COURT FILE NO.: FS-17-5387-0000 DATE: 2024 10 18

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

NICHOLSON, Dianne Applicant

ROBERTSON, Ian, for the Applicant

- and -

NICHOLSON, Michael Respondent

REID, David, for the Respondent

HEARD: October 4, 2024 at Walkerton

Motion for Breach of Trial Scheduling Endorsement Form

MCGEE J.

Result

[1] The December 22, 2023 Trial Scheduling Endorsement Form (‘TSEF”) which is an Order of the Court, requires that the parties and their witnesses each serve their affidavits “at least 30 days before Trial.” The affidavits are the parties’ and their witnesses’ evidence-in-chief within this Focussed Trial, originally set for the April 2024 trial sittings in Owen Sound and Walkerton.

[2] Ms. Nicholson served her affidavit on February 28, 2024. She is not calling any witnesses but for her appraiser, who has produced a report.

[3] Mr. Nicholson did not serve his affidavit until October 2, 2024 after service of this Motion. As of its hearing date, none of his twelve witnesses’ affidavits had been served. He argues that he is not in breach of the TSEF timetable because the Trial was adjourned to the November sittings.

[4] For the reasons set out below, I find that he is in breach of the TSEF because the delivery dates within the TSEF were set in the expectation of an April 2024 Trial and the dates were not amended. I further conclude that the primary objective of the Family Law Rules (“FLR”) can only be achieved if there are consequences to Mr. Nicholson’s breach.

[5] Those consequences can ultimately be determined at Trial by way of adverse inference(s) and/or an award of costs. To prevent any further prejudice accruing to Ms. Nicholson, I order that any of Mr. Nicholson’s witnesses for whom an affidavit is not produced by October 25, 2024 shall be prohibited from testifying at Trial, subject to the Trial Judge’s further order.

[6] I conclude with a general view that litigants ought to express a timetabled event within a TSEF as a fixed date, so as to avoid any ambiguity over the required date of completion and a breach of that obligation.

Overview

[7] The parties are former spouses who separated on January 22, 2017. Few of the legal or financial issues arising from the end of their 26-year marriage have been resolved within this Application, which was issued shortly after their separation.

[8] Justice Miller organized the Trial of this Application within a TSEF dated December 22, 2023. A TSEF is an Order of the Court that governs the subsequent litigation and the conduct of the Trial, see Abou-Mansour v. Abou-Mansour, 2017 ONCA 572.

[9] After completing the TSEF, Justice Miller placed the Application on the April 2024 Trial sittings for Owen Sound and Walkerton Superior Court of Justice. By mid April, it appeared that the Trial would not be reached, so on consent, counsels agreed to put the Trial over to the fall sittings starting on November 12, 2024, because counsel for the Applicant was not available for the intervening June 2024 sittings.

[10] The Trial is organized as follows. It will be a focussed hearing, with each of the parties’ and their witness’s evidence-in-chief to consist of an affidavit provided “at least 30 days before Trial.” Ms. Nicholson is not calling any witnesses, but for her appraiser who has produced a report. Mr. Nicholson is calling twelve witnesses. Neither party has ever sought an amendment to the December 22, 2023 TSEF.

[11] Because the Trial was organized around the parties and the witnesses providing their direct evidence by affidavit, the length of the Trial is only estimated for five days.

[12] As of the hearing of this Motion, Mr. Nicholson has never served his witnesses’ affidavits. His counsel assures the Court that there is plenty of time yet to do so because 30 days prior to November 12, 2024 is only October 11, 2024; assuming that the matter is even reached in November.

[13] Ms. Nicholson asserts that time has run out, and that she is now prejudged in her ability to prepare for Trial. She interprets the December 22, 2023 TSEF as requiring production of the witness’s affidavits 30 days prior to the next Trial sittings, which on that date would have been mid-March 2024. She submits that a subsequent adjournment of the Trial does not change a timeline ordered within a TSEF.

[14] I agree. The September 12, 2024 affidavit of the Applicant counsel’s law clerk attaches the TSEF signed by both parties, counsel, and the Court. Her affidavit confirms that the document briefs and witness affidavits for each side were to have been exchanged by late February, 2024. Ms. Nicholson’s sworn affidavit constituting her evidence-in-chief was served on February 28, 2024. Her appraiser’s report had previously been placed into the record.

[15] The law clerk further deposes that Ms. Nicholson’s counsel only agreed to the April 2024 adjournment of the Trial because he had not yet received the husband’s affidavit and that of his twelve witnesses. Mr. Robertson, counsel for Ms. Nicholson was concerned that even if the Trial was reached that month, he had run out of time to prepare. It is not disputed that Mr. Robertson next sought and obtained an agreement from Mr. Reid, counsel for Mr. Nicholson, that the thirteen outstanding affidavits would be sent to him by the end of April, 2024.

[16] Nothing was received from Mr. Nicholson.

[17] Multiple requests of Mr. Reid to produce his client’s, and the witnesses’ affidavits ensued, to no avail. The last written request from Mr. Robertson was on August 21, 2024.

[18] On September 12, 2024 Ms. Nicholson served this Motion for an Order striking Mr. Nicholson’s pleadings, and for an Order that she be permitted to proceed by Uncontested Trial should the thirteen affidavits not be served with seven days. The motion was scheduled to be heard in the afternoon of Friday, October 4, 2024.

[19] Still nothing.

[20] On Wednesday, October 2, 2024, Mr. Nicholson’s affidavit of his evidence-in-chief was served, approximately eight months after its due date.

[21] At 10:29 am Friday, October 4, 2024 Mr. Reid wrote to his friend to advise that he shouldn’t have any trouble getting the witnesses’ affidavits to him by October 15, 2024, but that he remained concerned about whether he would have enough time to get each of the affidavits commissioned; and in the interim, he had other Trial commitments.

[22] The motion proceeded. Mr. Robertson advised that was no longer asking that Mr. Nicholson’s pleadings be struck, but instead, that any witness for whom an affidavit was not tendered in seven days would be prohibited from testifying.

[23] With written reasons to follow, I ordered that any of the twelve Respondent witnesses who had not served affidavits by October 25, 2024 would be prohibited from testifying at the Trial, subject to further Order by the Trial Judge. These are my reasons.

The Purpose of a TSEF in a Focussed Hearing

[24] The primary objective of the Family Law Rules (“FLR”) 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, saves expense and time, deals with the case in ways that are appropriate to its importance and complexity and gives appropriate court resources to the case while taking account of the need to give resources to other cases.

[25] Rule 17(8) of the FLR gives the Court considerable latitude in the Orders that can be made to ensure that the trial unfolds in such a way as to meet the primary objective. Parties and their lawyers both have a duty to comply with the prime objective and are bound by the terms of the TSEF.

[26] A focussed hearing is an essential tool with which the Court can promote the primary objective of the FLR through the active management of cases. Because Trial time is shortened, focussed hearings dramatically reduce a party’s costs whether or not they are successful. A party will incur less in direct costs and if unsuccessful in part or in whole, a party will be exposed to a lower range of costs exposure at the conclusion of Trial.

[27] Trials can be heard sooner because more matters can be heard on limited sittings. Trials are less stressful because the process is limited to, and more proportionate to the result. The Trial becomes an outcome-based deliberation instead of a “fight about the fight.”

[28] Perhaps the greatest value of a focussed hearing is that it increases the potential for settlement. A focussed hearing requires each party to lean into a realistic understanding of the case that is being made, and the case which is to be met. A focussed hearing requires each party to actively connect the evidence to the Order sought, and to discard information that distracts.

[29] A focussed hearing is given meaningful effect through the terms of a TSEF when the breach of its terms has consequences. For a court to deal with cases justly, in accordance with the primary objective, there must be consequences to a breach of a TSEF.

Mr. Nicholson Breached the Terms of the December 22, 2023 TSEF

[30] I do not accept Mr. Nicholson’s submission that as of the date of this Motion, he remains within the December 22, 2023 TSEF timeline for the production of affidavits. I find that Mr. Nicholson breached the terms of the TSEF by failing to serve his evidence-in-chief by affidavit and that of his twelve witnesses by mid March, 2024.

[31] Justice Miller’s Order clearly anticipates that the affidavits are to be delivered in advance of the April 2024 Trial Sittings. Neither party asked to amend the timelines when the matter was adjourned to the November 2024 sittings. The delivery of Ms. Nicholson’s affidavit at the end of February 2024 and her counsel’s efforts to obtain the Respondent’s affidavits from April to August of 2024 demonstrate her compliance with terms of delivery in advance of the April Trial Sittings.

[32] To accept Mr. Nicholson’s submissions, I would need to be satisfied that the TSEF merely binds the parties to a rolling requirement to deliver their evidence-in-chief at some point prior to the month before Trial, whenever that might be.

[33] Such an interpretation, in my view, would be an abrogation of the primary objective of the FLRs and would render in this regard, a TSEF meaningless. An opposing party would have no sense of the case that was to be met, and the moving party might not have a full and accurate sense of the case being made until the time of Trial was upon them. It is often stated that Trial is not an ambush, and neither is it the next date on which a case is to be brought out of hiatus.

[34] At the same time, I recognize the incongruity of a focussed Trial, or a Trial organized in the usual manner that timetables the delivery of documents “x days before Trial;” particularly in jurisdictions in which family law trials are heard during a sittings or on a running list without a fixed start date.

[35] To avoid any ambiguity in the preparation for and presentation of a Family Law Trial, timetabled events within a TSEF should always be expressed as a fixed date.

Consequence of the Breach

[36] In assessing an appropriate and proportionate consequence for Mr. Nicholson’s breach, I must balance the prejudice to Ms. Nicholson of having fully disclosed her case eight months ago without reciprocation, with any prejudice to Mr. Nicholson’s case that cannot be addressed through adverse inferences at Trial and an award of costs.

[37] I conclude that the just result in these circumstances is to require all of the remaining twelve affidavits of the respondent’s witnesses to be served by October 25, 2024, failing which the person cannot be called as a witness.

[38] I leave it to the Trial Judge to decide any costs arising from the late production of Mr. Nicholson’s’ affidavit and those of his witnesses. Should Mr. Nicholson seek to call a witness for whom an affidavit is not produced by October 25, 2024, the Trial Judge will also be able to decide whether there is any further prejudice to Ms. Nicholson in granting such an Order that cannot be addressed by way of additional adverse inferences or a further award of costs.

Costs of This Motion

[39] Counsels provided submissions and Bills of Costs at the conclusion of this motion. Ms. Nicholson seeks a partial recovery of $2,651.64 on actual costs of $4,162.50. Mr. Nicholson asks that costs be limited to $1,250 because he met with some success in extending the timeline for service until October 25th. All the amounts above are expressed as inclusive of fees and disbursement, exclusive of HST.

[40] My reason for extending the deadline to October 25, 2024 is because the Motion was only being heard on Friday October 4, 2024, and holding Mr. Nicholson to an October 11, 2024 production date was not realistic given his counsel’s representations. It was not a measure of success.

[41] Costs are designed to achieve four fundamental purposes:(a) to partially indemnify successful litigants, (b) to encourage settlement,(c) to discourage and sanction inappropriate behaviour by litigants and (d) to ensure that cases are dealt with justly under subrule 2 (2) of the FLR, see Mattina v. Mattina, 2018 ONCA 867.

[42] Rule 24(1) of the FLR states that a successful party is presumptively entitled to costs. However, those costs must be fair, reasonable, and proportionate to the measure necessary to change litigation behaviour.

[43] The parties have been separated for almost eight years without a financial outcome. Along the way, little has been done that could not be deferred. I cannot take a view of the root cause(s) of the delay or to whom those causes can be attributed, but I must also use this award of costs to stress the importance of timely compliance with Court Orders. A TSEF is a Court Order and for the reasons set out above, its breach must carry a meaningful consequence.

[44] I grant Ms. Nicholson costs of $2,651.64 plus HST for a total of $2,996.76, payable forthwith.

McGee J.

Released: October 18, 2024