimonial home in London, Ontario at the time of the separation. The parties agreed to sell it in November 2015. The net proceeds of sale are approximately $110,000 and remain in the trust account of the real estate lawyer. In her notice of motion, the Applicant asks for an order that all of those funds be released to her. It is the Respondent’s position that each of them should receive 50%.

[57] I agree that the Applicant should have the balance of the proceeds of sale. The Applicant was the registered owner. The Respondent still owes considerable financial disclosure. However, based on what disclosure he has provided, it is likely that he will owe her an equalization payment and 50% of the current value of the jointly owned Florida home. He has no need for capital at this time. She does.

Interim disbursements

[58] In submissions, Mr. Seed asked that I make an order for interim disbursements in the amount of $260,000.

[59] The Respondent was ordered to pay costs of $20,000 by Hood J. and he did so. The evidence indicates that as a result of the dismissal of the Florida proceedings, the Applicant’s Florida counsel will be seeking costs.

[60] The financial circumstances of the Respondent will likely require input from a professional. It is preferable that the Respondent provide a comprehensive form 13.1 and financial disclosure and then the Applicant will be in a position to describe the qualifications of the professional she needs and quantify the amount required to do so. By that point, her financial circumstances will have stabilized and she will be able to confirm what resources she has available to pay for her own professional fees. Until then, the request is premature.

Financial disclosure by the Respondent

[61] As indicated above, the Applicant commenced this proceeding in August 2015. Although Hood J. released his decision in early July 2016, the Respondent did not file an Answer and a form 13.1 until the first week in November. The form 13.1 is deficient in many respects.

[62] In her notice of motion and factum, the Applicant asks for a properly completed form 13.1 and other specific disclosure. Mr. Niman asks that counsel for the Applicant be required to serve a request for information. I disagree.

[63] I understand that the Respondent takes the position that there is nothing to produce with respect to David Bolland Sports Performance and Rehabilitation and the David Bolland Foundation. But there must be some records which he is required to produce.

[64] I am satisfied that most of what is sought in the notice of motion is appropriate, excepting only that the Respondent ought not to produce copies of credit card statements from 2007, and I will make an order accordingly. Since the Respondent has had many months to provide his disclosure and since he is not otherwise working but focusing on his rehabilitation, he should be required to do so within 30 days.

Sealing order

[65] Although not contemplated by the timetable established by Perkins J., on November 25, 2016 counsel for the Respondent served a Notice of Motion returnable December 1, 2016 in which he asked for an order sealing the court file, initializing the title of proceedings and removing any identifying information from decisions and endorsements made in the case. In support of that motion the Respondent relied on his affidavits sworn November 7 and November 22 as well as the affidavit sworn November 25 in support of that motion and he relied on the Applicant’s affidavit sworn November 16.

[66] At paragraphs 59 to 68 of his factum, Mr. Niman summarized the basis upon which a sealing order ought to be made. The Respondent takes the position that such relief ought to be granted for two reasons: in the best interests of the child and because of his contract. The authorities on which he relied (MacIntyre v. Nova Scotia (Attorney General), [1982] 1 S.C.R. 175, 1982 SCC 14; De Paula v. Brass, 2014 ONSC 6010) address the former but not the latter. The motion had been served so late that Mr. Seed had not had an opportunity to file responding material or take instructions as to his client’s position. I declined to hear that motion on December 1 and indicated that I would create an opportunity for counsel to make written submissions taking into account the decisions of the Supreme Court on that point (Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, 1989 SCC 20; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, 1994 SCC 39; R. v. Mentuck, 2001 SCC 76; Re Vancouver Sun, 2004 SCC 43; Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41; Foulidis v. Foulidis, 2016 ONSC 6732), and the June 2016 Consolidated Practice Direction dealing with notice to the media.

[67] I make three observations. The first is that it is not possible to remove identifying information from decisions and endorsements already in the public domain such as the decision of Hood J. dated July 6, 2016 and this endorsement. The second is that the parties are frequent users of social media. They were present on December 1 and I strongly encouraged them to agree to stop using social media in any way related to the case and I noted that their ongoing use of social media might serve as a factor on which I might rely in not granting the order requested. The third is that I consider it unlikely that the entirety of the court file will be sealed and counsel must provide details by tab, paragraph and exhibit as to the specific documents that each or both ask be made subject to the order.

Costs

[68] I did not ask for submissions as to costs. I will establish a timetable below for doing so but I encourage the parties to agree as to costs and avoid the process of filing submissions.

Next steps

[69] In 2015, the parties engaged in mediation but were not successful in resolving any of the substantive issues. In addition, they had several case conferences with Justice Stevenson but all were focused on the process for resolution of the jurisdiction issue. As a result, it appears that they have never had a case conference on substantive issues.

[70] I encourage the parties to consider the merits of resuming private mediation or scheduling a case conference or settlement conference before Justice Stevenson. In either event, it will be essential that the Respondent provide financial disclosure so that the discussions can be meaningful.

[71] Counsel for the Respondent pointed out that the Applicant had not filed a form 35.1 and that must be rectified. Counsel for the Applicant pointed out that the Respondent had not attended the Mandatory Information Program and he must do so.

TEMPORARY ORDER TO GO AS FOLLOWS:

[72] The Applicant shall have temporary sole custody of L. [name and birth date to be inserted into the formal order.]

[73] The Respondent shall have temporary access to the child as follows: (a) in Florida, for 7 days each month (including travel days) provided that the Respondent, his mother, or the Applicant shall accompany the child on each travel day; (b) in Ontario for 7 days each month not consecutive to (a); provided that: (c) the parents shall agree on a schedule to comply with the foregoing and if unable to agree: (i) the Respondent shall pick the Florida week and the Applicant shall pick the Ontario week; (ii) the Respondent shall ensure that the child participates in whatever activities the Applicant has arranged for the child in Toronto during the time the child is with him; and (iii) where possible the transitions shall occur on Sundays.

[74] The motion by the Respondent for an order for a s. 30 assessment is dismissed without prejudice to the Respondent bringing the motion again before me on a fresh affidavit. If counsel agree on the terms of an assessment, they may forward a form 14B motion to my attention for my consideration.

[75] Commencing January 25, 2017, and on the 25th of each month until judgment after trial or until written agreement, the Respondent shall pay to the Applicant temporary child and spousal support in the amount of $75,000 per month, to be allocated as between child and spousal support by the trial judge or by written agreement.

[76] The order of Perkins J. requiring payment on the 25th of each month terminates after the payment made December 25, 2016.

[77] The claim by the Applicant for retroactive child and spousal support for the period August 2015 to and including September 2016 is adjourned to the trial judge.

[78] On a temporary basis until further order, the Respondent shall ensure that the Applicant and the child remain as beneficiaries of the Respondent’s NHL health insurance plan.

[79] If by January 31, 2017 counsel have not agreed as to costs of these motions, counsel shall submit to my attention through the Trial Co-ordinator written submissions not exceeding three pages plus offers to settle and costs outline on the following schedule: (a) Applicant by February 13, 2017; (b) Respondent by February 27, 2017; (c) Applicant reply, if any, by March 3, 2017.

[80] With respect to the motion returnable December 1, 2016 for inter alia, a sealing order, counsel shall submit to my attention through the Trial Co-ordinator a factum and book of authorities that address the authorities including the Dagenais/Mentuck test and the June 2016 Consolidated Practice Direction dealing with notice to the media on this schedule: (a) Respondent by February 13, 2017; (b) Applicant by February 27, 2017; (c) provided that if the parties ask that the order be made on consent, by February 13, 2017 counsel shall submit a joint factum, book of authorities and proposed order; (d) provided further that each or both counsel identify by tab, paragraph and exhibit the document or documents proposed to be the subject of the sealing order; (e) provided further that if counsel for the Respondent fails to comply with the February 13, 2017 deadline, I will return the file (which I will retain for purposes of dealing with the costs submissions) to the main filing office on the 10th floor.

[81] By February 13, 2017 the Applicant shall: (a) serve and file completed form 35.1; (b) produce copies of annual statements from his NHL players pension plan from the year he began making contributions to the present; (c) produce copies of credit card statements from January 2013 to the present; (d) produce copies of all Merrill Lynch account records from January 2013 to the present; (e) produce copies of the financial statements or any other financial records for David Bolland Sports Performance and Rehabilitation and David Bolland Foundation from inception to present.

[82] By February 28, 2017 the Respondent shall attend the Mandatory Information Program and provide proof to counsel for the Applicant.

[83] By February 28, 2017, the Applicant shall serve and file form 35.1.

Kiteley J. Date: January 2017