Court File and Parties
Court File No.: 792/17 Date: 2019-09-13 Superior Court of Justice - Ontario
Re: Tina Fiorella Radoja, Applicant And: Milos Radoja, Respondent
Before: The Honourable Mr. Justice A. Pazaratz
Counsel: Ms. K. Junger, Counsel, for the Applicant Mr. J. Cvetkovic, Counsel, for the Respondent
Heard: September 13, 2019
Endorsement
[1]
Overview
This is one of those "impossible" situations for a Judge.
[2]
Background
The matter is on the current trial sittings. The Respondent now requests an adjournment of at least five months based on his assertion that he is medically unable to proceed to trial. We always show compassion and understanding with respect to medical issues. But the context here is important.
a. These parties separated on June 15, 2016. That's more than 3 years ago.
b. This case has been ongoing since 2017.
c. It has been bitterly contested. At times the Respondent has had counsel. At other times he has been representing himself.
d. There are two children now ages 17 and 15. They have been in the mother's custody continuously since separation. The Respondent has never paid any support. He was involved in a car accident September 9, 2016.
e. The matter has been set for trial several times but it has been unable to proceed.
f. On November 23, 2018, Justice Madsen issued a lengthy endorsement and granted the Respondent an adjournment from the November 26, 2018 sittings to the February 4, 2019 sittings. At the time the Respondent was asking for an adjournment based on his medical issues, as is the case today.
g. Having obtained that adjournment of the trial, the Respondent then brought a second motion to adjourn the trial. On January 28, 2019 Justice Lafrenière dismissed that request, without prejudice to the Respondent renewing that request before the trial judge. Justice Lafrenière did not consider the medical evidence presented at the time as being sufficiently compelling. I note that for the most part I agree with Ms. Junger's characterization that the Respondent's current medical evidence is not dissimilar to the evidence which Justice Lafrenière rejected in January. The reports are not identical, but there is a continuing theme of pain, inability to stand or sit for long periods, and pending treatments.
h. The matter was called to trial in the spring but regrettably the Applicant's counsel was unavailable.
i. The matter remained on the trial list and came before me in Purge court on June 10, 2019. At the time the Respondent represented himself and again requested an adjournment of the trial based on medical issues. My endorsement of June 10, 2019 was quite thorough in addressing the issue. Ms. Junger only consented to an adjournment to the sittings of September 3, 2019 if it was peremptory on the Respondent. I went out of my way to review with the Respondent, in very straightforward language, the meaning of peremptory. I set out in my endorsement: "I explained that it means he would be making an absolute commitment that the matter will proceed, no matter what. No more adjournment requests. The Respondent advised that although he has ongoing medical issues which may involve future doctor's appointments and potentially surgery, he is prepared to commit to the adjournment to the September 3, 2019 sittings, and he will organize any medical appointments around that commitment."
j. The Respondent specifically agreed on June 11, 2019 that – no matter what – he would not be asking for any more adjournments and he would be prepared to participate in the September trial.
k. More recently, two important things happened:
l. The Respondent retained Mr. Cvetkovic who now represents him.
m. On August 29, 2019, the parties resolved the custody/access issues, so now all we're left with is property, support and costs.
n. On August 26, 2019, Mr. Cvetkovic attended Purge Court to identify that there were certain days when he will be unavailable for trial, but as recently as that date the Applicant and her counsel were still quite understandably of the impression that the peremptory trial was going to proceed. Once again, they prepared for trial.
o. Now however the Respondent has again requested an adjournment of at least five months. He says Mr. Cvetkovic wasn't aware of his health problems on August 26, 2019.
3There is no doubt that the Respondent has once again presented some medical reports indicating that the Respondent has health problems, and at least one doctor has suggested adjourning the trial for 5 months. I note that at the beginning of this year that same doctor suggested a three month adjournment would be sufficient.
4Counsel cannot agree as to whether the medical reports are compelling or simply a re-statement of earlier reports which have already been considered by the court.
[5]
Analysis
But we've reached the stage where there is a broader issue: Whether the Respondent is legitimately unable to proceed to trial or not, how long do we – and how long does the Applicant – have to wait? Does "peremptory" mean anything? What if the Respondent keeps coming back forever with more medical reports saying he's not well and he needs another three to five months?
[6]
Balancing of Interests
Particularly since parenting issues have now been formalized, the court needs to consider fairness in relation to both of these parties:
a. The Respondent's health problems need to be considered.
b. But the Applicant's financial situation and her ability to provide for the children also needs to be considered.
c. It's not just one party who gets consideration. It's a balancing act.
[7]
Matrimonial Home and Financial Issues
The matrimonial home was sold in November 2016. All of the net proceeds have been held in trust since then. That can no longer be justified.
8While there is apparently some disagreement as to which party may owe the other an equalization payment, it is impossible for me to determine those entitlements at this stage. But clearly the Applicant needs to be able to provide for her children, particularly since the Respondent is not contributing a penny.
9The Applicant opposes an adjournment of the trial, but if it is to be adjourned she requests that she receive her half of the house, plus an equalization payment of $16,796.00, plus about $34,855.00 as retroactive child support. As stated, I am not prepared to predetermine any entitlements in relation to equalization or child support.
[10]
Costs Thrown Away
But apart from the Applicant receiving her half of the house proceeds, there is also the practical issue of costs thrown away. The Applicant's lawyer keeps preparing for trial. The Respondent keeps requesting an adjournment, this time while the trial sitting is underway. Irrespective of whether the Respondent has health limitations or not, he is creating huge wasted legal expense for the Applicant who can ill afford it.
11My order:
a. The Trial is removed from the current sittings. There's no point in me adjourning to another trial sitting and calling it "peremptory" because that characterization has been rendered meaningless by the Respondent.
b. Adjourned to November 5, 2019 at 10:00 a.m. to be spoken to. The Respondent will be required to provide the Applicant's counsel with a medical update as to his situation and availability for trial. The Respondent should presume that on the return date the trial will be rescheduled (presumably requiring less time, since custody/access issues were resolved last month).
c. The Applicant shall be entitled to receive immediately from the net proceeds of sale from the matrimonial home (including any accumulated interest) 50% of the funds.
d. From the remaining 50% of the funds which are presumptively the Respondent's share, the Applicant shall be entitled to receive immediately $15,000.00 as an advance without prejudice to its characterization. I make no determination as to whether it is to be applied toward property or support or a costs entitlement, other than to note that the Respondent's repeated adjournment requests on the even of trial justify costs thrown away.
e. The remaining net proceeds of sale shall be held in trust. Given that this matter has been significantly delayed by the Respondent, and given that there is a dispute as to whether he has provided proper disclosure, I am not prepared to release any funds to the Respondent at this time.
f. On the November 5, 2019 return date, each party shall be entitled to make further submissions with respect to any further disbursement of remaining funds from the net proceeds. My determination will likely be influenced by how quickly this matter will actually get to trial.
Pazaratz A.
Date: September 13, 2019