Duarte v. Van Camp, 2020 ONSC 4155

Court File and Parties

COURT FILE NO.: 42579/19 DATE: 2020-07-03 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MARILYN DUARTE, Applicant AND: JAMES VAN CAMP, Respondent

BEFORE: Kurz J.

COUNSEL: J. Piafsky, for the Applicant W. Fanjoy, for the Respondent

HEARD: July 3, 2020 - by Teleconference

Endorsement

1I heard this settlement conference by telephone today. The conference is not completed and the parties are not ready for trial.

2During the course of this conference, the parties discussed two main issues: financial disclosure and parenting. I will deal with each in order.

Financial Disclosure

3Mr. Van Camp has produced two reports from his Certified Business Valuator (“CBV”), Paula White. One report calculates his income and the other values his assets. Ms. Duarte has retained her own CBV, James DeBresser. Both CBVs are well-known and qualified business valuators.

4Mr. Van Camp has already made a round of productions to Ms. Duarte in response to Mr. DeBresser’s initial disclosure request. Mr. DeBresser has now prepared a further list of the disclosure that he requires from Mr. Van Camp. Some of that list points to documentation that he originally requested, but never received. Other elements of that list seek documents to follow up on disclosure that he has already received.

5Mr. Fanjoy reports that Ms. White feels that much of the disclosure that Mr. DeBresser requests is either irrelevant or disproportionate to the issues at stake. He goes so far as to describe some issues for which disclosure is requested, as de minimus. Mr. Fanjoy suggests that the CBVs speak to see whether they can sort out the disclosure that is required. Ms. Piafsky does not disagree but states that a minimum level of disclosure is required before the CBVs can speak. She asserts that, despite the disclosure already produced, the disclosure is not sufficient to allow for the two CBV’s to converse.

6Mr. Fanjoy arranged to have Ms. White on the call for this conference to explain her position. With my consent, Ms. Piafsky arranged to have Mr. DeBresser participate as well. Having heard from both counsel and CBVs, I believe that it would be appropriate to have the two valuators speak, to see whether they can agree on a list of necessary disclosure. Mr. DeBresser noted that there were areas in which he and Ms. White may approach their tasks differently. Ms. White has accepted the representations of Mr. Van Camp as to certain facts that she relies upon in her calculations. Mr. DeBresser states that he will be seeking proof rather than reliance on Mr. Van Camp’s representations. That may be where he and Ms. White differ.

7If the two CBVs cannot agree on the disclosure necessary for Mr. DeBresser to review Ms. White’s reports and prepare his own reports, each CBV shall prepare a letter for their client. That letter shall set out the disclosure that they disagree about and briefly setting out the reasons that they believe that the disclosure is necessary nor not. Those duelling letters, if prepared, can be in included in the parties’ supplementary settlement conference briefs. Upon the return of this conference, I will determine, depending on the number of documents in question, whether it is best for me to decide any outstanding disclosure issues myself during the conference. In the alternative, it may be necessary to send the parties to a motion.

8Ms. Duarte will swear an updated financial statement that sets out the appropriate figures that relate to the disclosure that she has just produced to Mr. Fanjoy. Further, Ms. Piafsky will write to Mr. Fanjoy setting out her concerns with the alleged deficiencies in Mr. Van Camp’s recent sworn financial statement. Mr. Fanjoy will expeditiously respond to that correspondence and his client will cure any deficiencies. If there are any disagreements in that regard, the matter may be raised at the return of this conference.

9Each party may serve the other with a new request for information regarding financial issues. The other party will respond within 45 days.

Parenting Issues

10With regard to the parenting issues, Ms. Duarte has scheduled a two-hour summary judgment motion, returnable on August 10, 2020. She is seeking a final order that she is entitled to custody of the children, that the father is only entitled to supervised access, and other related relief. She has served her materials. Mr. Van Camp resists the motion. He has yet to serve his materials. Ms. Piafsky asks me to set a schedule for the exchange of materials, further disclosure and questioning in anticipation of the motion.

11The father seeks to expand his access. Presently it takes place on a limited basis and is supervised at the site of Brayden Supervised Access Services. He feels that the access is too restrictive and takes place in too artificial a settling. He lost much of his access during the pandemic, as Brayden was closed down. It has now reopened. He wishes to have the terms of supervision eased to allow a relative to supervise the access. He wishes to prove his sobriety for the visits through the use of a Soberlink device.

12The mother wishes the access to remain as it is, citing the children’s anxieties as well as their views and preferences, as cited in the recent OCL report.

13During the course of the conference, I offered suggestions on all of the parenting issues to the parties, which they will consider.

Vacating of Summary Judgment Motion Return Date

14Exercising my power to case manage this proceeding under r. 1(7) and 2(5), as part of my duty to promote the primary objective of the Family Law Rules (r.2(2)), I have considered whether the likely benefits of the step of a motion for summary judgment on the parenting issues at this time justifies taking the step requested by Ms. Duarte (r.2(5)(e)).

15In doing so, I have vacated the August 10, 2020 date for Ms. Duarte’s motion for summary judgment, despite Ms. Piafsky’s objection. Part of her objection was the question of whether I have the authority at a settlement conference to make such an order.

16In A.A. v. Z.G., 2020 ONCA 192, at para. 24: the Ontario Court of Appeal stated that: “Rule 2 specifically grants judges some procedural freedom to resolve family law disputes fairly and expeditiously.” Further, in addition to my authority to manage this case under r. 2, I have the explicit authority at a settlement conference under r 17(14)(a) to “…set times for the events in the case or give directions for the next step or steps in a case.”

17I have taken this step because the issue of a final custody order is not urgent. The access is presently supervised. The children have been residing full time with their mother since separation. There is no present issue about her ability to make decisions for the children. Nor is there a request, other than in Mr. Van Camp’s original pleadings, which seek joint custody, to change that state of affairs.

18The only present access issue concerns the terms of supervision. Depending on the progress of the supervised access, it may evolve during the course of this proceeding. It may better and more cost-effectively evolve during this proceeding, rather than during the course of a new r. 15 motion to change, even if the mother were to succeed in her summary judgment motion.

19In giving the parties time to consider alternatives to the summary judgment motion, I am encouraging and facilitating the use of alternatives to the court process (r. 2(5)(b)). Those alternatives, if utilized, will better serve the best interests of the children. It is always more sanguinary for children that parents resolve their issues, if they can, than they engage in the corrosive process of litigation, where things that cannot be unsaid are repeatedly declaimed.

20I also note that the court is just now reopening in various stages. Hundreds of Milton cases, family, civil and criminal, are backlogged. The determination of the mother’s proposed summary judgment motion will make no concrete difference in the children’s lives. Were it not for the pandemic, the new amendments to the Divorce Act, which have passed Parliament, would be in effect. They would eliminate the use of the term “custody” to discuss parenting arrangements. Those amendments are scheduled to come into effect on March 1, 2021. The issue of the application of the term, custody, likely will have no effect on the children’s lives.

21Yet, the summary judgment motion will expend significant judicial resources. Allowing it to proceed at this time would not be a proportionate use of the court’s presently limited resources when taking account of the need to give resources to other cases (r. 2(3)(d)).

22In vacating the summary judgment motion date, I am not prohibiting the bringing of the motion. Following a further attendance at the settlement conference I will consider the management of that motion, as well as a contemplated cross-motion for increased access, if necessary.

Return of this Conference

23As set out above, the August 10, 2020 motion date is vacated.

24This conference will be adjourned to a date before me. The parties will obtain a date from the Milton trial office. The parties may file supplementary briefs of no more than six pages, plus any letters from their CBVs about the issues cited above and any offers regarding the parenting issues.

25In the circumstances of the COVID-19 emergency, this endorsement is deemed to be an Order of the Court that is operative and enforceable from the time of its release without any need for a signed or entered, formal, typed Order.