Court File and Parties

COURT FILE NO.: CV-20-648615 DATE: 2021 0219 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Raymond Gonsalves, Applicant AND: Mary Kapetanos, Respondent

BEFORE: J. WILSON J.

COUNSEL: Adriana Chimirel and Saisha Mahil, for the Applicant Leanne Townsend, Robin Chilton and Laura Brown, for the Respondent

HEARD: February 18, 2021

Endorsement

[1] This endorsement deals with the question of jurisdiction, as a judge in a civil settlement conference, to make the procedural order to transfer the file, where appropriate, from the civil division to the family division of the Ontario Superior Court of Justice, Toronto Region.

[2] For reasons outlined herein this matter is transferred to the family division.

[3] It also deals with the necessity of parties attending settlement conferences. For reasons outlined there shall be a settlement conference dealing with all issues pertaining to this family in the family division of the Superior Court of Justice, Toronto Region.

Background

[4] The Applicant father initiated an application in the civil court for the partition and sale of the jointly owned home, dealing solely with the question of the sale of the property and the division of the proceeds, notwithstanding that other issues in the context of the separation for this family have not been dealt with.

[5] Justice Pinto granted a consent order at a civil conference in October 2020 for the sale of the home on terms.

[6] Justice Vella conducted a conference initiated by the Applicant seeking the distribution of the funds from the sale of the jointly owned home on January 27, 2021. She scheduled a one-day hearing for this application on March 2, 2021 on the civil list.

[7] As it turns out, the hearing of this matter was never entered into the civil system either as a long motion or a trial.

[8] In any event, the March 2, 2021 date, is vacated by me as this matter is not in the correct court.

[9] This matter came before me as a settlement conference initiated by Justice Vella, requesting a judge with experience in both family law and civil law, to meet with the parties to explore settlement. She also allowed the Respondent to bring an application and motion to traverse this matter to Family Court.

[10] Upon reviewing the materials prior to the conference it was obvious to me that this application is in the wrong court, and should be in the family division of this court not on the civil list. Forum shopping and splitting issues requiring two proceedings cannot be condoned.

[11] The parties were not married but cohabited for eight years, and have a child, Georgio, now age 7. He has Down’s syndrome. The parties separated in late 2019 and have lived in the jointly owned home until the sale in January 2021. The applicant is paying $870 per month based upon guideline support looking at his 2019 income. There should be a support order enforced by the FRO in the usual fashion. There are also issues with respect to the time the Applicant spends with Georgio during the week when he does not have alternating weekend access.

[12] The parties are now disputing how the net proceeds from the sale of the house should be divided. The Applicant is seeking an unequal division of the proceeds in his favour.

[13] All of the down payment for the home in the amount of $159,850.00 came from the Respondent mother from savings she had prior to the relationship. The claim by the Applicant for more than half the proceeds of the home includes a claim for notional credits for interest and principal on mortgage payments made in the context of the eight-year period of cohabitation. The parties shared living expenses. The Applicant counsel’s position is that any expenses not directly associated with the home do not come into the equation. After the birth of their special needs child the Respondent was on an 18-month maternity leave.

[14] In family law cases, whether the parties are married or cohabiting, it is not the function of the court to do a retroactive accounting to assess relative contribution of who paid what during the term of the relationship. It is clear that the context and the nature of the claim being advanced by the Applicant requires that this matter be heard in the family law division of our court.

[15] The Applicant, without consultation, initiated proceedings for the sale of the jointly owned home in the civil division. The Respondent has been asserting throughout that this matter should be dealt with in the family law division, with all matters dealt with in one proceeding.

[16] When I raised the concern about the forum in yesterday’s conference, the Applicant’s counsel aggressively objected to me transferring this matter to the family law division of our court, suggesting that there was no jurisdiction for me to transfer the matter to the appropriate court in a settlement conference without consent, and that counsel wished to file materials opposing the transfer. I did not agree but agreed nonetheless to look into the question, and if necessary, have the question of the transfer of the matter heard by another judge.

[17] The Respondent’s counsel rightly was very concerned about the costs of a contested motion to transfer the file to the correct court. She raised clearly in her application materials the question of whether this matter should be dealt with in the family law division. At my request during the conference she forwarded a Notice of Motion formally requesting the transfer of this application to the family law division of this court which has been provided to opposing counsel. I do not think such a step is necessary, but took place in light of the position taken by Applicant’s counsel.

The Applicable Rules and the Law

[18] Counsel for the Applicant suggested that as views were exchanged about the merits of the case a procedural order could not be made. I disagree. The limits of what can be ordered in a conference are different in cases brought under the Family Law Rules, O. Reg. 114/99, and the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[19] In civil case conferences and pre-trials, judges routinely make procedural orders, with or without the consent of counsel, to ensure the matter will proceed appropriately. This includes appropriate interlocutory orders in the management of the file, having regard to principles of proportionality and the interests of justice.

[20] Rule 50.13 of the Rules of Civil Procedure deals with case conferences for actions and applications. In particular, r. 50.13(6) sets out the power of judges at a case conference as follows:

(6) At the case conference, the judge or case management master may, if notice has been given and it is appropriate to do so or on consent of the parties,

(a) make a procedural order; (b) convene a pre-trial conference; (c) give directions; and (d) in the case of a judge, (i) make an order for interlocutory relief, or (ii) convene a hearing.

Similar powers exist for a judge presiding at a pre-trial conference under r. 50.07(1)(c), where the presiding judge may “make such order as the judge…considers necessary or advisable with respect to the conduct of the proceeding, including any order under subrule 20.05(1) or (2).”

[21] While r. 50.13(6) does require that notice be given, the notice required under this provision does not require the bringing of a formal motion.

[22] In Hemmings v. Peng, 2019 ONSC 1937, at para. 28, Sanfilippo J. considers the purpose of Rule 50.13 and observes that “[a] broad application of Rule 50.13 will be used to address and resolve matters raised at case conferences, where possible. Parties and their counsel ought to expect that procedural orders and directions will be made at case conferences, in accordance with Rule 50.13(6), on informal notice of the issue to be addressed.”

[23] In Chatham Street Realco (2102) Inc. v. Lalor et al., 2020 ONSC 5698, F.L. Myers J., confirmed the purpose of Rule 50 is outlined in r. 50.01, and is, in part,

“to obtain from the court orders or directions to assist in the just, most expeditious and least expensive disposition of the proceeding, including orders or directions to ensure that any hearing proceeds in an orderly and efficient manner.”

[24] The powers of judges conducting a conference should be interpreted in order to meet this purpose: Chatham Street, at paras. 13-14.

[25] Justice Myers noted, over the objections of the defendants, that a judge in a case conference is able to make orders, as provided in Rule 50.13, without the requirement of a motion. Justice Myers notes, at paras. 13-14:

“Notice for the purposes of Rule 50.13(6) is necessarily somewhat less formal than a notice of motion… As set out in Rule 50.01, case conferences contemplate a summary and less formal process… If a formal notice of motion was required each time a judge proposed to make an order at a case conference, then conferences would just become motions. That would defeat their cost-saving and time-saving purpose.”

[26] The Applicant seeks to jump the queue and split this family case between two divisions in the Superior Court in Toronto. This is not acceptable.

[27] Prior to the conference I had made inquiries with the trial coordinator in the family law division about potential dates. A one-day matter may be heard on a variety of dates in July of this year or in August, unless an earlier date becomes available. The parties should also comply with the rules and procedures including a settlement conference in the family division before a contested application is heard.

Failure of the Applicant to Attend Conference

[28] Of note, r. 50.13(2) requires that “unless the judge… orders otherwise, the parties shall also participate” in a case conference.

[29] The Applicant did not attend this conference, though he was represented by two counsel and an articling student. To have any possibility of resolving a case clients must attend. This is not optional, it is mandatory. He did come on late in the day by telephone from his job site, but this participation is not adequate. The Respondent counsel sought costs of this aborted conference. The costs of the February 18, 2021 conference are reserved to the judge hearing the next settlement conference.

[30] The conference was not productive due to the Applicant counsel’s position on the issue of the transfer to the appropriate court, and due to the failure of the Applicant to attend.

[31] After conclusion of the conference yesterday there have been an astounding number of aggressive emails sent by counsel for the Applicant to opposing counsel continuing to late last evening with copies forwarded to my assistant. The articling student from the Applicant’s office has been writing to my assistant about court dates. This is inappropriate, disappointing and brings the system of justice into disrepute.

[32] I had offered to conduct a further conference in this matter with the Applicant in attendance to try to resolve all outstanding matters. In light of what has transpired it would be better to have a judge in the family law division deal with a settlement conference on all issues with both parties in attendance.

[33] The parties have Georgio, a disabled 7-year-old son. They must focus on his needs and his future. They will need each other as parents for many years to come to meet the challenges ahead.

J. Wilson J. Date: February 19, 2021