Chuvalo v. Chuvalo, 2017 ONSC 6687

CITATION: Chuvalo v. Chuvalo, 2017 ONSC 6687

COURT FILE NO.: FS-15-406705 and FS-15-20548

DATE: 20171108

SUPERIOR COURT OF JUSTICE - ONTARIO

Application FS-15-406705

RE: George Chuvalo, Applicant

AND:

Joanne Chuvalo and Janet O’Hara, Respondents

Application FS-15-20548

RE: Joanne Chuvalo, Applicant

AND:

George Chuvalo, Respondent

BEFORE: Kiteley J.

COUNSEL: Tanya Road, counsel for the Applicant in FS-15-406705; counsel for the Respondent in FS-15-20548

Rick Bickhram, counsel for the Respondent Joanne Chuvalo in FS-15-406705; counsel for the Applicant in FS-15-20548

In the Guardianship Proceeding 16-CV-3007-ES, A. Sean Graham appeared on behalf of Joanne Chuvalo and Rahul Shastri appeared on behalf of Mitchell Chuvalo and Vanessa Chuvalo. Both counsel are present but neither counsel is “on the record” in the family law cases and 16-CV-3007-ES is not before me at this case conference.

HEARD: November 6, 2017

ENDORSEMENT AT CASE CONFERENCE

[1] In her endorsement dated October 20, 2017, Stevenson J. scheduled this as the date to determine “next steps”. She also informed counsel that I will be the trial judge (assuming there is a trial) and that counsel must not raise settlement issues with me. At the outset, I raised a number of issues with counsel. After a recess to give counsel an opportunity to consider the complexities and to give me an opportunity to briefly review the motion records in 16-CV-3007-ES, we resumed to review the complexities and move towards establishing next steps.

[2] As the conference unfolded, the complexities increased. I did not make an endorsement at the end of the case conference but indicated that I would address the outstanding issues in this endorsement.

COMPLEXITIES

[3] On November 20, 2015, an application FS-15-406705 was issued in which the Applicant was shown as George Chuvalo “by way of his Guardians ad Litem Vanessa Chuvalo and Mitchell Chuvalo” who are his adult children of his first marriage. The Application was signed by Mitchell Chuvalo. The claims include a divorce, disclosure, spousal support, an unequal division of net family property and other financial relief. The proposed Guardians ad Litem have not obtained an order appointing them. Counsel for the applicant is Tanya Road.

[4] Joanne Chuvalo has not filed an Answer in FS-15-406705. Mr. Bickhram has acted for her and he attended this case conference although not “on the record”.

[5] On November 20, 2015, Joanne Chuvalo issued application FS-15-20548 in which she claimed financial relief. She did not ask for a divorce. Counsel for the applicant is Mr. Bickhram.

[6] George Chuvalo has not filed an Answer in FS-15-20548. However, Joanne Chuvalo intends to file a Notice of Withdrawal of that application so it is not necessary for him to file an Answer. Tanya Road acts for him in that proceeding although not “on the record”.

[7] Joanne Chuvalo started a proceeding 16-CV-3007-ES in which she asked for an order for guardianship of the property of George Chuvalo. Counsel for the applicant is A. Sean Graham. The respondents are Mr. Chuvalo and the two adult children named above and the Public Guardian and Trustee. In an endorsement dated July 25, 2016, Justice Wilton-Siegel directed that a case management judge should be appointed in the family law proceeding and a case conference should be convened “to determine whether these parties intend to proceed with the divorce proceedings”. Rahul Shastri acted for Mitchell Chuvalo and Vanessa Chuvalo in the guardianship proceedings. The PGT was represented on the occasion of the hearing on July 25, 2016 but has not otherwise been involved. Notwithstanding the order of Wilton-Siegel J., no steps have been taken to transfer that proceeding to family law in Toronto and as a result, none of those materials were provided to me for this case conference. I did review the motion records briefly during a recess.

[8] In FS-15-406705 in his endorsement dated February 5, 2016, Perkins J. ordered that, in light of the guardianship proceeding, Ms. Chuvalo and her sister Janet O’Hara need not file an Answer until further order. There is still no need for Ms. O’Hara to file an Answer.

[9] In her endorsement dated December 14, 2016, Justice Stevenson, in her role as Family Law Team Leader, scheduled a 1 day trial on January 30, 2017 on the issues of whether Mr. Chuvalo wants to be divorced and for consideration by the court of s. 10 of the Divorce Act regarding reconciliation.

[10] In her endorsement dated January 26, 2017, Stevenson J. noted the order made by Justice Wilton-Siegel and she noted that capacity remained an issue, as well as the court’s duty pursuant to s. 10 of the Divorce Act with respect to reconciliation. She vacated the January 30 trial date and she directed counsel to attend before Justice Moore for a trial management conference and to set a date for a 1 day trial.

[11] On April 5, 2017, at the Trial Management Conference Justice Moore’s endorsement indicated that the trial had expanded to at least 6 days just for Ms. Chuvalo’s case. Since it could not be completed in the 1 day allocated, he sent the matter back to Justice Stevenson.

[12] Stevenson J. has made endorsements dated July 9, 2017 and October 20, 2017 in which she noted that the issues were capacity and reconciliation and, as indicated, she referred the matter to me to establish next steps.

[13] The next steps will be within FS-15-406705 because FS-15-20548 will be withdrawn and 16-CV-3007-ES has not been formally brought into the family court.

[14] Ms. Chuvalo takes the position that the record discloses evidence from both Mr. Chuvalo and Ms. Chuvalo that they want to reconcile. Pursuant to s. 10(2) of the Divorce Act, her counsel takes the position that the court shall adjourn to give the parties an opportunity to explore reconciliation and, pursuant to s. 10(2)(b), the court should appoint a marriage counselor. Since the Divorce Act is mandatory, counsel takes the position, which he has done for some time, that the court should simply stop the application FS-15-406705. He is opposed to a trial. Indeed, he takes the position that the court has no jurisdiction because the parties want to reconcile.

[15] Ms. Road takes the position that the record does not demonstrate that Mr. Chuvalo wants to reconcile and there must be a trial to allow the court to make the determination whether s. 10(2) applies.

[16] There is an anomaly in FS-15-406705. As indicated above, it was issued with reference to Guardians ad Litem who have never been appointed pursuant to an order and it was signed by Mitchell Chuvalo, not by Mr. Chuvalo. The contents of the document ostensibly filed on his behalf, and particularly paragraphs 16, 17 and 32 cast doubt on whether Mr. Chuvalo had capacity to instruct counsel at that time. As Mr. Graham points out, if the trial is to be scheduled in FS-15-406705, then before Ms. Chuvalo is required to file an Answer, the Application has to be constituted in the name of George Chuvalo and must be signed by him. Since the Application as issued contains suggestions, if not assertions, reflecting on his capacity at that time, Mr. Graham argues that that would constitute a withdrawal of an admission against interest.

[17] As I understand it, Ms. Chuvalo takes the position that Mr. Chuvalo is under the influence of his adult children. She takes the position that he has demonstrated a desire to reconcile. However, she also takes the position that he does not have the capacity to instruct counsel and to seek a divorce.

[18] Because I will be the trial judge and the affidavits or the evidence in them may not be admitted at the trial, I have deliberately not read the many pages of affidavits filed on behalf of Ms. Chuvalo but I have read enough in the case conference briefs to agree with counsel for Ms. Chuvalo that there does appear to be evidence that both Mr. Chuvalo and Ms. Chuvalo expressed an interest in reconciliation. However, that “evidence” is challenged on behalf of Mr. Chuvalo. I do not accept that I must apply s. 10(2) at this time because Ms. Chuvalo also challenges his capacity to instruct counsel and to seek a divorce. In my view, the court must, as a preliminary step, hold a trial so as to ensure that Mr. Chuvalo has the necessary capacity.

Next steps

[19] These matters have been before the court without resolution for 24 months. Given that there have been three proceedings and that the parties have been unable to agree to how to move forward, pursuant to rule 2(2) and rule 17(4) of the Family Law Rules, I must identify the issues that are in dispute at this point and give directions as to how to proceed.

[20] In these complex circumstances, as the case management judge and trial judge, pursuant to rule 1(7.2) of the Family Law Rules it is my responsibility to make procedural orders to ensure that the matter proceeds to a determination of the crucial issues of capacity to instruct counsel and capacity to divorce. I recognize that some of the orders I make in this endorsement are of a substantive nature, such as the burden of proof. As trial judge, there is no impediment to making such orders in advance of the trial.

[21] Family Law Rule 1(7.2) also gives the court the jurisdiction to impose time limits on evidence at trial. I raised the subject with counsel and while Ms. Road agreed to the time limit of 12 hours each, Mr. Graham was opposed because of the extensive time he expected to require in cross-examination of Mr. Chuvalo which he said was fundamental to his client’s case and he asserted that his client will be prejudiced if he is not allowed to fully develop the evidence on her behalf and challenge the evidence led on behalf of Mr. Chuvalo.

[22] I have concluded that time limits should be imposed for these reasons:

(a) in December 2016, Stevenson J. set a trial date for 1 day on the issue of capacity on the basis that counsel agreed it could be accomplished in that time frame. At the Trial Management Conference before Moore J., counsel had expanded the hearing significantly and, as a result, the trial date had to be vacated. It is important that there be certainty, and that the trial proceed within the limits so as to ensure that the trial will not be postponed;

(b) in the Trial Scheduling Endorsement or Trial Management Brief prepared by counsel for the parties in the past, it appears that both parties, and particularly Ms. Chuvalo, intended to call many witnesses in addition to the expert witnesses. The issue of capacity at this trial is with respect to two specific functions: to instruct counsel and to divorce. Furthermore, the issue of capacity is at the time of the trial. [^1] In view of the discrete issues involved, in my view this is an appropriate case to establish time limits.

[23] For those same reasons, I am satisfied that these discrete issues can and should be considered within 5 trial days and accordingly I will allocate half of that time to each party.

[24] Counsel agree that, pursuant to the Substitute Decisions Act, a party is presumed to have capacity and that the burden of proving otherwise is usually on the challenger. The issues of whether Mr. Chuvalo wants to reconcile, whether he wants a divorce and whether the court should grant a divorce are issues for which he has the burden of proof and findings at trial on those issues will be impacted by the findings with respect to capacity. I conclude that in these unique circumstances Mr. Chuvalo has the burden of proof on the issues of capacity to instruct counsel and the capacity to divorce.

[25] I indicated to counsel that if I ordered a trial it would be scheduled for January 8, 2018 before me. Counsel of record and counsel not on the record (who may be appointed as co-counsel) are all available. It is important that the matter proceed at an early opportunity, partly because there has been no determination of any issues for two years and the conflict continues which is not in the interest of either party; and partly because the expert evidence on the issue of capacity must be as current as possible for the trial. Because of that early trial date, the schedule below is intended to ensure that the parties will be ready to proceed at what will be the second trial date.

[26] While repeating his client’s opposition to a trial on any issues, Mr. Graham agreed that the issues numbered (a) to (d) below are appropriate. He is not counsel of record in FS-15-406705 (although he may be appointed as co-counsel) and Mr. Bickhram who is counsel of record agrees. Ms. Road agrees, as does Mr. Shastri, who is counsel for the adult children in the guardianship proceedings who may be co-counsel in the trial.

[27] Following the case conference, it seemed to me that there needed to be some minor modifications, in order to identify possible outcomes.

[28] Without deciding whether the legal requirements for capacity to instruct counsel differ from the legal requirements for capacity to divorce (on which counsel will make submissions at trial) the issues for the trial set out below are as follows:

(a) as of the time of the trial, does George Chuvalo have the capacity to instruct counsel in this Application?

(b) as of the time of the trial, does George Chuvalo have the capacity to divorce Joanne Chuvalo?

(c) as of the time of the trial, does George Chuvalo want a divorce?

(d) as of the time of the trial, does George Chuvalo want to reconcile with Joanne Chuvalo?

(e) if at the time of the trial, George Chuvalo is found to have capacity to divorce and capacity to instruct counsel, and found to want a divorce and not want to reconcile, should the court grant the divorce on grounds of separation for more than one year?

(f) if at the time of the trial, George Chuvalo is found not to have capacity to instruct counsel, then should the court order a stay of the proceedings in FS-15-406705 until representation is authorized by the court either through an order for appointment of Guardian ad Litem or as a special party as defined in Rule 2 of the Family Law Rules?

(g) If at the time of the trial, George Chuvalo is found to have capacity to instruct counsel but not to have capacity to divorce, then should the court stay the application in so far as it relates to the granting of a divorce?

[29] In response to these complexities and to respond to the anomaly referred to above, I will require that Mr. Chuvalo[^2] serve and file an Application with the same content as when it was issued on November 20, 2015. I understand Mr. Graham’s position that that might constitute a withdrawal of what he submits is an admission by his adult son on behalf of Mr. Chuvalo. Without deciding whether that constitutes an admission against interest or whether leave is required to withdraw an admission under those circumstances, I do not grant leave to amend the Application and, given the imminent trial date, I direct Mr. Chuvalo to replace the existing Application signed by his son with an Application signed by him.

[30] Ms. Chuvalo must serve and file an Answer. I leave it to counsel to decide the content of her response to the Application with respect to the financial issues. For purposes of the imminent trial, she must respond to the Application to the extent that it engages the issues for trial.

[31] The financial issues will not be addressed in this trial. For that reason, Ms. Chuvalo is not required to serve and file a form 13.1 financial statement.

[32] This was scheduled as a case conference to determine next steps. Understandably counsel had not turned their minds to all of the steps involved in a trial. Some issues were touched on:

(a) counsel had not contacted all the experts to determine their availability in January. I expect that counsel will do so immediately and if any experts have conflicts, counsel should assume that the court will accommodate their availability, for example, by having the witness participate remotely through video conference;

(b) counsel for Mr. Chuvalo had not decided whether she will ask Dr. Shulman to prepare a report in reply to Dr. Gilley’s report. She will make that decision bearing in mind the time limits required by subrules 23(23) to (26) of the Family Law Rules;

(c) counsel asked whether evidence of examination-in-chief of witnesses other than the parties and the experts could be admitted in an affidavit, and the witness attend only for cross-examination. That was not resolved.

(d) counsel for Ms. Chuvalo asked for an opportunity to question Mr. Chuvalo in advance. Based on the volume of material that has been filed, I doubt that questioning would be productive while it would interfere with trial preparation and accordingly I decline to make an order.

[33] As indicated above, Ms. Chuvalo issued the Application in FS-15-20548 on November 20, 2015. On November 30, 2015, Justice McWatt made an order sealing the court file pursuant to s. 137(2) of the Courts of Justice Act; identifying the parties by their initials; and imposing a publication ban with respect to that proceedings. That order expired on February 17, 2016 at noon. On February 5, 2016, Perkins J. made an order extending that sealing order to include FS-15-406705 and it also expired on February 17, 2016. Parts of both files have continued to be retained in sealed envelopes even though the order on each file has expired. I will clarify the status of the sealing orders below.

ORDER TO GO AS FOLLOWS:

[34] The trial of the issues is scheduled for Monday January 8, 2018 for no more than 5 days (or 25 hours) before me.

[35] Each party is allocated 12 hours for these purposes: opening statement; examination-in- chief of the party’s witnesses; cross-examination of the other party’s witnesses; objections and submissions in connection with the objections and the time for the ruling; closing statement. Neither party may exceed that allocation without permission from me.

[36] Without deciding whether the legal requirements for capacity to instruct counsel differ from the legal requirements for capacity to divorce, the issues for the trial are as follows:

(a) as of the time of the trial, does George Chuvalo have the capacity to instruct counsel in this Application?

(b) as of the time of the trial, does George Chuvalo have the capacity to divorce Joanne Chuvalo?

(c) as of the time of the trial, does George Chuvalo want a divorce?

(d) as of the time of the trial, does George Chuvalo want to reconcile with Joanne Chuvalo?

(e) if at the time of the trial, George Chuvalo is found to have capacity to divorce and capacity to instruct counsel, and found to want a divorce and not want to reconcile, should the court grant the divorce on grounds of separation for more than one year?

(f) if at the time of the trial, George Chuvalo is found not to have capacity to instruct counsel, then should the court order a stay of the proceedings in FS-15-406705 until representation is authorized by the court either through an order for appointment of Guardian ad Litem or as a special party as defined in Rule 2 of the Family Law Rules?

(g) if at the time of the trial, George Chuvalo is found to have capacity to instruct counsel but not to have capacity to divorce, then should the court stay the application in so far as it relates to the granting of a divorce?

[37] On the balance of probabilities, the burden is on Mr. Chuvalo to prove each of the issues in paragraph 36 (a) to (d).

[38] With respect to FS-15-406705, the parties shall comply with the following timetable:

(a) by Friday, November 10, 2017 at 4:00 p.m. Mr. Chuvalo shall serve and file an Application in FS-15-406705 in which the content of the document is unchanged except by the deletion of the words: “By way of his Guardians ad Litem – Vanessa Chuvalo and Mitchell Chuvalo”;

(b) the style of cause is amended by deleting the words: “by way of his Guardians ad Litem Vanessa Chuvalo and Mitchell Chuvalo” and all documents filed, including the Application referred to above will reflect that amended style of cause;

(c) by November 22, 2017 at 4:00 p.m. Ms. Chuvalo shall serve and file an Answer and is not required to serve and file a form 13.1 financial statement;

(d) if he wishes to file a Reply to the Answer, Mr. Chuvalo shall serve and file it by November 30, 2017 at 4:00 p.m.;

(e) by December 9, 2017 at 4:00 p.m. Mr. Chuvalo shall serve and file a trial record containing the Application, the Answer and the Reply, if any, and a copy of this order as signed and entered;

(e) on December 18 or 19, 2017 from 10 to 12 or from 1:30 to 3:30 counsel of record and the parties shall attend a Trial Management Conference before me. By November 23, 2017, counsel shall agree on which of those four options is selected and send to the Trial Co-ordinator (to the attention of Magdalena Byrne) a joint confirmation form specifying the time and date. If by November 23, 2017 counsel are unable to agree, the Trial Management Conference shall be held December 18, 2017 from 10 to 12. For this Trial Management Conference, the parties are not required to serve and file a Trial Management Brief or a Trial Scheduling Endorsement. This endorsement replaces the Trial Scheduling Endorsement.

(f) by December 13, 2017, at 4:00 counsel shall serve and file a joint confirmation form for the TMC. The issues for this case conference are as follows:

(a) accommodating the availability of expert witnesses within the week of January 8, 2018;

(b) whether counsel for Mr. Chuvalo has or will serve a report by Dr. Shulman in reply to the report of Dr. Gilley and, if so, within the time requirements of the Family Law Rules;

(c) whether any witness (other than the parties and the experts) will provide an affidavit to replace oral examination-in-chief;

(d) identification of witnesses each party may call, bearing in mind the time limit of 12 hours applicable to each party may mean that a party does not have time to call the witness(es);

(d) whether counsel agree that the experts each relies on will be qualified as experts in the stated subject matter in order to avoid taking the time for a voir dire as to expertise;

(e) whether counsel agree that the reports prepared by their respective experts will be admitted and filed as an exhibit, subject to cross-examination;

(f) timing of delivery of: legal submissions and briefs of authority on the issues of capacity to instruct counsel and capacity to divorce and on the effect of s. 10 of the Divorce Act; opening trial statements and draft orders;

(g) any other issues which will increase the productivity and fairness of the trial.

[39] In FS-15-20548, by November 23, 2017 at 4:00 p.m. Ms. Chuvalo shall serve on Tanya Road and file a Notice of Withdrawal of Application.

[40] By December 29, 2017 at 4:00 p.m. each party shall serve and file a brief containing documents on which each relies which brief has an index, is paginated and tabbed. The parties shall file two copies of the brief, one for the witness and one for the trial judge. Inclusion in a brief does not mean that the document(s) is/are admissible.

[41] If after exchange of offers to settle, the parties agree that a settlement conference would be productive, counsel may contact Stevenson J. as Team Leader through Joanne Benedetto Trial Co-ordinator to arrange a settlement conference.

[42] In advance of the trial, neither party may conduct questioning or cross-examination of a party or a witness.

[43] Neither party may bring any motions without leave from me.

[44] At the outset of the trial, an order excluding witnesses will be made, subject only to any submissions by counsel as to whether an expert or experts might be granted leave to attend during the evidence of another expert or experts.

[45] Until Notice of Change of Representation in FS-15-406705 is served and filed, counsel of record for all purposes are Tanya Road for Mr. Chuvalo and Rick Bickhram for Ms. Chuvalo.

[46] The orders of McWatt J. dated November 30, 2015 in FS-15-20548 and of Perkins J. dated February 5, 2016 in FS-15-406705 having expired, the Registrar is directed to do the following:

(a) unseal all materials in both actions;

(b) in FS-15-20548, on the style of cause in the Application dated November 20, 2015, replace initials with the names of the parties;

(c) ensure that the case history in each proceeding reflects the expiry of the orders referred to in this paragraph.

[47] For the trial, the Trial Co-ordinator shall arrange a courtroom with amplification device.

[48] Costs of this case conference and of the trial management conference referred to above will be reserved to me at the conclusion of the trial.

Kiteley J.

Date: November 2017

[^1]: Costantino v Costantino 2016 ONSC 7279 at para. 55

[^2]: Nothing in this endorsement affects the professional obligation on counsel pursuant to rule 3.2-9 of the Rules of Professional Conduct.