Court File and Parties
COURT FILE NO. : FS-19-00007688 DATE : 20211215 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Elma Hashemi AND: Parham Aslanimehr
BEFORE: Madam Justice O’Brien
COUNSEL: K. Nathens for the Applicant M. Maleki and H. Niman for the Respondent
HEARD: November 16, 2021
Endorsement
Overview
1The issue on this motion is whether the court should set aside Minutes of Settlement the parties entered into (“MOS”) where the Respondent was served with a new proceeding the day after the MOS were signed. The Respondent father, Mr. Aslanimehr, submits that a fundamental term of the MOS was to bring a conclusion to the litigation already commenced in three jurisdictions and consolidate the parties’ dispute into one alternative dispute resolution process. He submits that the Applicant’s pursuit of a new litigation immediately after the conclusion of the MOS constituted a fundamental breach of that agreement. He seeks damages of $100,000 for the breach. The Applicant mother, Ms. Hashemi, has brought a cross-motion seeking to have the MOS enforced, or, in the alternative, an order that this court has jurisdiction over all parenting issues relating to the parties’ son.
2The parties married on January 2, 2015 in Tehran, Iran. They separated on January 9, 2019. There is one child of the marriage, Rumi Aslanimehr, born January 4, 2018 (“R.”).
3The jurisdictional issues in this case stem from the fact that during their marriage, the parties spent time in three jurisdictions. They were married in Iran, but also spent time in both British Columbia (“B.C.”) and Ontario. For example, while primarily residing in Iran, during the marriage, the Respondent sponsored the Applicant to become a landed immigrant in Canada, with her port of entry being Vancouver. In addition, their son, R., was born in Ontario, where the Applicant’s family resides.
4The parties separated when they were in Vancouver in January 2019. They had traveled to Vancouver for the holiday season and to attend the Respondent’s sister’s wedding, which was to take place a few months later. They both commenced litigation in separate jurisdictions following their separation. This occurred quickly because approximately two weeks after separation in Vancouver, the Applicant took R. to Ontario without notice to or the consent of the Respondent.
5The Applicant then commenced this proceeding in Ontario seeking a divorce and custody of R. among other things. Shortly thereafter, the Respondent filed proceedings in B.C.. The Applicant filed a motion to dismiss his claim on the basis that the British Columbia Supreme Court (“B.C.S.C.”) did not have jurisdiction over the parenting issues.
6The Respondent then commenced divorce proceedings in Iran. This followed the determination of Branch J. of the B.C.S.C. that the child’s habitual residence was not B.C., but Iran. Branch J. also considered that Ontario could take jurisdiction over custody and access and found that Ontario would be the more appropriate forum to address those issues. However, he ultimately stayed the B.C. claim to ensure there would be no jurisdictional gap if Ontario did not assume jurisdiction.
7In this context, on October 23, 2019, the parties participated in a full-day mediation with Susan Lang, formerly a Justice of the Court of Appeal for Ontario. The MOS contained several provisions related to the other proceedings and the question of jurisdiction, including a provision that the parties agreed to attorn to the jurisdiction of Ontario.
8The following day, the Respondent was served with the Applicant’s claim in a defamation proceeding that she had started in Iran. The Respondent had no prior knowledge of this new proceeding. In the defamation claim, the Applicant alleged that certain allegations contained in the Respondent’s Iranian divorce proceedings, which he was required to withdraw by the terms of the MOS, were defamatory.
9The Respondent viewed the commencement of these new proceedings to be in fundamental violation of the terms of the MOS. His counsel wrote to Applicant’s counsel stating that the new proceeding violated the parties’ agreement. Several attempts were made to salvage any agreement between the parties. The Respondent took the position that unless the defamation claim was withdrawn, he would treat the MOS as inoperable, but the Applicant refused to withdraw the claim. Eventually the Respondent was successful in having the defamation claim dismissed in Iran for non-suit. A number of other steps occurred leading to this motion but at no point did the parties treat the MOS as in force.
10The Applicant submits that the terms of the MOS did not preclude the commencement of new proceedings in Iran. Instead, they only addressed vacating existing orders. Further, they only related to “marital issues” and so would not cover the defamation claim. However, she acknowledges that she would have been required to discontinue the defamation proceeding given the agreement to attorn to the jurisdiction of Ontario. In the alternative, she submits that this court should enforce the remainder of the MOS so that R. will benefit from the parenting provisions agreed upon. In the further alternative, she asks this court to assume jurisdiction over the parenting issues.
11For the reasons that follow, I find that the Applicant fundamentally breached the MOS and that the MOS should be set aside. I do not order any damages for the breach. I also do not address the question of jurisdiction, given that this motion was not scheduled for that purpose and no questioning has taken place, as previously agreed by the parties. The next step in this proceeding, as anticipated by the parties, is the appeal of the order of Branch J. to the B.C. Court of Appeal.
Issues
12The issues I need to address are as follows:
(1) Did the Applicant fundamentally breach the MOS such that the Respondent was entitled to repudiate the agreement? (2) Should the MOS be set aside? (3) Is the Respondent entitled to damages? and (4) Should this court address jurisdiction?
Legal Test to Set Aside MOS
13Subsection 56(4) of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”) authorizes the court to set aside a domestic contract, or a provision in a domestic contract, in specified circumstances, including in accordance with the law of contract. It provides:
56(4) A court may, on application, set aside a domestic contract or a provision in it,
(a) If a party fails to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;
(b) If a party did not understand the nature or consequences of the domestic contract; or
(c) Otherwise in accordance with the law of contract.
14The analysis under s. 56(4) requires two steps. First, the party seeking to set aside the contract must demonstrate that one or more of the circumstances within the provisions has been engaged. If that hurdle is overcome, the court must then consider whether it is appropriate to set aside the agreement: LeVan v. LeVan, 2008 ONCA 388, at para. 51; Toscano v. Toscano, 2015 ONSC 487, at para 43. The burden is on the party seeking to set aside the agreement to bring themselves within one of the paragraphs of s. 56(4) and then to persuade the court to exercise its discretion to set aside the agreement: Toscano, at para. 44.
Did the Applicant breach the MOS?
15Turning to the first step of the analysis, I conclude that the Applicant’s refusal to withdraw the defamation proceeding constitutes a fundamental breach of the MOS that entitled the Respondent to repudiate the agreement.
16I note that the Respondent has made a number of other arguments, including that the MOS can be set aside based on the Applicant’s failure to disclose the defamation proceedings. Paragraph 56(4)(a) of the FLA deals only with the disclosure of financial information. However, given my conclusion regarding the Applicant’s fundamental breach of contract, I do not need to determine whether the failure to disclose the defamation proceeding on its own would be sufficient to move to the second stage of the s. 56(4) analysis.
17In finding a breach of the MOS, I first must identify the contractual provision violated by the Applicant. The Applicant submits there was no such breach, as the parties were required only to vacate existing court orders regarding marital issues. In her submission, this did not preclude her from commencing or continuing new proceedings. Furthermore, in her submission, a defamation claim was not a claim relating to marital issues. The Applicant relies on para. 9 of the MOS, which provides as follows:
- The terms of this agreement and the operative terms of the parenting plan shall be incorporated into a final consent Order of the Ontario court at which time all existing orders in all jurisdictions relating to marital issues shall be vacated and of no force and effect. The mother will proceed with a divorce in the Ontario court on an uncontested basis immediately after January 29, 2020. Each party shall bear their own costs of the Ontario proceeding as it relates to the divorce proceeding and costs to date.
18I do not agree with the Applicant’s position. I find that a central term of the MOS, considering all the terms of the MOS and the context in which they were negotiated, was that the parties were contracting for the finality of court litigation arising from the breakdown of the marriage in favour of an alternate dispute resolution process. To the extent para. 9 made reference to “existing” orders, this did not preclude the larger point that all litigation was to cease. Further, I find that the defamation proceeding was captured in the parties’ intention to cease all other litigation related to the breakdown of their marriage.
19In interpreting the terms of a contract, courts are to take a practical, common-sense approach not dominated by technical rules of construction. The overriding concern is to determine the intent of the parties and scope of their understanding. To interpret the contract, the court must read the contract as a whole and consider it within the context of the surrounding circumstances known to the parties at the time. Contracts are not made in a vacuum. The interpretation of the contract is often derived from a number of contextual factors, including the purpose of the agreement and the nature of the relationship created by the agreement: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, at paras. 47-48.
20To interpret the MOS, then, I look to the terms of the agreement in the context of the surrounding circumstances. Starting with the terms of the agreement, the MOS contained several provisions addressing the termination of existing proceedings together with an agreement to proceed by way of an alternative dispute resolution (“ADR”) process.
21In the MOS, the parties agreed to broad terms on three primary issues, all of which were to be enforceable by an ADR process. They first agreed to the broad terms of a parenting plan, which largely continued the parenting time ordered by Branch J. — that is, that R. would transfer between the care of the parties each month. Under the MOS, the process for dealing with parenting on an ongoing basis was to agree that either party could initiate a review with respect to the residential arrangement in April 2022 or later. If the parties were not able to reach resolution through negotiation, the issue would be arbitrated by a mutually agreeable arbitrator in Toronto.
22Second, the MOS provided that the parties had not agreed on the issue of R.’s travel to Iran. Again, the process was for the Iranian lawyers to attempt to reach an agreement on the issue and, if this was not successful, to proceed to arbitration with the same arbitrator chosen for the parenting schedule.
23Third, the MOS addressed financial disclosure. The parties were to exchange financial disclosure within 45 days. If they were not able to reach an agreement on the financial issues on their own, those issues would be mediated by Ms. Lang, failing which they would be arbitrated by a mutually-agreeable arbitrator, with the arbitral award to be made into an Ontario court order.
24In short, all issues were to be addressed by negotiation/mediation/arbitration and an Ontario court order. The parties also agreed to end the other court proceedings and proceed only with court orders in Ontario. Specifically, as set out above, they agreed at para. 9 that the parenting plan would be incorporated into a final consent order of the Ontario court and that the Applicant would proceed with a divorce in Ontario court on an uncontested basis. They agreed at para. 10 to attorn to the jurisdiction of Ontario. They agreed at para. 11 that the B.C. proceeding would be dismissed once the Ontario court order regarding parenting was made. They also agreed that the Respondent would withdraw the Iranian proceeding once the Ontario court order was made. Finally, the parties specifically agreed at para. 9 that once the Ontario court order was taken out, all existing orders in all jurisdictions relating to marital issues would be vacated.
25Read as a whole, these terms demonstrate that the parties intended all litigation between them arising from the marital breakdown to be determined by an ADR process in Ontario. The parties specifically agreed to discontinue the B.C. and Iranian proceedings and to vacate all existing court orders relating to marital issues. They also specifically attorned to the jurisdiction of Ontario.
26Turning to context, these terms were negotiated after legal proceedings had been commenced in three jurisdictions and after a protracted period of dealings characterized by a level of distrust, with tactics that could be described as underhanded or at a minimum uncooperative.
27As set out above, the Applicant first started legal proceedings in Ontario in January 2019. The parties had been visiting B.C. when they separated. The Respondent asserts he subsequently learned that the Applicant had planned the separation prior to leaving Iran.
28Upon separation, the Applicant moved to a hotel and R. was alternating time with each parent. Then the Applicant, without notice to the Respondent and in the face of his clear objection (through a formal notice from his B.C. counsel), took R. to Ontario. The Applicant only learned they were in Ontario after their arrival.
29The Respondent subsequently commenced the proceedings in B.C. described above and, in June 2019, the proceedings in Iran.
30In the summer of 2019, another incident led to the erosion of trust between the parties. Counsel for the parties were in communication negotiating terms of a mediation. In July 2019, they agreed to terms. Then, on August 28, 2019, counsel for the Applicant introduced a new term requiring the Respondent to agree to an Ontario order not to remove R. from Canada. This was even though the Respondent had not attorned to Ontario jurisdiction and there was already a non-removal order in place in B.C.. In spite of the ongoing discussions between the parties and the existence of a mutual non-removal order in B.C., counsel for the Applicant then walked in an emergency non-removal order in Ontario, only notifying Respondent’s counsel at 4:25 p.m. the day before. The Applicant obtained an Ontario order that did not contain mutual terms.
31When the parties finally attended the mediation on October 23, 2019, there was a history of conflict, distrust, and litigation in multiple jurisdictions. The Applicant flew to Toronto with his sister and attended a full-day mediation that lasted into the evening with a former justice of the Court of Appeal of Ontario.
32A final and important point of context is that the Respondent did not know about the defamation proceeding. The Applicant does not dispute that she never disclosed it to him. She claims that she did not know whether he was aware of it because there is an online portal in Iran where it could have been discovered. But the Respondent did not know to check the portal. In any event, he says he could not have reached the portal from Canada. Regardless, it is undisputed that the matter never came up and the Applicant never brought it to his attention.
33In this context, I find that the MOS must be interpreted as including a term that all litigation arising from the breakdown of the marriage was to terminate in all jurisdictions in favour of the alternate ADR process outlined in the MOS. Read objectively, the parties were looking to consolidate the proceedings and put an end to the attempts to achieve jurisdictional and other advantage. The MOS addressed all the issues between the parties (parenting, finances, travel, divorce) and the litigation known to both of them in all jurisdictions. To the extent there is a question as to why the parties did not specifically name the withdrawal of the Iranian defamation proceeding, it is undisputed that the Applicant did not disclose it to the Respondent.
34A contractual term may be implied on the basis of the presumed intention of the parties where it meets the “officious bystander” test. The test is set out as follows in Energy Fundamentals Group Inc. v. Veresen, 2015 ONCA 514, at para. 31, quoting from Shirlaw v. Southern Foundries (1926) Ltd., [1939] 2 K.B. 206 at 227, [1939] 2 All E.R. 113 at 124 (C.A.):
Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying. Thus, if while the parties were making their bargain, an officious bystander were to suggest some express provision for it in their agreement, they would testily suppress him with a common: “Oh, of course.”
35Implication of a contractual term does not require a finding that a party actually thought about it or expressly agreed to it. Often terms are implied to fill gaps to which the parties did not turn their minds: Energy Fundamentals, at para. 35. On the other hand, a court will not imply a term that contradicts the express language of the contract or is unreasonable: Energy Fundamentals, at para. 36. The analysis of whether to imply a term must be done on an objective basis but having regard to the specific parties and specific contractual context: Energy Fundamentals, at para. 38. See also Banerjee v. Mathoo, 2021 ONCA 140, in which the officious bystander test was applied in the family context.
36Here, read objectively, the words of the contract and the surrounding circumstances all point to an intention to consolidate the parties’ dispute into one ADR process in Ontario. An objective bystander reading the MOS would easily point out that all other litigation was to be at an end. That was the very thing contracted for — a procedural consolidation. Indeed, the Applicant herself agrees the MOS prohibited her from proceeding with the defamation claim in Iran. She expressly submits and acknowledges that she would have been required to stay her defamation proceedings on the basis that the parties agreed in the MOS to attorn to the jurisdiction of Ontario. Although this is her position now that her defamation claim has been dismissed in Iran for non-suit, when Respondent’s counsel wrote to her counsel immediately after the Respondent was served with the defamation proceeding, she claimed she was not in breach of the MOS and would only withdraw the defamation proceeding if she received an apology.
37With respect to s. 9 in particular, the reference to vacating “existing” court orders relating to “marital issues” does not exclude the defamation proceeding. Where parties agree to proceed by an ADR process, the terms of their agreement should not be narrowly construed to defeat or allow a party to evade the alternate process they chose.
38Here, the focus of the Applicant’s defamation claim was on the allegations against her in the Iranian divorce proceedings. She objected to the Respondent’s allegations that she had abducted their child and his statements that he would take action against her through Interpol. In other words, her complaints relate to the wording of the petition for divorce the Respondent was required to withdraw pursuant to the terms of the MOS. In my opinion, regardless of whether the Applicant’s claim was framed as a separate proceeding in defamation, in its essential character it arose from the breakdown of the marriage and the related litigation. The Applicant was required to withdraw it pursuant to the implicit term that the MOS was intended to consolidate all litigation arising from the marriage breakdown in an Ontario ADR process.
Was the Respondent entitled to repudiate the MOS?
39As I have referenced above, the term requiring all litigation arising from the marriage breakdown to be consolidated was a fundamental term of the MOS. The breach of that term, evidenced by the Applicant’s refusal to discontinue the litigation, in my view entitled the Respondent to repudiate the MOS.
40A contract may be repudiated when one party acts in a way that evinces an intent to no longer be bound by the contract. The other party then may, at its option, elect to terminate the contract: Jedfro Investments (U.S.A.) Ltd. v. Jacyk, 2007 SCC 55, at para. 20. Repudiation only occurs if the breach is fundamental and material and goes to the root of the contract or deprives the injured party of the substantial part of the benefit of the contract: 1672370 Ontario Limited v. D. Narducci Holdings Inc., at para. 105.
41There are several factors that provide guidance in determining whether a breach is sufficiently substantial to justify future non-performance of the innocent party’s obligations. These are: (a) the ratio of party’s obligation not performed to the obligation as a whole; (b) the seriousness of the breach to the innocent party; (c) the likelihood of repetition of the breach; (d) the seriousness of the consequences of the breach; and (e) the relationship of the part of the obligation performed to the whole contract: M.S. v. I.S., 2021 ONSC 3715, at para. 123; 968703 Ontario Ltd. v. Vernon (2002), 58 O.R. (3d) 215, at para. 16.
42The Court of Appeal has upheld a motion judge’s decision that the doctrine of repudiation applies in the family law context: Nashid v. Michael, 2010 ONCA 661.
43Here, the breach was fundamental because it deprived the Respondent of the very thing contracted for, that is, an end to the numerous multi-jurisdictional proceedings and underhanded or strategic attempts to outmaneuver the other party. The parties had just concluded an agreement whereby they not only agreed to discontinue the litigation commenced elsewhere but also agreed to a new consolidated process that required a level of co-operation. They were required on various issues to negotiate or mediate and, if unsuccessful, mutually choose an arbitrator. The MOS anticipated matters being finalized in Ontario by a consent order.
44A day after entering into this new, more co-operative, streamlined process, the Respondent was served with a new proceeding in a different jurisdiction. In other words, more of the same and the opposite of the fundamental point of the contract. There would be no finality to other litigation, and no mutual trust and co-operation in favour of a more streamlined process.
45Moreover, the Respondent immediately offered the Applicant the opportunity to withdraw the new proceeding and abide by the MOS, which she refused to do. This was not a minor or unintentional breach. She stood by her right to pursue this new litigation in Iran until the Respondent had it dismissed. After several efforts to salvage the MOS, the Respondent’s counsel wrote a with prejudice letter on January 8, 2020 advising that unless the Applicant withdrew the Iranian defamation claim, it would be the Respondent’s position that she breached a fundamental term of the agreement and that the MOS should be set aside. Given that the Applicant refused to withdraw the defamation claim, I consider the MOS to have been terminated.
46In terms of the other factors for determining whether the Respondent was entitled to repudiate, none of the obligations had yet been performed. This was an immediate, egregious breach that went to the core of what the parties had tried to achieve in the MOS. The Respondent immediately informed the Applicant of his position. Although they effectively continued with the parenting terms of the MOS, which involved transferring R.’s care every month, this arrangement had been in place prior to the MOS in any event. It also was varied by order of Faieta J. dated April 8, 2020 to intervals of 45 days to minimize travel after the onset of the pandemic.
47The Applicant submits that the focus of the MOS was not on the ADR process but, instead, on parenting. The MOS did of course address some parenting terms. But, in my view, the thrust of the MOS was the process rather than the substantive provisions. For example, the parties agreed to continue the parenting schedule already in place — that is, the transfer of parenting time every 30 days. What was equally or more important was the process moving forward to address parenting. Specifically, the parties agreed that either party could initiate a review on or after April 1, 2022. The parties were then to negotiate and, if they were unable to reach an agreement, they would engage the assistance of a mutually agreeable arbitrator. The parties also agreed to enter into a comprehensive parenting plan within 45 days, and that any disputes regarding the wording of the parenting plan would be resolved with the assistance of Ms. Lang.
48In my view, then, the core of the MOS was the termination of litigation in multiple jurisdictions, with an agreed-upon process moving forward. The Applicant’s breach went to the core of the contract at a time when neither party had performed their obligations. The Respondent was entitled to repudiate the MOS. As a result, he has shown that the situation falls within s. 56(4)(c) of the FLA, that is that the MOS can be set aside in accordance with the law of contract.
Should the MOS be set aside?
49Even when a party establishes that a provision of s. 56(4) applies, the contract is not automatically rendered null. It is still necessary to determine whether it is appropriate under the circumstances to set the contract aside: Toscano, at para. 88. In the circumstances of this case, this inquiry overlaps with the question of whether the Respondent was entitled to repudiate the MOS. I therefore will address it only briefly.
50In determining whether the MOS should be set aside, the following factors set out in Toscano, at para. 88, citing Dochuk v. Dochuk (1999), 44 R.F.L. (4th) 97 (Ont. S.C.), should be considered:
(a) Whether there had been concealment or material misrepresentation; (b) Whether there had been duress, or unconscionable circumstances; (c) Whether the moving party neglected to pursue full legal disclosure; (d) Whether the moving party moved expeditiously to have the agreement set aside; (e) Whether the moving party received substantial benefits under the agreement; (f) Whether the other party had fulfilled his/her obligations under the agreement.
51The misrepresentation analysis in the cases addressing these factors tends to focus on failure to disclose financial information, which is the specific disclosure term required under s. 56(4)(a). However, for the purpose of this second part of the test for setting aside, where I am exercising my discretion, I consider it appropriate in this case to analyze the central non-disclosure question at issue — that is, the Applicant’s failure to disclose the Iranian defamation proceeding.
52Of the factors set out above, the only factor that does not apply here is (b), as I would not characterize the circumstances here as unconscionable. All the other factors favour setting the MOS aside. Starting with (a), I consider the Applicant to have committed a material misrepresentation by failing to disclose that she had commenced the defamation proceeding in Iran. Under (c), this is not a case where there is a suggestion the Respondent should have pursued further disclosure. He could not have guessed the Applicant had started a further proceeding that was unknown to him. With respect to (d), I consider the Respondent to have moved expeditiously to set the agreement aside. Although it took time to actually bring a motion, the Respondent notified the Applicant immediately of his position on the breach and that he would seek for the MOS to be set aside. Further, neither party subsequently complied with the agreement. Considerations (e) and (f) are essentially the same as under the repudiation analysis. In this case, neither party received the benefit of the agreement.
53The Applicant submits, however, that it is in R.’s best interests to enforce the MOS. Enforcing the MOS would give R. the benefit of the parenting provisions the parties negotiated and allow them to move to a review of the parenting schedule in April 2022 if needed.
54There is some appeal to this argument, as the conflict in this matter has been intense. It is worth considering any path forward that would assist in settling or resolving matters for R. The problem is that the MOS required an element of trust and co-operation between the parties, given the ADR processes involved. Even if the parties were to turn to arbitration, they would need to agree on an arbitrator. That trust has been eroded. The parties are not precluded from entering into a new agreement, but the message needs to be sent that an agreement will only work if the parties comply with its terms and otherwise act in good faith.
55In summary, particularly given the Applicant’s failure to disclose the new proceeding and the fact that neither party received the benefit of this agreement, I find it appropriate to set the agreement aside.
Is the Respondent entitled to damages?
56The Respondent has claimed $100,000 in damages related to the breach of the MOS but did not pursue this claim strenuously in oral argument. Although in his factum he discussed expectation damages, his brief oral argument on this point relied primarily on the principle that he should be put in the position he was in before the contract was entered into. This makes sense given his prompt repudiation of the MOS upon being served with the defamation proceeding.
57However, in my view, none of the expenses he claims fall into the category of out-of-pocket losses. He did not expend any funds to fulfill his obligations under the MOS. For example, he did not take steps to withdraw the proceedings in Iran. He instead claims expenses such as the cost of attending the mediation. These costs would have been expended regardless of whether an agreement was reached at the end of the mediation day. Similarly, the Respondent claims legal costs for fighting the defamation proceeding in Iran. These costs would have been necessary if the MOS had never been concluded. In short, the Respondent has not demonstrated any expenses for which he should be reimbursed to put him in the position he would have been in had the agreement never been entered into.
Should Ontario assume jurisdiction over parenting?
58The Applicant submits that if this court does not enforce the MOS, it should in any event take jurisdiction over the matter. I decline to assume jurisdiction at this motion. This motion was not scheduled to address jurisdiction, and this was not the process agreed upon by the parties.
59At a previous case conference, in September 2019, the parties agreed to a process for a jurisdictional motion that included questioning. They never followed the schedule they established because they subsequently attended mediation.
60Following the mediation, the parties’ dispute shifted to the question of whether the MOS were enforceable. For example, the Applicant took out an order in December 2019 reflecting the MOS even though it was clear by that point the Respondent was not treating the MOS as in effect. This was done by a 14B motion that was never served on the Respondent. When the Applicant’s former counsel realized the order had never been served on the Respondent, he filed another 14B motion to have the order set aside on consent.
61In the spring of 2021, the Applicant sought a case conference. At the conference, which occurred on April 30, 2021, the only issue conferenced was resolution with respect to the MOS. This motion then was scheduled only to deal with the MOS. In the related endorsement, there was no mention of the jurisdictional motion and no further schedule for questioning.
62The Respondent also has preserved his right to appeal the jurisdictional motion in B.C. until the resolution of this motion. His appeal materials already have been filed. The order in B.C., dated February 7, 2020, was granted on consent. It specifically states that the deadline for the factum of the respondent on the appeal (Applicant here) would be extended until three weeks following the issuance of this court’s decision on the motion to enforce the MOS. Therefore, according to the Respondent, the next step on my release of this decision is his appeal in B.C..
63I am mindful that not addressing jurisdiction now means there could be a delay in reviewing the parenting schedule, to R.’s detriment. However, even on the schedule in the MOS, the earliest either party could initiate a review was April 1, 2022. They then had 30 days to negotiate and, if they did not reach resolution, the matter would proceed to arbitration, all of which would take some time.
64In all the circumstances, I decline to address the issue of jurisdiction on this motion.
Final issue
65Finally, the Respondent included in her motion a request to strike certain statements from the Applicant’s affidavits on the basis that they were inflammatory and had no connection to the motions before the court. The parties reached an agreement on this request and I have signed the order in the form provided.
Disposition
66Therefore, the Respondent’s motion is allowed and the MOS are set aside. The Applicant’s motion is dismissed.
Costs
67The parties have filed Bills of Costs. I encourage the parties to reach an agreement on the costs of the motion. If they are unable to do so, the Respondent may file submissions of no more than four pages double-spaced within 30 days of the date of this decision (an extended period to take into account the holidays). The Applicant will then have a further 14 days to file responding submissions with the same limitation on length. If the parties require different timelines in view of the holidays, they may agree to these and simply advise the court.
Date: December 15, 2021