Court File and Parties
NEWMARKET COURT FILE NO.: FC-20-654-00
DATE: 20210126
SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: David Schieder, Applicant
AND:
Diane Gajewczyk, Respondent
BEFORE: A. Himel J.
COUNSEL: M. Patrick/A. Crossley, Counsel for the Applicant D. Isaac/H. Kofman, Counsel for the Respondent
HEARD: January 25, 2021
Endorsement
[1] On January 19, 2021 Jarvis J. vacated the parties' motions (in respect of the Husband's claim for spousal support and the Wife's requests to share the jointly held debt and to obtain an Order that the Husband vacate the cottage), as both parties violated the page limitations set out in my Endorsement dated October 5, 2020 and the Central East Practice Directions.
[2] On January 20, 2021, counsel for the Wife provided a proposal to address the Husband's financial needs. The Husband's counsel never responded. She was of the opinion that the proposal and the financial disclosure to support same were not reasonable.
[3] Later that day counsel for the Husband sent an urgent request for an urgent teleconference to address the impact of the cancellation of the spousal support motion on her client.
[4] Counsel for the Wife responded that Jarvis J.'s Order requires leave to bring these motions, and she stated that this process should not be circumvented. Counsel failed to respond to the concerns raised about the dire impact on the Husband's mental health and financial circumstances (as a result of his motion being vacated).
[5] In light of the serious concerns raised by the Husband's counsel, I granted the request and arranged a Zoom conference. This Endorsement is derived from that attendance.
[6] Coincident with the email directing that the Zoom conference be held, the parties were advised that I expected them to speak before then to resolve the issue of temporary support for the Husband.
[7] In response to the email counsel never communicated with one another.
[8] I note that during the Zoom conference neither counsel provided any explanation for the gross repudiation of the page limitations that they filed for the motion, nor any apology. On the contrary, I was advised that Jarvis J. never received the most recent affidavit from the Husband which was approximately 68 pages in length.
[9] For reasons that are unclear to me the parties are engaging in an expensive and litigious process in what should be a straightforward case. I query whether the fees they have incurred will significantly exceed whatever costs may be ordered at some point down the road.
[10] It appears that a major stumbling block to resolution relates to the four jointly owned properties. I invited the Husband to file a 14B request for leave to bring an interim sale motion, which could be heard coincident with the Wife' motion. He advises that this is not a priority at this time.
[11] The case is indicative of the culture of unreasonableness that plagues the Court. This culture is particularly problematic given the current challenges and delays faced by litigants in gaining access to justice. Other flagrant examples include:
(a) failing to file any conference materials and/or Confirmation notices;
(b) ignoring the line spacing and font size so as to "comply" with the page limits;
(c) circumventing page limitations by directing the judge to earlier affidavits;
(d) bringing "urgent" motions that are not urgent, and attempting to squeeze long motions into one hour slots;
(e) seeking last minute adjournments based on information known weeks in advance;
(f) failing to advise the Court until the morning of a matter that the case has settled when the Minutes of Settlement were executed days before;
(g) using the Court's limited resources to further the delay, delay, delay game;
(h) seeking costs in amounts that are unreasonable and not proportionate;
(i) requesting relief that is extreme, not child-focused and unrealistic; and
(j) playing "good cop, bad cop" with the judge delivering the unfavourable opinion rather than the client's legal advisor.
[12] It seems that, for some counsel, the days of valuing one's reputation over success in any particular file may be gone. Given the current state of rapid transformation of the Court, coupled with additional unspecified future changes, that is unfortunate.
[13] Civility inside and outside of the courtroom, and respect for colleagues and the Court, are vitally important to the successful functioning of the Family Justice system.
[14] Enough is enough.
Order to go as follows:
The Husband's spousal support motion shall be heard on February 10, 2021 at 11:30 a.m.
The wife may file a 14B motion to my attention for leave to proceed with her motion. She must do so as her counsel presented that there was no urgency in respect of the Husband's request for an urgent teleconference, and she relied on Jarvis J.'s requirement of leave. This can be sent to my attention at: Nurit.suzana@ontario.ca.
If leave is granted the second motion shall be heard on February 24, 2021at 11:30 a.m.
Justice A. Himel
Date: January 26, 2021