Court File and Parties

Newmarket Court File No.: FC-19-58162-00 Date: 2020-10-01 Superior Court of Justice - Ontario

Re: Weilun Ni, Applicant And: Xingxing Yan, Respondent

Before: The Honourable Mr. Justice D.A. Jarvis

Counsel: Judy Piafsky, Counsel for the Applicant Vivian Leung, Counsel for the Respondent

Heard: In Writing

Settlement Conference Ruling

[1] This matter was scheduled for a SC on October 2, 2020. The issues involve equalization of the parties’ net family properties affecting assets in Canada and China, and support. The parties have collectively filed SCBs totaling in the aggregate 236 pages, 20 tabbed attachments, some comprising potential trial exhibits and other exhibits more properly relevant to a motion for disclosure. Each party claims that there is relevant disclosure still needed from the other. For example, the respondent (“the wife”) lists in excess of 35 assets for which disclosure from the applicant (“the husband”) is outstanding and relevant to the financial issues in this case.[^1] The husband’s list is less extensive but the complaint is made anyway.

[2] Neither of the parties has fully complied with the Family Law Rules (“FLR”) governing settlement conference proceedings, most of which are mandatory or prescribed by form.

[3] FLR 13(12) requires each party to update a financial statement that is more than 30 days old by filing a new financial statement or an affidavit confirming that there has been no material change from the last statement filed. The rule is mandatory. This was not done by the husband.

[4] FLR 13(14) requires the parties to file a net family property statement not less than 30 days before a settlement conference. An undated NFP statement is included in the husband’s brief. There is no indication that it was served compliant with the Rule: it appears to have been served with the brief on September 24, 2020. There is no NFP statement from the wife.

[5] FLR 13(14.2) and 13(14.3) require the parties to file a comparative joint net family property statement (Form 13C) or, failing agreement, separate comparative statements at least seven days before a settlement conference. Not surprisingly, that has not been done.

[6] Each party claims in their brief that disclosure has not been finished and that further procedural Orders are required dealing with their disputed disclosure complaints.

[7] The prescribed SC form require the parties to estimate their trial time. That has not been done by either party.

[8] Family law litigants are entitled to one settlement conference unless otherwise permitted by the case management judge. They are expected to come to that conference fully compliant with all the Family Law Rules. A settlement conference should not be the forum to dispute and adjudicate upon disclosure issues where there are numerous items in dispute the relevance and proportionality of which can only be determined by a motion. To hold a settlement conference otherwise is a complete waste of the court’s valuable time and the parties’ resources. Either parties come to a settlement conference prepared to discuss settlement confident that they have as much relevant information as obtainable to assist them or they come unprepared. The parties in this case are clearly unprepared. Non-compliance with the above Rules is evidence of that. None of the Rules is permissive.

[9] It is inconceivable that a party who raises serious disclosure shortcomings can make an informed settlement decision or that a lawyer can competently give settlement advice to such a client. A settlement conference is not a disclosure dartboard.

[10] As noted by Kiteley J. in Greco-Wang v. Wang, 2014 ONSC 5366 “[m]embers of the public who are users of civil courts are not entitled to unlimited access to trial judges”. While that observation was made in the context of a Trial Scheduling Conference, it is equally, if not more, pertinent to settlement conference events. Too often serial settlement conference events are permitted in circumstances where there are continuing complaints about inadequate or refused disclosure impacting a party’s ability to make an informed settlement decision. That practice must end.

[11] The settlement conference scheduled for October 2, 2020 is adjourned on the following terms:

(a) No further conference event shall be scheduled without leave from me as the case management judge;

(b) If a party is prepared to proceed with a settlement conference, he or she may bring a 14B motion to my attention for leave to schedule that event on notice to the other party. The affidavit in support shall confirm that the requesting party is prepared to proceed to the conference with the disclosure provided to that date (even though they may be dissatisfied with that disclosure but without prejudice to their raising the other party’s disclosure efforts, or lack thereof, at trial). That affidavit shall also confirm that there are no disclosure requests from the other party which remain outstanding;

(c) If a party has a complaint about inadequate or non-disclosure that must be resolved by motion before leave will be granted. Failure to comply with any disclosure so ordered may invite the non-compliant party’s pleadings being struck;

(d) The party requesting the settlement conference date must file a copy of their NFP statement and a comparative NFP statement. Additional directions with respect to the conference may be given.

[12] The parties are entitled to one settlement conference unless otherwise ordered. Either they comply with their disclosure obligations, bring a disclosure motion if they are dissatisfied with the other’s disclosure and comply with the Family Law Rules or their day in court will not happen any time in the near future. A settlement conference can serve many purposes. Serialized mediation is not one of them.

Justice David A. Jarvis

Date: October 1, 2020

[^1]: The parties were divorced in China on June 20, 2018. This was recognized by MacPherson J. on February 10, 2020 following a summary judgment motion. The references to the parties as” husband” and “wife” are for convenience only.