Court File and Parties

COURT FILE NO.: FS-17-416379 DATE: June 26, 2018 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Neil Closner, Applicant AND: Sherri Lavine Closner, Respondent

BEFORE: Kiteley J.

COUNSEL: Gary S. Joseph and Dara Church, for the Applicant Jaret Moldaver and Jesse Rosenberg, for the Respondent

HEARD: June 26, 2018

Endorsement

[1] In February, 2018, the Respondent had served a notice of motion for an order that the Applicant deliver a valuation report with respect to the value of his shares in a corporation at his valuation date (September 4, 2016) and at her valuation date (February 4, 2017), an order for disclosure at both dates, an order for an advance on the equalization payment, and other relief. It was adjourned from the initial return date of March 13. Also in February, the Applicant brought a motion returnable February 27, 2018 for an order requiring the Respondent to pay ½ of the costs of the Parenting Assessment Report pursuant to the order dated June 22, 2017, an order that the divorce be severed from the corollary relief, and other orders. The Applicant’s motion was adjourned.

[2] The Respondent’s motion was amended after she received the Applicant’s valuation report at his valuation date, but she still sought an order requiring him to provide a valuation report at her valuation date, an order for disclosure at both dates and an order for an advance on the equalization payment. The amended notice of motion was returnable May 10 and was served April 25, 2018.

[3] The Respondent’s motion was adjourned to June 26, 2018.

[4] On the afternoon of June 20, 2018, the Applicant served a notice of motion returnable June 26, 2018 in which he asked for partial summary judgment determining the date of separation/valuation date and an order that oral evidence be called pursuant to subrule 16(6.2) if necessary; in the alternative, an order bifurcating the matter and directing a trial of an issue as to the date of separation; an order adjourning the Applicant’s motion; an order for questioning; an order directing that the Applicant shall receive credit for monies paid to the custody assessor; an order for severance of the divorce from the corollary relief. At 2:25 p.m. on June 20, counsel for the Respondent received the notice of Cross Motion and a 17 page affidavit with over 30 exhibits. The affidavit was in response to the Respondent’s evidence and in support of his cross-motion. On the evening of June 21, counsel for the Respondent received voluminous disclosure with respect to the Applicant’s valuation date.

[5] Counsel for the Respondent asked counsel for the Applicant to agree to an adjournment of the Applicant’s motion to allow the Respondent an opportunity to respond. Counsel for the Applicant refused. Counsel did succeed in having their clients reach an agreement that will require the Applicant to make a substantial equalization payment so that issue is resolved. For 55 minutes I heard submissions as to whether to grant an adjournment and if so, on what terms.

[6] I adjourn the Applicant’s motion for these reasons. First, it is unreasonable to serve and file a motion for summary judgment in the afternoon of the 4th business day before the return date of the motion. As counsel for the Applicant submits, the issue as to valuation date is critical to the case and critical to the possibly extensive disclosure that the Applicant ought to be required to make. A motion for summary judgment that has such profound implications ought to be served with notice significantly greater than the minimum required by the Family Law Rules. It is the case that in a few pages of an affidavit filed on an earlier motion, the Respondent did provide some evidence explaining her valuation date and disagreeing with his valuation date. But that cannot be considered to be responsive to the extensive evidence contained in the Applicant’s June 20 affidavit, and particularly the serious allegation in paragraph 7 imputing bad faith by the Respondent in her choice of valuation date. She is entitled to have time to respond so that the court has a record on which a determination of such significance can be made.

[7] Second, counsel and the parties are expected to respond positively to requests to adjourn where there is no prejudice caused as a result of the adjournment. Counsel for the Applicant made submissions on the point. But the bottom line is that this is a matter of considerable aggravation to the Applicant and he is opposed to any further delay in having it resolved since it has been a “live issue” since the proceedings started. Aggravation is not prejudice. There is no basis upon which I can find prejudice.

[8] Third, this motion for summary judgment cannot be considered on a regular motion list for no more than 60 minutes. The fact that it took almost that time to hear submissions on the adjournment request is indicative of the depth of the conflict. A full day will be required.

[9] Mr. Joseph asked that I make other orders today, including the order for the severance and the order requiring the Respondent to pay $3488.88 as her half of the cost of the assessment report. He also asks that I direct that her motion for disclosure at her valuation date be adjourned until after the summary judgment motion because it may become moot if he is successful.

[10] The Applicant is about to make a very significant advance on the equalization payment. The fact that he brought and repeated the motion with respect to a modest payment for the assessment report demonstrates that he feels strongly about certain details and indeed, is willing to pay more in his own legal fees and risk being ordered to pay her legal fees on the issue. Mr. Moldaver takes the position that there is an issue of interpretation of the order of Justice Croll as to whether she had to pay 50% of the assessment (which she did) but not 50% of the report.

[11] As for the severance, Mr. Moldaver takes the position that his client ought to be given an opportunity to provide evidence on the subject of the get.

[12] Although I have difficulty with Mr. Moldaver’s submission as to an issue of interpretation, the Respondent will have the opportunity to file responding evidence to the cross-motion and that should include both the assessment report and the severance.

[13] I do agree with Mr. Joseph that the Respondent’s motion for disclosure at the Respondent’s valuation date ought not to be heard until the motion for summary judgment on the issue of valuation date is determined.

[14] Counsel had obtained long motion dates from the Trial Co-ordinator. The earliest of those dates is October 1, 2018. They have agreed on a timetable to ensure readiness.

[15] After reading this endorsement I heard submissions as to costs. Mr. Moldaver took the position his client had been successful, that I had found that the Applicant had been unreasonable in refusing to adjourn, and that the Applicant should pay costs fixed at $4000 including HST. Ms. Church provided a copy of the offer to settle that had been served on June 20 with his notice of Cross-Motion. She took the position that the outcome was consistent with Part B Option 2 and, had the Respondent accepted it, an attendance would not have been required. She asked for an order requiring the Respondent to pay costs of $3000.

[16] In reply Mr. Moldaver referred me to emails between counsel dated June 21 at 12:16 p.m., Ms. Church’s response at 6:20 p.m. and Mr. Rosenberg’s reply at 6:48 p.m.

[17] I commend the Applicant for attempting to settle the motion and the cross-motion; and for making severable offers to settle more than one day before the hearing of the motion. However, as the email communications indicate, while there was some willingness on the part of the Respondent to explore the details of a resolution, that was not accomplished and ultimately an attendance was required. I come back to my observation above, that it was unreasonable for the Applicant to have served a notice of Cross-Motion with such profound implications less than 4 business days before the hearing of the motion. That timing means that it affects the ability of the parties to have the opportunity to see through their differences and arrive at a sensible outcome. Due to the lateness of the delivery of the Cross-Motion, the Respondent is entitled to some costs, but less than requested on her behalf because of the offer.

Order

ORDER TO GO AS FOLLOWS:

[18] The Applicant’s Cross-Motion is adjourned to a long motion date to be heard on October 1, 2018 at 10:00 a.m. for not more than 4.75 hours in total to be allocated 50% to each party, including reply submissions.

[19] The Parties shall comply with the following timetable: (a) Responding material to be served and filed by July 20, 2018; (b) Reply material, if any, to be served and filed by July 31, 2018; (c) Questioning of the Applicant on August 7; (d) Questioning of the Respondent on September 6.

[20] The Respondent’s motion for an order for disclosure at the Respondent’s valuation date, and an order that the Applicant provide a valuation report at the Respondent’s valuation date is adjourned to be heard after the Applicant’s motion for summary judgment on the issue of valuation date is determined.

[21] The Applicant shall pay costs of today to the Respondent in the amount of $1500.00 including HST payable by July 16, 2018.

Kiteley J. Date: June 26, 2018