Court File and Parties
Newmarket Court File No.: FC-19-59924-00 Date: 2020-06-18 Superior Court of Justice - Ontario
Re: Joanne Mary Rossi, Applicant And: Luigi Rossi, Respondent
Before: The Honourable Mr. Justice D.A. Jarvis
Counsel: Paul Pellman, Counsel for the Applicant Herschel Fogelman, Counsel for the Respondent
Heard: In Writing
Urgent Case Conference Request
Urgent Case Conference Request
1As a result of COVID-19 regular Superior Court of Justice operations are suspended at this time as set out in the Notice to Profession, the Public and Media Regarding Civil and Family Proceedings of the Chief Justice of Ontario. See the Notice to the Profession dated March 15, 2020, as revised on April 2 and May 5, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/ [“the Chief’s Notice”].
2The applicant (“the wife”) has brought an urgent motion for a case conference to deal with support and disclosure issues. The parties separated in October 2018 but the respondent (“the father”) did not leave the matrimonial home until several months later. There are three children of the marriage (9 to 12 years of age) who reside, more or less equally, with each of their parents pursuant to a Parenting Plan and Domestic Contract signed on January 31, 2019. The father moved into a rental accommodation shortly afterwards.
3The mother is a teacher. In 2018 her income was slightly less than $100,000 (or $115,026 according to the father, depending on whose evidence the court should eventually accept) and slightly less than $100,000 in 2019. The father is a Senior Principal with the Ontario Teachers Plan Pension Board. His income was $926,688.81 in 2018 and $895,363 in 2019. In January 2020 he was diagnosed with a serious illness, underwent treatment and began receiving short term disability of $9,000 net monthly. He says that in July 2020 he will transition to long-term disability resulting in a $6,000 net monthly income from employment but hopes to return to work in the Fall of 2020. He has been paying $5,000 child support but nothing else.
Analysis
4The father disputes that the mother’s request for a case conference is urgent and maintains that appropriate child and spousal support arrangements should be addressed “at some point” after full disclosure has been made and questioning occurred. He disputes that the mother should be entitled to spousal support in any event after a thirteen-year marriage, although the bar to an interim spousal support award is very low (see Knowles v. Lindstrom, 2015 ONSC 1408).
5The unchallenged evidence of the mother is that the father represented in August 2019 that he would proceed to obtain an expert opinion as to his qualifying support income and a valuation of his business interests from which representation he resiled in May 2020 without explanation: the father says that the mother has all the information that she needs and can otherwise obtain for herself because she is an equal owner and shareholder of two companies that hold the parties’ Canadian and American investments. He also says that he responded on June 15, 2020 to the mother’s May 15, 2020 Request for Information.
6It is clear from the parties’ evidence that the issue of support is tied to disclosure. While the father contends that the mother can well meet the needs of the children and herself from her own assets, the apparently incomplete nature of disclosure to date complicates any temporary support determination.
7Considering the “pressing importance” test set out in the Chief’s Notice, the observations of Kurz J. in Thomas v Wohleber, 2020 ONSC 1965 (although under the earlier iteration of the Chief’s Notice) and later refined by McGee J. in Clemente v. O’Brien, 2020 ONSC 3287, it is my view that a case conference must proceed on the issues of disclosure and support. The father’s failure to adequately explain the change in his position dealing with expert evidence, his denial of the mother’s entitlement to spousal support, the significant difference in the parties incomes when combined with the father’s position that any such determination must await disclosure, including questioning, are consistent with the mother’s concerns about the father tactically delaying a more expeditious resolution of the parties’ affairs to her disadvantage.
Directions
8The mother’s motion is granted. The following directions shall apply:
(a) Court administration shall schedule the first available date for a case conference after June 29, 2020; (b) The conference shall be restricted to dealing with the issues of disclosure and child and spousal support; (c) The parties shall comply with the revised CER Notice to the Profession dated April 17, 2020 (paragraph 3) dealing with form and length of the parties’ briefs; (d) Each party shall file as part of their case conference brief a Schedule listing each party’s outstanding disclosure requests and the reason or reasons why the other party’s request is not relevant or is disproportionate. These Schedules do not form part of the length restriction set out in the April 17, 2020 CER Notice to the Profession; (e) Each party shall exchange before the conference and include as part of their filed material an Offer to Settle temporary support compliant with Family Law Rule 18. These Offers shall not form part of the length restriction set out in the April 17, 2020 CER Notice to the Profession; (f) The parties should be prepared to address with the conference judge the appointment of an expert to provide an opinion on the father’s qualifying support income and value of the parties’ business interests pursuant to Family Law Rule 20.3. The parties should discuss the choice of expert, timing and cost before the conference. An Order appointing such an expert may be made by the conference judge; (g) The total time allotted will be one hour (or such further time as the case conference judge may allow) allocated as follows - 20 minutes for each party, five minutes for the mother’s response and the balance of time for the court and for discussion between counsel and the conference judge; (h) Briefs may be signed and filed electronically; (i) The mother shall file her Brief by Tuesday June 23, 2020 (4:00 p.m.) and the father his Brief by Friday June 26, 2020 (4:00 p.m.); (j) Confirmation that the conference is proceeding (i.e. delivery of a Form 17F) is dispensed with. If the parties settle the conference issues before the teleconference, they must so advise the Court and provide a draft Order to issue on consent.
9The parties will be expected to have realistic solutions for the conference. Costs may be awarded.
10In the circumstances of the COVID-19 emergency, this Order is operative and enforceable without any need for a signed or entered, formal, typed Order. Approval is dispensed with. The parties may submit a formal Order for signing and entry once the court re-opens.
Justice David A. Jarvis Date: June 18, 2020