Court File and Parties

Court File No.: FS-19-00009107-0000 Date: 2023-07-06 Superior Court of Justice - Ontario

Re: M., S., Applicant And: B., C., Respondent

Before: Shore, J.

Counsel: Matthew Pike, for the Applicant Robert M Halpern, Erin Caplan and Alexander Sennecke, for the Respondent

Heard: June 15, 2023

Endorsement

[1] I have seen the parties several times at settlement conferences over the last few months. There were a number of issues previously adjourned to be addressed today. These issues include:

a) Disclosure owing from the Respondent pursuant to the order of Kraft J. b) Scheduling of the long motion regarding spousal support. c) Severing the divorce from the corollary issues. d) Costs for the last attendances at the settlement conferences before me. e) Completing the Trial Scheduling Endorsement Form (TSEF). f) Enforcement of the order of Pinto J., with respect to the Respondent’s attendance at the Ontario properties.

[2] Before addressing the issues above, I must start by addressing two preliminary issues: the request for an adjournment of this conference and the inappropriate communication from the Applicant’s counsel with the court.

Request for an adjournment:

[3] Counsel for the Applicant, Mr. Pike, requested an adjournment of this attendance because his client could not attend today. I am not questioning the Applicant’s ability to attend. However, when this date was set, Mr. Pike was aware that his client may not be able to attend and advised that his client was not needed for the attendance. Other than the disbursement of the cottage proceeds, the only issues being conferenced at this attendance are procedural issues. If Mr. Pike needs to obtain instructions from his client, I will include timelines by which responses are to be given. The motions had been previously scheduled to proceed today regardless of the Applicant’s attendance. The request for an adjournment is denied.

Inappropriate communications with the court:

[4] Prior to the conference, counsel for the Applicant emailed my assistant to request that I review the Applicant’s medical record, advising that the Applicant does not want the record disclosed to the other side. A message was sent back from my assistant to Mr. Pike advising that it was inappropriate to have unilateral communication with a judge outside of court and given that I am making procedural orders, I cannot review anything that has not been disclosed to the other side.

[5] I disclosed the exchange of emails to the Respondent and his counsel at the start of the conference. During the conference, Mr. Pike uploaded parts of his client’s medical record to Caselines, and the Respondent was given time to review same. However, the partial medical record was not attached to an affidavit or filed with the court and therefore did not form part of the evidence before me when hearing the motions. Again, uploading documents to Caselines is not akin to filing documents with the court.

[6] Rather surprisingly, following the attendance at the conference, counsel for the Applicant sent another email to my assistant requesting that I read another medical letter. This time the other side was copied on the correspondence. The Respondent objected to me reading the second letter.

[7] Communication with the court in this manner is unacceptable and contrary to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Mr. Pike should familiarize himself with r. 1.09 of the Rules which provides: “[w]hen a proceeding is pending before the court, no party to the proceeding and no party’s lawyer shall communicate about the proceeding with a judge or an associate judge out of court, directly or indirectly, unless,

(a) all the parties consent, in advance, to the out-of-court communication; or (b) the court directs otherwise.” (emphasis added).

[8] There was no consent between the parties for me to review this letter. In addition, a loose letter is not proper evidence before the court. I have not, nor will I review the letter for the purpose of the motions before me. I will now turn to the issues that are properly before the court.

Disclosure owing under the order of Justice Kraft

[9] On March 30th, 2023, Kraft, J. made an order requiring the Respondent to provide his outstanding disclosure to the Applicant. The order set out 29 specific items that were still outstanding, along with the deadline by which the Respondent was to produce the outstanding disclosure.

[10] On April 27th, 2023, this matter came before me for a trial management conference (TMC). The parties were scheduled to begin a nine-day trial on May 15th, 2023. The trial was adjourned at the TMC because the Respondent had not provided his outstanding disclosure as required under Kraft J.’s order, and therefore, the Applicant’s experts were unable to complete their reports in time for the trial. For further details see my endorsement dated April 27, 2023. For the history with respect to non-disclosure see the decision of Kraft J., dated March 30, 2023.

[11] In my endorsement, dated April 27, 2023, at paragraph 4, I stated as follows:

I will order costs at the next attendance before me if the respondent is not in compliance with Justice Kraft’s order. I will give consideration to a request for ongoing costs for each day that he fails to provide the disclosure thereafter.

[12] The matter was scheduled to return back before me on May 24, 2023. One of the purposes for the attendance on May 24th, was specifically to determine whether the Respondent complied with his disclosure obligation. That attendance was subsequently adjourned to June 15, 2023.

[13] Both parties filed materials for the disclosure motion before me. Of the 29 outstanding disclosure items listed in Kraft J.’s order, the Applicant alleged that nine remain outstanding. I went through each of these nine items with the parties and I find that the Respondent is in breach of Kraft J.’s order with respect to three of those items. Further, I find that clarification is required as to what still needs to be produced with respect to the three further items. Because clarification is required, I do not find the Respondent in breach of these three additional items.

[14] I find the Respondent to be in breach of the order as follows:

a) Parenting Report - the Respondent was to produce a copy of the parenting report prepared in the litigation between the Respondent and his first wife. The Respondent was permitted to redact information that contains “highly sensitive information about NTB or his children”. Instead of producing the redacted report, the Respondent only provided the Applicant with a few pages that he thought would be relevant to this matter. I therefore find that he is in breach of his obligation to provide the parenting report. I also caution the Respondent about redacting anything in the report that is not “highly sensitive”. There should be very few redactions, if any, made to the report. b) Backdated Loan Agreement - The Respondent was ordered to produce any documents he received from his accountants regarding avoiding gift taxes and/or backdated loan agreements that he asked the Applicant to sign. He was also to make inquiries of his accountants as to whether they have copies of these documents. Instead, the Respondent requested agreements that had been signed by the Applicant, knowing full well that the Applicant maintained that she never actually signed the documents. He was to request the documents that he asked her to sign and not just those that were signed by her. c) Tax Liability from 2009 - The Respondent was ordered to answer what the status of the 2009 tax investigation was in 2013 (the date of marriage). If the investigation was still open, he was to provide details. If the tax investigation was closed by the date of marriage, he was to provide supporting documents that it was closed. There was no option to provide nothing. The Respondent only made inquiries with respect to tax investigations against him personally and failed to request the documentation as it related to the family business, the real subject of the tax investigation. These documents must be produced.

[15] I find clarification is needed with respect to the following:

a) The Respondent was to provide a summary with supporting documentation for the cost of his litigation with NTB, his first wife, “as this would reduce his date of marriage receivable from his first wife”. The Respondent provided disclosure with respect to legal fees owing as of the date of marriage. What he did not provide were the legal fees incurred following the date of marriage, until the date he settled the litigation with his former wife. For example, he retained Mr. Magers in 2016, but did not disclose or include his legal fees. He only provided Dr. Bamberg’s fees, up until the date of marriage, although retained until 2019. This outstanding disclosure needs to be provided. b) Documents from Arbitration - The Respondent was required to produce all documents prepared and exchanged during an arbitration with respect to his family business. Inadvertently, the exhibits to the reply, dated August 16, 2017, were not included in his disclosure. These exhibits should be provided. c) Offers - The Respondent was required to produce copies of any and all offers to settle received by NTB or sent by him to NTB. The Respondent advised that no formal offers to settle were exchanged. However, there were both emails and verbal proposals made throughout the litigation with NTB that included settlement proposals. The Respondent shall produce all letters, emails, notes or solicitors’ records, both in his possession and in the possession of his lawyers, that set out the various proposals for settlement made between the parties, whether formal or informal.

[16] In addition to being in breach of a court order for the purpose of r. 1(8), r. 24(18) of the Family Law Rules, O. Reg 114/99 (FLRs), provides:

Costs shall not be awarded at a conference unless a party to the conference was not prepared, did not serve the required documents, did not make any required disclosure, otherwise contributed to the conference being unproductive or otherwise did not follow these rules, in which case the judge shall, despite subrule 24 (10),

(a) order the party to pay the costs of the conference immediately; (b) decide the amount of the costs; and (c) give any directions that are needed. O. Reg. 114/99, r. 17 (18); O. Reg. 235/16, s. 3; O. Reg. 298/18, s. 12 (4); O. Reg. 535/18, s. 5 (4). (emphasis added).

[17] The Respondent did not make the required disclosure and did not serve the required documents. I find that the Applicant is entitled to costs under r. 24(18).

[18] Having found that the Respondent is in breach of Kraft J.’s order and that the Applicant is also entitled to costs under r. 24(18), I now turn to the issue of quantum of costs. I asked for the parties’ submissions with respect to quantum of costs. The Applicant is seeking costs in the sum of $30,000.

[19] The Respondent’s position on April 21st and April 27th was that all outstanding disclosure had been provided. It is evident that there was still disclosure owing at that time.

[20] Although by the date of this conference most of the disclosure had been provided, I still found the Respondent to be in breach of the court order with respect to three items. I cannot ignore the history set out in Kraft J.’s order regarding the history of non-disclosure. The Respondent, knowing that he has already been criticized for his lack of disclosure, and knowing that I would be ordering costs against him if there was still outstanding disclosure, should have been vigilant in ensuring that all disclosure had been provided. It was not.

[21] It was only through the Applicant’s efforts, including preparing charts and keeping careful notes on what was provided and what is still outstanding, that the Respondent’s compliance could be determined. She is entitled to recover these costs.

[22] I have considered that the Respondent has complied fully with 23 of the 29 items he was ordered to produce. I have also considered that Kraft J. already made an order with respect to costs for the motion argued before her. This reduces the costs being ordered today.

[23] The costs that I am prepared to order today do not include costs thrown away with respect to the adjournment of the trial and do not include costs for the motion before Kraft J. The costs for costs thrown away due to the adjournment of the trial and for the attendance on April 27, 2023, can be determined by the trial judge. This also reduces the costs being ordered today.

[24] I am determining the costs owing only with respect to the issue of disclosure before me. I have already ordered that the Respondent is required to pay the Applicant costs of $3,500 for the conference held May 2nd, 2023. I am not ordering additional costs for that attendance.

[25] I have also considered that although the Respondent is only in breach of three items of disclosure, a great amount of his outstanding disclosure was only provided on the eve of this attendance and therefore work had to be done up to today. I accept that it was a lot of work going through the disclosure provided throughout, in addition to the disclosure provided on the eve of this attendance, which included creating and updating their charts. This increases the costs I am ordering today.

[26] Having considered the issues set out above, the purpose of modern cost rules, the reasonableness and proportionality of each of the factors set out in r. 24(12) as it relates to the importance and complexity of the issues, the factors set out above, r. 17(18), r. 24(18) and the primary objective of the FLRs, I find that the Respondent shall pay the Applicant costs of $15,000 for legal costs wasted in addressing the outstanding disclosure from May 3 to date.

Scheduling the long motion

[27] On October 13, 2022, Pinto J. made an order for spousal support, on consent. The order specifically provided that the support is subject to variation in the event of a material change in circumstances, which includes the failure of this matter to proceed to trial by no later than May 2023. Given that the trial did not proceed by May 2023, the parties are seeking a variation to the support order. The order clarified that the issue of retroactive spousal support was also adjourned to trial, but that if the Respondent brings a motion to vary support, the Applicant’s claim for retroactive support could also be addressed prior to trial.

[28] A long motion for support and retroactive support was scheduled to be heard in June 2023. It was then adjourned to September 14, 2023. Unfortunately, the date needs to be changed and it is now scheduled to be heard on October 19, 2023, for a full day. The issues to be argued on the long motion are as follows:

a) A motion being brought by the Respondent for a reduction in the monthly spousal support being paid by the Respondent. b) A motion being brought by the Applicant for: i. retroactive spousal support, and ii. disbursement of the proceeds of sale of the cottage property, if any.

[29] The parties shall serve and file their materials as follows:

a) The Respondent’s notice of motion and affidavit material on or before July 31, 2023; b) The Applicant’s responding materials as well as her notice of motion and supporting affidavit, on or before August 25, 2023. Her supporting affidavit for her motion shall be combined with her affidavit responding to the Respondent’s motion; c) The Respondent’s reply to his motion and his responding materials to the Applicant’s motion, on or before September 19, 2023, also to be combined into one affidavit; d) The Applicant’s reply to her motion, on or before October 6, 2023; e) Facta on or before October 13, 2023.

Severing the divorce from the corollary issues

[30] In January 2022, the Respondent brought a motion for an order severing the divorce from the corollary issues. The motion was adjourned. During the conferences before me, the Respondent raised the issue of the divorce. The parties agreed that the motion would be one of the issues to be determined by me at the June 15th attendance. No additional materials were filed by either party, even though there was a timeline set out by which each party could file additional motion materials if so inclined.

[31] Counsel for the Applicant requested an adjournment of the motion. He advised that the Applicant would be prejudiced by the divorce as it may cause her problems in trying to obtain disclosure or enforce financial orders in other countries. The Respondent resides in Germany, with assets in other countries.

[32] These specific concerns, about possible prejudice to the Applicant, were raised at previous conferences before me, at least as early as the conference on May 9, 2023, when the Applicant sought an adjournment on the exact same grounds. The motion was adjourned on May 9th to allow the Applicant time to obtain expert evidence on the laws of Germany or elsewhere.

[33] The Applicant failed to file additional materials for the motion and did not file any evidence with respect to any prejudice she may encounter in obtaining disclosure or enforcing financial orders in other countries if the divorce is granted.

[34] I am not prepared to consider the oral submissions her lawyer made about conversations he had with third parties or his understanding of foreign law. I do not have evidence that the Applicant will be prejudiced by severing the divorce from the corollary issues.

[35] Motion granted.

Costs of the settlement conferences

[36] The parties’ trial was scheduled to begin in May 2023. On April 27th, I adjourned the trial to April 22, 2024, and scheduled a full day motion to be heard June 1, 2023, to address the Respondent’s ongoing spousal support obligation pending trial and the Applicant’s claims for retroactive spousal support. The motion was contemplated and permitted by the Order of Pinto J. should the trial scheduled for May 2023 be adjourned.

[37] At the Applicant’s suggestion, time was spent trying to negotiate a settlement of the long motion. The parties attended before me again on May 9, June 2, and June 5, 2023, to discuss resolution of the long motion. No agreement was signed, the original date for the motion passed, and therefore the long motion was rescheduled to September 14th (although it has since been rescheduled to October 19, 2023).

[38] The Respondent is seeking costs of the conferences held before me on April 27, May 9, June 2 and June 5, 2023, as well as the Respondent’s travel costs to Ontario during the week of May 20-27, 2023. Specifically, he is seeking costs in the sum of $92,349, inclusive of HST.

[39] The Applicant is seeking costs in the sum of $16,800 for those same dates.

[40] Both parties filed cost submissions and were given an opportunity to make brief oral submissions on June 15th.

[41] These are my reasons for costs.

[42] As set out above, there are only limited circumstances in which a court will order costs of a conference. Rule 17(18) of the FLRs provides:

Costs shall not be awarded at a conference unless a party to the conference was not prepared, did not serve the required documents, did not make any required disclosure, otherwise contributed to the conference being unproductive or otherwise did not follow these rules, in which case the judge shall, despite subrule 24 (10),

(a) order the party to pay the costs of the conference immediately; (b) decide the amount of the costs; and (c) give any directions that are needed. O. Reg. 114/99, r. 17 (18); O. Reg. 235/16, s. 3; O. Reg. 298/18, s. 12 (4); O. Reg. 535/18, s. 5 (4).

[43] I need to decide if costs are payable, by which party, and in what amount, if any.

[44] The Applicant’s cost submissions do not adequately reflect what occurred at the conferences. To suggest that the Respondent was the party to withdraw from the negotiations is a revisionist interpretation of the events as they unfolded. For that reason, I will spend some time below reviewing the history of the attendances.

[45] On April 27, 2023, following the scheduling of the June 1st long motion date, the Applicant expressed concern about the cost of the long motion and suggested time be spent trying to settle the motion. I ordered the parties to file proposed settlement terms, in advance of the May 2nd attendance, specifically for this purpose. The Applicant failed to serve her proposal in advance, and, in my endorsement of May 2nd, she was ordered to pay costs to the Respondent in the sum of $3,500 for the wasted attendance. Therefore, the costs for the May 2nd attendance should not be included in the costs claimed by the Respondent.

[46] A further conference was scheduled for May 9th, 2023, and the parties were ordered to file updated and revised offers, in advance, to settle the long motion based on the discussions held during the conference.

[47] On May 9, 2023, another lengthy conference was held. The parties reached a tentative agreement. As set out at paragraph 1 of my endorsement:

A significant amount of time was spent reaching terms of the agreement as well as reviewing the various changes made by the parties. The Applicant was going to come up with a proposal with respect to facilitating the Respondent’s attendance in the various properties owned jointly between the parties or by the Applicant as per the order of Justice Pinto, and specifically as to how it can proceed giving her some sense of security. I expect the parties to file their minutes of settlement well in advance of the June 15th attendance, along with a draft order for my signature.

[48] At the May 9th conference, the parties reached an agreement on terms for the adjournment of the motion, except for the issue of the Respondent’s attendance at the various properties. The Respondent was scheduled to be in Toronto from May 20-27, 2023, and requested access to the Ontario properties, as set out in the endorsement of Pinto, J., dated October 13, 2022. The Applicant was to provide a proposal on this last issue.

[49] On June 2, 2023, the parties attended at a further conference, for two hours, to finalize specific wording of the agreement. Although the Respondent was no longer in Ontario, the parties discussed the Respondent’s counsel, Ms. Caplan, attending at the properties on his behalf. Once the wording was finalized between counsel, counsel for the Applicant requested time to review the revised wording with his client. I ordered the parties to attend back before me on June 5th, if the agreement had still not been signed.

[50] The parties attended before me on June 5th. At the outset of the conference, counsel for the Applicant advised that his client was not prepared to sign the agreement. The Applicant was not objecting to any specific wording in the draft agreement but to the general terms of the agreement, that the parties had spent the last few attendances negotiating and finalizing.

[51] I find that the Respondent is entitled to his costs of the last three attendances, being May 9, June 2, and June 5, 2023, under rule 17(18). Those attendances were wasted. The last three conferences were spent finalizing the terms and wording of an agreement that the Applicant had no intention of signing. The Applicant succeeded in delaying the long motion from June 1st to September 2023. I accept that the Respondent only agreed to spend time negotiating terms of an interim agreement at the behest of the Applicant. The Applicant wasted the respondent’s time and a considerable amount of this court’s time.

[52] As I set out above, on May 9th, the parties had resolved all issues except for the issue of someone attending the properties on behalf of the Respondent. However, when making submissions on the issue of costs, Mr. Pike argued that his client ultimately agreed to the terms permitting Ms. Caplan to attend at the properties. He submitted that the agreement fell apart because of the timing of the listing of sale of the Bahamas property. This was the first time Mr. Pike disclosed this to the other side and to the court. It was not raised at the last attendance. The Applicant’s position at each conference was a moving target, she was constantly shifting her position on issues. I do not believe she was prepared to settle or enter into an agreement with the other side.

[53] In Cameron v. Cameron, 2018 ONSC 6823, Kurz J. noted, at para. 85: “many judges are reluctant to award costs of a conference or even reserve them for fear that such a decision may adversely affect the potential for settlement. However, with the increasingly onerous costs of family litigation, it is always salutary for the parties to be reminded at every stage of the proceeding of the potential costs consequences of their litigation.”

[54] Counsel for the Applicant raised the issue of the Applicant’s health as a mitigating factor with respect to costs. However, the Applicant was able to give instructions and was present for all but the last attendance. More importantly, if this was a factor, she failed to disclose the issue of her medical condition until this last attendance when arguing the issue of costs. The disclosure she provided was a chart prepared by her lawyer, and a one-line letter from her doctor. This is not adequate disclosure considering the time and costs wasted. The Respondent should not be left incurring costs for her delay.

[55] Even though only a small amount of time was spent on this issue, the Respondent was the successful party on the severing of the divorce from the corollary issues and is entitled to his costs on this motion, under r.24(1) of the FLRs.

[56] I have also considered the primary objective of the FLRs, as set out in r. 2(2), which is to enable the court to deal with cases justly. Dealing with a case justly includes ensuring that the procedure is fair to all parties, saving expense and time, and giving appropriate court resources to the case while taking account of the need to give resources to other cases (r. 2 (3)). This court would never have permitted the conferences to continue if the Applicant had been upfront about her intentions regarding the agreement.

[57] Finally, I have considered that the purpose of modern costs rules are designed to foster four fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, (3) to discourage and sanction inappropriate behaviour by litigants and; (4) to ensure that cases are dealt with justly under r. 2(2) of the Family Law Rules: see also Mattina v. Mattina, 2018 ONCA 867. I find that all but (1) applies to the case before me.

[58] The question left to resolve is the quantum of costs.

[59] In considering the quantum of costs, I have considered the factors set out above as well as the reasonableness and proportionality of each of the factors set out in r. 24(12). I have considered the Applicant’s behaviour, the time spent by the parties, the settlement proposals, the offers, and the legal fees incurred by each party.

[60] I have considered the time the parties spent in court, including the fact that the parties were before me for this attendance for a full day, from 10am until 5pm. I have considered the amount of material filed for each attendance, as well as the various drafts of the offers and minutes prepared by the parties. I have considered the position of each party on each of the issues for settlement of the long motion.

[61] I take no issue with the time spent by legal counsel, or the fees charged, given counsel’s experience in the area of family law. However, I am not prepared to include Mr. Sennecke’s fees. While Mr. Sennecke’s involvement may have been vital on issues of disclosure, it was Mr. Halpern and Ms. Caplan who were intimately involved in the negotiations and drafting of the Minutes, as well as obtaining instructions from the client. The Applicant should not be responsible for the fees for three lawyers attending at a conference.

[62] Taking out Mr. Sennecke’s time, the legal fees incurred are approximately $56,000. After taking out the legal fees incurred prior to preparation for the May 9th attendance, the legal fees are approximately $43,700. Finally, I have discounted the fees a little for duplication in fees charged in Mr. Halpern, Ms. Caplan and the law clerk meeting with one another or simply giving or getting instructions.

[63] The Applicant submitted a bill of costs in the sum of $28,545 between Mr. Pike and Ms. Di Battista. Ms. Di Battista attended the last two conferences. However, the bill of cost included a 10 per cent courtesy discount of Mr. Pike’s time and did not include anything for preparation or attendance at this conference. I am also not satisfied that the bill of costs includes all the work done by Mr. Pike. For example, there was no reference in his bill to the conversations he advised the court that he had with experts on foreign law, or the research he said he did with respect to possible prejudice if the divorce is granted.

[64] Considering all of the above, the Applicant shall pay the Respondent costs of $35,000 for preparation for and attendance at the conferences held on May 9, June 2, June 5 and only a part of this conference on June 15, 2023.

[65] The Respondent asked to be reimbursed for his costs wasted in traveling to Toronto for a week because the Applicant did not permit him into the properties, as required under the order of Pinto J. I do not have enough information to determine this issue. This matter can be determined at trial.

Enforcement of the Order of Justice Pinto

[66] On October 13, 2022, the parties obtained an order, on consent, from Pinto J., amongst other relief, it provided that: “On a without prejudice basis to either’s party’s rights, appraisers selected by the Respondent shall be immediately permitted to attend the Castle Frank property, Mono farm property, Port Carling property and the Bahamas property at time to be agreed upon between counsel.” The Respondent is seeking enforcement of this provision.

[67] Mr. Pike submitted that Pinto J. permitted the Respondent to attend at the property but not to enter into each room. This is a nonsensical argument. This would defeat the purpose of the attendance at the property, because the Applicant could simply move all valuable items into a room and not permit the Respondent access to that room. Justice Pinto did not place any limitations on where the respondent could attend.

[68] Justice Kraft made an order dated March 30, 2023 as follows:

Within 3 days the parties will confirm in writing as to whether they can agree on an appraisal/inventory procedure for the contents in the Toronto property, the Mono Ontario Farm Property, the Port Carling property and in each storage facility. If they cannot agree on a process and joint appraiser, then each party shall retain an appraiser(s) to value all of the contents in these properties and in German in the H’s possession, which shall include inventorying the items in the properties, including cars, vehicles, watercraft, art, antiques, Jewellery, and items of value of $10,000 or more. The wife shall provide access to the appraisers to come into each of the properties, on reasonable notice to her, and upon delivery of each appraisal and inventory list, the reports shall be exchanged. If the parties cannot jointly agree on an inventory/appraisal process, then each party shall pay for the cost of his/her appraiser to conduct the said appraisals…

[69] I am not amending Pinto J.’s or Kraft J.’s orders in any way. I am enforcing the orders, by facilitating the attendance at the Toronto property. All other rights given under those orders remain and need to be adhered to pending further order of the court.

[70] The Applicant shall permit Ms. Caplan to attend at the matrimonial home with an appraiser and videographer during the week of August 21, 2023. The Respondent may participate live in the tour via Zoom or other videoconferencing platform. Ms. Caplan shall advise the other side within two weeks of release of this endorsement of the exact date she will be attending. Attendance shall be facilitated any time between 8am and 8pm. The limitations to the attendance are set out in my order below.

The trial scheduling endorsement form

[71] The TSEF was completed during this conference, with the parties, and is attached to this order. The trial has been scheduled to begin on April 22, 2024, for 31 days, although I am hopeful the parties can narrow the issues for a shorter trial.

Order to go as follows:

[72] In accordance with the TSEF attached.

[73] The trial is scheduled to begin April 22, 2024, for 31 days.

[74] The parties shall attend a TMC on April 1, 2024, at 10am.

[75] The divorce is severed from the corollary issues and either party may proceed to obtain a divorce order.

[76] A long motion is scheduled for October 19, 2023, for a full day. The issues to be argued on the long motion are as follows:

a. A motion being brought by the Respondent for a reduction in the monthly spousal support being paid by the Respondent. b. A motion being brought by the Applicant for: i. retroactive spousal support, and ii. disbursement of the proceeds of sale of the cottage property, if any.

[77] The parties shall serve and file their materials for the long motion as follows:

a. The Respondent’s notice of motion and affidavit material on or before July 31, 2023; b. The Applicant’s responding materials as well as her notice of motion and supporting affidavit, on or before August 25, 2023. Her supporting affidavit for her motion shall be combined with her affidavit responding to the Respondent’s motion; c. The Respondent’s reply to his motion and his responding materials to the Applicant’s motion, on or before September 19, 2023, also to be combined into one affidavit; d. The Applicant’s reply to her motion, on or before October 6, 2023; and e. Facta on or before October 13, 2023.

[78] I find the Respondent in breach of paragraph 40(10), (30) and (31) of the order of Kraft J., dated March 30, 2023.

[79] The Respondent shall pay the Applicant costs of $15,000 for legal costs wasted in addressing his breach of the court order and for his outstanding disclosure owing from May 3 to date. Further cost orders may be made if the Respondent fails to cure his breach within 60 days.

[80] The disclosure owing by the Respondent under the order of Kraft J., dated March 30, 2023, is clarified as follows:

a. Para 40(5): The husband shall provide a summary with supporting documentation for the cost of his litigation with NTB including legal fees incurred following the date of marriage, until the date he settled the litigation with NTB. b. Para 40(7): The exhibits to the reply, dated August 16, 2017, shall be provided. c. Para 40(26): The respondent shall produce all letters, emails, notes or solicitors’ records, both in his possession and in the possession of his lawyers, that set out the various proposals for settlement made between the parties, whether formal or informal. d. The Applicant shall facilitate Ms. Caplan, an appraiser and a videographer attending at the property known as NEED, during the week of August 12, 2023, during the hours of 8am until 8pm for the purpose to taking inventory and appraising any items of $10,000 or greater in value.

[81] Ms. Caplan shall advise the Applicant of the exact date within 2 weeks of the release of this endorsement. The Respondent may attend live via Zoom or another videoconferencing platform. The following terms shall apply:

a. There shall be no videos or pictures of the Applicant’s personal papers. b. Ms. Caplan, the appraiser and the videographer shall stay together at all times while in the property. c. Nothing shall be removed from the property.

[82] The Applicant shall pay the Respondent costs of $35,000 for preparation for and attendance at the conferences held on May 9, June 2, June 5 and only a part of this conference on June 15, 2023.

Shore, J. Released: July 6, 2023