Court File and Parties

COURT FILE NO.: FS-20-00043117-0000 DATE: 2022-02-22 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Barbara Elizabeth Thomas, Applicant AND: Jeremy Robert Wohleber, Respondent

BEFORE: Kurz J.

COUNSEL: Christopher Burrison and Christina Doris, for the Applicant Brian Ludmer, for the Respondent

HEARD: February 15, 2022

Endorsement

Introduction

[1] This was a settlement conference in a very high conflict case which centres on parenting issues. Having reviewed the parties’ briefs and after first hearing from them, I informed them that I wished to immediately place this matter on the spring 2022 blitz trial list. I was concerned by the level of conflict between the parties, the almost two-year duration of this proceeding and the fact that a parenting assessment was completed last summer.

[2] Counsel for the Applicant mother (“the mother”) was willing to agree to an expeditious trial but counsel for the Respondent father (“the father”) was not. He gave two reasons for his refusal. First, he argued that it would be unfair to have to go to trial about parenting without having received overnight parenting time. Second, Mr. Ludmer stated that he is booked for two trials during the five weeks of the spring trial blitz, beginning on March 28, 2022.

[3] Because of that unavailability, I have reluctantly placed this proceeding on the fall 2022 trial blitz. The trial will encompass all issues between the parties. This matter will not be removed from the fall 2022 trial list without further court order.

The Father’s Long Motion

[4] During the course of the conference the parties discussed the father’s proposed long motion regarding parenting, which he scheduled for a time just 3 ½ months after he brought another parenting motion, over the objection of the mother. For the reasons set out below, I exercise my case management jurisdiction under the Family Law Rules and apply the applicable local notices to the profession and public to vacate that motion date.

[5] The parties retained Dr. Peter Jaffe of the London Family Court Clinic to prepare a s. 30 assessment. The mother asserts and the father does not deny that Dr. Jaffe was retained at his insistence.

[6] Dr. Jaffe’s detailed report was released on June 17, 2021. Its recommendations included the mother’s primary care of the children and limited but escalating parenting time for the father, commencing with non-overnight parenting time. Dr. Jaffe recommended that if father made certain progress, his parenting time could potentially be increased over stages to shared parenting with the assistance of a parenting coordinator after two years. That would represent the fifth stage of the incremental increase in the father’s parenting time. One of Dr. Jaffe’s other recommendations was that the father obtain professional parenting support as a term of the expansion of his parenting time.

[7] The father completely rejects Dr. Jaffe’s recommendations as biased and the result of a superficial assessment process. He takes the position that he was the children’s primary caregiver at the time of the parties’ separation and that he should have equal shared parenting time. He also rejects the children’s statements, as set out in Dr. Jaffe’s report. Those statements set out the children’s qualms and concerns with the father’s parenting. The father dismisses them as the result of parental alienation.

[8] The father retained his present counsel last fall, after being represented by what I have been told was seven previous lawyers. In late September 2021, the father, through his current counsel, booked a long motion, returnable March 28, 2022. That motion was ostensibly intended to deal with parenting arrangements. I use the term “ostensibly” because the father has yet to serve a notice of motion on Ms. Thomas in the almost five months since booking the motion. That failure violates the requirements of the Central West Notice to the Profession Regarding Long Motions. [1]

[9] That Notice to the Profession requires a moving party who has secured a long motion hearing date from the court to “serve the Notice of Motion and motion materials forthwith on all parties with an interest in the long motion.” [Emphasis added]. The Notice to the Profession further clarifies the meaning of the term “forthwith” as being ten days. It states that “[p]roof of Service of the Notice of Motion and Motion Record must be filed within 10 days from the date the long motion date is obtained from the Trial Coordinator’s Office. Subject to an order from a judge, failure to do so will result in the long motion hearing date being vacated.” No such order has been requested or obtained.

[10] I add that the ten-day requirement is set out in the Family Motions Information for Central West, which is posted in the SCJ website. It states that for long motions in the Milton Superior Court, the “Notice of Motion, with payment, must be filed within 10 days of booking the long motion with the Trial Coordinator’s office”. [2]

[11] Further, the Notice to the Profession Regarding Long Motions requires:

After the motion materials have been served on all interested parties, all counsel and the litigants must agree in writing upon a timetabling schedule for completion of all steps necessary for the long motion to proceed on the scheduled date.

Counsel and litigants must file the written timetable scheduling agreement along with their Confirmation Sheet.

[12] This too has not occurred. The failure to obey the Notice should have led to the long motion booking being cancelled.

[13] Despite booking that long motion, the father brought a second parenting motion. He scheduled it for December 2, 2011, a date three and a half months prior to the one scheduled for the hearing of his long motion. He failed to seek leave of the court before doing so.

[14] In bringing two motions regarding parenting the father violated this court’s rule, limiting the number of motions a party may bring without leave. That rule is set out in the Superior Court’s Notice to the Profession and Public Family Law Proceedings – Central West, regarding regular motions. It states:

The parties should assume they will only be able to bring one oral motion each, pending trial. A second short motion by either party will be discouraged unless the circumstances warrant it. Parties or counsel that bring a second or subsequent motion will require leave, either by bringing a 14B motion in advance, or by seeking leave of the judge before whom they appear. They will be required to address why a subsequent motion is reasonable and necessary in the circumstances of the particular family law proceeding, why was it not dealt with during the prior motion, and whether there have been intervening events or a significant change making the subsequent motion necessary. [3]

[15] Among the relief the father sought in his December 2, 2021 motion was:

An Order that on an interim without prejudice basis, pending the cross examination of Dr. Peter Jaffe scheduled for December 17, 2021, deposition of the parties and pending the long motion scheduled for March 28, 2022, that the Respondent Father Jeremey Wohleber have parenting time with the children of the marriage … on the following schedule:

a. Every other Friday from after school or 3:00p.m. if school is not in session until Monday return to school or 9 a.m. if school is not in session;

b. Each Wednesday from after school or 3:00 p.m. if school is not in session until Thursday return to school or 9 a.m. if school is not in session.

[16] The father also sought:

1. Christmas contact,
2. nightly video calls with the children,
3. an order regarding the locations of changeovers,
4. reconciliation therapy with “a Court-appointed specialist in such therapy, such as Shazeeda Haroun, Wendy MacKenzie or Lourdes Geraldo”,
5. an order for “improved parenting behaviour”, upon four rules that he set out in his notice of motion.

[17] The father claims that the mother consented to the process of two separate parenting motions within three and a half months of each other. The mother denies that claim. At my request, the parties’ counsel provided me with their relevant correspondence. I have reviewed their email exchange of September 27 and 28, 2021, where the issue was discussed. It is clear to me that Ms. Doris, who is acting for the mother on the parenting issues, strongly objected to the father’s insistence upon a two-motion process. Rather than acquiesce to it, she suggested that the issue be conferenced. That reasonable suggestion was ignored.

[18] I set out below excerpts of the relevant email correspondence between counsel, which demonstrates the dynamics that led the father to book two motions against the express objections of Ms. Doris.

[19] On the morning of September 27, 2021, about a year and a half after this proceeding began Ms. Doris wrote to Mr. Ludmer. Her email clearly followed some discussions about the appropriate process to determine interim parenting. She stated:

Mr. Wohleber has now indicated that he wishes to bring a short motion at the beginning of December, and a long motion in March 2022. My client is not agreeable to endless litigation with respect to the parenting schedule, and the court also requires there to be a material change in circumstance to vary a court-ordered parenting schedule before trial. Clearly, Mr. Wohleber is not intending on arguing a material change in March 2022, when he is trying to schedule that motion before the December 2 motion is even heard. In anticipation of what has been opposition to following the proper procedures for booking dates and attendances before the court, I propose that we write a 14B to the court and ask for a conference call with a judge to manage these scheduling disputes. Mr. Wohleber’s motion for December 2 is a long motion, and not a short motion, but I understand Mr. Wohleber’s position that he wants it heard as soon as possible. A judge may be able to find another date for the motion.

Pending this option, we do not agree to scheduling a long motion to re-try the parenting schedule in a few months time. This matter needs a trial.

[Emphasis added for all correspondence cited herein.]

[20] The next morning, September 28, 2021, in what appears to be a response to correspondence from Mr. Ludmer that is not before me, Ms. Doris wrote:

We are working cooperatively. But, I disagree that you can book endless motions on the same issue, which is what you are trying to do.

We immediately confirmed the date for your short motion, and have no issue with the questioning or the assessor producing his file.

Please do not pretend that we are putting up procedural obstacles. We don’t agree on the long motion for a legal reason, for which I have proposed that we ask a judge to weigh in. I don’t want both parties to spend their legal fees preparing for a long motion, just to get in front of a judge and to have the motion dismissed because there is clearly no material change. I think it would be prudent to ask for a conference call with a judge, which I can’t understand your opposition to, since it will take 10 minutes. If you think you are right on the law on this issue, you can tell the judge.

Until we resolve this, we can’t agree to multiple motions being brought. Motions are not meant to replace trials.

[21] Mr. Ludmer responded later that day to say:

We disagree completely and this position is contrary to the law on parenting plans and the Hryniak v. Mauldin, 2014 SCC 7 decision fo [sic] the SCC.

I have done this many times and two motions shall be bo9oked [sic].

The current parenting schedule is interim without prejudice and we need an initial parenting plan.

We are not proceeding to Trial for a long time. We need the assessor’s files and we need to do pre-Trial Questioning of the assessor and the parties.

[22] Ms. Doris could not have been more clear in her objection to the father’s two-motion process. She added a warning about the legal effect of findings made at the first parenting motion on a subsequent one. Those objections were summarily dismissed, citing the authority of the decision of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7 (“Hryniak”).

[23] With great respect to experienced counsel, I fail to see how Hryniak assists the father’s position. Rather, it diminishes that position.

[24] In Hryniak, Justice Karakatsanis, writing for the court, set out the central issue facing our civil justice system as follows:

1 Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. Without an effective and accessible means of enforcing rights, the rule of law is threatened. Without public adjudication of civil cases, the development of the common law is stunted.

2 Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pretrial [page93] procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.

[25] The culture shift that she called for did not anticipate two expensive motions on the same issue within three and a half months of each other. To the contrary, that is the type of litigation from which our system of law must shift away. Our courts are instead required to adopt processes which are “proportionate, more expeditious and less expensive means to achieve a just result than going to trial”: para. 4.

[26] A key feature of the culture shift required by Hryniak is the adoption of procedures based on the principle of proportionality. As Karakatsanis J. wrote at para. 28 of Hryniak: “[t]he proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure.” At para. 30, she pointed out that the proportionality principle is now reflected in many of the provinces’ rules and can act as a touchstone for access to civil justice.

[27] The necessary culture shift requires more than platitudes towards abstract principles of procedural justice. It requires concrete action, particularly by judges. They must act as guardians of both procedural fairness and access to justice. As Karakatsanis J. wrote at para. 32 of Hryniak, “[t]he culture shift requires judges to actively manage the legal process in line with the principle of proportionality.”

[28] The proportionality principle is incorporated in the Family Law Rules (“FLR”). Subrules 2(2) - (3), in particular, establish the primary objective of the family law court process that puts the proportionality principle at the centre of procedural justice. They state:

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

Dealing with cases justly (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.

[29] Rule 2(5) goes on to impose a duty upon the court to actively manage cases in order to promote the primary objective of FLR. It sets out specific orders that court may make in order to meet that duty. It reads as follows:

Duty to manage cases (5) 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 all or any part of the case without requiring parties, witnesses, or lawyers to attend in person on the basis of written documents or by using telephone or video technology, by way of an order under clause.

[30] Under r. 1(7.2), “[f]or the purposes of promoting the primary objective of these rules as required under subrules 2 (4) and, particularly, (5), the court may make orders giving such directions or imposing such conditions respecting procedural matters as are just, including…” The subrule then continues with a non-exclusive list of orders that a court can make to promote the primary objective of the rules.

[31] Subrule 17(5) sets out a number of purposes of a settlement conference, including: “considering any other matter that may help in a quick and just conclusion resolution of the case”: r. 17(5)(f). Further, under r. 17(4), the purposes of a case conference include:

1. “setting a specific timetable for the steps to be taken in the case before it comes to trial”: (r.17(4)(g)), and
2. “giving directions with respect to any intended motion…”:(r.17(4)(i)).

[32] Based on the use of the term “include” in r. 17(4), the broad list of purposes of each conference is not exclusive. So much so that, for example, the purposes of a case conference regarding motions and timetables for steps to be taken before trial are imported into a settlement conference as well. Any purposes a case conference can, if not fully accomplished, be imported into the settlement conference process as well.

[33] Here, despite Ms. Doris’ request, no conference call was arranged with a judge to assist in managing the two proposed motions. Had counsel made the request, it would have been favourably answered. Instead, knowing the mother’s position, the father chose to bring his first motion on December 2, 2021, as part of his two-motion strategy. While the first motion was argued as a regular motion rather than a long one, each of the parties presented voluminous materials, including their facta, to the court. The father’s “statement of law” as nineteen single-spaced pages. It contained 94 footnotes, many referring numerous cases. While it includes no statement as to the relief sought, it also makes no reference to a time limit for the requested order or that it be “without prejudice”.

[34] The mother opposed the relief sought in the first motion. In her factum for the motion, she called for Dr. Jaffe’s recommendations to be implemented. She closed her factum by stating:

Betsy is agreeable to implementing Dr. Jaffe’s recommendations. However, Jeremy is not asking for this Court to implement the assessors’ report, but rather is asking this Court to disregard the report entirely and proceed to vary the status quo pending trial. Given Jeremy’s position, Betsy submits that Jeremy’s motion cannot succeed. Such a variation as requested by Jeremy is not in the children’s best interests.

[35] The motion was heard by Justice Mills on December 2, 2021. As her endorsement of December 13, 2021 demonstrates, she considered the arguments of both parties and made a decision based on her findings regarding the children’s best interests. She concluded:

[7] It is not in the best interests of the children to substantially alter the current parenting time of Mr. Wohleber pending the long motion on March 28, 2022. I accept the recommendation of Dr. Jaffe that Mr. Wohleber requires support with his parenting strategies to reduce the conflict and ensure he and both the children are positively engaged in child focused endeavours. I have no evidence Mr. Wohleber has attended the Caring Dads Program, the Brayden Nurturing Parent Program, nor any other parenting program, as recommended.

[8] The current parenting schedule does not support the maximum contact principle, but it does appear to be in the best interests of the children at this time. The uncontroverted evidence of Dr. Jaffe is that the children find the time spent with Mr. Wohleber to be stressful. Increasing the parenting time without addressing the underlying stressors for the children is not in their best interests. Overnight stays are not recommended without a gradual progression of parenting time. Mr. Wohleber seeks an immediate and dramatic increase to his parenting time, but he fails to accept as valid any of the concerns raised by the children in the s. 30 assessment. He denies any personal responsibility for the issues. The fear and anxiety expressed by the children and Mr. Wohleber’s refusal to acknowledge his contribution to the family conflict are compelling reasons to depart from the principle of maximum contact.

[9] I do however believe it would be in the children’s best interests to have a modest increase in the time spent with Mr. Wohleber. Four hours on alternating Saturdays and Sundays is hardly sufficient for any meaningful, child focused experience. Increasing the parenting time to six hours for the next two weeks and then to eight hours thereafter will allow the children to have the opportunity for a more positive engagement with Mr. Wohleber on the weekends while meeting their need for stability. The Wednesday visits during the school term shall remain at four hours, from 3:30 p.m. to 7:30 p.m.

[11] Ms. Thomas shall facilitate nightly video calls for the children with Mr. Wohleber. The calls shall be conducted in private. Neither parent shall be permitted to record, either by video or audio, any parenting time with the children. Both parents shall be positive in their communications with the children regarding the other parent and shall encourage their extended family members to do so as well. The parties shall not involve the children in the ongoing legal conflict.

[12] The Respondent’s motion is therefore dismissed.

[36] Since she gave substantive relief to the father, I assume that para. 12 of Mills J.’s endorsement meant that the balance of the father’s motion was dismissed.

[37] One of Mills J.’s key findings related to the children’s view of their father and their parenting time with him. Even on an interim motion, it was open to her to rely on Dr. Jaffe’s report to do so. As Chappel J. stated in Batsinda v. Batsinda, 2013 ONSC 7869, at para. 32 (4), referring to the caution with which courts must tread in simply adopting the recommendations of a parenting assessment before trial,

32 ... The caution that applies with respect to the weight to be given to assessment reports at the interim stage of proceedings applies primarily to the conclusions and recommendations of the assessor, rather than the evidence and observations set out in that report. Information such as statements made by children to the assessor, the assessor's observations respecting the parties, and their impressions regarding the parties' interactions with the children may be of considerable value to the motions judge in their attempt to reach a decision respecting the best interests of the children, provided that the evidence appears to be probative (see Bos v. Bos, 2012 ONSC 3425, 2012 CarswellOnt 7442 (Ont. S.C.J.)).

[Emphasis added]

[38] While Mills J. found that it was not in the best interests of the children to substantially alter what was then the current parenting time of the father pending a long motion, she made findings which are not time-limited or subject to review at a further motion. More to the point, while the father’s notice of motion sought “without prejudice” relief that would presumably be subject to review at a subsequent long motion, that is not what Mills J. did. She simply made temporary orders. She did not invite a review of her order within three months.

[39] All of that means that Justice Mills’ findings are subject to the principle of issue estoppel pending trial. As I wrote in Spadacini-Kelava v. Kelava, 2020 ONSC 7907, [2020] OJ No 5728, at para. 106 (10):

Issue estoppel can even apply to interlocutory orders in the same proceeding. In Earley-Kendall v. Sirard, 2007 ONCA 468, 225 O.A.C. 246, McFarland J.A., writing for the court, adopted this statement by E. Macdonald J. in Ward v. Dana G. Colson Management Ltd. (1994), 24 C.P.C. (3d) 211 (Ont. Gen. Div.) at 218, aff'd. [1994] O.J. No. 2792 (C.A.):

A decision in an interlocutory application is binding on the parties, at least with respect to other proceedings in the same action. I agree with the submission that the general principle is that it is not open for the court, in a case of the same question arising between the same parties, to review a previous decision not open to appeal. If the decision was wrong, it ought to have been appealed within the appropriate time-frames. This principle is not affected by the fact that the first decision was pronounced in the course of the same action. See Diamond v. Western Realty Co., 1924 SCC 2, [1924] S.C.R. 308.

[40] Further, the barrier to vary an interim parenting order is necessarily a high one, as courts wish to deter incessant motions over such issues. Such motions lead to further discord and instability in separating families. As Dubin J.A. as he then was, said over 43 years ago in Niel v. Niel, 28 R.F.L. 257 at 258 (Ont. C.A.) at para.7: "... it is not in the interests of the children to be tossed back and forth pending the determination of an application for interim custody".

[41] McDermott J. pointed to the specific risk of children dangling like a yo-yo at the end of their parents’ string when he wrote in Southorn v. Ree, 2019 ONSC 1298, at para. 13:

to change custody on an interim motion runs the risk of the child going through two changes of custody: one after the interim motion and another at trial. That would create more, not less instability in the child’s life.

[42] As I wrote in Radojevic v Radojevic, 2020 ONSC 5868, at para. 17, the test for a variation of an interim parenting order cannot be so loose as to amount to a simple reconsideration of a child’s best interests. It cannot leave it “open to deep pocketed and litigious parents to continuously litigate without having to bother to go to trial”. Nor can it allow parents to “jockey for different arrangements going into trial, in the hopes of effecting and then relying on a more advantageous status quo. Such a standard would conscript the affected children into a drum and major corps for their parents' never-ending Civil War re-enactment”.

[43] Moreover, courts are hesitant to change a long-term status quo, unless compelling circumstances dictate otherwise: Ceho v. Ceho, 2015 ONSC 5285 and the cases cited therein, including Batsinda v. Batsinda, 2013 ONSC 7869, Green v. Cairns and Papp v. Papp, [1970] 1 O.R. 331(C.A.).

[44] Such a status quo now exists in this family, on first a de facto and now de jure basis. Put another way, considered from the children’s point of view, the present parenting arrangements have, more or less been their lived experience for the past 23 months.

[45] Based on the authorities set out above, the father would have to meet the following test in a motion to vary the order of Mills J.:

1. There has been a “change in the circumstances of the child” since the time of the Mills J. order: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp), as amended, s. 17(5);
2. That change must be a material one; i.e. one that materially affects the child: Gordon v. Goertz, 1996 SCC 191, [1996] S.C.J. No. 52 (S.C.C.), at para. 10. That means that the change must be “substantially important”: McIsaac v. Pye, 2011 ONCJ 840, at para. 13;
3. That material change must raise "exceptional circumstances where immediate action is required": Grant v. Turgeon, [2000] O.J. No. 970 22565 (S.C.J.), Southorn v. Ree, at para. 12;
4. The order that those materially changed circumstances compel the court to make must meet the best interests of the child: Miranda v. Miranda, 2013 ONSC 4704, at para. 26, Radojevic v Radojevic, ibid, Chyher v. Al Jaboury, 2021 ONSC 8191, at para. 15, citing the previous decision in the same case at 2021 ONSC 4358 at para. 26, Greve v. Brighton, 2011 ONSC 4996, at para 24.

[46] In exercising my case management role in light of r. 2(2)-(5), the following facts are relevant to the determination of whether a long motion is an appropriate next step in this proceeding:

1. The mother never consented to the two-motion process that the father has attempted to impose upon her;
2. After waiting for over a year and a half, the father made a tactical decision to proceed with his first motion, aware of the legal position and lack of acquiescence of the mother. He should have agreed to the conferencing process suggested by Ms. Doris. Having made his decision, he is subject to its consequences;
3. I have offered the father the opportunity to expeditiously resolve the parenting issues in the spring 2022 blitz trial list. For various reasons he has refused or felt unable to accept it.
4. Justice Mills made her decision after being presented with fulsome materials. While invited to make a “without prejudice” order, she instead made an interim order. She was entitled to do so because a court making parenting decisions is not limited by the positions that parties take before it or even by the terms of any settlement into which they enter: Richardson v. Richardson, 2019 ONCA 983, and Spadacini-Kelava v Kelava, [2020] OJ No 5561, at para. 122 – 133.
5. Having two parenting motions in three and a half months, absent the type of compelling circumstances cited above is disproportionate and contrary to the principles of the Family Law Rules set out above.
6. The rationale that the father should have the opportunity to argue a second motion in order to enter trial in a more advantageous situation is a far from compelling one: Radojevic, at para. 17.
7. The proposed second motion is contrary to the primary objective of the Family Law Rules. It is not proportionate, expeditious nor does it save the time and expenses of the parties. It does not amount to an appropriate use of the court’s resources after the motion was argued before Mills J.
8. The children, whose views and concerns were already closely considered by Mills J., should not be subject to another parenting motion in so short a period of time, with a trial approaching this fall.

[47] In light of the principles and facts set out above, I vacate the March 28, 2022 long motion date. That date should have already been administratively vacated when the father failed to serve and file a notice of motion within ten days of booking the motion, or when the parties later failed to file a plan for the exchange of materials. Further leave should have been sought for the second motion in light of Ms. Doris’ objection.

[48] In order to avoid any further confusion regarding next steps in this proceeding, should either party wish to bring any further motion, they shall first obtain leave from me by 14B motion on notice.

Questioning

[49] In anticipation of trial, each party may question the other for up to five hours, at dates and times to be arranged.

[50] The father’s counsel has questioned the s. 30 assessor, Dr. Peter Jaffe, for one full day already, ostensibly in support of the long motion date that I have vacated. He had originally booked three days for the questioning but now wishes just one further full day, for a total of two days. I fail to see why that amount of time for the questioning of Dr. Jaffe is necessary. It is excessive and disproportionate for a questioning that is ostensibly in support of a motion or even in anticipation of a trial at which the expert will be testifying.

[51] In anticipation of trial, the father’s counsel may question Dr. Jaffe for no more than an additional 2.5 hours. That will have given him a full day and a half. Dr. Jaffe will almost certainly be available to testify at trial as well. The mother only intends to question Dr. Jaffe for a half day, which she may do. Again, the details can be worked out between counsel.

Financial Disclosure Issues

[52] Many of the remaining property and financial disclosure issues focus on a jointly owned cottage. The father claims that the mother has no equitable interest in the property and/or that it is excluded property.

[53] On consent, the mother may obtain the release of the complete file(s) of the lawyer who acted for them regarding that cottage, Peter Meyrick. The mother’s counsel will pay any costs of obtaining and photocopying any such file and provide a full copy of what he receives to the father’s counsel. The father will sign any necessary consents to give effect to this term. If he fails or refuses to do so within seven days of being presented with a draft consent form, the mother may dispense with his consent.

[54] The parties shall exchange requests for information within 14 days. They shall further respond to those requests within 30 days, with the documentation requested or an affidavit explaining why it is not available or demonstrating their best efforts to comply with the request.

[55] The father will facilitate the mother’s access to the cottage property for the purposes of valuing it. That process will not occur before March 15, 2022. Effective February 15, 2022, nothing shall be removed from the cottage by either party without written agreement or a further court order.

[56] For the purpose of the cottage valuation, the mother may attend alone, with the valuator. To be specific, the father will not be present when that occurs. Either party is at liberty to photograph and/or videotape the cottage, its property, and its contents.

Trial Management Conference

[57] The parties will attend a trial management conference before me on June 30, 2022 at 3 p.m., for two hours. Counsel shall prepare a joint TSEF.

“ Marvin Kurz J. ” Electronic signature of Justice Marvin Kurz Date: February 22, 2022

[1] https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/notice-cw-september-25-2020/#APP [2] https://www.ontariocourts.ca/scj/practice/practice-directions/central-west/family-cw/ [3] https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/cw-notice/cw-family/#iii_Long_Motions