Court File and Parties

COURT FILE NO.: 946/19 DATE: 2020-05-06 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lisa Maguire, Applicant AND: Randy Stephenson, Respondent

BEFORE: The Honourable Mr. Justice A. Pazaratz

COUNSEL: Self-Represented Applicant No counsel of record for the Respondent

HEARD: In Chambers – Triage Endorsement

Endorsement

[1] AS A RESULT OF COVID-19, the regular operations of the Superior Court of Justice are suspended at this time, as set out in the Notice to the Profession dated March 15, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/.

[2] For the moment, the court is prioritizing “urgent” matters. However, with the passage of time the court has been able to gradually increase the services available during the COVID-19 suspension, as set out in the following documents which are available online:

a. April 2, 2020 Supplemental Notice to the Profession b. April 7, 2020 Protocol Regarding Family and Child Protection Matters in Central South Region c. April 28, 2020 Notice To The Profession in Central South Region

[3] This motion was referred to me as Triage Judge for a preliminary determination of urgency and of how this matter should proceed. Determinations of urgency are summary in nature, and wholly without prejudice to both parties on the hearing of the motion itself.

[4] Electronic materials were filed through the Courthouse email address: Hamilton.Family.Superior.Court@ontario.ca. Upon the resumption of court operations all materials will be duly filed in the physical record at the courthouse.

[5] This file has obviously been extremely frustrating for the now self-represented mother. But I need to explain why the matter cannot proceed in the manner the mother is proposing.

[6] The parties were married on October 2, 2004. They separated September 4, 2018. They have two sons now ages 14 and 12. The children have remained in the mother’s care.

[7] Since the date of separation the mother has made diligent efforts to settle the complicated parenting and financial issues. Her efforts have been largely and consistently thwarted by the father who has failed to make disclosure (in time or at all) and failed to file necessary court documents.

[8] After an extended period of unfruitful negotiations, the mother commenced an Application which was served on the father on July 14, 2019. He never filed an Answer.

[9] At the time the mother was represented by her second lawyer who attempted to finalize matters by way of a 23C affidavit. By coincidence that request came to me in chambers.

[10] On October 16, 2019 I issued a detailed endorsement explaining why the matter was far too complicated to be resolved by affidavit. There are significant spousal and child support issues because the father’s income is quite significant. As well, there appear to be very complicated financial and property issues.

[11] In my October 16, 2019 endorsement I made a temporary order including at least 12 of the paragraphs the mother had proposed on a final basis. I also made a non-depletion order and required that the father produce extensive financial disclosure within 30 days.

[12] At the conclusion of my October 16, 2019 endorsement I stated: “Whenever this matter proceeds, it will require an oral hearing.”

[13] The October 16, 2019 temporary order appears to have commanded the father’s attention – at least partially.

[14] He retained a lawyer, Patricia Nelson, and some disclosure appears to have been made.

[15] Here’s where an already complicated file got even more complicated.

[16] There was an attendance before Justice Lococo on December 19, 2019 which resulted in a consent order. The father’s lawyer Patricia Nelson filed a Case Conference brief and participated in that attendance. The mother’s lawyer also participated. However, the mother now says the circumstances of that court attendance were misrepresented to her by her own lawyer and she did not intend to consent to some of the terms of that order.

[17] The mother subsequently signed a Notice of Change of Representation and is currently representing herself.

[18] Although the father had counsel participate in the Case Conference, the father has never filed an Answer. So it would appear Ms. Nelson’s involvement on behalf of the father was specific to the Case Conference, and that she is not on record.

[19] Neither the father nor any lawyer appear to be actively participating in the process.

[20] Again, I fully understand that all of this is very frustrating for the mother.

[21] But none of that context allows me to proceed today as the mother is proposing.

[22] Today, the mother has filed extremely lengthy materials in support of an ex parte final order. Her materials include a 523 paragraph detailed affidavit; and dozens of additional typed pages (including a children’s “health log” which goes back to 2010). In total, the mother appears to have filed more than 100 pages of very complicated, detailed materials.

[23] It’s not just the volume of materials that’s problematic. The mother’s draft 14D Order on Motion Without Notice lists 21 paragraphs of relief being sought on a final basis. This includes things like “reversing” Justice Lococo’s December 19, 2019 order; allowing unspecified mobility with respect to the children’s residence; tens of thousands of dollars of section 7 expenses; transferring title with respect to two jointly owned properties; reimbursement of a $165,000.00 down payment separate and apart from any equalization payment; very significant spousal and child support orders; etc.

[24] The claims herein are enormously complicated. And the mother’s presentation of her narrative is so voluminous and unfocussed that it is impossible to get a clear sense of what, if anything, actually needs to be done on an “urgent” basis.

[25] As I stated in my October 16, 2019 endorsement, I am surprised that the father – with a reported annual income of more than $400,000.00 – is taking such a disinterested and unhelpful approach to this case. I suspect he is simply playing that foolish “hard to catch” game.

[26] But for her part the mother’s approach is now equally unhelpful. It is regrettable that her relationship with her second lawyer broke down, but she is doing a very ineffectual job of representing herself. She cannot possibly expect that she can simply file more than 100 pages of detailed, confusing, unfocussed materials and expect a judge to grant her a comprehensive final order on an ex parte basis.

[27] I would strongly urge the mother to retain counsel. I realize she says that her financial situation is dire and that she is not able to survive on the $6,500.00 per month she has generally been receiving as combined child and spousal support. But this is a very complicated case. And the unfocussed manner in which the mother is now attempting to proceed causes me to have concern that she requires professional assistance to deal with complicated procedural and legal issues.

[28] I am not allowing the mother to proceed with her materials as filed. This is without prejudice to the merit of any of her claims.

[29] The mother may bring a further urgent motion, on notice to the father by mail or e-mail. If counsel go on record for the father, service should be on counsel. The mother’s materials must be brief, efficient, and focussed. That means that in total the mother’s materials must be no longer than 10 pages, double spaced, with a 12 point font. That’s 10 pages including everything (Notice of Motion, narrative, exhibits, attachments, etc.)

[30] It is unfortunate that the mother did not advance her case more productively while she still had counsel and prior to the suspension of court operations in March 2020 as a result of COVID-19. Had the matter been pursued more diligently, she could have had a final order by now. And the court can assume no responsibility for the fact that the mother had counsel who consented to a temporary order in December 2019, and now the mother is disavowing that consent.

[31] Whatever the complications, unless there is some significant progress in resolving or narrowing the issues, ultimately this matter will require a detailed oral hearing. And regrettably the court system will not be in a position to provide an oral hearing until the suspension of court operations has been lifted.

[32] In the meantime, as stated, the mother may bring an urgent motion, which will have to be triaged. Or, if the father decides to participate again, the parties can arrange a Settlement Conference or contested motion in writing.

[33] The mother is to forward a copy of this endorsement to the father by mail (or e-mail if she has his address). Court staff are to forward a copy of this endorsement by e-mail to Patricia Nelson.

Pazaratz J. Date: May 6, 2020