R.N. v. A.N.
NEWMARKET COURT FILE NO.: FC-12-42004-00 DATE: 20200904
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
R.N. Applicant
– and –
A.N. Respondent
COUNSEL: A. Jiwa, Counsel for the Applicant (Parenting) T. Deeth, Counsel for the Applicant (Financial) G. Kay, Counsel for the Respondent (Parenting) A.N., Self-Represented (Financial) Sheila Bruce, Office of the Children’s Lawyer
HEARD: By teleconference on September 1, 2020
DIRECTIONS RULING
JARVIS J.:
[1] A teleconference was held on September 1, 2020 to deal with matters arising from bifurcated trial proceedings involving parenting and non-parenting issues. The trial of the parenting issues started on May 30, 2018 and concluded on November 20, 2018 in the sense that the evidence was completed and closing submissions heard. This is what may be described a high conflict case.
[2] No judgment was released on the parenting issue because during their closing submissions, the parties agreed to engage in reunification therapy for the two younger of the parties’ three children. A detailed Order was made.[^1] Earlier on December 7, 2018 this Court had ruled on a disclosure motion by the respondent (“the father”) dealing with non-parenting/financial issues (“the financial issues”).[^2] A trial on those issues was directed to proceed during the May 2019 sittings of this Court.
[3] The proposed reunification therapy did not proceed: neither did the trial of the financial issues.
[4] Throughout 2019 the Court monitored the circumstances surrounding reunification therapy and directions were given during several teleconferences with counsel. These conferences also dealt with the financial issues. Mr. Deeth was retained by the mother to deal with those while Mr. Jiwa remained as counsel on the parenting issues. The father indicated that he would be pursuing his own expert valuation evidence. The trial on the financial issues was adjourned to the November 2019 sittings. For reasons set out below, it did not proceed at that time.
[5] On January 9, 2020 I made an endorsement dealing with the father signing the therapist’s retainer agreement by January 31, 2020. That did not happen and so the applicant (“the mother”) brought a motion that a final Order be made and that any access by the father with the children be left to them to decide (the children were then 15 ½ and 12 ½ years old). Each party delivered affidavits; a report from the therapist was summarized and co-related to the procedural history of the case post-January 2019 and a Ruling was made.[^3] The father was given a final opportunity to set out his position with respect to reunification therapy: directions were given. The parties were advised that the father’s evidence would be assessed in the context of the trial evidence and what had transpired afterwards, following which the parenting issues would be determined and directions given with respect to the financial issues.
[6] On August 24, 2020 I directed that a teleconference proceed dealing with the continuing involvement of the OCL and the scheduling of next steps with respect to the financial issues. As noted, that took place on September 1, 2020. Mr. Jiwa and Mr. Deeth represented the mother, the former with respect to the issues for which they were retained. Mr. Kay participated as agent for the father on the parenting issues and the father participated with respect to the financial issues. Ms. Bruce represented the children.
[7] Counsel and A.N. were advised that directions would be given when the teleconference ended.
Parenting issues
[8] RN (the youngest child) has not had access with his father since June 2016. KN last exercised access with his father on October 28, 2018 shortly before the completion of the evidentiary part of the parenting trial: he is a special needs child.
[9] Ms. Bruce advised that she had been involved with this matter since 2012 and was authorized to proceed with her representation of the children. The clinical investigator who had testified at trial had been reappointed. Mr. Jiwa indicated that despite his client’s earlier advice to Ms. Bruce that she did not wish to hear from her offices again, the mother would follow his recommendation to work with the OCL. Mr. Kay indicated that his client was anxious to proceed with therapy but was concerned about possible alienation by the mother and inappropriate influence on the children with respect to their views and preferences (these were issues in evidence at trial). Ms. Bruce estimated that an investigation could be concluded within 5 to 6 weeks, circumstances permitting, due to the current Covid-19 pandemic.
Financial issues
[10] The disclosure Ruling was made on December 7, 2018. The father’s motion for further disclosure was dismissed. Paragraphs [13] to [15] of that Ruling merit repeating.
[13] It is clear that there has been substantial disclosure provided to the father. It is that disclosure that has provided him with the information to challenge the veracity and completeness of the mother’s records and her disclosure efforts. However, it is not possible at this stage of the case to determine the extent to which the disclosure requested is overly broad or that the mother has not made reasonable efforts to satisfy her disclosure obligations. This does not mean that the mother should be relieved of the consequences of non-compliance with the Orders of McGee J. or of her statutory obligation to credibly value her assets for equalization determination purposes and to provide sufficient information to enable the father and this Court to determine her income for child support purposes: it does mean that should the court be persuaded that she has either not complied, or that she has insufficiently complied, with her disclosure obligations then the court may draw reasonable inferences adverse to her financial interests. The Schedule prepared by the husband appears to be his roadmap to impugning the mother’s credibility when the trial involving the property and support issues proceeds.
[14] As for the mother’s former law firm, the father seeks the source documentation relating to an accountant’s value of that business, which the mother claims was provided. The father’s position is that the mother has the obligation to have the value of her former firm valued by a Chartered Business Valuator, not by an accountant. However desirable that might be, that is not the law. The mother has the obligation to credibly advance a value for her firm: it is not for the court to tell her how to do that but it is the court’s duty to critically review her efforts and evidence in that regard and to ensure compliance with the Family Law Rules. Without the court determining the issue at this time, the mother may wish to reassess her position in light of the court’s gatekeeping role dealing with the admissibility of expert opinion evidence and the father’s signalled challenge to the qualifications of the mother’s accountant as expert and the admissibility of the accountant’s proposed evidence. This observation applies to any other business in which the mother may have been interested on the valuation date.
[15] It is unclear as to what relief the father is seeking if other than striking the mother’s pleadings on the non-parenting issues. I am not prepared to do that: Kovachis v. Kovachis[^4]. Based on the information contained in the Ko affidavit[^5], the affidavit of the mother, the Schedule and the answers and documents produced, it is my view that the father has enough information with which to advance his position with respect to the value of the mother’s business interests on the valuation date, her qualifying income for child support determination purposes and to challenge the mother’s credibility. Nothing prevents the father from retaining his own expert to express an opinion about the value of the mother’s various business interests, assessing her income and appropriately qualifying the opinions expressed. There is no evidence before the court that the father has, in fact, retained any such expert. There is no affidavit from any proposed expert who, having reviewed the disclosure provided, identifies what else should be provided and/or can be obtained with reasonable effort. That this may involve further efforts by father’s counsel, and possibly lengthen the trial, may impact the issue of costs.
[11] On October 15, 2019 McGee J. held a further settlement conference on the financial issues. It did not go well. An altercation ensued outside of the courtroom which necessitated the involvement of court security. Little was accomplished as reflected in the endorsement made afterwards.
Conference began with counsel only, with the expectation that it would move forward with the parties jointly or in caucus. However, I was informed by court security that there was an altercation in the waiting area that may have involved extended family members who had come to support each of the parties.
I determined that the conference needed to be closed, but first take the opportunity to have the parties, and their support people who remained present to attend in the courtroom, on the record. I have expressed a hope that [the mother] and [the father] can still find a resolution that brings peace to their sons and an opportunity to recover from this difficult period. I challenged them both to take the higher road towards a better future.
Motions may be brought on 20 days’ notice. TSC to be booked through the Trial Coordinator.
If further directions are needed; counsel may schedule a telephone conference through the judicial assistant, to be confirmed by a form 14C, two days in advance, that sets out the issues to be canvassed.
[12] Nothing happened afterwards. No motion was brought (except for the mother’s motion in early 2020 dealing with parenting). No further event was scheduled. No effort was apparently taken to schedule a further conference with McGee J. who was the case management judge. There was no indication that the mother had retained an expert to assist in the valuation of her business interests. The father said that he had engaged a valuator to do that but that there were unanswered disclosure requests. He had not retained a lawyer and was unable to provide the court with a date by which that could be done. The father said that he was without funds for legal representation to deal with the financial issues. Legal Aid assistance was mentioned but no authorization had been granted (it was unclear whether the father had applied for a certificate). His trial counsel was discharged by Order of Bennett J. in November 2019 and there has been at least one other lawyer since then acting for the father before Mr. Kay was retained.
[13] To say that I am unimpressed with the failure of the parties to deal with the financial issues is an understatement. As observed by Kiteley J. in Greco-Wang v. Wang[^6] “[m]embers of the public who are users of the civil courts are not entitled to unlimited access to trial judges”. Originally the trial of all the issues between the parties had been scheduled for six days: trial of the parenting issues took that long and was then detoured to pursue reunification therapy, that too now delayed. The disclosure motion dealt with five entities in which the mother either had or was alleged to have an interest (including her former law practice). The reality is that, whether intentionally or not, neither party took the appropriate steps before May 2018 or since then to make their case trial-ready with respect to the financial issues. McGee J. was prepared to make herself available to assist the parties in settling or sensibly structuring that part of the trial and neither party took advantage of that overture. I am not prepared to permit the parties unlimited trial time.
Disposition
[14] The following is ordered:
(a) The OCL shall update its clinical investigation and file an affidavit setting out the investigator’s evidence and report as expeditiously as possible;
(b) Any issue dealing with the scheduling of any interviewing of the children or any issue appertaining thereto may be addressed by 14A motion to my attention;
(c) Depending on the investigator’s report, the court will determine whether further evidence and/or submissions will be required from the parties and whether reunification therapy would be in the best interests of the children;
(d) The parties shall attend a settlement conference to be held by Himel J., this conference to be scheduled by the court administration to proceed on November 30, 2020. This conference shall be limited to the financial issues;
(e) The parties are encouraged to resolve any outstanding disclosure issues before the settlement conference, by motion if necessary;
(f) The parties shall comply with the Family Law Rules. Each party shall exchange an updated financial statement by November 10, 2020 and net family property statements by November 17, 2020. These shall be filed with their settlement conference briefs. A comparative net family property worksheet based on the net family property statements shall be prepared by the mother and filed with the court by November 20, 2020 (4:00 p.m.);
(g) The parties shall exchange Offers to Settle by November 23, 2020 and shall ensure that these are provided to Himel J. either accompanying their settlement conference briefs or filed with the court to be brought to Her Honour’s attention by November 26, 2020 (4:00 p.m.);
(h) The settlement conference is peremptory to each party. Himel J. may extend the deadlines set out in (d), (f) and (g) above.
[15] The goal of the foregoing is to make the financial issues trial-ready for, at the latest, the May 2021 sittings of the court, pandemic circumstances permitting. There has been far too much delay in this case already. The interests of the children are not being served: there needs to be closure. If the father wishes (as he told the court) to be represented by a lawyer at the trial of the financial issues he must take every conceivable step to do that well before the scheduled conference. Mr. Kay indicated that he would assist the husband in that effort. To the extent that the father may qualify for Legal Aid, its favourable assessment of the father’s application in that regard would be appreciated by the court.
Justice David A. Jarvis
Released: September 4, 2020
[^1]: 2019 ONSC 163. [^2]: 2018 ONSC 7315. [^3]: 2020 ONSC 3951. [^4]: 2013 ONCA 663, paras. [24] to [28]. [^5]: Mr. Ko was an associate in Mr. Jiwa’s offices: his affidavit responded to the father’s outstanding disclosure complaints. [^6]: 2015 ONSC 5366, at para 3.