Court File and Parties
Court File No.: FS-1700417653-0000 Date: 2019-02-12 Ontario Superior Court of Justice
Between: Greg Somers, Applicant – and – Nichola Feldman-Kiss by her Litigation Guardian Mary Keogh, Respondent
Counsel: C. Vanderschoot, for the Applicant T. Viresh Fernando, for the Respondent Mr. Charles Sinclair on behalf of Andrew Chris
Heard: February 8, 2019
Before: C. Gilmore, J.
Endorsement on Case Management Conference
Overview and Background
[1] I was appointed Case Management judge in this matter on August 3, 2018 by Acting Team Leader, Harvison Young, J. (as she then was).
[2] After the applicant issued his application in this matter, all issues were settled by way of final Minutes of Settlement dated August 16, 2017. At the time of the final settlement, Ms. Feldman-Kiss was represented by Mr. Andrew Chris.
[3] On November 14, 2017, Ms. Mary Keogh brought an ex-parte motion to be appointed Ms. Feldman-Kiss’ Litigation Guardian. The court granted that relief and found Ms. Feldman-Kiss to be a Special Party based on the medical evidence filed. Ms. Feldman-Kiss was found to be mentally incapable under the Substitute Decisions Act.
[4] On December 12, 2017, the respondent brought a motion to set aside the Minutes of Settlement dated August 16, 2017. The applicant brought a cross-motion to adjourn the respondent’s motion to leave to question the doctors who opined that the respondent did not have the capacity to enter into the settlement being Drs. Booy and Stavrakaki. The applicant also sought additional relief by way of an order requiring the respondent to vacate the matrimonial home or pay rent of $1800 per month.
[5] The court granted leave to the applicant to question both doctors and required the respondent to deliver to the applicant all medical notes and records of the doctors related to the care of the respondent. Costs of that motion were reserved to the judge hearing the motion to set aside the Settlement Agreement.
[6] The applicant brought a further motion which was heard on March 13, 2018. The applicant sought leave to question the respondent’s former counsel, Andrew Chris and requiring Mr. Chris to produce his entire file. The respondent brought a cross-motion for various relief. That motion was adjourned to the judge determining whether the settlement agreement should be set aside.
[7] The applicant’s motion was granted. He was permitted to examine Mr. Chris on all aspects of his retainer. The file was to be produced on the grounds that solicitor-client privilege had been waived by the respondent.
[8] Importantly, the motions judge determined that costs of the March 13, 2018 motion were reserved to the respondent’s motion to set aside the settlement agreement.
[9] On June 12, 2018, a telephone conference was held with the same judge who heard the March 13, 2018 motion and the December 12, 2017 motion. The respondent’s counsel sought to attend at the examination of Mr. Chris and ask questions of clarification. The court permitted the respondent’s counsel to attend at the examination. He was permitted to ask questions of clarification for 15 minutes following the applicant’s examination of Mr. Chris which was permitted for up to three hours.
[10] After a number of follow up endorsements relating to details which are not of significance for the purposes of this endorsement, the respondent asked the motion’s judge to recuse himself. The judge refused but added that he was being transferred to criminal division and was not longer able to deal with the matter in any event. Shortly after this, I was appointed Case Management Judge.
[11] On October 26, 2018, a lengthy Case Conference was held. In summary, the following was ordered on that date: a. The respondent’s counsel sought to examine Mr. Chris. That request was declined for two reasons. First, the court had already determined this issue on June 12, 2018 and, second, the questions which counsel intended to ask appeared to be related to negligence issues and a negligence action against Mr. Chris has never been commenced. b. A timetable was set for the applicant’s motion for an order requiring the respondent to vacate the premises at 1512 Dundas Street West. The motion was scheduled for December 10, 2018. Prior to the hearing of the motion, the respondent vacated the premises and the motion did not proceed. c. A timetable was set for a long motion on February 19 and 20, 2019. The applicant’s motion was for an order to set aside the ex-parte order dated November 14, 2017, an order for occupation rent and an order for the reserved costs as per the orders of December 12, 2017 and March 13, 2018. The respondent’s cross-motion was for an order for a fresh finding with respect to the appointment of a Litigation Guardian based on expert and viva voce evidence. d. It was anticipated that each party would be calling one expert as a witness.
[12] A telephone conference was held with counsel on January 4, 2019. Counsel for the respondent had served an Offer to Settle on the respondent with respect to the upcoming long motions. The applicant had rejected the Offer to Settle because it did not contain a provision for the payment of costs. My position as conference judge was that the respondent could not force the applicant to accept an Offer to Settle and the motion would proceed as scheduled.
[13] When the respondent’s counsel served his material for the upcoming long motion, it contained a number of references to the Offer to Settle. His justification was that it was unreasonable for the applicant not to accept his Offer as it made his motion moot and much time could be saved if that motion was not required to be argued. Further telephone conferences were held and I ultimately determined that the respondent was required to redact the motion material to remove any references to the Offer. The respondent has complied with that order.
The Respondent’s New Motion
[14] The respondent has brought a new motion returnable before me and on a date decided by me. The motion seeks an order allowing the parties to call witnesses of their choosing for the upcoming long motion. It also seeks an order requiring the applicant to redact certain portions of his motion material as making prohibited references to Offers to Settle and settlement discussions.
[15] As a result of this motion material, I requested that counsel appear before me on February 8, 2019 for a Case Conference.
[16] The respondent’s counsel explained that he intended to call Mr. Chris as a witness at the motion. Mr. Chris’ counsel opposed this request. His view was that this had already been adjudicated upon by the court twice, once in the endorsement of Faeita, J. dated June 12, 2018 and once by me at the October 26, 2018 Case Conference. A transcript of Mr. Chris’ examination was available and would be filed with the court if required.
[17] Counsel for the applicant did not oppose the request to have Mr. Chris but had withdrawn her summons for him when she learned of Mr. Sinclair’s position. Counsel for the respondent insists that he should not be restricted in calling witnesses of his choice at the motion. Further, the material filed by the applicant contains information that is contradictory to what is in his file. The applicant refuted that any such contradictions exist.
[18] The respondent’s counsel also seeks to redact any portion of the applicant’s material that makes reference to Offers to Settle or costs issues. The applicant resists on the grounds that I permitted him to do so in my endorsement of October 26, 2018. Further, the references in his material relate to costs issues and Offers for the motions on December 12, 2017 and March 13, 2018. There is no reference to costs or Offers in relation to the long motion before the court. Mr. Fernando suggests that I was simply wrong in law to allow the applicant to include this as part of his motion material as it relates to settlement issues and discussions.
[19] Mr. Fernando has, since the inception of this case, been unhappy with many of the court’s rulings. Rather than embarking on the proper appeal route, he has repeatedly written to the court, the team leader and the family law assistant complaining about rulings, costs orders and requesting that the judge (including me) reconsider or set aside their ruling. This approach is completely improper and must stop. If in future, Mr. Fernando is displeased with my rulings or endorsements, he must follow the Family Law Rules if he believes there has been an error or a mistake. If he wishes an appearance, a formal process will be set out below. Emailing the court with his complaints will no longer be permitted. If he does so, there will be no response to any such emails.
[20] Mr. Fernando seeks a date to fully argue his motion. He complains that the Litigation Guardian is being treated unfairly in this matter and has had no success on any of her requests to the court. For the reasons set out below, I do not require Mr. Fernando to bring a formal motion. It is not necessary as it will increase costs and in some aspects, the issues raised are moot. Rather, I have considered the issues raised by Mr. Fernando, including the case law presented and ruled on them in this endorsement for the sake of efficiency and to ensure that the scheduled dates for the long motion are not impacted in any way.
Analysis and Ruling
[21] Going forward, this proceeding must return to the framework of the Family Law Rules. To that end it is worth recalling some of the guiding principles of the Family Law Rules, the powers of a case management judge, as well as the court’s inherent jurisdiction.
[22] Most importantly, I refer to r. 2(2) of the Family Law Rules which sets out the primary objective:
The primary objective of these rules is to deal with cases justly.
[23] Rule 2(3) describes what “justly” means. It includes: (i) ensuring that the procedure is fair to all parties; (ii) saving expense and time; (iii) dealing with the case in ways that are appropriate to its importance and complexity; and (iv)giving appropriate court resources to the case while taking account of the need to give resources to other cases.
The Additional Relief Sought by the Respondent
[24] This case has taken up an enormous amount of court resources since the Mesbur, J. ruling declaring the respondent a Special Party. For that reason, I set a very specific timetable for the upcoming long motion, as well as specifying what motions were being brought. The scheduling and the timetabling of the motions was premised on the following: a. The applicant was to bring a motion to set aside the ex-parte order of Mesbur, J. dated November 14, 2017, an order for occupation rent and costs for the motions heard on December 6, 2017 [1] , as ordered by Faieta, J. b. The respondent was to bring a cross-motion for a fresh finding with respect to appointment of a Litigation Guardian based on expert and viva voce evidence. c. Each party was entitled to call a medical expert.
[25] The respondent’s Notice of Motion now includes a number of new heads of relief, neither discussed nor anticipated at the October 26, 2018 Case Conference. The new heads of relief include issues related to the property at 1512 Dundas Street West, leave to examine, an order requiring updated financial statements, an order for disclosure, an order to set a date for the hearing of a motion to set aside the settlement agreement and certain orders relating to “vacation” rent (it is assumed this is a reference to “occupancy” rent).
[26] The issue of occupancy rent will be dealt with at the motion as the applicant will be seeking such rent. The respondent is not precluded from responding to that relief and taking the position that she does not owe such rent or that such rent is owed to her.
[27] As for the other relief sought, Mr. Fernando argues that I did not explicitly exclude him from bringing a motion for such relief and therefore he is permitted to do so. I disagree. The purpose of the lengthy and comprehensive Case Conference on October 26, 2018 was to canvass all of the issues for the long motion and timetable and schedule dates accordingly. Had Mr. Fernando advised the court he wished to deal with other issues, time would have been set aside and likely a further day of argument scheduled.
[28] In accordance with Rule 2(3) of the Family Law Rules dealing with cases justly includes a requirement that cases be dealt with in a manner that is fair to both parties. Adding new heads of relief to previously scheduled motions that were scrupulously scheduled and canvassed is not fair to the applicant. This is not to say that the applicant may not deal with these issues at a future date. However, it is fair to say that the results of the long motion will very much dictate the future course of this litigation.
The Applicant’s Motion for Costs of Prior Proceedings
[29] It is very clear that Faieta, J. ordered that costs of the December 12, 2017 and March 13, 2018 motion are reserved to the judge hearing the motion to set aside the settlement agreement.
[30] However, the upcoming long motion is not that motion. The upcoming long motion is not intended for argument on whether the settlement agreement should be set aside. That is likely the subject of a trial depending on whether the respondent remains a Special Party after the hearing of the upcoming long motions.
[31] Further, Mr. Fernando argues it would be very prejudicial for his client to have that material in the record. The proper place for such arguments is following the determination of the motion when all costs issues will be canvassed. Mr. Fernando relies on Fakhim v. Shirazi, 2007 ONCJ 126 for the proposition that Offers to Settle cannot form part of any affidavit material, as this would offend Rule 18(8) of the Family Law Rules (see para 14). This is confirmed in the case of L.W.-A. v. J.C., 2017 ONCJ 825.
[32] The applicant’s counsel argues that these cases are irrelevant because the relevant Offers in those case related to the case being argued, and not prior proceedings.
[33] I agree with the applicant. I do not see this material as prejudicial to the respondent since it relates to offers and costs for previous proceedings. I see no reason for this material to be removed from the record, as the applicant was permitted to file this material as per my endorsement of October 26, 2018. Whether the costs issue is argued on Feb 19/20, 2019, or as part of the overall costs determination following the hearing of the long motion will be up to the long motion’s judge.
[34] I do not accept Mr. Fernando’s argument that the record contains Offers to Settle that would offend Rule 18(8) of the Family Law Rules. In fact, the applicant has not included any Offers to Settle or references to settlement discussions that relate to the long motion, only the prior proceedings which have long since been decided.
The Appearance of Mr. Chris at Long Motion
[35] I am concerned about a requirement that Mr. Chris to testify given: a. The availability of the transcript of his questioning, including the questions by Mr. Fernando; b. The previous determination in the endorsement of June 12, 2018; c. My endorsement of October 26, 2018; d. Concerns that questions of Mr. Chris may be more in the nature of questions related to any possible negligence issues which are not before the court; and e. The scheduling and timetabling of the motion did not anticipate that Mr. Chris would be examined.
[36] However, notwithstanding those concerns, I do not wish to tie the hands of the motion’s judge. That judge may determine that questioning of Mr. Chris is required to assist him or her. Further, I am not in a position to review all of the motion material which will be before the motion’s judge and there may be issues raised by the respondent about which I have no knowledge.
[37] Given my reasons above, Mr. Chris shall attend at the long motion on February 19 and 20, 2019. It shall be entirely up to the motions judge as to whether Mr. Chris is required to testify.
Orders
[38] The respondent’s Notice of Motion dated February 4, 2019 is no longer required as the issues therein have been dealt with in this endorsement by way of my powers as Case Management and in accordance with the primary objective.
[39] Neither party may bring any further motions prior to the long motion on February 19 and 20, 2019 without leave from me or my designate at a Case Conference. A party seeking leave to bring a motion must include a copy of their draft Notice of Motion with their Case Conference brief, so that I may determine if leave is to be given.
[40] The parties shall not email the court nor write to me or my assistant. If they wish to speak to me, they must set a date for a Case Conference in open court through the trial coordinator’s office.
[41] Mr. Andrew Chris shall attend at the long motion scheduled for February 19 and 20, 2019. Whether his testimony is required shall be determined by the long motion’s judge.
[42] The applicant is not required to redact any part of her materials which relate to the costs of previous proceedings before Faieta, J. The long motion’s judge shall determine if he/she wishes to hear argument on that part of the applicant’s motion during the course of the long motion or as part of the applicant’s overall costs submissions on the long motion.
[43] The respondent’s January 7, 2019 affidavit and exhibits shall be removed from the record. That material is entirely replaced by the respondent’s January 14, 2019 affidavit and exhibits already filed.
[44] The respondent’s Notice of Motion dated February 19, 2019 shall be amended as follows: a. Paragraphs 2, 3, 4, 5, 6, 7, 8, 10, 11, 16, 17 and 18 shall be deleted.
[45] The respondent shall amend his affidavit material to completely remove any material related to the heads of relief in his Notice of Motion which are to be deleted.
[46] The amended Notice of Motion and Affidavit shall be served and filed by February 15, 2019. The respondent is not permitted to add new material to the affidavit or heads of relief to the Notice of Motion. The respondent is only permitted to remove material as per the direction herein.
[47] The parties are entitled to serve and file their factums by February 13, 2019.
[48] No costs.
C. Gilmore, J.
Released: February 12, 2019
Footnote: [1] This date is incorrect as there was no ruling dated December 6, 2017. The correct date is December 12, 2017.