COURT FILE NO.: FS-19-009107
DATE: 20231013
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
M.S.
Applicant
– and –
B.C.
Respondent
Esther Linkinski /Caroline Lutes, for the Applicant
Robert Halpern, for the Respondent
HEARD: September 29, 2023
S. SHORE, J.
REASONS FOR DECISION
- The motion before me today focused on three primary issues:
The Respondent brought a motion to strike the Applicant’s pleadings for failure to pay a cost order of $35,000. The costs were paid on September 18th, before this motion was argued. The Respondent submits that the only reason the costs were paid was because he brought this motion. He is seeking costs.
The Respondent is also seeking a declaration that he has provided all of the outstanding disclosure owing pursuant to the order of Justice Kraft, dated March 30, 2023, and my order, dated July 6, 2023 (from the June 15th attendance).
Finally, the parties are scheduled to argue a long motion on October 19, 2023. The Applicant failed to serve her responding motion material and the Respondent is seeking direction from the court. The Applicant is seeking an adjournment of the motion, although she did not file a notice of motion for the attendance today.
- I will address the issues in the reverse order that they are set out above.
Adjournment of the Long Motion:
At the end of the motion, I advised the parties that I was not prepared to adjourn the motion again, with reasons to follow. I set out a new timetable for the exchange of the outstanding motion material.
These are my reasons.
I have been case managing this file for a long time. The parties were finally scheduled for a nine-day trial, to begin in May 2023. On April 27, 2023, I adjourned the trial to April 2024 because the Respondent failed to provide his outstanding disclosure, despite court orders. The Applicant’s experts were therefore not able to complete their report in time for the trial. Costs were ordered against the Respondent for his failure to provide timely disclosure.
The trial was adjourned by almost a year. The Respondent requested a long motion date to address spousal support, as permitted under the order of Justice Pinto. On October 13, 2022, Justice Pinto 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 Respondent wants to bring a motion to change the support order. The Pinto 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. Both parties wanted to schedule their motions.
The parties were scheduled to argue the long motion on June 1, 2023. The motion did not proceed, and costs were ordered against the Applicant.
In the Applicant’s factum, she submits that “[t]he Applicant did require some accommodation by way of an adjournment of the long motion date because of serious health issues arising from cancer treatments”. This is revisionist history. The reason the motion did not proceed was set out in my July 6, 2023 endorsement. Para. 51 provides the following:
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.
On June 15, 2023, after canvassing several dates with the parties and their counsel, the long motion was rescheduled to be heard on October 19, 2023. This date was one of the only dates that worked for the parties, counsel, and the court. A schedule was set out in the endorsement for the service and filing of the motion material. The Respondent’s motion material was due on or before July 31, 2023. The Applicant’s motion material was due August 25, 2023. The Respondent’s reply was due September 19, 2023, and the Applicant’s reply was due October 6, 2023. Facta were to be served and filed on or before October 13th.
On June 23, 2023, the Applicant filed a 14B motion, seeking an order adjourning the long motion to December 2024. The motion was dismissed by Justice Brownstone on July 20, 2023.
The Respondent served his motion material on July 31, 2023, as required under the endorsement.
In February 2023, the Applicant retained Mr. Pike. Mr. Pike has been solicitor of record since that time. On August 17, 2023, the Applicant served a Notice of Change in Representation. The Notice of Change advises that Mr. Pike remains solicitor of record, but that Ms. Lenkinski will now be co-counsel.
On August 25, 2023, instead of serving and filing the Applicant’s motion material as required under my previous order, Ms. Lenkinski wrote to the other side requesting an adjournment of the long motion, as she is booked to be out of the country at that time. She suggested a date in November 2023. The dates were not canvassed with the court. The court only has dates available in 2024.
Mr. Pike and the Applicant were aware of the August 25th deadline since June 15, 2023, yet filed no materials. Ms. Lenkinski was aware of the deadlines and long motion date when she agreed to take on the file on August 16, 2023. Mr. Pike is still available to argue the motion because the date was set with his consent.
The parties separated in 2019. Four and half years later, the parties do not have a final resolution of the issues. The new trial date was made peremptory on both parties, as set out in the TSEF.
The motion was scheduled for June 2023 and adjourned as a result of the Applicant’s actions. She now wants a further adjournment. Adjourning the date to 2024 makes the motion obsolete, as it is close to the trial date. The Respondent is entitled to bring his motion. The date should be peremptory on the parties.
Although the facts are not identical, the summary set out in Holly v. Greco, 2018 ONSC 6219, still applies to this case:
[13] On the return of the motion on October 4, 2018, counsel for the Respondent requested an adjournment. Counsel for the Applicant vigorously opposed the adjournment request. The Respondent had not filed any material on the motion, notwithstanding that, as counsel for the Respondent confirmed, he had at least six weeks’ notice. The Respondent was advised in August that the Applicant would bring a motion, and on September 4, 2018 that the Applicant was bringing a Motion to Strike on October 4, 2018, as a result of his ongoing breach of Miller J.’s order. Counsel was not able to offer any valid or reasonable explanation as to why he had not filed material given such a period of notice and, in particular, that it was his client who appeared to be, on a calculated basis, in noncompliance with a court order.
[14] Whether or not to grant an adjournment is a discretionary matter for the motions judge.
[15] Ordinarily, a court will look with sympathy on a party’s initial request for an adjournment in order to file further materials, where the interval between being advised of the motion and the return date is short, or there are mitigating circumstances concerning either the Party or counsel. It is unquestionably usually better to have materials from both sides before the Court. But here, the interval was not short. Mr. Greco and his counsel had ample notice of the intention of the Applicant to bring the motion. And they knew from the start that his actions were not in compliance with a court order, and that he would likely have to account for that.
[16] All too often, parties will attempt to manipulate adjournments as a tactical tool for further delay. It is not open to a party to create a dilemma for the court by a deliberate choice not to do what they ought to have done (file materials on the motion), then having created the difficulty, request an indulgence from the Court whose purported necessity arises from their deliberate inaction. Manufacturing such a circumstance ought not to avail them.
[17] In considering the request for an adjournment, I assessed the considerations set out in Ariston Realty Corp. v. Elcarin, 2007 CanLII 13360 (ON SC), [2007] O.J. No. 1497 (S.C.J.), including particularly: the particular circumstances of the request for an adjournment and the reasons and justification for the request; the practical effect of consequences of an adjournment on both substantive and procedural justice; the competing interests of the parties in advancing or delaying the progress of the litigation; the need of the administration of justice to orderly process family and civil proceedings; and, the need of the administration of justice to effectively enforce court orders.
[18] It is often said that what we tolerate, we condone.
[19] Parties cannot take adjournments for granted. The Court will not indulge such requests where, as here, it is evident that the Party is merely “gaming” the system and dragging its feet for the purpose of attriting the other party. Parties should not presume on the indulgence of the court where there is no valid reason for not filing material. This is particularly so where, as here, there is a patent non-compliance with a court order. I considered that to grant the adjournment requested by the Respondent would unfairly benefit him and merely extend and facilitate what appeared prima facie to be an ongoing calculated non-compliance by the Respondent, without affording the Parties (and in the circumstances particularly the Applicant) a prompt hearing to address the issue.
- At this stage, a further adjournment of the Respondent’s motion would also not be fair to the Respondent and would be contrary to the primary objective of the Family Law Rules, which provides:
(2) The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2 (2).
(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. O. Reg. 114/99, r. 2 (3).
I have considered the circumstances of and the reasons for the request for an adjournment in this case, as set out above. The practical effect of consequences of an adjournment means several months’ delay, as well as the likelihood that the motion will never be argued and simply adjourned to trial. The Respondent is seeking a reduction in the spousal support he is required to pay. It is in the Applicant’s interest to adjourn the motion.
This court cannot continue to expend further resources on this file as it has over the last year at significant expense to other cases. There have been too many wasted attendances and wasted court time already.
While the Applicant is entitled to the solicitor of her choice, she has had several lawyers throughout this case. The Respondent submits that the Applicant has had at least 13 different lawyers representing her in these proceedings. I have no way to verify the exact number, but from review of the file, she has had approximately 6 different lawyers on record during the proceedings.
Further, Mr. Pike remains solicitor of record. Ms. Lenkinski is coming on as co-counsel, and, although she may not be available to argue the motion, she is available to prepare materials and strategize with the Applicant and co-counsel. I find the cases relied on by the Applicant that address the issue of litigants being entitled to be represented by counsel of his/her choice not applicable in these circumstances.
Under the order of Justice Pinto, the Respondent has a right to have his motion heard. I am prepared to grant the adjournment for the Applicant’s motion but not for the Respondent’s motion. This will streamline the material and the arguments to be made. No sur-reply material will be required.
The Applicant also requested an adjournment of the long motion to give her time to consider whether she will be relying on medical records in support of her motion. However, the deadline to address this issue also passed. As set out in the TSEF, dated July 6, 2023:
if arguments are being made with respect to either party’s medical condition at the long motion, the medical records, including notes, tests, results and medical file shall be provided to the other side, with only irrelevant and highly sensitive information to be redacted (must be both irrelevant and highly sensitive).
The deadline to provide this disclosure was August 31, 2023. Other than a letter from her doctor, the Applicant did not provide any of the documentation required. The deadline has come and gone, and it is too late now to “determine” whether the Applicant will be relying on her medical condition. The parties’ medical conditions, if any, shall not form part of the arguments on the long motion.
Finally, the Applicant submits that she cannot proceed with the motion without the outstanding disclosure from the Respondent. The alleged outstanding disclosure relates to the issue of equalization of net family property, and in this case, the outstanding disclosure will have no effect on the support issues.
The Applicant’s motion to adjourn the Respondent’s motion scheduled for October 19, 2023 is dismissed.
Declaration re: disclosure:
The Respondent is seeking a declaration that he has complied with his disclosure obligation so that it does not occupy time during the long motion for support.
I do not need to address the outstanding disclosure prior to the long motion. The alleged outstanding disclosure relates solely to the value of assets/debts on the date of marriage and the date of separation, and not on the issue of income for support purposes. For example, the Applicant alleges the Respondent has not provided full disclosure regarding a tax audit in 2009. This is irrelevant for the purpose of an interim motion on support. This is true for the request for disclosure of legal fees incurred to settle his litigation with his first wife.
The Respondent’s request for a declaration that his disclosure is complete is dismissed without prejudice.
Costs:
The Respondent is seeking his costs on his motion to strike the Applicant’s pleadings for failure to pay the cost award of $35,000 until after he served his motion material. The cost award was made 8 weeks prior to the Respondent serving his motion material. In the circumstances, and given the history in this file, the Respondent’s motion was premature and akin to bringing a sledgehammer to push in a thumbtack. I am not ordering costs on this part of the motion.
The Respondent is the successful party on the primary issue of the motion, the adjournment of the long motion, but not successful on the other two issues. If the parties are not able to resolve the issue of costs for this part of the motion, they may argue the costs as part of the long motion.
This court orders that:
The Respondent’s motion shall proceed on October 19, 2023, as scheduled, peremptory on the parties. There shall be no further adjournments of the long motion.
The schedule to serve and file the remaining motion material shall be amended as follows:
a) The Applicant shall serve and file her responding motion material on or before October 10, 2023;
b) The Respondent shall serve and file his reply material on or before October 13, 2023; and
c) Facta shall be served and file on or before October 17, 2023.
Neither party may rely on arguments with respect to their medical conditions, if any, on the long motion.
The Respondent’s request for a declaration that his disclosure is complete is dismissed without prejudice. The outstanding disclosure, if any, is not relevant for the purpose of the long motion.
If the parties are unable to agree on the issue of costs on the motion to adjourn the long motion, it shall be argued as part of the costs of the long motion. Costs on the other two issues on the motion before this court is dismissed.
S. Shore, J.
Released: October 13, 2023
COURT FILE NO.: FS-19-009107
DATE: 20231013
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
M.S.
Applicant
– and –
B.C.
Respondent
REASONS FOR DECISION
S. Shore, J.
Released: October 13, 2023