Court File and Parties

COURT FILE NO.: FS-09-000016033 DATE: 20180522 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ronald Bruce Sloan, Applicant AND: Renate Weidner, Respondent

BEFORE: Kiteley J.

COUNSEL: Veena Pohani, for the Applicant Fareen Jamal, for the Respondent

HEARD: May 22, 2018

Endorsement

[1] In an endorsement released March 26, 2012 arising from the motion brought by the Applicant for an order for interim disbursements and interim spousal support, Stewart J. [2012 ONSC 1859] summarized the circumstances leading up to this case. In the context of a trial scheduled to proceed during the week of June 11, 2012, Stewart J. made an order requiring the Respondent to pay temporary spousal support in the amount of $1,500 per month commencing March 30, 2012.

[2] That trial did not proceed nor did it proceed in November 2012.

[3] The parties and counsel attended before me for a Trial Management Conference on April 30, 2018. On that occasion, I set the trial date for the week of September 10, 2018 for 5 to 7 days peremptory to the Applicant and I directed counsel to participate in a case conference by telephone today for a status report on settlement and, if not settled, to establish a timetable for next steps. I also ordered that neither party could bring any motion before trial without leave from me or Team Leader Justice Stevenson. The Respondent has been paying spousal support pursuant to a temporary order for 6 years. Not surprisingly, on April 30, counsel for the Respondent wanted a trial earlier than September but, as my endorsement indicated, I accepted Ms. Pohani’s documentation that her health did not permit her to be ready by then. As indicated above, I have made the date peremptory against the Applicant.

[4] On April 30, 2018, I reviewed with the parties the issues in the case and provided an opinion on the key issues of the Applicant’s claim for a constructive trust interest in the Foxwarren property in which he claims financial relief not a propriety interest, and his claim for retroactive and ongoing spousal support. I also reviewed and amended the draft Trial Scheduling Endorsement but it was not completed because the parties wanted to make a concerted attempt to settle.

[5] In this conference call, counsel confirmed that the Respondent had made an offer by letter dated May 1, 2018. The Applicant made an offer by email dated May 17, 2018. The settlement positions remain far apart. I raised with counsel whether efforts should be focused on trial preparation but both counsel asked that I establish a timetable for the exchange of formal rule 18 offers to settle and, failing settlement, that the parties and counsel be required to attend for a final Settlement Conference and a Trial Management Conference to finalize the Trial Scheduling Endorsement.

[6] On April 30, 2018, it was agreed that the lawyers would not pursue trial preparation until May 22. While I expect that they will remain focused on settlement, there is one aspect of the trial that the Applicant must begin to prepare, namely the impact of his insolvency. The date of separation is April or May 2008. In May 2009, the application was issued in which the Applicant sought a constructive trust interest in Foxwarren. In about June of 2013, the Applicant initiated bankruptcy proceedings on his behalf and on behalf of his corporation. It appears that the Certificate of Discharge was issued June 26, 2014. The Respondent was not listed as a creditor in respect of the constructive trust claim. As counsel for the Respondent has observed, the Applicant may be foreclosed from pursuing the claim. Counsel for the Applicant insists that that is not the case. This will be an issue that the trial judge must grapple with. Counsel for the Applicant cannot postpone preparation on that issue. If the constructive trust claim is foreclosed, then it ought not to be the subject of settlement discussions. Accordingly, while counsel need not focus on other preparation for trial and as a result, deadlines for filing and serving, including requests to admit, will have to be reduced, counsel for the Applicant must prepare for the bankruptcy issue. I am not making any specific order as to how counsel for the Applicant should be prepared to address the issue. However, I observe that minimally the Applicant would have to ensure that his trustee-in-bankruptcy is available to give evidence. To ensure that his evidence is not a surprise, counsel will be required to provide a will-say statement from the trustee-in-bankruptcy.

[7] The dates in the timetable below are the product of consensus. In other words, the dates by which each party is required to do something reflects dates when counsel agree there will be compliance. I expect that counsel will review this endorsement in detail with her client to ensure compliance.

ORDER TO GO AS FOLLOWS:

[8] By Friday June 1, 2018 at 5:00 p.m. the Applicant shall serve (not file) an offer to settle that complies with rule 18. In this case, an offer to settle that includes a formula, as opposed to a fixed amount, does not comply with rule 18.

[9] By June 6, 2018, the Respondent shall provide a response, namely, acceptance of the offer, rejection or counter-offer.

[10] By June 13, 2018, the Applicant shall respond.

[11] With the exception of paragraph 12 below, until June 15, 2018, the parties and counsel shall focus on settlement efforts. If by June 15, 2018 the parties have not signed minutes of settlement or separation agreement, then the parties and counsel shall focus on trial preparation.

[12] By June 22, 2018, the Applicant shall serve (not file) a draft Trial Scheduling Endorsement that incorporates the review of the draft at the April 30, 2018 Trial Management Conference including the list of issues and the witnesses. In paragraph 16, the Applicant shall summarize the legal position he takes (and the evidence and the law in support of that position) with respect to the impact of his bankruptcy on his claim for a constructive trust interest in Foxwarren. Attached to the draft Trial Scheduling Endorsement, the Applicant shall provide a will-say statement by the Trustee-in-Bankruptcy that will reflect his evidence on the issue at trial.

[13] By July 4, 2018, the Respondent shall provide a response to the draft Trial Scheduling Endorsement including the Respondent’s position in paragraph 16 on the bankruptcy issue (and the law in support of that position).

[14] By July 9, 2018, the Applicant shall file with the Trial Office the confirmation form and the finalized Trial Scheduling Endorsement attached to which are the most current rule 18 offers to settle.

[15] Counsel and the parties shall attend on July 16, 2018 from 2:30 to 4:30 for a Settlement Conference/Trial Management Conference before me if available. Assuming compliance with paragraph 14, neither counsel is required to serve and file a settlement conference brief or trial management conference brief.

[16] Both parties must strictly comply with the foregoing dates.

[17] Costs of the TMC held on April 30, 2018 and on May 22, 2018 (approximately 30 minutes by telephone) are reserved to the Trial Judge.

[18] Counsel may forward approved draft order to my attention for signing.

Kiteley J.

Date: May 22, 2018