Court File and Parties

Court File No.: FC-20-00654-00 Date: 2021-01-19 Superior Court of Justice - Ontario

Re: David Schieder, Applicant And: Diane Gajewczyk, Respondent

Before: The Honourable Mr. Justice D.A. Jarvis

Counsel: Adela Crossley, Counsel for the Applicant Hanna Kofman / Diane Isaac, Counsel for the Respondent

Heard: January 19, 2021

Endorsement

[1] There are two motions scheduled to proceed on January 20, 2021.

[2] On October 5, 2020 Himel J. made a Case Conference Order referencing the parties' motions and detailing what the parties were permitted to file. The combined length for the motions was 1 hour. The directions given were mindful of the June 26, 2020 Notice to the Profession dealing with length, page and exhibit limitations for motions. That Notice was updated December 18, 2020 (effective January 4, 2021).

[3] Both Notices directed that the limitations were strict and that if a party wished to file a longer affidavit leave was first required from the court. In the June 26th Notice, the page limitation was 10: in the December 18th Notice the limitation was 12. In each Notice the number of exhibits was limited to 10 pages.

[4] The AH has filed at least 2 affidavits (his Form 14C indicates that a further affidavit is intended to be filed for the motion). His affidavit sworn October 27, 2020 and affidavit sworn November 2, 2020 do not comply with the formatting ordered by Himel J. His exhibits total 58 pages in the aggregate.

[5] The RW has filed 4 affidavits, at least one of which (November 2, 2020) does not comply with Himel J.'s formatting Order. The aggregate number of her exhibits exceed 20 and pages exceed 300.

[6] The affidavits filed (or proposed to be filed) exceed the page limitations (that is if the parties had not tried to disregard Himel J.'s formatting directions, as above).

[7] Neither party has sought leave of the court to so grossly disregard not only Himel J.'s Order but also the Notices to the Profession. It is clear that neither counsel has read those Notices and that each has chosen to completely disregard Himel J.'s Order. It was not a suggestion.

[8] It is not possible to determine which counsel, or party, has acted most egregiously but it is clear that neither party's motion should be allowed to proceed on January 20, 2021 unless and until the parties can bring themselves into compliance with Himel J.'s Order and the Practice Direction.

[9] In my view, the responsibility for this rests entirely with counsel. They are expected to know the court's practice, to obey Practice Notices and to ensure that their client's material is Order-compliant.

[10] OTG:

(1) The parties' motions for January 20, 2021 are vacated;

(2) In order for their motion to be heard, a party must obtain a 14B order from Himel J.;

(3) In their material in support of their motion the requesting party must demonstrate the steps taken to comply with Himel J.'s Order and the December 18, 2020 Practice Direction and how they intend to proceed if leave should be granted;

(4) If leave is granted by Himel J., the motion(s) shall be heard by me. The party (or parties) must strictly comply with any directions given by Himel J.;

(5) Each counsel shall provide to their client a copy of this endorsement and file with the court by January 27, 2021 an affidavit confirming that they have complied with this direction.

[11] Counsel should familiarize themselves with Family Law Rule 24(9)(a) dealing with the court's ability to order that a lawyer not charge their client fees or disbursements for work performed and for repayment of money already paid by the client.

Justice David A. Jarvis Date: January 19, 2021