Court File and Parties

Court File No.: FC-19-1086 Date: 2020-08-11 Superior Court of Justice – Ontario

Between: Lily Klassen, Applicant And: Kyle Klassen, Respondent

Before: H.J. Williams, J.

Counsel: Beverly Johnston, for the Applicant Shawn Duguay, for the Respondent Carmen Baru, for Interested non-parties Henry Klassen and Beverley Klassen

Heard: July 23, 2020

Endorsement

H.J. Williams, J.

Overview

[1] The moving party, Lily Klassen, brought an application in Family Court against her husband, Kyle Klassen. Kyle’s parents, Henry and Beverley Klassen subsequently brought an action against Lily for repayment of a loan they made to Lily and Kyle to help them purchase a home.

[2] In her motion, Lily seeks the following orders (the list below is extracted from Lily’s motion confirmation form):

a) an order that the Respondent [Kyle] pay the Applicant [Lily] occupation rent for the period of September 1, 2018, to December 1, 2019, at a rate of $1,466 per month; b) an order consolidating the within proceeding with the civil claim commenced by the Respondent’s parents, Henry Klassen and Beverley Klassen, against the Applicant, bearing court file no. CV-19-00081162, pursuant to s. 6.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; c) an order striking out the jury notice filed in the civil action referred to above and directing that the civil action be tried by a judge alone, pursuant to s. 47.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and s. 108(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43; d) provided the civil action referred to above is consolidated with the within proceedings, an order that the Family Law Rules, O.Reg. 114/99, apply to the combined case; e) costs of the case conference held August 26, 2019 in the amount of $1,000 (as agreed by the parties and fixed by Master Kaufman), and costs of this motion on a full indemnity basis; f) an order that Exhibit J to the affidavit of the Respondent sworn October 8, 2019 be struck from the continuing record; and g) an order that the Respondent answer his undertakings given at questioning on October 16, 2019 and ordered answered by Justice Audet on October 31, 2020. (Three remain outstanding: 1. Complete income tax summaries (once produced on incomplete); 2. proof of RRSP contribution for 2019 (Respondent has not provided his 2019 income tax return and has not updated his sworn financial statement since October 2019; and 3. quantum of legal fees paid to date for this case.)

[3] I will consider each of the orders requested by Lily.

A. An order that the respondent pay the applicant occupation rent from September 1, 2018 to December 1, 2019, at a rate of $1,466 per month

Lily’s position:

[4] The parties separated on January 2, 2018 but both continued to live in the matrimonial home until August 31, 2018 when Lily moved into her own home, a townhouse worth approximately 60 per cent of the value of the matrimonial home.

[5] Living conditions were tense during the eight months the couple was living separate and apart but under the same roof. Lily filed a medical note which said that the situation had taken a toll on her health.

[6] Lily says that she had always been prepared to allow Kyle to purchase her interest in the matrimonial home but that, for some time, he had been unwilling to make an offer.

[7] Kyle eventually purchased Lily’s interest in the home for $437,500.00 (50 per cent of $875,000.00); the transfer was completed on December 23, 2019.

[8] Lily argues that after she moved out of the matrimonial home, Kyle had the benefit of living there, mortgage-free, from September 1, 2018 until December 1, 2019, while she was forced to make mortgage payments on the townhouse she purchased. Lily also questions Kyle’s evidence about how much he paid for maintenance and repairs to the matrimonial home after they physically separated.

Analysis

[9] There is no exclusive possession order. As such, s. 24(1)(c) of the Family Law Act, which permits a court to order a spouse to whom exclusive possession has been given to make periodic payments to the other spouse, does not apply. However, s. 122(2) of the Courts of Justice Act permits a court to make an award for occupation rent between joint tenants.

[10] Either way, the same factors apply in considering whether to order occupation rent. (Khan v. Khan, 2015 ONSC 6780, at para. 11.) These factors include:

a) The conduct of the non-occupying spouse including the failure to pay support; b) The conduct of the occupying spouse including the failure to pay support; c) Delay in making the claim; d) The extent to which the non-occupying spouse was prevented from having access to his or her equity in the home; e) Whether or not the non-occupying spouse moved for the sale of the home and, if not, why not; f) Whether the occupying spouse paid the mortgage and other carrying charges of the matrimonial home; g) Whether the children resided with the occupying spouse and, if so, whether the non-occupying spouse paid, or was able to pay, child support; and h) Whether the occupying spouse increased the selling value of the property. (Higgins v. Higgins, 2001 ONSC 28223, at para. 53).)

[11] Occupation rent is not automatic and should only be awarded when it is reasonable and equitable to do so. It is a tool to achieve justice in the circumstances of the case. (Khan, at para. 11.) It is an equitable remedy to be awarded only in “exceptional cases.” (Malik v Malik, 2015 ONSC 2218 at para. 155.)

[12] I have concluded that the trial judge will be in a better position to assess whether, in all of the circumstances, it would be reasonable and equitable to make an order for occupation rent. I accept that Lily made mortgage payments from September 2018 to December 2019 while Kyle did not. I also accept that Lily was willing to sell her interest in the matrimonial home to Kyle before she vacated the home at the end of August 2018 and well before Kyle ultimately purchased her interest in the home in late December 2019. However, Kyle gave Lily a $50,000.00 payment toward her interest in the matrimonial home so that she could purchase her new home. There is also evidence that Lily may benefited overall from Kyle’s delay in purchasing her interest in the matrimonial home in that the home was appraised at $805,000.00 in June of 2018 and was sold to Kyle 18 months later for $875,000.00. Kyle argues that Lily profited because of his maintenance of the home after she moved out; Lily argues that the higher value was more likely attributable to a hot real estate market or to renovations the parties paid for during the marriage. I am unable to resolve this issue on this motion. The trial judge will be in a better position to determine, after having assessed all the evidence, whether this is a case in which the “exceptional” equitable remedy of occupation rent is justified and, if so, how much should be awarded.

[13] Lily’s request for occupation rent is dismissed, without prejudice, however, to her right to revisit the issue at trial.

B. An order consolidating the within proceeding with the civil claim commenced by the respondent’s parents, Henry Klassen and Beverley Klassen, against the applicant (# CV-19-00081162) pursuant to s. 6.01 of the [Rules of Civil Procedure](https://www.ontario.ca/laws/regulation/900194).

C. An order striking out the jury notice filed in the civil action referred to above and directing that the civil action be tried by a judge alone, pursuant to s. 47.02 of the [Rules of Civil Procedure](https://www.ontario.ca/laws/regulation/900194) and s. 108(3) of the [Courts of Justice Act](https://www.ontario.ca/laws/statute/90c43).

D. Provided the civil action referred to above is consolidated with the within proceedings, an order that the [Family Law Rules](https://www.ontario.ca/laws/regulation/990114) apply to the combined case.

[14] Kyle’s parents, Henry and Beverley Klassen, (“the Klassens Sr.”) started a civil action against Lily to recover money they lent to Lily and Kyle to help purchase the matrimonial home.

[15] The Klassens Sr. lent Lily and Kyle $175,046.00. The four Klassens signed a loan agreement in November 2003.

[16] Lily and Kyle made monthly payments until the end of 2008. Mr. Klassen Sr. says he and his wife suggested that payments be suspended at that time because they believed Lily and Kyle were strained financially due to the cost of nannies and the activities of their three children.

[17] Lily argues that the Klassens Sr. did not request any payments after 2008 and that she understood that the loan had been forgiven. Lily pleads that there was an oral agreement to this effect. Lily notes that Kyle did not refer to the loan on his October 2018 financial statement, suggesting that he too did not consider the loan to be outstanding. Lily says that, after 2008, the loan was not mentioned again until mid-March of 2019, more than one year after the couple separated and shortly after she informed Kyle that she would be seeking spousal support from him.

[18] The Klassens Sr. started their action against Lily in August 2019. The action is under Rule 76 of the Rules of Civil Procedure, the “simplified procedure” rule. The Klassens Sr. seek $79,923.00, interest and costs from Lily. The action is against Lily only. The Klassens Sr. say that Kyle immediately acknowledged his liability under the loan and arranged to repay it and, as such, it was not necessary to name him as a defendant.

[19] Lily has delivered a statement of defence. Lily named Kyle as a third party. Kyle has delivered a defence to the third-party claim.

[20] The Klassens Sr. served an affidavit of documents on November 19, 2019.

[21] Lily has not served an affidavit of documents. Examinations for discovery have not taken place. The Klassens Sr. served a notice of examination on Lily for January 9, 2020. Lily took the position that no steps should be taken in the civil action pending the outcome of this consolidation motion. Lily did not attend at the scheduled examination and the Klassens Sr. obtained a certificate of non-attendance. At the hearing of this motion, the Klassens Sr.’s lawyer said that she is planning a motion to strike Lily’s statement of defence.

[22] This consolidation motion was originally set down for October 31, 2019. It was put over to March 5, 2020 but was struck from the list. It was then scheduled for April 16, 2020 but did not proceed because of the COVID-19-related suspension of the court’s regular operations. I heard the motion on July 23, 2020.

Lily’s position

[23] Lily seeks an order consolidating her family law application and the Klassens Sr.’s civil action, an order striking the jury notice in the civil action and an order for the application of the Family Law Rules to the consolidated proceeding.

[24] Lily argues that the two proceedings are closely intertwined because the validity of the Klassens Sr.’s loan is common to both. Lily argues that there is a risk that inconsistent findings will be made if the proceedings are heard independently. Lily also argues that the most efficient and cost-effective manner to proceed is to consolidate the two proceedings.

Kyle’s position

[25] Kyle opposes Lily’s request for consolidation. Kyle argues that Lily’s request does not meet the threshold for consolidation under the Rules of Civil Procedure. He maintains that there are no common questions of law and fact in the two proceedings, the relief claimed does not arise out of the same transaction or occurrence and there is no other reason in support of a consolidation order. Kyle argues that the validity of the Klassens Sr.’s loan should be determined in the civil action which should proceed to trial before the trial of the family law application.

The Klassens Sr.’s position

[26] The Klassens Sr. agree with Kyle’s position and raise further arguments against consolidation. The Klassens Sr. argue that:

a) The family law application and the civil action cannot be consolidated because they are not proceeding in the same court in that the civil action is under the civil jurisdiction of the Superior Court of Justice and the application is in the Family Court, which is a separate branch of the Superior Court; b) The actions cannot be consolidated because a jury notice has been served in their action and family law proceedings may not be tried by a jury; c) They will be deprived of their counsel of choice if the proceedings are consolidated because their lawyer does not practise family law; and d) Consolidation provisions are “not intended to transform the Family Court into a one-stop platform for judicial services to a divorcing individual.”

Analysis:

[27] The Family Law Rules allow for “cases, claims or issues” to be heard together when it would be “more convenient”: Rule 12(5). “Case” in the Family Law Rules “means an application or any other method allowed in law for bringing a matter to court for a final order or provisional order, and includes all motions, enforcements and appeals.” “Claims” and “issues” are not defined terms in the Family Law Rules.

[28] Rule 12(5) hints at but does not clearly allow for the type of consolidation order requested by Lily, which would combine a Family Court application with a civil action in the Superior Court of Justice. Handily, Rule 1(7) of the Family Law Rules provides that, in a situation such as this, where the Family Law Rules do not cover a matter adequately, the practice is to be decided by analogy to the Family Law Rules, by reference to Courts of Justice Act and, if appropriate, also to the Rules of Civil Procedure.

Rule 6 of the [Rules of Civil Procedure](https://www.ontario.ca/laws/regulation/900194)

[29] Rule 6 of the Rules of Civil Procedure deals squarely with consolidation or hearing together of “proceedings,” a term which applies to both actions and applications (Rule 1.03(1).) The test for consolidation or hearing together is set out in Rule 6.01:

6.01 (1) Where two or more proceedings are pending in the court and it appears to the court that,

(a) they have a question of law or fact in common; (b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or (c) for any other reason an order ought to be made under this rule, the court may order that, (d) the proceedings be consolidated, or heard at the same time or one immediately after the other; or (e) any of the proceedings be, (i) stayed until after the determination of any other of them, or (ii) asserted by way of counterclaim in any other of them.

[30] The Klassens Sr. argue that the two proceedings cannot be consolidated because they are not “pending in the court” as required by Rule 6.01, in the sense that they are not pending in the same court, one having been commenced in the civil jurisdiction of the Superior Court of Justice and the other in the Family Court. The Klassens Sr. rely on a decision which considered bankruptcy matters (Legue v. Till-Fab Ltd., 2005 ONSC 63791 at para. 12) and argue that when the Superior Court sits in different jurisdictions, the jurisdictions are not “co-extensive.”

[31] I remind myself that I am not necessarily required to apply the Rules of Civil Procedure to this Family Court motion. I am looking to Rule 6.01 of the Rules of Civil Procedure for guidance because the Family Law Rules do not clearly deal with consolidation or hearing together of the two proceedings that are at issue and because Rule 1(7) of the Family Law Rules permits me to do so.

[32] Nonetheless, the Klassens Sr.’s argument requires me to consider whether there is a jurisdictional bar to an order consolidating a Family Court proceeding and a Superior Court proceeding or to ordering that the two be heard together.

[33] The Family Court is a branch of the Superior Court of Justice, all judges of the Superior Court of Justice are also judges of the Family Court and the judges appointed as members of the Family Court are all judges of the Superior Court of Justice: Courts of Justice Act, ss. 21.1(1), 21.2(3) and 21.2(1).

[34] The Family Court has the jurisdiction conferred on it by the Courts of Justice Act or any other Act: Courts of Justice Act, s. 21.1(3.) Section 21.8 of the Courts of Justice Act provides that proceedings under the family law-related statutes listed in a Schedule to the section shall be commenced, heard and determined in the Family Court. However, the jurisdiction of the judges who are members of the Family Court is not limited to the jurisdiction of the Family Court. As previously mentioned, these judges are judges of the Superior Court of Justice; that their jurisdiction is not restricted to that of the Family Court is evident from s. 21.2(4) of the Courts of Justice Act which specifically provides that the Chief Justice may temporarily assign the members of the Family Court to hear matters outside the Family Court’s jurisdiction. Further, matters that are not within the jurisdiction of the Family Court may, in certain circumstances, be heard in the Family Court. With leave of the judge, the Family Court may hear matters not otherwise within its jurisdiction if the matter is within the judge’s jurisdiction and is combined with a related matter that is within the jurisdiction of the Family Court (s. 21.9.)

[35] I am satisfied that, provided the two proceedings are related, there is no jurisdictional impediment to an order consolidating a family law application and a civil action or to an order that they be tried together. If the proceedings are unrelated, of course, the issue would be highly unlikely to arise. If the proceedings are combined, both may be heard, with leave, in the Family Court, by a Family Court judge, who will certainly be a Superior Court judge and who may also be a member of the Family Court.

Should the two proceedings be consolidated or tried together?

[36] To determine whether Lily’s family law application and the Klassens Sr.’s civil action are related and should be consolidated or tried together, I will look to the test in Rule 6.01 of the Rules of Civil Procedure.

[37] I am satisfied that the two proceedings have “a question of law or fact in common” as contemplated by Rule 6.01(a). The enforceability of the Klassens Sr.’s loan is an issue common to both proceedings. This issue will turn on several findings, including whether the Klassens Sr. forgave the loan and whether the Klassens Sr.’s claim for enforcement is statute-barred. In either proceeding, the trier of fact would be required to consider the contract between the Klassens Sr. and Lily and Kyle, the factual basis for Lily’s argument that the loan was forgiven, the Klassens Sr.’s intentions with respect to repayment of the loan, Kyle’s understanding of the repayment obligations under the loan, oral and written communications between the Klassens Sr. and Lily and Kyle, between the Klassens Sr. and Lily and between the Klassens Sr. and Kyle relating to the loan, the treatment of a separate loan and several financial gifts from the Klassens Sr. to Lily and Kyle, the impetus for the timing of the Klassens Sr.’s demand for repayment of the loan and the effect, if any, of Lily and Kyle’s separation and Lily’s demand for spousal support on the Klassens Sr.’s treatment of the loan.

[38] Kyle and the Klassens Sr. argue that the loan actually has no bearing on the family law proceeding because its enforceability would affect Kyle and Lily equally and would have only a notional effect on their equalization calculation. I do not accept this argument. It may but it does not necessarily follow that if the loan is enforceable, its effect will be felt equally by Lily and Kyle. In Poole v. Poole, 2001 ONSC 28196, [2001] O. J. No. 2154 (Ont. S.C.J.), the court considered similar facts: a family law application and a civil action involving loans by parents to their son and daughter-in-law. In Poole, the court concluded that the loans were valid debts but also determined that a residual valuation issue may remain, if, for example, the parents would never actually require their son to repay the debt. The Court of Appeal has expressly endorsed the approach taken in Poole, saying that the courts are frequently called upon to assess the actual worth of a claim, asset or liability, by discounting its face value where the evidence indicates it is unlikely that the promisor will ever be called upon to pay. (Zavarella v. Zavarella, 2013 ONCA 720 at para. 38.)

[39] Having found that the family law application and the civil action have a question of fact or law in common, I must now decide whether it would be appropriate to consolidate the two proceedings or to order that they be tried together. There are many good reasons to order consolidation or trial together, among them, to avoid a multiplicity of related proceedings, to avoid inconsistent findings, to reduce costs and save time for the parties and to save court time and related resources: Canadian National Railway v. Holmes, 2011 ONSC 4837

[40] In Canadian National Railway v. Holmes, at para. 44, D. M. Brown J., as he was then, referred to 1 014864 Ontario Ltd. v. 1721789 Ontario Inc., 2010 ONSC 3306 at para. 18 and a list compiled by Master Dash of factors a court may consider when faced with a request to consolidate proceedings or to order trial together. The factors, which may or may not apply depending on the circumstances, include:

a) the extent to which the issues in each action are interwoven; b) whether the same damages are sought in both actions, in whole or in part; c) whether damages overlap and whether a global assessment of damages is required; d) whether there is expected to be a significant overlap of evidence or of witnesses among the various actions; e) whether the parties the same; f) whether the lawyers are the same; g) whether there is a risk of inconsistent findings or judgment if the actions are not joined; h) whether the issues in one action are relatively straight forward compared to the complexity of the other actions; i) whether a decision in one action, if kept separate and tried first would likely put an end to the other actions or significantly narrow the issues for the other actions or significantly increase the likelihood of settlement; j) the litigation status of each action; k) whether there is a jury notice in one or more but not all of the actions; l) whether, if the actions are combined, certain interlocutory steps not yet taken in some of the actions, such as examinations for discovery, may be avoided by relying on transcripts from the more advanced action; m) the timing of the motion and the possibility of delay; n) whether any of the parties will save costs or alternatively have their costs increased if the actions are tried together; o) any advantage or prejudice the parties are likely to experience if the actions are kept separate or if they are to be tried together; p) whether trial together of all of the actions would result in undue procedural complexities that cannot easily be dealt with by the trial judge; q) whether the motion is brought on consent or over the objection of one or more parties.

[41] I find that many, although not all of the factors that apply in this situation weigh in favour of combining, in some manner, Lily’s application and the Klassens Sr.’s action. Although the enforceability of the Klassens Sr.’s loan is not a central issue in the family law proceeding, the relevant facts are interwoven with the facts in the family law proceeding, given the potential effect of the enforceability issue on the family law equalization and support issues and the post-separation timing of the Klassens Sr.’s demand for payment. Lily is a party to the civil action and both Lily and Kyle are parties to the third party claim; although the Klassens Sr. are not parties to the family law proceeding, the testimony of at least one of them will be necessary at its trial. The factor on Master Dash’s list I consider to be the most persuasive in this case is factor “g”, which is whether there is a risk of inconsistent findings or judgment in respect of the common issue of the enforceability of the Klassens Sr.’s loan if the actions are not joined. I find that such a risk does arise in this situation.

[42] Kyle and the Klassens Sr., effectively relying on factor “i” on Master Dash’s list, argue that the enforceability of the loan could simply be determined through a trial of the civil action, heard before the trial of the family law proceeding. I seriously considered this approach but concluded that, given the many considerations that will inform the decision (see para. 37, above), trying the civil action first would not eliminate the risk of inconsistent findings, unless the two trials were heard by the same trier of fact. The trials cannot be heard by the same trier of fact unless the jury notice in the civil action is struck; family law proceedings must be tried without a jury. (Courts of Justice Act, ss. 108(2) and 21.8.)

The jury notice in the civil action

[43] Lily argues that the Klassens Sr. served a jury notice only after she notified them of her intention to consolidate her application with their civil action and that the jury notice was “strategic” and intended only to serve as a bar to consolidation. Mr. Klassen Sr. denies this. He says the substance of Lily’s defence prompted him and his wife to serve the jury notice and that this explains why the notice was served only after service of the defence. Mr. Klassen Sr. says that he had experience with jury trials during his career as a senior business executive. He explained that he has more faith in the decision-making power of a selected collective than of a single judge.

[44] I am mindful that the right to a trial with a jury is statutory right and that it is not to be taken away from a party lightly or without substantial reasons. (Hunt (Guardian of) v. Sutton Group Incentive Realty Inc., 2002 ONCA 45019, paras. 52 and 68.)

[45] At the beginning of 2020, the Courts of Justice Act and the Rules of Civil Procedure were amended to prohibit jury trials in actions started under Rule 76. Although the Klassens Sr.’s action is a Rule 76 case, because they served their jury notice before the amendments came into force, they had the right to serve the notice and the amendments do not now deprive them of the right to have a jury decide their case.

[46] That observation having been made, the legislature and Ontario’s Civil Rules Committee have both indicated, through the January 1, 2020 amendments to the Courts of Justice Act and the Rules of Civil Procedure, that, despite the edict of the Court of Appeal in cases such as Hunt, supra, depriving litigants in Rule 76 cases of the right to a jury trial is justified and consistent with both the goals of the Courts of Justice Act and the guiding principle of the Rules of Civil Procedure. The goals of the Courts of Justice Act include encouraging public access to the courts and public confidence in the administration of justice, furthering the provision of high-quality services to the public and promotion of the efficient use of public resources: Courts of Justice Act, s. 71(c), (d) and (e). The general principle at the heart of the Rules of Civil Procedure is to secure “the just, most expeditious and least expensive determination of every civil proceeding on its merits”: Rules of Civil Procedure, Rule 1.04.

[47] By serving a jury notice, the Klassens Sr. have chosen the most expensive available route to justice, a trial by jury, in a case involving a promissory note in which they are seeking $79,923.00, interest and costs. In a simpler time, the jury notice and the associated inflated trial costs could have been considered only as factors that might encourage settlement or influence the post-trial costs award. Times have changed, however, and I cannot ignore the reality or the effects of the COVID-19 pandemic which shut down Ontario’s non-virtual court rooms for almost four months, creating a significant case backlog and great uncertainty about what the criminal, family and civil trials of the future will look like and how far into the future they will be scheduled.

[48] I am satisfied that the Klassens Sr.’s jury notice must be struck. The two proceedings must be heard by the same trier of fact and the family law proceeding cannot be heard by a jury.

Disposition

[49] Having found that there is a risk of inconsistent findings if Lily’s application and the Klassens Sr.’s civil action are tried independently, and having struck the Klassens Sr.’s jury notice, I must now consider how best to ensure that the two proceedings are dealt with justly, which is the primary objective of the Family Law Rules (Rule 2(2)) and in accordance with the guiding principle of the Rules of Civil Procedure, to which I referred in para. 46, above.

[50] I have concluded that trying the two proceedings separately, even with the same judge, would result in a duplication of effort, including testimony and submissions, would be more expensive and more time-consuming for the parties and would require more court and judge time and more court resources than if the proceedings are combined.

[51] There is no reason, however, to consolidate the two proceedings, nor would it be practical to do so, given that they are at different stages of maturity: the family law proceeding appears to be almost settlement conference-ready; the productions have not been exchanged in the civil action and examinations for discovery have not taken place.

[52] In the circumstances, I consider the just and most expeditious approach to be to order that the civil action proceed, under the Rules of Civil Procedure, through documentary and oral discovery and mediation and that the two proceedings then be pre-tried and tried together in the Family Court.

[53] If the steps required to be taken in the civil action result in a delay of the settlement conference and the trial in the family law proceeding, this is not unfair to Lily, as the Klassens Sr. had urged her to participate in the civil action late last year and early this year and she refused to do so, pending the outcome of this motion.

[54] The Klassens Sr. had argued against consolidation of the proceedings because their lawyer does not practise family law. If the Klassens Sr.’s lawyer feels that she must transfer the file to a family law lawyer before the joint settlement conference in the Family Court, or that she requires the assistance of a family lawyer at the settlement conference or the trial, the Klassens Sr. may request the associated costs in the event that they are successful at trial.

[55] To conclude, under Rules 1.05, 6.01 and 47.02 of the Rules of Civil Procedure and Rules 1(5), 1(7.2) and 12(5) of the Family Law Rules, I make the following orders:

1. The Klassens Sr.’s jury notice shall be struck.
2. Lily’s family law application and the Klassens Sr.’s civil action shall be tried together in the Family Court.
3. The Klassens Sr.’s civil action and the third party claim shall proceed under the Rules of Civil Procedure through documentary discovery, oral discovery and mediation. Subject to an agreement among the parties: All parties’ affidavits of documents and Schedule A productions shall be served within 30 days; examinations for discovery shall be conducted, using Zoom or any other mutually-acceptable electronic platform, within 60 days; undertakings shall be answered within 14 days of the examination for discovery at which the undertaking was given; mediation shall take place before the end of 2020.
4. A joint settlement conference/pre-trial conference of the family law application and the civil action shall take place in the Family Court. The request for the joint conference shall be directed to the family law trial coordinator. No less than three hours shall be set aside for the joint conference, the format of which shall be determined by the conference judge.
5. The pleadings in each proceeding shall determine the issues to be tried.
6. The Family Law Rules shall apply to the trial.
7. Subject to any orders made by the trial judge, neither the Klassens Sr. nor their lawyer(s) shall be required to attend the trial when the Klassens Sr. are not testifying or during testimony and submissions unrelated to the loan. The parties shall cooperate to minimize the attendance time of the Klassens Sr. and Lily’s and Kyle’s lawyers shall provide the Klassens Sr.’s lawyer(s) with ample notice of when their attendance may be required.
8. The Klassens Sr. shall not, without leave of the court, bring a Rule 20 or other dispositive motion. Although arguably contrary to Rule 1.04 of the Rules of Civil Procedure and the policy and purpose of Rule 76, I consider this order to be necessary in the circumstances, to avoid the risk of both inconsistent findings and delay, particularly the delay that would result from an appeal. Any prejudice to the Klassens Sr. may be addressed in their post-trial costs submissions.
9. Should case management orders be required, a request for case management of the two proceedings shall be directed to the local administrative judge for family, Justice Shelston.

E. Costs of the case conference held August 26, 2019 in the amount of $1,000 (as agreed by the parties and fixed by Master Kaufman), and costs of this motion on a full indemnity basis.

[56] See “Costs”, below.

F. An order that Exhibit J to the affidavit of the respondent sworn October 8, 2019 be struck from the continuing record

[57] Although this order was requested on Lily’s motion confirmation form, it was not mentioned on her amended amended notice of motion. Kyle did not refer to it in his factum. The exhibit was not included in the motion materials filed by the parties. Following the hearing of the motion, and before I realized that this order appears not to have been requested in Lily’s notice of motion, I asked the parties to provide me with a copy. Having now seen the exhibit, I certainly question its relevance and the weight a trial judge might accord it. However, as this order appears not to have been requested in Lily’s notice of motion, I will not order that it be struck, without prejudice to Lily’s right to renew this request at trial. If there was an agreement between the parties, of which I was not aware, that Lily was entitled to seek this relief, Lily’s lawyer shall advise me and I will revisit the issue.

G. An order that the respondent answer his undertakings given at questioning on October 16, 2019 and ordered answered by Justice Audet on October 31, 2020. (three remain outstanding 1.complete income tax summaries(once produced on incomplete), 2.proof of RRSP contribution for 2019((respondent has not provided his 2019 income tax return and has not updated his sworn financial statement since October 2019 and 3. quantum of legal fees paid to date for this case.)

[58] These undertakings shall be answered to the satisfaction of Lily.

[59] If there is any issue with respect to whether the undertakings have been satisfactorily answered, either party may request a 30-minute appointment with me, through the family law trial coordinator.

COSTS

[60] If the parties cannot agree on the disposition of the costs fixed by Master Kaufman on August 26, 2019 or the costs of this motion, they may make brief (no more than five pages) written submissions within 14 days of the date of this decision. They may then make even shorter reply submissions within seven days of the date of service of the last of the parties’ primary submissions.

[61] The costs submissions may be filed by sending them to me by email at scj.assistants@ontario.ca.

Released: August 11, 2020 Madam Justice H. J. Williams