Court File and Parties
COURT FILE NO.: 17/D-542
DATE: 2021/01/13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Beverly Claire Marie Fraser (Lepine), Applicant
AND:
James Kevin Lepine, Respondent
BEFORE: Honourable Justice M. Fraser
COUNSEL: Diana Tomazin, Counsel for the Applicant
Duncan Crosby (agent for Dylan Crosby), Counsel for the Respondent
HEARD: January 12, 2021
ENDORSEMENT
[1] By her Motion, the Applicant seeks:
An order that the parties file their Trial Scheduling Endorsement Forms (“TSEF”) and that this matter be listed for trial. Both parties agree to such an order;
An order that the Respondent provide proof that the Applicant is an irrevocable beneficiary of the whole of his life insurance benefits so as to secure spousal support and his family law pension division. The Respondent does not dispute such an interim order;
An order granting leave to bring this Motion for an interim spousal support order despite the fact that a settlement conference has already been conducted in this matter. This aspect of the Applicant’s Motion is disputed by the Respondent.
[2] I therefore will address the third item of relief claimed. In doing so, it is important to know the history of this proceeding.
[3] The parties began living in a common law relationship in November 1992. They married on August 1, 2000. They separated on May 1, 2017. The parties have no children together. The Applicant has one adult daughter from a previous relationship who is independent.
[4] The Applicant commenced this proceeding by way of an Application on July 5, 2017.
[5] A Case Conference was held on January 18, 2018. It appears that the Applicant was attempting to qualify for Ontario Disability Support Program (“ODSP”) at that time and that as part of the Endorsement, both parties agreed to secure financial information, including any determination of her eligibility to receive ODSP. The Case Conference was then adjourned to March 29, 2018, anticipating that the needed information would be available to the parties at that time.
[6] The Case Conference was then adjourned at the request of and on the consent of both parties four times (adjourned therefore administratively) during the spring and summer 2018. On August 30, 2018, James J. ordered that no further administrative adjournments would be granted and that counsel would need to attend to request any further adjournment and explain the delay.
[7] The Case Conference was then finalized on November 29, 2018. Based on the Endorsement from that hearing, it appears the Respondent had made a Consumer Proposal. He agreed to produce a copy of same with his income information. The Applicant agreed to provide medical evidence respecting her position that she was not able to work.
[8] A Settlement Conference next occurred. It took place on March 1, 2019. At that time, the proceeding was ordered to be placed on the trial list for the November sittings that year. The endorsement required the parties to file their TSEFs and that a trial date would be confirmed at a trial management conference. The Respondent was ordered to produce proof of income.
[9] On October 9, 2019, James J. ordered that the matter be struck from the trial list as no TSEF had been filed as ordered on March 1, 2019. He ordered that the matter not be returned to the list without an order.
[10] On February 14, 2020, the Applicant brought a Motion to have this matter restored to the trial list. On that date James J. ordered that as a first step, a TSEF was to be completed by both parties and that a trial date would follow either by order or by attending a TSEF conference, if one was necessary.
[11] There has been no progress it seems on the file since that date.
[12] No TSEF has been filed, although both parties have now prepared a TSEF for this Motion date. Ms. Tomazin maintains that she provided the Respondent’s counsel with a TSEF in October 2020, although this was not mentioned in her client’s Affidavit. The Respondent disavows any knowledge of this. I note that the provision of a TSEF on this date would have been significantly later than was ordered to occur in any event.
[13] The Applicant blames the Respondent (his changes in counsel) and the suspension of the Courts due to COVID-19 pandemic, for the delay. I do not accept this explanation as sufficient to justify granting leave to bring a motion at this stage of the proceeding.
[14] While the trial sittings did not occur in May 2020 or September 2020 due to the pandemic and the suspension of the regular operations of the Courts, the Applicant could have had this matter tried prior to that time or during the November 2020 or January 2021 virtual sittings. If she did not prepare or serve a TSEF until October 2020, it is difficult to accept the argument that this delay lies with the Respondent or due to the pandemic.
[15] Further, the Applicant has not properly explained why no motion for spousal support has ever been initiated at the appropriate time in this proceeding. She had a significant period of time in which she could have properly brought a motion for spousal support and she did not do so.
[16] I find that, at best, the record indicates that the Applicant now regrets having indulged the Respondent and/or having allowed time to pass while the parties considered their positions and sought legal counsel.
[17] The bottom line is, however, that a Settlement Conference occurred nearly two years ago and the matter was ordered to proceed to trial. The only reason this has not occurred is due to the failure of both parties to prepare and file their TSEF.
[18] I am not prepared, in these circumstances, to grant leave for this aspect of the Applicant’s motion and I therefore decline to consider an interim spousal support claim. The issues in this proceeding do not appear to be unduly complex. Given the parties have been unable to resolve the matter as between themselves, it is clear that it needs to proceed to trial.
[19] If the parties file their TSEF’s within the next seven days, as I will order, the parties should be able to proceed to a trial in the spring sittings 2021. While that might cause a three to four-month delay for the Applicant in obtaining the support order she seeks, this is a relatively small delay in the overall timeline.
[20] An order shall issue as follows:
The parties shall file an executed TSEF on or before January 20, 2021. If either party fails to sign the TSEF so that it may be filed by that date, the other party may return this motion before me for further order and direction.
Upon the filing of the TSEF, this matter will be scheduled to proceed to either a trial scheduling endorsement conference, or a trial management conference, as directed by the trial coordinator.
On consent, a temporary order shall issue requiring the Respondent to provide proof to the Applicant that she is the irrevocable beneficiary of the whole of his life insurance benefits.
Leave to move for an interim order for spousal support is denied.
M. Fraser J.
Date: January 13, 2021