Court File and Parties
COURT FILE NO.: FC-20-116-03 DATE: 2023-03-08
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Stefanie Skinner, Applicant -AND- Aaron Skinner, Respondent
BEFORE: The Honourable Justice M. Bordin
COUNSEL: Emma Brown, Counsel for the Applicant Respondent is self-represented
HEARD: March 8, 2023
Corrected Decision : March 16, 2023
Endorsement
[1] This matter comes before me as a short motion in which the applicant seeks a temporary interim order to vary the final orders of MacLeod J. dated March 30, 2021, and October 24, 2021.
[2] Without specifying which paragraphs of which orders the applicant seeks to vary, the applicant seeks an interim order:
a. that rather than joint decision-making pursuant to the existing order, she shall have sole interim decision-making authority for Paisley Ocean Skinner, born December 14, 2013, (“the child”) together with additional provisions related to decision-making, and
b. that further restricts the communications between the parties. The applicant also seeks an order allowing her to amend her pleadings.
[3] The respondent seeks an adjournment to file materials and seek counsel.
[4] The Notice to the Profession for Central South dated February 13, 2023, provides that CaseLines is required to be used for short motions and further provides as follows:
Short Motions (1 hour or less)
Parties must comply with the filing requirements in the Family Law Rules.
Except for motions arising from the wrongful removal or retention of a child, 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. 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).
In addition, exhibits to each party’s affidavit shall be limited to only the necessary and relevant evidence and are generally expected not to exceed 10 pages.
Leave is required to file documents beyond these restrictions which will only be granted in exceptional circumstances.
All documents filed must use a font of not less than 12 point and double spacing.
All documents filed must be uploaded to CaseLines at least three (3) days prior to the event.
Parties are required to submit draft orders as a separate attachment with their motion materials.
[5] The Notice to the Profession for the province of Ontario effective August 2, 2022, provides with respect to Family matters:
B. Parties’ Responsibilities for Civil and Family
To facilitate the effective use of CaseLines, counsel and self-represented parties must do the following:
Uploading materials for Court: CaseLines B. Parties’ Responsibilities for Civil and Family To facilitate the effective use of CaseLines, counsel and self-represented parties must do the following:
Page Limits –Abide by page limits set out in the rules of court, practice directions and Notices to the Profession. Please split documents larger than 500 pages into multiple documents.
Upload Documents into Hearing Sub-Bundle –After your documents have been accepted for filing by the court office, upload them into the sub-bundle created for the hearing (e.g. Motion sub-bundle, Pre-trial sub-bundle, Trial sub-bundle) at least 5 days in advance of the hearing, or as soon as possible for any filing deadlines that are less than 5 days, unless directed otherwise by Regional Notice. Do not upload documents into the Master Bundle.
III. ADDITIONAL PROCEDURES GOVERNING FAMILY MATTERS
Restrictions on materials filed & Electronically filing materials for Family A. Restrictions on Materials Filed Focused materials help facilitate a focused hearing. Unfortunately, many filings include unfocused material 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. Motions 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 filed 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). In addition, exhibits 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. The documents that are referred to in paragraph 5 above should also be filed (where applicable) and are not counted in these page limits. In addition, 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. To assist the Court in finalizing family orders more quickly, litigants should also provide a draft order that lists the specific relief that they are seeking with reference to the appropriate legislative authority in accordance with the new Form 25 Order (General).
Materials uploaded into CaseLines that are not brought to the attention of the judicial officer at the hearing may not be considered The oral hearing is the occasion when arguments must be succinctly set out by the parties. Parties must bring to the attention of the court all relevant material facts and the authorities that establish the legal proposition relied upon. It is not sufficient to merely upload filed materials to CaseLines. Materials that are not brought to the attention of the judicial officer at the hearing may not be considered. Judicial officers’ judgment writing time is not sufficient to permit it to be used as an extension of the time allocated for oral argument.
[6] In support of her motion, the applicant filed the following affidavits:
a. An affidavit dated January 12, 2023, which contains 7.5 pages of the body of the affidavit, 31 exhibits and runs to 104 pages in total;
b. An affidavit dated February 1, 2023, in reply to the affidavit of the respondent dated January 24, 2023 which contains 6 pages of the body of the affidavit, 7 exhibits and runs to 26 pages in total;
c. An affidavit dated March 26, 2023 as an update to the court which contains 4 pages of the body of the affidavit, 22 exhibits and runs to 39 pages in total.
[7] None of the above affidavits are double spaced. They do not comply with the requirements of the Central South or the Provincial Notice to the Profession.
[8] The applicant has also submitted a factum.
[9] Counsel for the applicant and the respondent were invited to CaseLines at 10:53 a.m. on March 7, 2023.
[10] As of 5:00 p.m. the evening before the motion, nothing had been uploaded to CaseLines as required. By 9:00 a.m. the morning of the motion, the applicant had uploaded her materials into CaseLines. However, no draft order was provided as required.
[11] The respondent has filed the following affidavits on this motion (which have not been uploaded to CaseLines by either party):
a. Affidavit dated January 24, 2023.
[12] The respondent’s motion materials are not before the court.
[13] The applicant indicates in her motion confirmation form that her submissions require 25 minutes.
[14] Too often, counsel attempt to squeeze a long motion onto a short motion list. It is not appropriate to do so. Because there is not sufficient time to argue a long motion in a short motion time slot, it often results in submissions which are inadequate and which leave it to the court to review substantial court filings and essentially act as both advocate for the parties and as a judge.
[15] It is clear from the materials filed that 25 minutes is not sufficient to “bring to the attention of the court all relevant material facts and the authorities that establish the legal proposition relied upon.”
[16] The practice of attempting to schedule long motions as short motions and non-compliance with the Practice Direction and Notice to the Profession must stop.
[17] This court is empowered to postpone any step in a family law action where a party fails to follow the rules: Family Law Rules, O. Reg. 114/99, as amended, Rule 1(8.1).
[18] The primary objective of the Family Law Rules is to deal with cases justly. Dealing with cases justly includes, inter alia, giving appropriate court resources to the case while taking account of the need to give resources to other cases: Family Law Rules, Rule 2(2) and Rule 2(3).
[19] This motion is adjourned to a long motion on March 29, 2023, at 2:15 p.m.
[20] The respondent is directed to file his evidence in CaseLines in the approved format, by way of affidavit with proper exhibits attached.
[21] The parties are to serve and file any further affidavit materials 7 days before the motion. The parties are to serve and file factums 5 days before the motion.
[22] If the respondent does not upload his materials for the motion into CaseLines, the applicant is directed to do so.
[23] The parties will file either a joint compendium as required by the Notice to the Profession or individual compendiums, if a joint compendium cannot be worked out between the parties, three days before the hearing.
[24] Costs are reserved to the judge hearing the motion.
Date: March 8, 2023 M. Bordin, J.