DATE: 20190513

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Alyssa Beth Diamond, Applicant

AND:

Wayne Mark Berman, Respondent

BEFORE: The Honourable Mr. Justice D.A. Jarvis

COUNSEL: Mark Greenstein, Counsel for the Applicant

Wayne Mark Berman, Self-Represented

HEARD: May 3, 2019

ENDORSEMENT AT TRIAL SCHEDULING CONFERENCE

[1] The parties were married in 1989 and separated in 2017. There are two children of the marriage (both daughters) now 25 and 22 years old. This application was issued on December 28, 2017. The applicant (“the wife”) is represented by counsel: the respondent (“the husband”) was represented by counsel at various events until early November 2018 but now represents himself. I am the case management judge.

[2] The following procedural events have taken place:

(a) A case conference was held on May 8, 2018. The endorsement made noted that all issues were canvassed. Directions with respect to disclosure were given;

(b) On July 4, 2018 McGee J. heard a motion brought by the wife for sale of the matrimonial home, which motion was granted. Spousal support was ordered and further directions given with respect to any future spousal or child support motion;

(c) A settlement conference was held on September 24, 2018. Views were noted as having been expressed about the outstanding issues (all financial) and directions were given with respect to facilitating the Order made by McGee J. dealing with the sale of the matrimonial home. Directions were also given with respect to a Trial Scheduling Conference (“TSC”), the intent being to have this case made trial-ready for the November 2018 sittings;

(d) A TSC was scheduled to proceed on November 1, 2018 but it was clear that the matter was not trial-ready in light of the untimely delivery of an expert’s report from the wife. The TSC was adjourned to February 17, 2019, peremptory to each party with a view of having this case made trial-ready for the May 2019 sittings (or earlier in February if there was any trial availability);

(e) On November 8, 2018 the wife brought an urgent motion to dispense with the husband’s consent to the sale of the jointly-owned matrimonial home. Bennett J. made an Order dealing with the sale;

(f) On November 13, 2018 Charney J. dealt with two urgent motions, the first of which was brought by the husband for an Order that the wife sell to him her interest in the matrimonial home and the second by the wife for an Order permitting her to sell the matrimonial home without the husband's consent. Both motions were dismissed. The matrimonial home has since been sold and the net proceeds from the sale are being held in trust: it appears that the trust funds well exceed any equalization payment owing;

[3] A trail scheduling conference (“TSC”) was scheduled to proceed on May 3, 2019. Each party delivered their proposed Trial Scheduling Conference Endorsement Forms (“TSCEF”). The wife was prepared to proceed to trial: the husband requested an adjournment. The rationale for this request, and the contents of the husband’s TSCEF, are replete with his complaints about opposing counsel, non-compliance (mostly technical) with the Family Law Rules (“FLR”) and his dissatisfaction that the “courts have not helped in reaching a settlement of our case in any way”.[^1] Counsel for the wife advised that, based on discussions with the trial office, it was unlikely that the case would be called for trial during the May 2019 sittings. This is also my understanding.

[4] The wife’s TSCEF was incomplete because it did not set out the estimated times for cross-examination by the husband of her witnesses (this is ordinarily done at the conference anyway) or the examination times for the experts whom she intended to call (there are now three, one of whom is said to be a participation expert[^2]). It is clear that the total time she has estimated for her case will likely exceed four days. On March 22, 2019 she served an expert’s pension valuation report.

[5] The TSCEF submitted by the husband lists 11 witnesses excluding himself. Several of these are also identified in the wife’s list and others are related to her. Two are his colleagues. Another is the parties’ accountant. The husband suggests that he will call an as yet unretained and unidentified expert actuary witness; he doesn’t like the wife’s response to his 115 item Request to Admit; and he proposes to tender anywhere between 2000 and 2500 documents at trial. Overall he estimates that ten days’ trial time will be needed.

[6] The issues in this case are not complex. They involve few issues, all financial, dealing with equalization of the parties’ net family properties and support. Taking into account the disputed issues and the cross-listing/duplication of witnesses, I am not persuaded that a ten day trial is required.

[7] In Greco-Wang v. Wang[^3] Kiteley J. observed that Family Law Rule 17(8) dealing with conference management gave “…the court considerable latitude in the orders that can be made to ensure that the trial unfolds in such a way as to meet the primary objective…” of the Rules, that being to enable the court to deal with cases justly.[^4] She added,

Members of the public who are users of civil courts are not entitled to unlimited access to trial judges. The duration of the trial must be proportionate to the issues at stake and the judicial resources available.

[8] Parties are entitled to one settlement conference, a practice more often honoured in its breach than its observance. Failure to comply with conference rules and Orders dealing with, for example, disclosure and evidence timelines (i.e. delivery of expert reports) congest the courts and present access to justice challenges. Serial conferencing should be an exception.

[9] Given the late delivery of the expert report from the wife’s actuary, the volume of documentary evidence that the husband is proposing to tender and the fact that any trial in this case will not proceed until the November 2019 sittings, an exception will be made in the circumstances of this case. But conferencing directions are needed. The following are ordered:

(a) As endorsed on May 3, 2019, a further settlement conference will proceed (two hours) on September 13, 2019 (9:30 a.m.), peremptory to each party;

(b) Any unresolved issue dealing with disclosure or amendment of pleadings shall be concluded, by motion if necessary, before July 31, 2019. A settlement conference is not the forum to deal with complaints about unanswered or inadequate disclosure or to deal with last minute pleadings’ amendments. No motions dealing with these issues will be permitted after that date;

(c) Each party shall serve on the other all documents upon which they intend to rely at trial by July 31, 2019. They shall be organized, indexed, pages numbered and, where appropriate, tabbed for easy reference. A copy of each party’s document index (not the documents) shall be included in their settlement conference brief (“SCB”);

(d) All expert reports shall be served by July 31, 2019, shall comply with FLR 23(23) to (25) and shall accompany the SCB filed by the party proposing to call that evidence. This does not apply to a supplementary expert witness report as contemplated by FLR 23(26) unless that report is available by the FLR deadline for SCB service;

(e) In the case of a participation expert (such as the therapist whose evidence the wife indicated that she intended to call), the proposed expert’s records shall be produced to the other party by July 31, 2019;

(f) Each party shall advise the other in writing by no later than July 31, 2019 whether they admit the qualifications of the other party’s expert, failing which those qualifications will be deemed to have been admitted;

(g) Excepting expert witnesses, the parties shall exchange by August 16, 2019 “Will Say” statements for any proposed non-party witness. Failure to comply with this direction may result in a party not being permitted to call that witness at trial;

(h) Each party shall serve on the other party a new financial statement by August 16, 2019. A copy shall be included in that party’s SCB;

(i) Each party shall serve on the other party, and include in their SCB, a net family property statement (Form 13B) by August 31, 2019;

(j) The wife shall serve with her SCB a net family property worksheet (Form 13C) that incorporates the information contained in each party’s net family property statement. Those assets, debts or other liabilities that are disputed shall be highlighted, without argument;

(k) Pursuant to FLR 1(7.2)(k) the parties’ experts shall meet to discuss the issue(s) for which they have been retained and prepare a joint statement setting out the issues on which they agree and those that are in dispute;

(l) FLR 18-compliant Offers to Settle must accompany each party’s SCB; and

(m) Non-compliance with the foregoing directions may result in an award of costs payable forthwith by the non-compliant party.

[10] The husband has conflated the conference process with mediation and while the former is purposed, as FLR 17(8) mandates, to explore, help settle and to streamline the litigation process, it is not mediation, a critical distinction.

[11] In the event that some or all of the outstanding issues in this case do not settle, the following directions will be given and/or considered at the TSC:

(a) Parts 1[1] and 2[3] of the prescribed TSCEF dealing with Issues shall identify the issues for trial, unaccompanied by argument (the husband in the TSCEF filed for the May 3, 2019 conference event included argument on his issues);

(b) Parts 1[2] and 2[4] of the TSCEF listing the Witnesses proposed by a party must include the identity or identities of any proposed expert witness and the estimated time for their direct and cross-examination evidence. Too often this is ignored. The prescribed form has a separate part for dealing with the FLR requirements for service, relevant issues and admission of expert qualifications, not testimony time;

(c) Consideration will be given at the TSC to whether any witnesses’ evidence in chief may be provided by affidavit, including expert reports. Timelines may be imposed for examination of witnesses; and

(d) Further directions for any TSC as may be required will be given at the settlement conference.

[12] The wife’s lawyer shall forthwith prepare the Order made in paragraph [9].

Justice David A. Jarvis

Date: May 13, 2019

[^1]: The husband only raised this complaint about the inefficacy of the conference process in his adjournment request, over 8 months after the settlement conference at which he was represented by counsel. [^2]: Westerhof v. Gee Estate, 2015 ONCA 206. [^3]: 2014 ONSC 5366, para [3]. [^4]: FLR 2(2).