BRACEBRIDGE COURT FILE NO.: FC-21-169-0000
DATE: 20230217
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kari-Anne Wallwin, Applicant
AND:
Bradley Wallwin, Respondent
BEFORE: The Honourable Madam Justice R.S. Jain
COUNSEL: Heather Garfinkel, for the Applicant
Respondent, Self-Represented
HEARD: February 9, 2023
Decision on Motion
Overview and Introduction
[1] This matter came before me for a regular motion and cross-motion, scheduled for one hour on a busy family motions day. Before I delve into the substantive issues of this matter, I wish to spend time discussing a very important preliminary issue, specifically page limits. In a recent decision of Edwards RSJ. in Lepp v. The Regional Municipality of York, 2022 ONSC 6978, Edwards RSJ. refused to hear a matter due to the state of the record and its failure to comply with the prevailing Notice to the Profession, effective August 2, 2022 (“the Notice”). I wish to reinforce Edwards RSJ.’s important message found at para. 17 of his Ruling:
…Very simply put, the Bar needs to reflect on why they are filing materials that are hundreds, if not thousands of pages long. This applies to Motion Records, Caselaw and Pre Trial memos. In the world we now live in, the Bar needs to appreciate that apart from the requirements imposed by the Notice and the Rules of Civil Procedure judges are human beings. We simply do not have the time to read the volume of material we are often confronted with. The Bar would be well advised to read the Notice and The Rules to ensure they have complied with the minimum filing requirements for the hearing of a motion or a pre-trial.
[2] As it relates to family matters and the matter before this court, the Notice sets forth the minimum expectations of the Court in terms of what is to be filed for conferences, motions and hearings. Under the heading “Restrictions on materials filed” it says,
Focused materials help facilitate a focused hearing. Unfortunately, many filings include unfocused materials with unnecessarily voluminous attachments. Litigants are directed to prepare material that is focused and includes only the supplementary documents that are needed to facilitate a resolution of the outstanding issues.
[3] The Notice makes it clear that,
For short or regular motions, each party is restricted to one primary affidavit in support of their position on the motion and cross-motion (if applicable) which shall not exceed 12 pages of narrative. If a party also intends to rely on an affidavit that has been previously file with the Court, the length of that affidavit is included in the 12 page limit. This limit does not include third party and reply affidavits, where required, which shall not exceed 5 pages each, or affidavits relating to a party’s financial statement in accordance with Rule 13(12)(b).
[4] Additionally,
[E]xhibits to each party’s affidavit shall be limited to only the necessary and relevant evidence and are generally expected not to exceed 10 pages. Litigants shall not include voluminous texts, emails and/or social media postings. Instead, only the relevant and necessary excerpts from these communications should be attached as exhibits.
[5] Lastly, and without exception,
All documents filed for a family conference or motion must be prepared using a font size of no less than 12 point and double spacing.
Leave is required to file material beyond what is permitted above which will only be granted in exceptional circumstances. For motion materials leave should be sought at the case conference. Unless approval has been obtained in advance or a Regional Notice permits otherwise, material that is filed in excess of these restrictions will not be reviewed by the presiding judge and may result in an adjournment.
[6] The court’s message to all counsel and self-represented litigants is that they “would be well advised to have a copy of the Notice on their desks at all times”: see Lepp, at para. 4. Family Court is not only limited to simply adjourning motions that do not comply with the Notice; we may also choose to exercise our authority and apply any other consequences as set out in the Family Law Rules, O. Reg. 114/99 (the “Rules”), including, but not limited to those in rr. 1(8), 1(8.1), 2, 14(21), and 24. There are many serious consequences for not following the Notice, Court Orders, and the Rules and Practice Directions.
Re: The Motion before the Court
[7] On October 31, 2022, McDermot J. granted each party leave to bring a motion on February 9, 2023. The Respondent was granted leave to bring a motion to request funds paid from the monies held in trust. The Applicant was granted leave to bring a contempt motion. Neither party was granted leave to file materials beyond the page limits set out in the Notice.
[8] Both parties’ materials were highly conflicted and brought forward credibility issues. All materials for the motions were served by email and some were very short served. Neither party’s materials complied with the Rules; the Order of McDermot J.; the Practice Directions; and/or the Notice regarding short motions.
[9] The Respondent’s motion, dated February 1, 2023, seeks an order for the release of up to $105,000 to each party from the proceeds of the sale of the matrimonial home currently being held in trust. He also seeks an order regarding transportation and exchanges for parenting time, and an order for full file disclosure from Simcoe Muskoka Child, Youth & Family Services (“SMCYFS”). The Respondent’s materials included an affidavit dated February 1, 2023, which was fifty-seven pages long (three pages of single-spaced narrative and the rest were exhibits); and a reply affidavit, dated February 6, 2023, which was forty-three pages long (seven pages of single-spaced narrative and the rest were exhibits). The materials total one hundred pages.
[10] The Applicant’s motion, dated February 4, 2023, seeks multiple orders (23) under numerous heads of relief. She seeks procedural orders including an order for: an abridgement of time for service and filing; exceeding page limits; finding the Respondent in breach of multiple orders (previous costs and parenting orders); prohibiting the Respondent from proceeding with his own motion; parenting orders granting her primary residence and decision-making responsibility for the children; parenting time for the Respondent; orders imputing income to the Respondent in the amount of $90,000 and that he pay her child support and sec. 7 expenses based on that imputed income. The Applicant’s materials included two affidavits, both dated February 4, 2023. One was a responding affidavit which was twenty pages long (eleven pages of double-spaced narrative and the rest were exhibits); one was in support of her motion which was forty-two pages long (fifteen pages of double-spaced narrative and the rest were exhibits). She also served and filed two other supporting affidavits: one dated February 4, 2023 from the maternal grandmother which was five pages of double-spaced narrative, and one dated February 3, 2023 from a neighbour which was six pages of double-spaced narrative. The materials total seventy-three pages.
[11] All of these materials were served by the Respondent and Applicant between February 1, 2023 and February 6, 2023 (well under the timelines set out in the Rules). During vetting, despite lengthy and persistent submissions from counsel, the court determined that it could not and would not hear this entire matter during a one-hour motion. It was not only inappropriate to proceed by way of a regular one-hour motion, but it was also not humanly possible to complete it.
[12] The court considered adjourning the entire matter to a long motion; however, there is a Trial Scheduling Conference scheduled for March 9, 2023, and the matter is presumably proceeding to trial in the May 2023 sittings.
[13] In accordance with r. 1(8)(8.1) of the Rules, the court has the authority to deal with a person’s failure to obey an order or follow the Rules by making any order that it considers necessary for a just determination of the matter. In accordance with R. 2, the court must deal with cases justly and ensure the procedure is fair to all parties; we have a duty to make orders in the best interests of the children and to manage the cases and encourage and facilitate the use of alternatives to the court process.
[14] For reasons given orally and as set out above, the court ruled that the majority of relief in both parties’ motions would not proceed. The court dismissed the majority of the relief sought (without prejudice), and narrowed both the motions down to proceed on the following three issues: the Respondent’s motion for a partial release of funds to each party from the proceeds of sale of the matrimonial home currently held in trust; the Applicant’s motion to reinstate Ms. Deborah Alton as a parenting coach to assist the parties and the children, namely Colton Wallwin born March 27, 2017 and Carter Wallwin born May 5, 2019; and the Applicant’s request for an order permitting her to enroll the children in therapy and other recommended services.
Analysis
Partial release of funds held in trust
[15] The parties sold the matrimonial home and there is currently $315,250.86 held in trust by John Dooley at Barriston Law. The Respondent seeks a partial release of up to $105,000 so he can retain legal representation for the trial and pay off accumulated debts. The Respondent says that he has approximately $50,000 in debt and he needs to retain counsel to help him get ready for trial.
[16] The only minimally helpful and relevant exhibit that the Respondent included in his materials on this issue is the “Draft – Without Prejudice” NFP Statement of the Applicant and the NFP Statement of the Respondent. Both Statements are unsigned, undated, and found at Exhibit “D” of his affidavit dated February 1, 2023. According to both Statements, the jointly owned matrimonial home sold and closed on August 20, 2021 for the amount of $770,526 and the Respondent’s Family Law Value of his HOOPP pension is marked TBD. One major difference is how the parties treated “Household Contents and Furniture.” Under this category, the Applicant’s NFP Statement added $20,000 to the Respondent’s NFP (with no detail itemizing these contents); and the Respondent’s NFP Statement listed them as “to be divided by the parties.” Therefore, there is a dispute about the equalization payment. According to the Respondent’s NFP Statement, the Applicant will have to pay the Respondent an equalization payment of $23,413.94. According to the Applicant’s NFP statement, the Respondent will have to pay $9,720.69 to the Applicant.
[17] The Applicant is opposed to the release of $105,000 to the Respondent as she says it would prejudice her claims for an equalization payment and/or unequal division of the proceeds so that she can receive lump sum arrears of child support, sec. 7 expenses, spousal support, and security for costs. She says there is outstanding disclosure (unspecified) and that the Respondent is disingenuous in his claim that he will use the funds to obtain legal representation. She alleges that the Respondent is in breach of court orders and has not paid costs awards against him, so he has unclean hands. She would be agreeable to partial release of funds to her as set out in paragraph 53 of her Affidavit, dated February 4, 2023: $30,000 to the Applicant and $17,680.00 to the Respondent.
[18] The NFP calculations are unverified and do not include the Respondent’s HOOPP Family Law Value. By the Applicant’s and Respondent’s rough calculations, and depending on further disclosure, there may be an equalization payment owing in the amount of between $10,000 and $25,000. The largest unknown asset is the Respondent’s pension. The value is still unknown, but some or all may be divided at source; therefore, in my view, both parties are very likely entitled to some of their equity in the matrimonial home. In my view, all the other claims being made by the Applicant (especially for imputation of income, security for costs, spousal support) are not prima facie claims. The Applicant’s claims for unpaid child support and sec. 7 expenses are definitely more certain. However, the income of the Respondent has not been determined and the parties share parenting time equally in accordance with minutes of settlement. Therefore, the amount of arrears of child support are unknown and will be likely calculated based on an off-set amount of the Federal Child Support Guidelines (which will be a more modest amount than the full Guideline amount that is claimed by the Applicant). The Respondent stated in court that he agrees to the $750 costs award to be released from trust. He further said that “he is happy to remove some funds for hockey and sec. 7’s.”
[19] Section 9 of the Family Law Act, R.S.O. 1990, c. F.3, gives the court authority to order advance payments of property prior to equalization. An advance payment may be ordered where: there will be little or no realistic chance that the amount of the contemplated advance will exceed the ultimate equalization amount; there is a considerable degree of certainty about the right to an equalization payment; there is a need and reasonable requirement for funds in advance of the final resolution of the equalization including funds for the continued litigation and eventual trial; or any other circumstances of fairness that require relief for the moving party: see Zagdanski v. Zagdanski (2001), 2001 CanLII 27981 (ON SC), 55 O.R. (3d) 6 at para. 39 and Laamanen v. Laamanen, 2005 CanLII 50808 (ONSC).
[20] Given that there is a dispute about the equalization payment, a partial holdback is reasonable. However, I find there is a need and a reasonable requirement to release some funds in advance of the final resolution and it is fair to do so. In my view, based on the evidence before me at this time, a holdback of approximately $150,000 is more than sufficient to protect both parties’ potential claims. The balance can be disbursed as an advance payment to both parties (and also pay the Respondent’s costs and Ms. Alton as set out below) which will not likely exceed the ultimate equalization amount.
Reinstatement of Ms. Deborah Alton as a parenting coach and permitting the Applicant to enroll the children in therapy
[21] The current operative parenting order is the temporary order of Eberhard J. dated February 14, 2022 (“the Eberhard Order”) that was made pursuant to minutes of settlement when both parties had counsel. This order sets out an equal parenting time arrangement and states that the party with whom the children are scheduled to be with according to the parenting time schedule will make the day-to-day decisions affecting the children during that time.
[22] Paragraph 1.2 of the Eberhard Order says:
The parties will retain Deborah Alton, who is a Registered Psychotherapist, to act as a parenting coach in order to assist the parties with learning to co-parent, co-operate, and communicate in a manner that is consistent with the children’s best interests. Ms. Alton may address any parenting issues brought forth by the parents and may make recommendations with respect to a final, workable, parenting plan. Ms. Alton’s retainer will be paid from the net proceeds from the sale of the matrimonial home, which are currently being held in trust.
[23] The Applicant seeks an order to reinstate Ms. Deborah Alton as a parenting coach to assist the parties and the children. She further requests for an order permitting her to enroll the children in therapy and other recommended services.
[24] After the Eberhard Order was made, the parties partially followed through with paragraph 1.2 and began working with Ms. Alton. The Applicant alleges that the Respondent is in breach of the Eberhard Order as he stopped working with Ms. Alton and refuses to sign the retainer and direct payment of the $8,000 out of the proceeds held in trust.
[25] Although the Respondent did not deny that he was no longer working with Ms. Alton, he does deny that he is in breach of the Eberhard Order. Neither of his affidavits contained any evidence as to why he was no longer working with Ms. Alton; however, in court and on the record the Respondent made several disparaging remarks about her (for which the court will not repeat or give any weight). The substance of his comments is that he is not comfortable with Ms. Alton, and he believes that this issue can be “sorted out at trial.”
[26] The Respondent’s affidavit does not contain any of the information he alleged as fact regarding Ms. Alton. Counsel for the Applicant asked the court not to put any weight on these submissions. The court agrees with this request. To be clear, the court finds it highly improbable that the Respondent’s perspective about Ms. Alton is correct. Ms. Alton is a well-respected professional in the field of mental health, psychotherapy, and parenting coaching.
[27] There has been significant conflict between the parties and the police have either been called or threatened to be called by the Respondent numerous times at parenting exchanges. The Respondent freely admitted in open court that he has made numerous calls to the police and/or threatened to call the police. He notes it is because the Applicant has refused to hand over or exchange the children. Although it is trite to say that court orders are not suggestions, they are made to be complied with. It still remains to be true. However, if the Respondent’s allegations of chronic lateness or withholding children are true, they can be dealt with through civilized alternative dispute resolution mechanisms. These include using a parenting coach and/or mediation, and failing that, the family court. The police should not be called on a regular basis to deal with parenting exchanges. It is not in the best interests of children to have a police presence regularly required or threatened at parenting time exchanges or to assist with communications between parents.
[28] Both parties should keep in mind that if the constant conflicts and threats continue to occur and/or regular police presence is required, the court may find that it is not in the children’s best interests to continue the shared/equal parenting time arrangement. In my view, it is very clear that these parties need a parenting coach. As they already agreed to it in the Eberhard Order, I will make the order requested by the Applicant to reinstate Ms. Alton as parenting coach.
[29] The Respondent states he is agreeable to specialist appointments as recommended by the children’s doctor, but he will not agree to the children talking to a therapist. Again, he provided no evidence about this issue in his affidavit except to say that the children have a strong bond with him, and all the accusations made by the Applicant are false. His goal is, and remains to be, to continue 50/50 parenting. He notes that he will be returning to work full-time once the parenting schedule is finalized. The Respondent also said several irrelevant and unhelpful things in his materials, such as the Applicant is withholding the disbursement of funds “as a form of punishment towards the Respondent for wanting to remain an equal part in their children’s life” and that the Applicant is using the children “as pawns in order to get what she wants.”
[30] Counsel for the Applicant submitted that the Applicant’s actions of agreeing to sharing parenting time is directly against the Respondent’s proposition that she is trying to remove him from the children’s lives. I agree. The Applicant claims she has been the primary caregiver for the young children and that she has suffered repeated threats, denigration, and eventual physical abuse by the Respondent throughout the marriage. Colton has alleged that the Respondent has hit him leaving marks. The letter from Dr. Correia, dated February 2, 2023, confirms that despite the Respondent’s allegations against her, there are no concerns with the Applicant’s mental health or ability to care for the children. The Applicant says the Respondent never took Ms. Alton’s involvement seriously and ultimately ceased Ms. Alton’s involvement in July 2022. The parties have been following a 2/2/3 parenting time schedule as set out in the consent Order of Eberhard J., dated February 14, 2022. That order also included important terms involving Ms. Alton in assisting the family in resolving parenting issues and parenting time.
[31] The court finds it ironic that the Respondent expresses the view that the Applicant is using the children “as pawns” in the face of him not agreeing to pay ongoing child support or pay for, or participate in, parenting coaching (that would only help the parties and the children). In my view, the Respondent’s partial admissions that he may be underemployed by choice and that he is choosing not to cooperate with Ms. Alton because he doesn’t agree with her guidance are extremely misguided behaviours. If this behaviour continues, the court may find that it is him, not the Applicant, who is using the children “as pawns.”
[32] In my view, the children and parties may all need therapy (as recommended by Ms. Alton and SMCYFS). They may also need other third-party professionals involved in the family. The Applicant is willing to work with these professionals and she should be free to arrange this for the children. In my view, if the parties cannot communicate without conflict, and they are diametrically opposed on these issues, the children should not have to wait for a trial to get some help or to access services. I find it is in the best interests of the children that the Applicant be permitted to enrol the children in therapy or other specialist services as recommended by professionals.
Order
[33] For the reasons set out above, Temporary Order to go:
There shall be a partial release of funds from the proceeds of the sale of the matrimonial home currently being held in trust by John Dooley of Barriston Law. This court directs each party shall receive an equal share of $315,250.86 after the following payouts and holdbacks: (a) the amount of $8,000 shall be paid from the net proceeds to Ms. Deborah Alton; (b) the amount of $150,000 shall be held back and remain held in trust by John Dooley of Barriston Law until further court order or agreement in writing.
The remaining funds totalling $157,250.86 shall be shared equally between the parties, except that the amount of $1,250 shall be deducted from the Respondent’s share and added to the Applicant’s share to account for the Respondent’s outstanding costs order of $750 and his share of the costs for Ms. Alton’s Report being $500. Additionally, the amount of $5,000 shall be deducted from the Respondent’s share and added to the Applicant’s share as his contribution to sec. 7 expenses (such as extra-curricular activities and therapy and any other recommended services). These expenses shall be immediately disclosed to the Respondent by the Applicant. Therefore, the Applicant shall receive $84,875.43 from the proceeds held in trust and the Respondent shall receive $72,375.43 from the proceeds held in trust.
Ms. Deborah Alton shall be retained to act as a Parenting Coach in order to assist the parties with learning to co-parent, co-operate, and communicate in a manner that is consistent with the children’s best interest. Ms. Alton may address any parenting issues brought forth by the parents with respect to a final, workable parenting plan and holiday schedule. Ms. Alton’s retainer in the amount of $8,000 shall be paid from the net proceeds from the sale of the matrimonial home, which are currently being held in trust.
The Applicant shall be permitted to enrol the children in reasonable extra-curricular activities and therapy and any other services as recommended by the children’s physicians, teachers or professionals involved in their lives.
Neither party shall use any physical discipline with the children at any time.
[34] Success on this motion was mixed. Neither party complied with the Rules nor the Notice. I find that it would not be appropriate, fair or reasonable to award either party any costs of this motion. Each party shall bear their own costs of this motion.
Jain J.
Date: February 17, 2023