Court File and Parties
COURT FILE NO.: FS-19-090 (Owen Sound) DATE: 20230119
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Anna Catherine Gerol Applicant
Maxine Kerr, for the Applicant
– and –
Philip Michael Barrett Respondent
Barbara Barnett, for the Respondent
HEARD: January 18, 2023
Endorsement
Justice Van Melle
[1] Both parties have motions for undertakings before the court. As required by the Rules, both appended to their Notices of Motions a chart setting out outstanding undertakings, questions under advisement and refusals. The respondent’s chart lacked the question number and a reference to the page of the transcript where the question appears, but more importantly the exact words of the question.
[2] Neither party complied with the requirement to prepare and serve a copy of the undertakings and refusals chart that was served by the moving party completed so as to show, the answer provided, or the basis for the refusal to answer the question or satisfy the undertaking.
[3] The CaseLines information shows that both parties were specifically invited to the bundle for today’s motion, yet all the materials were uploaded to the Master Bundle, making it far more difficult to navigate the materials. All the affidavits filed on this motion contain attachments, none of which were hyperlinked.
[4] Both confirmations had an “x” in the box beside: “I confirm that I will bring a draft order to the motion.” Neither did. I received the draft orders upon my request after the motion was argued. It would have been helpful to have had them before.
[5] The respondent wanted to file another affidavit today. The applicant was opposed as the affidavit had only been served today and was not produced in accordance with the Family Law Rules. Given that the trial of this matter is set to commence during the sittings commencing March 23, 2023 and that it is very important that all the undertakings are dealt with prior to that time, I declined to admit the affidavit.
[6] Counsel did not speak to one another directly before today’s motion. Had they done so, it would have been apparent that not all of the undertakings subject to the motion were in issue.
[7] Starting with the applicant’s motion, I order the respondent to produce the documents and information referred to as items 2 and 3 in the applicant’s chart appended to the Notice of Motion. Those items are to be produced within 30 days, failing which he is to authorize the respondent to obtain that information.
[8] Item 5 is to be answered within 10 days.
[9] Regarding item 13, the respondent is to provide information linking his employment benefits package with his employer. The wording in the applicant’s Order is to be followed.
[10] With respect to item 15, the respondent undertook to provide additional letters that he has written to his daughter. He is to produce any additional letters within 10 days.
[11] Further to the Advisements List, the respondent Is to provide all of his income and income tax information from 2017 to date within 30 days. Although the financial issues are to be dealt with in Utah, finances are relevant to parenting issues as well.
[12] The respondent is refusing to provide information regarding where he lives and his employment alleging that previous employment was terminated because the employer received the package which included details of criminal charges from the domestic incident at the time of separation inclusive of Police reports, mug shots and other confidential documents that he says were only available to the applicant and her counsel. He says that her actions, inclusive of her continued harassment of the respondent and his family and the impact on his employment, are all the subject of a tort litigation that is currently being litigated before the Court in Utah.
[13] Given that these allegations are the subject of court action in Utah, if the respondent’s statements are true, it would make little sense for the applicant to use the information for a nefarious purpose. The respondent must provide the answers to items 1 through 4 on the refusals chart. This information must be produced within 10 days.
[14] If the respondent fails to produce the information as required, he is not permitted to rely on any documentation that should have been produced pursuant to the undertakings and this endorsement, at trial.
[15] Turning to the respondent’s motion, as I have already stated, the chart appended to the Notice of Motion failed to set out the required information. The applicant demonstrated in her materials that the respondent’s chart was not accurate and that the undertakings in the chart were not as described. By way of example, the respondent says that the applicant has not signed a consent to obtain a Police Report. However, the transcript demonstrates that the applicant agreed to sign a consent once one was provided. To date one has not been provided. Items 1 though 5 did not accurately set out the undertakings. Item 6 was a different question than the one set out in the chart.
[16] Items 8 and 9 have already been answered.
[17] There is one refusal described in the chart. It is framed as a refusal to provide unredacted copies of invoices relating to Pippa’s section 7 expenses. The chart does not state that the question was specific to dance receipts. Apparently the respondent was concerned that the applicant had changed Pippa’s name. To the extent that the respondent’s concern related to a suspected name change his concerns have been addressed.
[18] Both parties referenced reports from various experts. They have agreed to make arrangements to exchange those reports. Those arrangements are referenced in the applicant’s draft order.
[19] In the result the applicant’s draft order will issue. The applicant has been successful on the motion. The order makes a provision for costs. Costs will be dealt with as set out in paragraph 20. Once the costs have been determined I am prepared to sign the Order.
[20] Despite the requirement for costs’ outlines to be ready at the hearing of a motion, none have been uploaded to CaseLines. I encourage counsel to resolve the issue of costs between them. However, if they are unable to do so I will entertain brief costs submissions (not to exceed 2 pages double spaced, exclusive of Bills of Costs and relevant Offers to Settle). The submissions are to be forwarded to my assistant Brenda.berger@ontario.ca within 15 days. If I do not receive any submissions I will assume that the issue of costs has been resolved.
Van Melle J.