CITATION: Armstrong v. Armstrong, 2017 ONSC 6568

COURT FILE NO.: D885/11

DATE: 2017-11-01

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

David Armstrong

Mr. R. Startek, for the Applicant

Applicant

• and -

Shirley Armstrong

Ms. L. Mazza, for the Respondent

Respondent

HEARD: November 1, 2017

THE HONOURABLE MR. JUSTICE A. PAZARATZ

1This matter was called to trial this morning, for a scheduled 3 day trial. The lawyers attended, but the parties did not.

2The lawyers jointly requested an adjournment. The history is important.

3This Application (to terminate or reduce spousal support) was commenced on July 28, 2016.

4On January 12, 2017 – at the request of both counsel – the matter was placed on the trial sittings of August 21, 2017 for a three day trial. The parties completed a Trial Scheduling Endorsement Form confirming they would be ready for the trial date they had requested.

5On July 14, 2017 counsel were granted their request that the trial be removed from the August 21, 2017 trial sittings, and placed on the October 30, 2017 sittings, again for a three day trial.

6On October 23, 2017 this matter came before Justice Lafrenière on the Purge List. Counsel had agents attend, requesting a further adjournment of the trial. Justice Lafrenière declined to grant a further adjournment. However as an accommodation to counsel Justice Lafrenière endorsed that the trial was not to be called during the last 2 weeks of the sittings. As well, Justice Lafrenière endorsed that the trial office would attempt to arrange a last minute settlement conference.

7With counsel having initially requested a trial on the four week October 30, 2017 sittings, and counsel then indicating that they didn’t want the trial called during the last 2 weeks of those sittings, that really only left the first two weeks. Indeed, it left even less time than that, because there is a judicial conference next week (i.e., the second week of the sittings).

8So the matter was called to trial today. Precisely as previously requested by counsel.

9This morning, Mr. Startek requested an adjournment for a number of reasons.

10He indicated that the agent who attended Purge Court on October 23, 2017 had mistakenly relayed information that the trial had indeed been adjourned to the January 2018 sittings. Mr. Startek said that as a result his client was under the impression the trial would not be called in November and he was not available today. The court can assume no responsibility for the miscommunication by the agent.

11Mr. Startek also indicated he has a personal medical appointment today at 1:00 p.m. The court always respects everyone’s medical issues, and I indicated that we could certainly work around Mr. Startek’s medical appointment. But that didn’t justify adjourning the trial.

12Counsel also indicated that they feel they have never had a Settlement Conference. I can only wonder why the parties placed the matter on the trial list back in January 2017 if they felt that the matter hadn’t been properly conferenced, or if they felt the matter was not ready to proceed. Even when they rescheduled the trial in July 2017, they could have also requested a Settlement Conference but they failed to do so. It is not appropriate to wait until the trial sittings have commenced, and then request an adjournment of the trial so that the parties can have a Settlement Conference.

13I explained to counsel that every time they request that the court make a commitment of three days of trial time, it places demands on the system and it prejudices other litigants whose cases may be delayed because of our limited trial time.

14I explained to counsel that with Justice Lafrenière very specifically and recently ordering that the matter was to proceed during the first two weeks of the current sittings, the court administration made decisions and staffing commitments. The implications of attending court on day one of a three day trial and requesting an adjournment go far beyond merely wasting one day of court time. Judges and trials are scheduled based on a balancing of multiple scheduling considerations. If this three day timeslot becomes wasted, there may be far-reaching consequences (for example another three day trial could have been called, but if I am only available for two more days this week, it means I don’t have enough time to deal with that other matter).

15I stood the matter down and indicated that the parties were to attend, and that the trial should proceed if it is not settled. I warned counsel that if the matter is not settled and the trial does not proceed, I will dismiss the Application.

16Counsel returned later in the morning without clients but with minutes of settlement signed by the lawyers, whereby each party withdraws their claims on a without prejudice basis.

17The problem, of course, is that if people can simply withdraw claims when they aren’t ready for trial, there’s nothing to stop them from re-commencing those claims in short order, and creating even further stress and expense for the system.

18We have an obligation to ensure that judicial resources are appropriately utilized and not misused.

19I am not prepared to allow the parties to simply withdraw their claims on a without prejudice basis.

20The claims in the Application and Answer are dismissed, but not on the merits.

21If either party wishes to return to court to deal with any of these claims, they will require leave of the court. In that event, the matter should be directed to my attention.

Pazaratz, J.