Court File and Parties

Court File No.: FS-18-116 Date: 2021-03-12 Ontario Superior Court of Justice

Between:

RUCHIRA NAYANAKANTH GANGODAWILA, Self-represented, Applicant

- and -

HAWANA HENNIDAE ANNE MANGALEE FERNANDO, Respondent Counsel: Dilani Gunarajah, for the Respondent

Heard: March 12, 2021, at Orangeville by Videoconference

Before: Price J.

Endorsement

[1] The Superior Court of Justice’s regular operations are suspended due to the COVID-19 pandemic. The parties’ Settlement Conference Briefs were electronically filed and the parties and their counsel attended the conference virtually by the Zoom internet application in accordance with the Notices to the Profession and the Practice Directions for the Province and for Central West Region appearing on the Superior Court of Justice web-site.

[2] The parties to this proceeding have more issues in dispute than they have the financial resources to litigate them. The Respondent/husband, in particular, is self-represented and is facing trial on a charge of domestic assault for which he also requires funds.

[3] The parties attended a Settlement Conference today. They had filed Settlement Conference Briefs in advance, which set out the facts and the issues in dispute. They did not file a Trial Scheduling Endorsement Form, as required by the Practice Directions. The purpose of that form is to identify the issues for trial, the witnesses each intends to call at trial, and the time they will need to spend with each witness and to make their arguments to the court. Without that information, the Court is unable to estimate the time that will be needed for the trial and set a timetable, as the dates available for trial vary according to how long the trial will require.

[4] As is my practice, I prepared a draft Trial Scheduling Order, based on the information in the parties’ briefs. The draft Order contains procedural terms that address the issues in the parties’ Briefs. The draft Order is simply a tool. Its purpose is to facilitate the communication that takes place between the litigants at the Conference with a view to agreement on the steps needed to move the case forward to either a settlement of the substantive issues or an adjudication.

[5] The draft Order sets out the outstanding disclosure that each party says he/she needs from the other, a proposed timetable for any motions that are needed to address issues the parties say are urgent and need to be resolved before trial, and a proposed timetable for the remaining steps, such as serving and filing Trial Records, that need to be taken before trial.

[6] A Mediator from the Peel Mediation Service, a volunteer organization offering mediation services to litigants, generously attended the Settlement Conference to make the Service’s resources available to the parties. This is especially valuable in a case like this one, where one party is represented by a lawyer and the other party is not.

[7] The lawyer representing one party is constrained from communicating freely with the other, self-represented litigant. In the absence of a witness, what the lawyer says can be misunderstood or misconstrued by the self-represented litigant. This can give rise to disputes that may require the lawyer to become a witness, and this can compromise the lawyer’s ability to represent her client. In those circumstances, a mediator can serve as a helpful intermediary between the self-represented litigant and the lawyer for the represented party.

[8] Unfortunately, this was the last of four conference on the docket and there was not sufficient time for the Court to help the parties complete the Trial Scheduling Endorsement Form and reach agreement, at least on the terms of the draft Trial Scheduling Order.

[9] With the help of Ms. Di Paolo, the representative of the Peel Mediation Service, the parties agreed to adjourn the Conference for two weeks so that, in the intervening time, the self-represented husband can access un-bundled legal services to help him complete the Trial Scheduling Endorsement Form, negotiate with counsel for his wife any revisions needed to the terms of the draft Order, and attend a mediation.

[10] Fortunately, the parties had sold their matrimonial home, and the net proceeds of sale are being held in trust by the lawyer who assisted them in the sale. This provided a fund that could be drawn from to enable the husband to access the unbundled legal services he needs to complete the Trial Scheduling Endorsement Form and the draft Trial Scheduling Order and to attend a mediation that may help the parties settle the substantive issues. This is especially important in a case like this, where a cost of a trial would be disproportionate to the issues and the amounts in dispute.

[11] The Applicant wife understandably does not want a greater amount than necessary released to her husband at this time, as the amount being held in trust may be the only security, she has to satisfy her claims for child or spousal support and equalization of net family property. The husband, for his part, has an urgent need for funds to retain counsel to represent him on the criminal charge, upon which he is to make an appearance in the near future to set a trial date.

[12] The parties agreed that the $5,000.00 that this Order allows for the husband will be paid by the real estate lawyer directly to a lawyer, qualified in family law, whom the husband retains to help him complete the Trial Scheduling Endorsement Form and Trial Scheduling Order and attend the forthcoming mediation. The funds will be used only for those purposes. The same amount will be paid to the wife from the funds that are in trust.

[13] The further amount that the husband wants to draw from the funds in trust to retain a criminal lawyer is an issue that the parties can discuss at the mediation that takes place before this Settlement Conference resumes in two weeks.

[14] The husband did not know whether he could find a lawyer who could offer him un-bundled legal services; that is, help completing the Trial Scheduling Endorsement Form and draft Trial Scheduling Order and attending the forthcoming mediation, even with the $5,000.00 that will be made available from the funds held in trust. I have therefore directed him to the web site of the National Self-Represented Litigant Project (NSRLP), a non-profit organization whose mandate is to make resources available to self-represented litigants.

[15] The NSRLP web site contains helpful information, and a directory of lawyers across Canada who offer un-bundled legal services available to litigants who cannot afford to represent them to assist them for all purposes and throughout the entire proceeding. The link to that directory is https://representingyourselfcanada.com/directory/.

[16] Based on the foregoing, it is ordered, on consent, that:

Orders

1. The Settlement Conference is adjourned to March 26, 2021, at 9:00 a.m. before me.
2. The lawyer who helped these parties sell their home at 995450 Mono Adjala Town Line (“the real estate lawyer) shall release $5,000.00 to a lawyer the Applicant/husband shall retain to help him complete the Trial Scheduling Endorsement Form and revise the draft Trial Scheduling Order and to attend a mediation in this proceeding. The funds shall be used only for those purposes.
3. The real estate lawyer shall release $5,000.00 to Dilani Gunarajah, in trust, for the Respondent/wife.
4. The Registrar shall send the parties’ Settlement Conference Briefs, the draft Trial Scheduling Endorsement Form and draft Trial Scheduling Order that I prepared, and this Endorsement to Ms. Di Paolo of the Peel Mediation Service at the email address she provided.
5. The parties shall attend a mediation to be convened by the Peel Mediation Service.

Price J. Released: March 12, 2021