Court File and Parties

COURT FILE NO.: FS-15-406517 DATE: 20210301 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Gregory Howard Borschel, Applicant AND: Debaroti Mullick Borschel, Respondent

BEFORE: Kiteley J.

COUNSEL: Applicant, Self-represented Harold Niman and Jen-Yii Liew, counsel for the Respondent

HEARD: in writing

Endorsement

[1] In paragraph 145 of the endorsement dated January 13, 2021, [2021 ONSC 293] I made an order dismissing the Applicant’s motion for an order that the Superior Court decline to exercise jurisdiction over specified matters. In paragraph 146 I made an order dismissing the Applicant’s motion for a stay of these proceedings.

[2] In paragraph 147, I established a timetable for the hearing in writing of the Respondent’s motion for temporary child support (table amount and s. 7 special and extraordinary expenses). Pursuant to paragraph 147(a) the Respondent was required to serve and file her motion material by February 1, 2021 seeking an order for the period starting no earlier than August 1, 2019. Pursuant to paragraph 147(b), the Applicant was required to serve and file responding motion material with specific contents by February 15, 2021. Pursuant to paragraph 147(c), the Respondent was permitted to file a brief responding record by February 22, 2021. Pursuant to paragraph 147(d) neither party was permitted to redact any part of his/her income tax returns or notices of assessment/re-assessment.

[3] In paragraph 148, I directed that all other issues were deferred to trial.

[4] At 8:37 p.m. on February 1, 2021 (missing the deadline by a few hours), the Respondent served a motion record that included an affidavit of 13 pages with 24 exhibits and, counting the motion record but not the factum, a total of 525 pages. In paragraph 2 of her notice of motion, she asked for disclosure listed in Schedule A. In paragraphs 3, 4, 5 and 6, she asked for orders consistent with the endorsement dated January 13, 2021. She did not ask for leave to exceed the filing limits set out in the Notice to the Profession.

[5] The Applicant asked for and the Respondent agreed to a brief extension of the February 15 deadline.

[6] On February 23, 2020 the Applicant filed material that included an affidavit of 12 pages with 24 exhibits and, counting the motion record but not the factum, a total of 587 pages. It appears that he has not yet filed the affidavit, presumably awaiting the outcome of his request to exceed the filing limits. In his motion dated February 19, filed February 23, he asked for the following:

1. an order abridging the time for service and filing of the motion
2. an order allowing the Applicant Exhibits to exceed the 10 page limit as set out in the Notice to Profession
3. an order that the Respondent provide disclosure of specified bank accounts
4. an order for questioning of the Respondent prior to trial and prior to any decision regarding section 7 expenses
5. an order that the Respondent provide her full income tax returns, etc, for 2014, 2015, 2018, 2019 and 2020
6. an order that the Applicant shall pay temporary and without prejudice child support to the Respondent for the children in the amount of USD $3200 per month with the Respondent providing a 50% reimbursement for access costs
7. an order that the Applicant and Respondent share on a without prejudice basis the children’s ongoing section 7 expenses on a 50/50 basis, limited to private school tuition, and post-secondary expenses, after the children’s educational savings have been applied
8. an order adjourning the Respondent’s motion with respect to retroactive section 7 expenses to permit the Respondent to provide the required evidence in support of her claims
9. an order that at least 30 days in advance of any hearing to determine the parties’ obligations with respect to s.7 expenses or to vary the order for sharing on a 50/50 basis, the Respondent provide specified disclosure
10. an order that the issue of child support arrears be adjourned to the trial judge, to allow for the hearing of expert evidence regarding the standard of living analysis.
11. Costs of this motion on a full indemnity basis including tax, if applicable.

[7] The direction in paragraph 147(b) was clear. The only issues in this in writing motion are those reflected in paragraph 147(a) above.

[8] I will dismiss the request in paragraph 2 of the Respondent’s notice of motion.

[9] Pursuant to paragraph 147(b) the Applicant was directed to serve a responding motion record. The Applicant was not permitted to serve his own notice of motion except as it related to the issues identified in paragraph 147.

[10] The parties have exceeded the limit in the Notice to the Profession. The motion that I directed be heard before me in writing is not complicated. I intend to direct compliance with the Notice to the Profession and with the order dated January 13, 2021. Since the Respondent filed without seeking leave, I will allow the Applicant to do the same. However, for purposes of dealing with this not complicated in writing motion I intend to read only the affidavits of the parties, the exhibits that I consider relevant to the motion, form 13 financial statements each party has filed, and the factum each has filed. I have no intention of reviewing any exhibit by either party that I do not consider relevant.

Order

ORDER TO GO AS FOLLOWS:

[11] In the notice of motion by the Respondent, the request in paragraph 2 is dismissed.

[12] The Applicant has leave to file the balance of his motion record subject to paragraph 10 above.

[13] In the notice of motion by the Applicant: (a) the request in paragraph 1 is granted; (b) the request in paragraph 2 is granted subject to paragraph 10 above; (c) the request in paragraph 3 is dismissed as premature; (d) the request in paragraph 4 for questioning is dismissed as premature and because the decision to consider the retroactive section 7 expenses starting no earlier than August 1, 2019 has been made; (e) the request in paragraph 5 is dismissed as premature. (f) the request in paragraphs 6 and 7 will be considered. (g) the request in paragraph 8 is dismissed because the decision to consider the retroactive section 7 expenses to no earlier than August 1, 2019 has been made. (h) the request in paragraph 9 is dismissed as premature. (i) the request in paragraph 10 is dismissed because the decision to consider the child support arrears starting no earlier than August 1, 2019 has been made.

[14] The deadline for the Respondent to reply to the material served (and to be filed) by the Applicant) is extended to Friday March 12, 2021 provided that it will not exceed 10 pages including exhibits.

[15] Neither party shall pay or receive any costs in respect of any matter dealt with in this endorsement.

[16] In all steps in the proceedings, the parties shall comply with the page limits imposed by the Notice to the Profession unless s/he seeks leave from me or my delegate in advance to exceed the limits.

[17] With respect to all other motions, neither party may bring any motion unless s/he seeks leave from me or my delegate in advance.

[18] This order takes effect without a formal order being signed and entered.

Kiteley J. Date: March 1, 2021