COURT FILE NO.: FC-18-2028-1
DATE: 2021/11/17
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Elizabeth Nyantakyi, Applicant
-and-
James Bennett Ayree, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Deanna Paolucci, for the Applicant David Gray, for the Respondent
HEARD: Heard by Videoconference on November 17, 2021
ENDORSEMENT ON TRIAL MANAGEMENT CONFERENCE
[1] Todays' conference was a trial management conference.
[2] This matter is scheduled for trial during the Ottawa Family January 2022, trial sittings. This matter was added to the trial list without a Trial Scheduling Endorsement Form. A judge has yet to sign a TSEF, and the parties do not have a joint proposed TSEF.
Comments about the Rules
[3] Both counsel filed confirmation forms stating that they had not conferred with each other in advance of the conference on the basis that Justice Leroy's September 9, 2021, Endorsement provided sufficient direction.
[4] This is not acceptable. The Rules, including counsels' (and the parties') duties under Rule 2, require parties to confer in advance of court appearances to assist the court in achieving its primary objective. As was apparent from the matters discussed at the TMC today, the parties should have engaged in substantially more constructive discussion in support of the primary objective than they have.
[5] This is even more egregious given that Justice Leroy's endorsement urged the parties to "diligently work on a SAF [Statement of Agreed Facts] to shorten the trial time and resolve collateral issues." Yet the parties appear today without any agreed facts, without a trial plan, and without a plan for the expected duration for trial or how the trial will be conducted, etc.
[6] Both counsel filed TMC Briefs. Neither filed a TSEF, and Rule 17(13) requires parties to serve and file a TSEF. TMC Briefs no longer exist in Superior Court family matters.
[7] Given the absence of a jointly prepared TSEF and that the parties appear to have engaged in little discussion about what is needed to prepare this matter for trial and how the trial should proceed, little was accomplished at the conference today.
[8] For this reason, as set out below, I am requesting the Trial Coordinator to schedule another TMC before me to take place before December 22, 2021. In doing so, I want to clarify to counsel and the parties that they have wasted the court's time today and requiring another conference places undue strain on limited court resources. This must not happen again.
[9] I have considered striking this matter from the trial list completely, given the lack of preparation. At this time, I am not doing so because the issues are time-sensitive due to the Applicant's position that her stay in Canada is time-limited. But a lot more work has to be done to get this matter ready for trial. Both counsel have undertaken to me that they will do this work. If it is not done by the return before me, one of the consequences may be that trial will be delayed. It is not in either party's interests to delay this matter – in particular, it is not in the child's interests. But both parties will need to demonstrate that they have done everything possible to get this matter ready for trial. If one party does so while the other delays, the court will look at its various tools to impose just consequences.
[10] We discussed several matters that will need to be addressed between the parties as they prepare for the return before me on the next TMC, as set out below.
Jurisdiction Issues
[11] Several jurisdictional issues need to be sorted out in advance of trial.
[12] This proceeding is the mother's motion to change a consent order for parenting and child support made in Maryland, U.S, in April 2018. The father also seeks changes to the U.S. Order's parenting and child support provisions in his response.
[13] It is not clear what jurisdiction this court has to vary an order of a Maryland court, either concerning child support or parenting.
[14] The parties' pleadings do not help address the court's jurisdiction to vary the U.S. Order. The parties should review their pleadings and consider if amendments are needed.
[15] The parties divorced in a foreign jurisdiction – which means that the court does not have jurisdiction to grant corollary relief under the Divorce Act (see s.4 Divorce Act: Rothgiesser v Rothgiesser, [2000] OJ No 33 (ONCA) para 28 to 30)
[16] The child turned 18 on October 7, 2021. Both parents state that the child is severely autistic. It is not contentious that the child requires significant care. But - the CLRA, Part III (parenting orders) only applies to children who are minors (see s.18(3)), and neither parent has sought relief under the Substitute Decisions Act (SDA) (i.e. to be appointed his guardian of the person).
[17] So – the parties need to sort out what the court's jurisdiction is to make the orders that each of them seeks re child support and parenting, given:
a. The order sought to be varied was made in the U.S.
a. The parties were divorced outside of Canada; and
b. The child is now over 18.
[18] I have encouraged the parties to engage in constructive discussion and hopefully agree on whether their pleadings, should be amended to include claims under the SDA, either in the alternative or otherwise. If they do so, they each need to provide all required evidence under the SDA, such as proof of capacity and a management plan.
[19] Either way, the parties must be prepared to satisfy the trial judge that the court has the jurisdiction to make the order they request and provide evidence to do so. The consent of the parties cannot confer jurisdiction (Rothgiesser v Rothgiesser, [2000] OJ No 33 (ONCA) para 39).
Issues in Dispute
[20] The main substantive issue in dispute is whether the child should move to Ghana with the mother or remain in Ottawa with the father. The mother states she is in Canada on a visitor visa and cannot stay in Canada indefinitely. The determination of this issue will significantly impact the other issues (such as decision-making, schedule, and child support).
[21] Again, there are jurisdictional issues as set out above. One of these relates to past child support (see Doyle J. Order May 2021). The parties need to discuss and try to agree on whether past support issues will be adjourned or dealt with in another forum. It appears the parties agree to focus on ongoing child support – but they need to confirm their agreement on how the child support issues will be dealt with, and for what period.
Witnesses
[22] We engaged in a general discussion of each parties' proposed witnesses.
[23] I questioned whether all proposed witnesses are required/would be permitted given Rule 2 and that the trial's focus should be, it appears to me, each parties' respective plan for the child and why it is in the child's best interests. Some proposed witnesses seem repetitive, likely to be given little weight (because of their relationship with the party calling them) and focused on historical events. Although some historical evidence may be relevant to the central issue, taking up large amounts of trial time on this type of evidence appears to not be proportional, given the issues that the court needs to decide and, again, the focus on the parties' respective parenting plans, and why their plan is in the child's best interests. I remind the parties that the court has jurisdiction to limit witnesses and impose time limits, and they should attempt to agree on a reasonable plan for evidence, given Rule 2.
[24] Each party also lists various witnesses as "experts." Yet no expert reports have been provided, nor expert undertakings, nor records, nor CV's, etc. It is unclear what each party seeks to admit as expert opinion evidence or participatory expert evidence, and the admissibility of such evidence. For example, it appears to me that the Respondent seeks to call a lawyer to give evidence on Canadian immigration law – but expert opinion evidence on domestic law is not admissible (see "The Law of Evidence," Paciocco, Stuesser). This evidence would need to be limited to factual evidence. It is also unclear what each party proposes regarding the Rules for the timing of reports, records, etc.
[25] Each party needs to take immediate steps to provide will-say statements for the witnesses (other than the parties) that each intends to call. Will-say statements need to be detailed and particularized on the evidence intended to be provided by the witness. A general description of the area of their testimony is not sufficient.
Disclosure
[26] Both parties raise disclosure issues. I refused to deal with these at the TMC today, except concerning the father's request for further information re the mother's VISA, upon which I comment below. I refused to deal with disclosure because this is a TMC. The parties have already had a settlement conference and, before that, a motion that included disclosure issues. Justice Doyle made a detailed order on disclosure in May of 2021.
[27] Given how each party arrived at today's conference (detailed above), I find, frankly, the various complaints about disclosure are simply a tactic to make complaints about the other side, rather than fulfilling each parties' duty (including counsels') to support the primary objective of the Rules. I am not wasting time dealing with disclosure issues that should have been addressed (or were addressed) months ago. The parties will need to agree on timelines for any outstanding disclosure in their proposed TSEF's.
[28] On the Visa issue, the mother has already provided information about her VISA to be in Canada. The father is not satisfied with what she has provided, suggesting that she has provided misleading and fake information. On the other hand, the mother's position is that she has already provided extensive disclosure that just leads to the father asking for more, and nothing short of evidence that proves the father's point will be satisfactory to him. It may be that the mother will provide further information knowing the father's arguments about the information she has provided to date. But if the parties cannot resolve the issue, they can raise this at trial, and the court's findings on the subject will impact the parties' respective positions.
[29] I have suggested that the parties agree on timelines to exchange information on s.7 expenses (again, subject to whatever jurisdiction this court has to deal with child support) by, for example, agreeing that each party shall serve a list of all s.7 expenses for which they seek reimbursement within ten days, including supporting documents confirming the nature of the expense, the amount paid and proof of payment, and any insurance or benefits that reduce the net cost. The other would then have ten days to advise what expenses are agreed upon, and if they don't agree, provide the particulars and supporting documents for why they do not agree. The parties would then be prohibited from relying on any evidence at trial not exchanged in this process.
Other preparation for trial
[30] Neither side has served a request to admit, and I am ordering them to do so as set out below. The requests to admit should address authenticity issues concerning documents, including communications between the parties, that each seeks to introduce at trial. The requests to admit should not focus on augmentative matters that the parties know are contentious but instead focus on the facts that the parties believe are not contentious, including the basic background information.
Accordingly, I make the following orders under the Family Law Rules:
[31] A further Trial Management Conference shall be scheduled before me, for 45 minutes, to take place before December 22, 2021. Counsel shall contact the Trial Coordinator within seven days of Nov 17, 2021, to arrange this conference.
[32] The parties shall file a jointly prepared proposed TSEF in advance of the TMC. This form shall have all parts completed, in detail, as the parties' joint proposal for how the trial in this matter shall proceed, considering Rule 2.
[33] As soon as possible, and no later than Dec 1, 2021, the Applicant shall share her research with the Respondent on the issue of the court's jurisdiction to grant the relief sought in this proceeding. This may be shared on a without prejudice basis.
[34] The parties, through counsel, SHALL engage in constructive and cooperative discussion about what is needed to move this matter to trial with a focus on the critical issue in dispute (being mobility) following the primary objective of the Rules. This includes confirming agreement on matters that are not contentious.
[35] Each party shall provide will-say statements for all of their witnesses (other than the parties themselves) before December 8, 2021.
[36] Each party shall serve a constructive request to admit to the other side, including dealing with authentication issues and non-contentious facts, on or before December 8, 2021.
[37] Costs reserved to the continuation of this TMC.
Dated: November 17, 2021
Justice P. MacEachern
COURT FILE NO.: FC-18-2028-1
DATE: 2021/11/17
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Elizabeth Nyantakyi, Applicant
-and-
James Bennett Ayree, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Deanna Paolucci, for the Applicant David Gray, for the Respondent
ENDORSEMENT On Trial Management Conference
Justice P. MacEachern
Released: November 17, 2021