COURT FILE NO.: FC-16-2684
DATE: 2018/02/01
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Joelle Christine Logue, Applicant
AND
James Alexander Alan Mackenzie, Respondent
BEFORE: Madam Justice H. J. Williams
COUNSEL: Mr. Alexei Durgali, Counsel for the Applicant
Lindsay A. MacLeod, Counsel for the Respondent
HEARD: December 21, 2017
AMENDED ENDORSEMENT
The text of the original endorsement was corrected on february 1, 2018 and the description of the correction is appended.
[1] This was a motion by the applicant wife Joelle Logue (“Ms. Logue”) for:
(a) an order that the respondent husband James Mackenzie (“Mr. Mackenzie”) pay $10,000.00 into a joint RBC line of credit as well as 50 per cent of the interest that has accrued since June 1, 2017 in accordance with s. 7.2 of an interim separation agreement dated April 8, 2015;
(b) an order compelling the respondent to provide outstanding disclosure within 30 days; and
(c) an order that this case be case managed.
[2] The notice of motion dated September 14, 2017 had also requested relief relating to psychological assessments of the parties’ four children but the parties had resolved those issues on consent.
[3] On December 12, 2017, Mr. Mackenzie had filed two motions of his own, one seeking orders severing the divorce issue and compelling Ms. Logue to obtain a consent order for divorce and a second motion relating to some of the children’s belongings and a parenting schedule over the December holiday period.
[4] The issue relating to the children’s belongings was resolved before the parties appeared in court.
[5] The holiday parenting schedule was also resolved; I signed a consent order dealing with this schedule.
[6] The divorce issue was resolved on December 21, 2017. Materials were delivered to my office on December 22, 2017 and I signed the divorce order that day.
a. The line of credit:
[7] An interim separation agreement (“the interim agreement”) dated April 8, 2015 provided that the parties would continue to hold a joint line of credit of $20,000.00 and that each would pay half of the monthly interest charges. The interim agreement provided that “[u]pon obtaining a salary, the husband will obtain a loan to pay his half (10k) of the LOC after which the wife will do the same for her one half of the LOC.”
[8] Ms. Logue argued that Mr. Mackenzie has had a steady income since 2015 but has not paid his half of the line of credit.
[9] In October, 2017, Mr. Mackenzie borrowed the $10,000.00 required to pay his half of the line of credit but he does not want to make the payment to the bank unless he is satisfied that his liability in respect of the line will be extinguished.
[10] The parties cannot pay the full amount owing to discharge the line of credit because Ms. Logue does not currently have the funds available to pay her share.
[11] I accept Mr. Mackenzie’s concern that he might pay his share of the debt but remain responsible for the line of credit.
[12] The interim agreement does not require Mr. Mackenzie to pay his half of the line of credit before Ms. Logue pays her half; it requires Mr. Mackenzie to obtain a $10,000.00 loan “after which” Ms. Logue is to do the same.
[13] Ms. Logue is unable to comply with the interim agreement; her motion materials included a letter from her bank stating that her request for a loan had been denied.
[14] However, in court, Ms. Logue’s lawyer advised that the bank has agreed that once Mr. Mackenzie has paid his $10,000.00, the bank will refinance the line of credit so that it will be in Ms. Logue’s name only.
[15] Mr. Mackenzie’s lawyer said that Mr. Mackenzie is prepared to pay his half of the line of credit at any time, provided either that Ms. Logue pays her half at the same time and the line is discharged or that the bank agrees to release him from liability.
Order with respect to line of credit:
Both parties shall continue to be responsible for one half of the line of credit until Mr. Mackenzie pays the bank his $10,000.00 share plus the interest he owes to the date of payment, at which time Ms. Logue shall assume exclusive responsibility for the line of credit.
Mr. Mackenzie’s lawyer shall provide written confirmation to Ms. Logue’s lawyer of Mr. Mackenzie’s $10,000.00 loan and his intention and ability to pay the amount he owes.
Ms. Logue’s lawyer shall obtain written confirmation from the parties’ bank that once Mr. Mackenzie pays the bank his $10,000.00 share plus the interest he owes to the date of payment, the line of credit shall be refinanced or otherwise transferred to Ms. Logue’s name and Mr. Mackenzie’s liability in relation to the line of credit shall be extinguished.
Upon receipt of the written confirmation from the bank referred to in the preceding paragraph, Mr. Mackenzie shall pay the bank his $10,000.00 plus the interest he owes to the date of payment. Before Mr. Mackenzie makes his payment, the parties shall confirm the date of his payment and the amount of interest Mr. Mackenzie owes to the date of his payment.
If the bank is unwilling to provide the written confirmation referred to in paragraph 3, above, to the satisfaction of Mr. Mackenzie, the parties shall negotiate an indemnification agreement in which Ms. Logue shall agree to indemnify Mr. Mackenzie for any amounts the bank may require him to pay in relation to the line of credit after he has paid his $10,000.00 share plus the interest he owes to the date of payment.
b. Disclosure
[16] In her notice of motion, which was filed September 15, 2017, Ms. Logue requested “all outstanding disclosure” within 30 days.
[17] Ms. Logue dealt with the disclosure issue in paragraphs 159 to 161 of her affidavit of September 14, 2017. Ms. Logue referred to a consent order signed by Master Marie Fortier on May 30, 2017, which required the parties to disclose all pertinent information within 30 days of the date of the order. Ms. Logue stated that Mr. Mackenzie’s disclosure continued to trickle in and was not complete. In paragraph 161 of her affidavit, Ms. Logue said:
In the event [Mr. Mackenzie] fails to provide complete disclosure or answer my written questions regarding pertinent issues relating to his income, expenses, assets, and liabilities, I will provide an updated affidavit before this motion, outlining the outstanding disclosure and I will seek an Order that [Mr. Mackenzie] provide same within 30 days of the Order.
[18] On December 18, 2017, Ms. Logue swore a further affidavit which devoted nine paragraphs to the disclosure issue. To this affidavit, Ms. Logue attached a chart which summarized the disclosure Mr. Mackenzie had provided and another chart which summarized the disclosure Ms. Logue considered to be outstanding.
[19] In her December 18, 2017 affidavit, Ms. Logue included a request for additional disclosure based upon the information Mr. Mackenzie had produced to date.
[20] Mr. Mackenzie’s lawyer said that the December 18, 2017 affidavit took her by surprise. She said that disclosure had been provided to Ms. Logue’s lawyer in July, 2017 and that she believed that there had been compliance with Master Fortier’s order. She said that she had noted the request for outstanding disclosure in Ms. Logue’s September, 2017 notice of motion and affidavit but that when she heard nothing further in relation to the issue, she assumed that Ms. Logue was content with the disclosure that had been provided. She said that in a letter dated December 12, 2017, Ms. Logue’s lawyer had stated that the issue of outstanding disclosure remained live but that it was not until she received Ms. Logue’s December 18, 2017 affidavit that she had notice of the disclosure Ms. Logue considered to be outstanding and of the additional disclosure Ms. Logue was requesting.
[21] Mr. Mackenzie’s lawyer noted that Rule 14(20) of the Family Law Rules requires “all the evidence” in support of a motion to be served with the notice of motion. Ms. Logue’s December 18, 2017 affidavit was served three months after her notice of motion was served and three days before the return date of the motion.
[22] Mr. Mackenzie’s lawyer requested an adjournment of the disclosure aspect of the motion.
[23] Ms. Logue’s lawyer argued that parties have an obligation to comply with disclosure orders. He said that it is not the responsibility of an opposing party to point out where disclosure has fallen short.
[24] Mr. Mackenzie’s lawyer argued that in at least one instance, the scope of Master Fortier’s order appeared to have been mischaracterized in the charts attached to Ms. Logue’s affidavit.
[25] Ms. Logue’s lawyer agreed that the December 18, 2017 affidavit included new disclosure requests which were not included in Master Fortier’s order.
Order with respect to the disclosure issue
[26] At the conclusion of their submissions, the parties’ lawyers agreed that an order providing both parties 30 days to comply with the disclosure requirements of Master Fortier’s order, 30 days to make requests for further disclosure and 30 days to comply with the requests for the further disclosure would be appropriate.
[27] For clarity, I will apply fixed dates to those deadlines and I make the following order:
The parties shall comply with Master Fortier’s disclosure order of May 30, 2017 no later than Friday, February 16, 2018;
All requests for further disclosure shall be made no later than Friday, March 16, 2018;
The parties shall comply with all appropriate requests for further disclosure no later than Friday, April 20, 2018.
c. Case management:
[28] Ms. Logue’s lawyer requested case management of this proceeding on the basis that it is a high conflict case involving four children in which there has been police and Children’s Aid Society involvement. Ms. Logue’s lawyer noted that the Family Court’s continuing record is made up of five volumes. Ms. Logue’s lawyer repeatedly described Mr. Mackenzie as a “serial entrepreneur” and said that he anticipates on-going concerns about disclosure issues. Ms. Logue’s lawyer said that having a single judge manage the case would be of significant assistance.
[29] Mr. Mackenzie’s lawyer said that she had no objection to case management and that she agreed that it might help.
[30] I agree with the request for case management of this proceeding. The motions that were before me were not complicated and were, for the most part, ultimately resolved on consent. Nonetheless, substantial written materials were filed and, undoubtedly, a great deal of lawyer time was required. There is obviously distrust between the parties. The motions before me dealt with the mechanics of debt payments and the production of documents but as this matter proceeds, the parties will be required to deal with more substantive issues.
[31] With the approval of the local administrative judge for family law, I order that this proceeding be case managed. A case management judge will be assigned.
[32] Counsel may communicate with the family law trial coordinator in two weeks to request a case conference with the assigned judge.
Costs
[33] If the parties cannot agree on the costs of these motions:
− They may each deliver written costs submissions of no more than three pages in length within 14 days of the date of this decision. (The three-page limit does not a bill of costs or other chart or outline setting out and calculating the party’s fees, disbursements and HST.)
− They may each deliver written reply submissions also of no more than three pages in length, within 14 days of the date of receipt of the other party’s initial costs submissions.
[34] The costs submissions may be filed by sending them to me, care of the trial coordinator.
Madam Justice H. J. Williams
Date: 2018/02/01
COURT FILE NO.: FC-16-2684
DATE: 2018/02/01
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Joelle Christine Logue, Applicant
AND
James Alexander Alan Mackenzie, Respondent
BEFORE: Madam Justice H. J. Williams
COUNSEL: Mr. Alexei Durgali, Counsel for the Applicant
Lindsay A. MacLeod, Counsel for the Respondent
HEARD: January 15, 2018
AMENDED ENDORSEMENT
Madam Justice H. J. Williams
Released: 2018/02/01
Amendment
The date of May 16, 2018 under para. 27, subpara. 2 has been replaced with March 16, 2018.