Court File and Parties

COURT FILE NO.: 68/20

DATE: 2021-01-25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Delia Joan Berta, Applicant

AND:

Raymond Louis Berta, Respondent

BEFORE: The Honourable Mr. Justice A. Pazaratz

COUNSEL: Michael Zalev, Counsel, for the Applicant

Peter M. Callahan, Counsel, for the Respondent

HEARD: January 22, 2021

ENDORSEMENT

[1] Should we do it once or twice?

[2] Well, likely twice or even more often if it’s something that’s fun.

[3] But if it’s a high conflict, bitterly contested spousal support dispute that has dragged on for years, if related motions can be dealt with in one place, at one time, with one judge – that makes a lot more sense than having separate proceedings ongoing in two different cities.

[4] As with most extremely complicated family law files, a breakdown of the chronology which led to this motion to transfer a file to another city will help put things in perspective:

[5] After a nine day trial in 2013 and 2014; an appeal in 2015; a re-hearing in 2016; and a further appeal in 2017: on November 16, 2017 the Ontario Court of Appeal made a final Order that requires the Respondent to pay to the Applicant $13,759.00 per month in spousal support on an indefinite basis.

[6] In 2017 -- before the Court of Appeal released the aforementioned decision – the Respondent brought a Motion to Change to vary the Court of Appeal's spousal support Order. He commenced that motion in the Superior Court of Justice in Milton.

[7] The Applicant responded with a cross-motion in Milton, seeking to deal with various spousal support issues including whether the Respondent should be required to secure his spousal support obligation with life insurance.

[8] On January 18, 2019 Justice Kurz dismissed the Respondent’s motion for (a) an interim variation of the Ontario Court of Appeal’s November 16, 2017 spousal support order, and (b) an order staying enforcement of the support order.

[9] After numerous court attendances in Milton, questioning, and multiple costs orders being made against him, in March 2019 the Respondent suddenly withdrew his motion to change. He took the position that this ended the Milton proceeding, even though the Applicant’s cross-motion for substantive relief against the Respondent remained outstanding.

[10] The Applicant has continued to pursue her claims against the Respondent in Milton, and that action is not yet resolved. After the Respondent abandoned his motion, the court in Milton granted the Applicant’s request to amend her pleadings to add claims for vesting orders and to provide security for the Respondent’s support obligations.

[11] On April 26, 2019 Justice Kurz ordered the Respondent to pay $65,288.55 in costs in relation to his failed motion to obtain an interim variation of the support order. He has not paid those costs.

[12] The Respondent was subsequently ordered to pay the Applicant $25,000.00 in costs in relation to the motion he commenced and then withdrew. In fixing costs Justice Kurz found that the Respondent had engaged in a pattern of unreasonable and bad faith conduct.

[13] Despite having withdrawn his request to vary the Court of Appeal’s support order, the Respondent still refused to pay. Currently the Respondent owes the Applicant almost $500,000.00 in spousal support arrears and unpaid costs.

[14] As a result, the Family Responsibility Office (“FRO”) commenced a default proceeding against the Respondent. A March 2020 default hearing had to be rescheduled because of COVID. An October 14, 2020 hearing had to be rescheduled because the Respondent failed to attend. Ultimately the default hearing proceeded on December 11, 2020.

[15] In her default hearing endorsement Justice Lafrenière found that the Respondent’s arrears (including costs that were made enforceable as support) totalled $480,169.96 as of November 30, 2020, and that he had the ability to pay both the on-going support and arrears that he owed the Applicant. The court ordered the Respondent to pay the Applicant the following amounts, failing which he would be incarcerated for three days for each and every default:

(a) $13,859.00 a month for the ongoing support;

(b) $6,374.00 a month towards the arrears;

(c) $147,597.37 as a lump sum by March 1, 2021; and

(d) $103,088.55 as a lump sum by May 1, 2021.

[16] The most recent $25,000.00 costs order has also never been paid. The Applicant describes this as another example of the Respondent’s consistent pattern of wilfully breaching multiple orders in relation to disclosure, costs and support. The Applicant’s materials include a number of earlier court endorsements setting out scathing findings about the Respondent’s defiance of court orders and inappropriate litigation behaviour.

[17] In his endorsement of October 7, 2019, Justice Kurz set out certain findings and comments which relate to several aspects of the motion before me:

[23] Regarding the costs of the balance of this proceeding, I find that Ms. Berta is entitled her substantial indemnity costs of $25,000. I find that the reasons that apply to the costs of the July motion apply to the unassessed costs of the proceeding as well. I add the following reasons:

1. Under r. 12(3), Ms. Berta is presumptively entitled to her costs of the proceeding that Mr. Berta discontinued.

2. While Mr. Berta’s motion to change was never adjudicated, his withdrawal from the proceeding represents a complete victory for Ms. Berta. As I wrote at para. 62 of my endorsement in the July motion,

Mr. Berta argues that he is unable to comply with the various payment orders against him. Yet he has now withdrawn from his motion to change the final order. In doing so, he effectively concedes that there has been no material change in circumstances since the time of the final order. That order is based on an imputed income of $644,172 per year.

3. From the very beginning of this proceeding, Mr. Berta demonstrated unreasonable behaviour:

ii. He began a pattern of unreasonable behaviour before the Ontario Court of Appeal even issued the order that he sought to vary. In his motion to change, he failed to say what relief he sought or the grounds for that relief. Ms. Berta had to move to have him provide that information, as well as the disclosure, to support his claim.

iii. At his questioning, Mr. Berta was asked to produce 69 undertakings. He did not agree to a single one that day. His counsel reconsidered his position on the undertakings in a letter provided eight days before the hearing of Ms. Berta’s motion to compel him to provide the documents requested. But he still insisted that Ms. Berta obtain some of the documents that he should have produced.

iv. Several the documents that Conlan J. ultimately ordered Mr. Berta to produce were emailed to Ms. Berta’s counsel between 4:00 and 5:00 p.m. the evening before his motion for an interim variation of the final support order was heard.

While I am not requiring Mr. Berta to pay for the costs of those motions, whose costs have already been determined, this conduct provides context to the litigation approach the Mr. Berta took throughout this proceeding. He unreasonably failed to cooperate until absolutely required to do so.

4. In a related reason, Mr. Berta consistently failed or refused to prosecute this case in a manner that meets the prime objective of the FLR, to enable to court to deal with a case justly (r. 2(2)). Under r. 2(3), dealing with a case justly includes:

a) ensuring that the procedure is fair to all parties;

b) saving expense and time;

c) dealing with the case in ways that are appropriate to its importance and complexity; and

d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

Under r. 2(4), parties and their lawyers are required to assist the court in promoting the primary objective of the FLR.

5. In referring to Mr. Berta’s compliance with r. 2(4), I rely on the points made above regarding unreasonable behaviour. I add that such conduct commenced at the beginning of this proceeding and consistently continued throughout the proceeding. Woollcombe J. had to order Mr. Berta to disclose his position in the proceeding (what he was seeking on why) and to produce all of the documentary evidence that he relies upon in this proceeding as well as any expert report he intended to rely upon. That disclosure came over eleven months after Woollcombe J. ordered him to reveal his position and almost ten months after he was required to produce his expert report. It also came about 22 months after Mr. Berta commenced this Motion to Change.

6. The last point above leads to my consideration of Mr. Berta’s failure to obey court orders during the course of this proceeding. At para. 61 of my endorsement in the July motion, I spoke of Mr. Berta’s breaches of various court orders. I found that Mr. Berta:

... simply refuses to comply with court orders to which he is opposed. He has done so for many years. He has not even paid the $1,500 ordered by Doi J. on June 5, 2019. As Ms. Berta points out, he has barely voluntarily made any support payments in 2019. Had it not been for the Gibson J. order for a set-off of support against support arrears, recently upheld on appeal, Mr. Berta’s support arrears would be over $600,000. As it stands, he owes Ms. Berta $380,141.04 [in support and costs]. He also refuses to obey Chozik J.’s order.

7. All of this amounts to bad faith as well. This conduct is not simply unreasonable behaviour or the fearless attempt to raise a potentially meritorious position. It is an attempt by Mr. Berta to engage in economic warfare with his ex-spouse. It is a demonstration of his willingness to force her to continuously spend money to enforce her rights under the guise of an unproven inability to comply. Perkins J. could have been alluding to Mr. Berta when he wrote in S.fcj v. S.(C), 2007 CanLII 20279 (ON SC), [2007] O.J. No. 2164 (S.C.J.),

At some point, a party could be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behaviour is causing the other party major financial harm without justification.

8. I must note that Mr. Berta’s counsel even violated the page limit for submissions that I clearly set out, although I am not specifically punishing Mr. Berta for that failure to follow an order of this court. It is just another illustration of the manner in which he has litigated this proceeding.

9. I do not grant Ms. Berta the costs of the March 12, 2019 conference that Chozik J. refused to grant. Subrule 17(18.1) is intended to deal with oft-seen event where the court makes no order regarding costs at a conference. It is not intended to allow a later judge to overrule the conference judge regarding a previous determination that costs are not appropriate. That determination is res judicata in regard to that issue.

[24] All of that being said, I recognize, both for the July motion and the proceeding as a whole that full indemnity costs should be a rarely invoked remedy. It is to be used in only the most clear and egregious cases.

[18] While the default proceeding was pending, on November 23, 2020 the Respondent commenced a fresh motion once again seeking to change the Court of Appeal’s spousal support order – even though he had previously commenced and then withdrawn essentially the same motion in Milton.

[19] The Respondent commenced this latest motion to change in Hamilton, even though the Milton proceeding relating to the same spousal support obligations remains active. For example, the Applicant brought a motion in the Milton proceeding in August 2020, which was argued before Justice Doi on November 4, 2020 (just weeks before the Respondent commenced his motion in Hamilton). Justice Doi’s decision is currently under reserve.

[20] After reviewing the Respondent’s new Motion to Change, the Applicant’s lawyer asked the Respondent to consent to transfer the Hamilton proceeding to Milton so it could be heard together with the ongoing Milton proceeding. The Applicant’s lawyer also asked the Respondent to provide certain financial disclosure. The Respondent’s lawyer advised that the Respondent would not consent to transfer the file, and he would not voluntarily provide any of the disclosure the Applicant had requested.

[21] As a result, on January 5, 2021 the Applicant brought the motion currently before me which includes the following requests:

(a) An Order transferring this Motion to Change to Milton so that it can be heard together with the ongoing proceeding between the parties in that jurisdiction in Court File Number 32777-10.

(b) In the alternative, an Order scheduling a long motion date for the Applicant to bring a motion for the following relief:

(i) An Order dismissing Respondent’s Motion to Change on the basis that it is an abuse of process and/or res judicata.

(ii) In the alternative to paragraph 3(b)(i), an Order staying this Motion to Change until the Respondent has paid the Applicant the money that he owes her pursuant to the Orders of the Ontario Court of Appeal dated November 16, 2017, Justice Kurz dated April 26, 2019, and Justice Kurz dated October 17, 2019.

(b) If necessary, leave to bring this motion in advance of a Case Conference and before the Applicant has filed her response to the Respondent’s Motion to Change, and extending the time for the Applicant to file responding materials to the Respondent’s Motion to Change until 30 days after the motion to transfer has been determined.

(c) An Order requiring the Respondent to pay the Applicant’s costs of this motion.

(d) An Order that any costs that the Respondent is ordered to pay be made enforceable as support.

(c) An Order for such further and other relief as counsel may advise and this Honourable Court permits.

[22] On the return date, counsel argued only the first issue: transferring the Respondent’s motion from Hamilton to Milton.

[23] The Applicant relies upon Rule 5(8) of the Family Law Rules (“the Rules”) which permits a court to transfer a proceeding to another municipality "[i]f it is substantially more convenient to deal with a case or any step in the case in another municipality[.]"

[24] The Applicant submits that it would be substantially more convenient to deal with the Respondent’s Motion to Change in Milton so that it can be dealt with together with the spousal support-related proceeding between the parties which has been ongoing on since 2017.

[25] She argues that allowing the Respondent’s new Motion to Change to proceed in Hamilton instead of transferring it to Milton would:

a. Result in an impermissible multiplicity of proceedings that would contravene s. 138 of the Courts of Justice Act, which provides that "[a]s far as possible, multiplicity of legal proceedings shall be avoided."

b. Create the possibility of inconsistent findings between the proceeding in Milton and the proceeding in Hamilton, and lead to inefficiency, added cost, and delay.

c. Encourage other parties who were not happy with the results they were obtaining in one jurisdiction to simply start a new proceeding in another jurisdiction.

d. Contravene rules 2(2), 2(3), and 2(4) of the Family Law Rules, which require the court to deal with cases justly by, among other things, "ensuring that the procedure is fair to all parties" and "saving time and expense", and requires the parties and their lawyer to help the court deal with cases justly.

[26] The Respondent does not dispute the aforementioned chronology as summarized by the Applicant. Indeed, the Respondent didn’t file his own affidavit in response to the Applicant’s detailed motion materials. Instead, a brief affidavit of law clerk Debbie James was filed, summarizing some information which is largely hearsay.

a. Many courts have now commented with disapproval on the growing practice of having legal staff sign affidavits setting out information which should have been attested to by a party who would have first-hand knowledge. Farooq v. Hawkins 2018 ONSC 4841 (SCJ); Smith v. Smith 2020 ONCJ 180 (OCJ).

b. Counsel continue this purely expedient practice at their peril. Affidavits are supposed to provide the sworn evidence of parties or witnesses who have first-hand knowledge of events.

c. At their best, affidavits of legal staff are usually uninformative and unhelpful. At worst they combine a mixture of hearsay and legal argument – none of which constitute proper pleadings. Robinson v. Robinson 2020 ONSC 7533 (SCJ).

d. In my determination of this motion, nothing will turn on the fact that the Respondent provided information through a law clerk. I won’t disregard that evidence, such as it is.

e. But in noting that the Respondent elected not to file his own affidavit, I must also consider that he has provided no explanation or denial with respect to serious allegations and concerns clearly outlined by the Applicant – including some very compelling evidence that the Respondent has maintained a long-standing pattern of engaging in oppressive and evasive litigation tactics.

[27] The Respondent disputes that the Applicant has standing to even bring her motion to transfer the proceeding to another city. He submits:

a. The Applicant was served with his Motion to Change on November 23, 2020.

b. She did not file responding materials within the 30 days provided by the Rules. She missed her December 23, 2020 deadline.

c. Pursuant to Rule 15(14) the Applicant’s failure to respond to the motion means that she faces the consequences set out in Rule 1(8.4).

d. The Respondent says this means the Applicant cannot participate in the case in any way – which means she can’t even bring a transfer motion.

[28] There is a certain irony to the Respondent relying upon a recently missed deadline, in circumstances where he himself has displayed such wanton disregard of multiple rules, orders and deadlines during many years of aggressive litigation.

[29] In any event, I rely upon the discretion afforded by the words “unless a court orders otherwise” in Rule 1(8.4).

a. The Applicant’s counsel responded in a meaningful and sensible way as soon as the Applicant was served with the Hamilton motion documents.

b. The Applicant’s counsel immediately asked for the Respondent’s consent to transfer the file to Milton. The Respondent had every right to oppose the request. It’s a legitimate issue, which I will determine herein.

c. But the Applicant didn’t ignore the Motion to Change. Her counsel attempted to encourage some cooperation and efficiency, on a file where both are long overdue.

d. When the Respondent rejected requests for both a transfer and voluntary disclosure, the Applicant’s counsel advised that this motion would be forthcoming.

e. Given the fact that the 30 day deadline expired just before Christmas, the Applicant brought her motion in a timely manner.

f. In the circumstances of this file, the request for a transfer is a threshold issue which requires an early determination. The Respondent is not prejudiced by the manner in which the Applicant has brought her motion.

[30] The Respondent submits that the Applicant should not be entitled to proceed with this motion prior to a Case Conference.

a. He says the Applicant has not established any urgency or hardship as required pursuant to Rule 14(4.2).

b. Referring to that same Rule, I find that a Case Conference is not required in this case “in the interest of justice.”

c. In MacDonald v Jensen 2011 ONSC 6932 (SCJ), Justice O’Connell determined that it was not necessary to conduct a Case Conference before deciding whether a proceeding should be transferred to another city.

[31] The Respondent’s primary objection to the motion to transfer relates to where the parties reside.

a. He lives in Hamilton.

b. She lives in the Town of South Bruce Peninsula, in the County of Bruce.

c. Neither party resides in Halton Region, for which Milton would be the Superior Court of Justice location.

[32] He refers to several subsections of Rule 5, including Rule 5(1) which he submits requires that this case was properly commenced in a jurisdiction where one of the parties resides.

[33] The Applicant does not dispute that the Respondent was entitled to commence a Motion to Change in the city where he resides. The issue is not whether the case could have been commenced in Hamilton, but whether it should remain in Hamilton.

[34] With respect to Rule 5(8), the Respondent does not acknowledge that it would be “substantially more convenient” for the case to be transferred to Milton. But he provides no specific evidence to challenge the Applicant’s assertions with respect to the convenience test.

[35] On the topic of convenience, the Respondent’s counsel referred to Bowes v Stevens, 2020 ONSC 5632 (SCJ), in which Justice Ramsay declined to transfer a motion to change because in that case a trial in open court was not likely and in this COVID-induced era of remote hearings, it was unlikely that an in-court attendance would be required in any event.

[36] The COVID pandemic has forced the court system to discover that with the advent of video technologies, geographic distance isn’t nearly as relevant as it used to be.

a. The Respondent is correct that the Applicant could quite easily participate in a hearing in Hamilton by Zoom.

b. But the Respondent could just as easily participate in a hearing in Milton by Zoom.

c. This motion isn’t about whether a stand-alone motion should be heard in one city or another.

d. The issue is whether a 2020 motion to change would be more conveniently and appropriately heard at the same time and in the same location as a closely related motion to change which has been ongoing in another city since 2017.

e. Should the multiple aspects of spousal support be argued once in one city – or twice in two cities?

[37] Even without considering the litigation baggage which the Respondent carries, I accept the Applicant’s submission that the Hamilton Motion to Change should be transferred to Milton.

a. In the broadest of terms, the Respondent argues that the “spousal support” issues still being litigated in Milton are different from the “spousal support” issues he now wishes to deal with in Hamilton. Given the complexity of this file and the significant numbers involved, it would be impossible and premature to determine that there are not (and could never be) any common or related issues or evidence – or that any determinations in one proceeding might not impact on determinations in the other proceeding.

b. The Milton proceeding is already well advanced. The parties and lawyers in both actions are the same. The Respondent’s most recent Motion to Change spousal support could easily be co-ordinated or consolidated with the ongoing Milton proceeding, with little loss of time or momentum. And with little extra expense. This is particularly so given the fact that the Milton proceeding actually started as a Motion Change by the Respondent. In contrast, if the Motion to Change proceeds independently in Hamilton, the parties will have to go back to the starting point (First Appearance, Case Conference, etc.). The two related files will be at very different stages in the litigation stream.

c. Transferring the Hamilton file to Milton will avoid the possibility of inconsistent findings – or findings in one city which will then require further litigation or determinations in another city.

[38] Beyond that, on this particular file, the court has an obligation to remind parties that it’s not just their convenience we have to consider. Taxpayers and the general public all have “standing” in this discussion.

a. Everyone has a right to their day in court. To have their case properly and fairly considered.

b. But – however it happens – some cases distinguish themselves by consuming an inordinate amount of court time and judicial resources.

c. With some cases – our frequent or relentless litigators – we reach a tipping point where the system has to remind everyone about Rule 2 in the Family Law Rules:

2 Primary Objective

2(2) Primary Objective The primary objective of these rules is to enable the court to deal with cases justly.

2(3) Dealing with Cases Justly Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

2(4) Duty to Promote Primary Objective The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.

2(5) Duty to Manage Cases The court shall promote the primary objective by active management of cases, which includes,

(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial;

(b) encouraging and facilitating use of alternatives to the court process;

(c) helping the parties to settle all or part of the case;

(d) setting timetables or otherwise controlling the progress of the case;

(e) considering whether the likely benefits of taking a step justify the cost;

(f) dealing with as many aspects of the case as possible on the same occasion; and

(g) if appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference.

[39] The Respondent has provided no explanation in this motion as to why he started a motion to change spousal support; then stopped it after causing the Applicant to incur enormous expense; and then started it again in a different city.

[40] The Respondent has provided nothing to rebut the very credible allegation that he continues to engage in economic warfare, by making this litigation as complex, unproductive, inefficient and expensive as possible.

[41] The COVID pandemic has left our court resources strained as never before. Even working at maximum efficiency, our reduced capacity in family court means that every day more and more families are left waiting for access to justice. In many of those delayed cases, the well-being and circumstances of children and vulnerable people are at stake.

[42] I’m not sure why we tolerated as much litigation nonsense as we used to. But that’s not an option anymore.

[43] We can no longer permit or tolerate an inefficient or cavalier approach toward judicial resources. We can no longer overlook or gloss over oppressive, reckless or malicious behaviour.

[44] Transferring the Respondent’s Motion to Change from Hamilton to Milton – to join the already existing related case – will promote efficiency and consistency, with no prejudice to the Respondent.

[45] Paragraph (a) of the Applicant’s Motion dated January 5, 2021 is granted. The Motion to Change under file 68/20 in the Superior Court of Justice in Hamilton is transferred to the Superior Court of Justice in Milton, to be heard together with the ongoing proceeding in that jurisdiction under Milton file number 32777-10.

[46] During submissions counsel agreed on the approximate range of costs which would be appropriate for the unsuccessful party to pay on this one-issue motion.

[47] The Applicant was entirely successful. The motion was complex and important. The legal fees identified by both counsel are reasonable.

[48] The Respondent shall pay to the Applicant costs fixed at $4,000.00 inclusive of HST and disbursements.

[49] There was no agreement on the issue of whether those costs should be enforced by FRO. Our system cannot afford to devote further time or resources to that very limited issue.

Pazaratz J.

Date: January 25, 2021