Court File and Parties

COURT FILE NO.: 130-22 DATE: 2024/01/29 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kristofer Brendan Beau Angle, Applicant AND: Jenna Pauline Angle, Respondent

BEFORE: The Honourable Mr. Justice A. Pazaratz

COUNSEL: Counsel, for the Applicant, Matthew Pankhurst (limited retainer) Counsel, for the Respondent, Nadine Waldman

HEARD: January 26, 2024

Endorsement

[1] Lawyers can be “self-reps” too. Entitled to the same accommodation as any litigant lacking counsel of record. Being a lawyer isn’t the same as having a lawyer.

[2] In this case, the Applicant father is a civil litigation lawyer, with no experience in family law. This is his motion to adjourn his pending family court trial because he had a lawyer until recently and he wants to hire new counsel.

[3] I will briefly summarize the background, to provide context:

a. The father and the mother started living together on April 1, 2013. They married on August 10, 2017 and separated on September 4, 2021.

b. They have a now four-year-old son Bryce who has remained primarily in the mother’s care, in the jointly owned matrimonial home, since separation.

c. On the date of separation the father was charged with assaulting the mother. He subsequently pleaded guilty to one count of assault. A probation order restricts him from having any contact with the mother. That order expires August 29, 2024.

d. The father seeks equal time-sharing on a 2-2-3 schedule, and joint decision-making. The mother seeks sole decision-making authority, with consultation.

e. There are disputes about property, spousal support and child support.

f. Perhaps the most contentious issue: The mother seeks to permanently relocate to Ireland with the child. The father opposes this. The mother was born in Ireland and lived there until 2009. She had originally proposed relocating in time for Bryce to start school in Ireland in September 2023. The slow pace of litigation has forced her to delay her plans. But Bryce has to start full-time school in September 2024. By then the parties will have been separated for three years. The mother says she and Bryce need to know – one way or the other – how their future is going to unfold. Prior to September, they need to know whether Bryce is going to be starting school in Canada or in Ireland.

[4] The Application was commenced by the father on February 2, 2022 – almost two years ago.

a. Even prior to separation, this was clearly a high conflict file.

b. The mother has been represented by the same counsel throughout.

c. The father started with one lawyer and then switched to a second in April 2022.

d. There have been many motions, conferences and delays.

e. Finally, at a November 10, 2023 Trial Scheduling Conference, a 10-day trial was scheduled for the sittings of March 11, 2024.

[5] That trial was scheduled when the father had counsel of record. But within weeks the father’s lawyer brought a motion to be removed from the record.

a. That motion initially came before me on December 20, 2023.

b. The father did not file any materials in response to the motion, nor did he attend or have anyone attend on his behalf. On the previous day he emailed our Trial Co-ordinator to request that the motion be held down until late in the day because he wanted to have someone (a teacher) attend to speak to the matter on his behalf. He was advised that the matter could not be held down until late in the day and that in any event he could not have a non-lawyer attend on his behalf as an agent.

c. The mother filed an affidavit setting out her opposition to the father’s lawyer being removed from the record if it would result in either the March 2024 trial being further delayed, or if it resulted in the Applicant representing himself. (If he represents himself he will have difficulty cross-examining the mother, as a result of the “no contact” criminal court order.)

d. The mother’s lawyer attended at the December 20th motion and expressed concern that if the father had to retain counsel at such a late stage in the proceeding, it would inevitably result in a request to adjourn the trial, to allow replacement counsel time to become involved.

e. Given the seriousness of the issue and the father’s failure to attend court, I adjourned the solicitor-removal motion to January 3, 2024 as a placeholder date, to allow the father an opportunity to file materials and participate in the determination.

f. However, when the motion returned before me on January 3, 2024, the father still hadn’t filed any responding materials (despite having been served with an updating affidavit on behalf of his lawyer). As well, the father again failed to attend court or have anyone attend as his agent. On January 2, 2024 the father advised his lawyer’s office that he would not be available for court on January 3, 2024 because he was out of the country -- but that he would be available January 10 or 11, 2024.

g. For reasons set out in my January 3, 2024 endorsement I allowed the motion to proceed and granted the requested order, removing the father’s former lawyer from the record. (We wouldn’t normally allow a lawyer to be removed from the record on the eve of trial, but in this case there were compelling reasons.)

[6] On January 10, 2024 the father brought this motion which included the following requests:

a. The trial date for this matter shall be adjourned until October 21, 2024, on a non-peremptory basis.

b. Alternatively, the trial date for this matter shall be adjourned until a date no earlier than July 1, 2024, on a non-peremptory basis.

[7] That January 10, 2024 motion was brought by Matthew Pankhurst, a lawyer retained by the father for the sole purpose of pursuing the adjournment of the trial. (Pankhurst made it clear he would not be doing the trial.)

a. The motion was returnable on January 24, 2024.

b. Upon receipt of the motion, the mother’s lawyer suggested to Pankhurst that the Trial Scheduling Endorsement Form completed in November 2023 provides that any discussions about the trial should be returned to either Justice Lafreniere or myself, to be spoken to.

c. Accordingly, the matter was placed on my January 12, 2024 list, to be spoken to.

d. We had a very lengthy discussion. The parties explored a number of possible resolutions. However, after about two hours of a “to be spoken to” attendance, it became evident that the parties were not able to resolve the issue.

e. I left the father’s motion returnable on January 24, 2024, and urged the parties to continue their negotiations.

f. I specifically canvassed with the parties and counsel whether they took any position as to whether I should or should not hear the adjournment motion if it had to be argued, given my past and recent involvement on the file. At the conclusion of my January 12, 2024 endorsement I stated: “Both counsel advised that they believe I am familiar with the case so I should not be excluded. I am not, however, seized of the matter. The Trial Co-ordinator may schedule the motion based on the availability of any judge.”

g. As it happens, the motion was scheduled to be argued on January 26, 2024 – a day when I was hearing motions. Accordingly, the matter was placed on my list, with the consent of the parties.

[8] The father’s January 10, 2024 affidavit in support of his motion included the following narrative:

a. Pursuant to the November 10, 2023 Trial Scheduling Endorsement Form, deadlines for trial material filings are due as early as January 11, 2024.

b. The trial is scheduled for the March 11, 2024 trial sittings.

c. On January 3, 2024, the court granted a motion by the father’s former solicitor to be removed from the record. The father was unable to attend on January 3, 2024 because he was out of the country; had competing prior commitments to his clients; and he had conveyed a request for an adjournment which was not granted.

d. After receiving the January 3, 2024 endorsement he requested that the mother consent to an adjournment of the trial to October 2024 but the mother refused the request.

e. The mother won’t consent to an adjournment unless the father makes substantive concessions, and changes terms already agreed to.

f. He has been actively seeking to retain replacement counsel but has not yet been successful. Accordingly, he is currently unrepresented.

g. Although he is a licenced lawyer in Ontario, he is not a family law practitioner. The issues are complex and relate to the best interests of a child – and a claim for permanent relocation of that child from Canada. Such important issues require that all parties have a reasonable opportunity to be represented by experienced counsel at trial.

h. Despite the high level of conflict, there is still the possibility that the parties may be able to resolve the issues on consent. An adjournment would allow more time for discussions, to resolve or narrow the issue.

i. Given the fact that the trial is scheduled to take place in about 60 days, and intervening filing deadlines are imminent, a reasonable adjournment to allow the father to retain counsel would promote the fair administration of justice.

[9] The mother’s January 17, 2024 affidavit included the following narrative:

a. The mother has been trying to advance this matter to trial for a very long time.

b. The first Trial Scheduling Conference was adjourned from January 19, 2023 because the parties decided to try mediation. But they didn’t settle.

c. There were then additional Trial Scheduling Conference dates on May 25, June 23, June 27, June 29, and September 11, but none of them resulted in a finalized Trial Scheduling Endorsement Form. The mother says of those five Trial Scheduling Conferences, three were not productive because the Applicant’s former counsel was unavailable or had to leave early for personal reasons.

d. The mother quoted Justice Brown’s May 25, 2023 endorsement, regarding the need for timely resolution of this file:

[2] The Applicant's position is that this Trial should be scheduled for March 2024 or thereafter because there are a number of motions (eg disclosure, interim parenting time, the sale of the matrimonial home, etc.) that he wishes to bring before then.

[3] The Respondent's position is that this Trial should be scheduled for the sittings of October 2, 2023.

[4] I indicated that it was unreasonable to expect the parties to wait ten or more months to finalize the issues arising from separation.

[5] I also indicated that by the time a file is at the Trial Scheduling Conference stage, the Court expects that all Motions ... would have been brought.

[6] Having said that, our discussions today were limited by the fact the Applicant's lawyer was not present ...

e. The mother emphasizes that at the November 10, 2023 Trial Scheduling Conference the father and his lawyer made a commitment to the trial proceeding during the March 11, 2024 sittings. It was their preferred date – the mother had been pressing for an earlier trial all along. By November 2023 the father’s lawyer had been on the file for about a year-and-a-half. The father and his lawyer should have known in November 2023 if their solicitor-client relationship had deteriorated to the point where one month later the lawyer would bring a successful motion to get off the record.

f. Even before the trial date was selected, in October 2023 the father brought a motion for the sale of the jointly owned matrimonial home, where the mother and child continue to reside. The parties consented to an order that the home would be listed between April 15 and May 1, 2024, with a 90-day closing to allow Bryce to remain in the home for the remainder of the school year. The mother says there was a sequential relationship between the trial date and listing the house. The trial was to be completed before the house was listed, so the parties would know their future options and finances in arranging subsequent accommodation. She requests that if the trial is delayed, the listing of the house should also be delayed. Otherwise, if the sale precedes determination of the relocation and financial issues, the child might be needlessly disrupted by a series of moves in a short period of time.

g. The mother is concerned that if the father succeeds in delaying the trial, he will use the extra time as an opportunity to perpetuate his financial and emotional abuse by bringing more pre-trial motions. She referred to recent emails the father sent to her lawyer outlining his intention to bring more motions and possibly amend his pleadings.

[10] The father’s January 22, 2024 affidavit included the following responses to the mother’s January 17, 2024 affidavit:

a. He denied various allegations and statements.

b. During discussions on January 12, 2024 the mother’s lawyer advised that she was available for an October 2024 trial but she did not consent to the requested adjournment. On January 15, 2024 the mother’s lawyer advised that she had scheduled a trial on another case for the October 2024 sittings – thereby making herself unavailable for this trial to be adjourned to the October 2024 sittings. The father characterizes this as sharp practice, and deliberate frustration of his motion.

c. He re-affirmed he has made diligent efforts to retain competent trial counsel. The lawyers he has spoken to are either unavailable for trials in 2024; concerned about going on record if an adjournment of the March 2024 trial is not granted; or concerned about the likelihood that the full trial would not be completed within another trial sitting which might be selected.

d. The father has found trial counsel who is prepared to accept a retainer, provided that an adjournment of the trial is granted to either the October or November 2024 sittings.

e. The father will consent to an October or November 2024 trial being marked peremptory on both parties, provided that relevant disclosure is obtained well in advance. The mother’s lawyer has not indicated she is unavailable for the November 2024 sittings.

f. The father denies deliberately seeking a delay. His adjournment request is made in good faith.

g. He acknowledges that his previous counsel was responsible for undue delays. He says it is regrettable that the solicitor-client relationship with his former lawyer broke down so close to trial. But his concerns about former counsel’s ineffective representation were valid.

h. He says the mother’s lawyer was also responsible for significant delays, relating to personal or compassionate issues.

i. He denies any intention to cause financial hardship for the mother or the child.

j. He wants the ability to bring motions for disclosure.

k. He denies that he prioritized pursuing a Law Society complaint about the mother’s lawyer, rather than focussing on retaining a new lawyer. He submits the mother’s lawyer is attempting to fast-track this trial “to detract from the LSO’s investigation.” He says he is acting in good faith and he was advised by his former lawyer to report the mother’s law firm to the Law Society.

l. The father is incapable of representing himself at a March 2024 trial.

m. Indeed, the mother doesn’t want him to represent himself because of the criminal court “no contact” order.

[11] The father’s ultimate request during submissions:

a. His first choice is to adjourn the trial from March to October or November 2024. He will agree to make it peremptory on both parties, on condition that any future disclosure requests are complied with.

b. His second choice is the two-week sittings of July 1, 2024, but not peremptory.

[12] The mother’s ultimate request during submissions:

a. Her first choice is that the father’s motion be dismissed, with the 10-day trial remaining on the four-week sittings of March 11, 2024. Pre-trial deadlines for production of documents could be extended.

b. Her second choice is to adjourn the trial no later than the July 1, 2024 sittings – and preferably to the June 10, 2024 two-week sittings. A new trial date should be peremptory on the father.

c. If the trial is adjourned, the date for listing the matrimonial home for sale should also be adjourned to a date after the trial.

d. Any adjournment should be on condition that there be no further motions by the father, and no amendment of his pleadings.

The Law

[13] The decision whether to grant an adjournment is highly discretionary. Roberts v. Miller, 2015 ONCA 500; Martin v. Sansome, 2014 ONCA 14; D.M. v. CAS of Ottawa, 2021 ONSC 8360 (SCJ).

[14] An adjournment request must be considered in the context of the primary objective of the Family Law Rules which provides:

Primary objective

(2) The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2 (2).

Dealing with cases justly

(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).

Duty to promote primary objective

(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. O. Reg. 114/99, r. 2 (4).

[15] In Lakhtakia v. Mehra, 2022 ONSC 201, in an Appendix, Justice Pinto summarized the law with respect to adjournments:

In Konstan et al. v. Berkovits et al., 2021 ONSC 6749, at paras. 14-15, Diamond J. set out the legal test that a trial judge must apply when faced with an adjournment request. Although Konstan was a civil case and not a family law decision, I find that the same test applies:

[14] All parties agree that a judge’s decision to adjourn or not adjourn a trial is highly discretionary. In Ariston Realty Corp. v. Elcarim Inc., 2007 ONSC 13360, Justice Perell set out a helpful list of factors and principles for the Court to consider when exercising its discretion to grant or refuse an adjournment:

“Depending on the circumstances of each case, to judicially exercise the discretion to grant or refuse an adjournment, a judge or master may need to weigh many relevant factors including:

• the overall objective of a determination of the matter on its substantive merits;

• the principles of natural justice;

• that justice not only be done but appear to be done;

• the particular circumstances of the request for an adjournment and the reasons and justification for the request;

• the practical effect or 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 prejudice not compensable in costs, if any, suffered by a party by the granting or the refusing of the adjournment;

• whether the ability of the party requesting the adjournment to fully and adequately prosecute or defend the proceeding would be significantly compromised if the adjournment were refused;

• the need of the administration of justice to orderly process civil proceedings; and

• the need of the administration of justice to effectively enforce court orders.

[15] Both parties also rely upon the following comments of the Court of Appeal for Ontario in Turbo Logistics Canada Inc. v. HSBC Bank Canada, 2016 ONCA 222:

“The applicable principles are well understood. They were expressed by this court in Khimji v. Dhanani, 2004 ONCA 12037, 69 O.R. (3d) 790, per Laskin J.A. dissenting, but not on this point, at para. 14:

A trial judge enjoys wide latitude in deciding whether to grant or refuse the adjournment of a scheduled civil trial. The decision is discretionary and the scope for appellate intervention is correspondingly limited. In exercising this discretion, however, the trial judge should balance the interests of the plaintiff, the interests of the defendant and the interests of the administration of justice in the orderly processing of civil trials on their merits. In any particular case several considerations may bear on these interests. A trial judge who fails to take account of relevant considerations may exercise his or her discretion unreasonably and if, as a result, the decision is contrary to the interests of justice, an appellate court is justified in intervening. In my opinion, that is the case here.

Laskin J.A. observed that in refusing an adjournment, the trial judge should have taken into account the goal expressed in r. 2.01(1)(a), namely “to secure the just determination of the real matters in dispute” and the resolution of cases on their merits.

Khimji was considered by this court in Toronto-Dominion Bank v. Hylton, 2010 ONCA 752, which adopted the above statement. This court observed, at para. 36, that “[t]he presiding judge has a well-placed and a well-established discretion to decide whether an adjournment request ought to be allowed or denied.” After setting out the above statement, the court added, at para. 37:

Laskin J.A.'s passage makes it clear that, in reviewing highly discretionary decisions such as whether to allow a request for an adjournment, the inquiry must focus on whether the court below took account of relevant considerations in balancing the competing interests and made a decision that was in keeping with the interests of justice.

The court added that factors to be considered include the reason for the adjournment request, the history of the matter, the prejudice to the party resisting the adjournment and the consequences to the requesting party of refusing the request.”

[16] Khimji v. Dhanani was further considered by the Court of Appeal in Toronto-Dominion Bank v. Hylton, [2010] O.J. No. 4725 where the court stated:

[38] Against the backdrop of the nature of the proceeding and the parties to the proceeding, the court should consider the evidence and strength of the evidence of the reason for the adjournment request, the history of the matter including deliberate delay or misuse of the court process, the prejudice to the party resisting the adjournment and the consequences to the requesting party of refusing the request.

[39] Once again, the fact that a party is self-represented is a relevant factor. That is not to say that a self-represented party is entitled to a “pass”. However, as part of the court’s obligation to ensure that all litigants have a fair opportunity to advance their positions, the court must assist self-represented parties so they can present their cases to the best of their abilities. Linhares de Sousa J. provided a helpful list of ways to assist self-represented litigants in Kainz v. Potter (2006), 2006 ONSC 20532, 33 R.F.L. (6th) 62 (Ont. S.C.), at para. 65:

[N]umerous Court decisions have reiterated the principle again and again, that self-represented parties are entitled to receive assistance from an adjudicator to permit them to fairly present their case on the issues in question. This may include directions on procedure, the nature of the evidence that can be presented, the calling of witnesses, the form of questioning, requests for adjournments and even the raising of substantive and evidentiary issues. [Emphasis added.]

[17] In D.M. v. CAS of Ottawa, 2021 ONSC 8360 the Divisional Court focussed on procedural fairness and due process in summarizing the considerations in relation to adjourning a hearing:

[240] Whether to grant or refuse an adjournment of a hearing is a matter of judicial discretion. Factors for a court to consider in deciding to grant or refuse an adjournment, include:

(a) the overall objective of a determination of the matter on its substantive merits;

(b) the principles of natural justice;

(c) that justice not only be done but appear to be done;

(d) the particular circumstances of the request for an adjournment and the reasons and justification for the request;

(e) the practical effect or consequences of an adjournment on both substantive and procedural justice;

(f) the competing interests of the parties in advancing or delaying the progress of the litigation;

(g) the prejudice not compensable in costs, if any, suffered by a party by the granting or the refusing of the adjournment;

(h) whether the ability of the party requesting the adjournment to fully and adequately prosecute or defend the proceeding would be significantly compromised if the adjournment were refused;

(i) the need of the administration of justice to process civil proceedings in an orderly manner; and

(j) the need of the administration of justice to effectively enforce court orders. That a party is self-represented is a relevant factor in the exercise of the court’s discretion to grant or refuse an adjournment because a part of the court’s obligation is to ensure that all litigants have a fair opportunity to advance their positions.

Analysis

[18] This high conflict case has stumbled through our court process for a very long time. It is not fair to the parties. And it is especially not fair to Bryce who was less than two years old when the parties separated, and now he’s four. More than half his life has been uncertain while his parents fight about everything. And with the mother requesting permission to relocate to Ireland, some very important decisions need to be made, so that both parties will know how to plan their lives. As the Court of Appeal stated at paragraph six in Ammar v. Perdelwitz, 2022 ONCA 425:

Delay in family proceedings is antithetical to the best interests of the children who require finality and peace: Rigillo v. Rigillo, 2019 ONCA 647.

[19] The father says if he can’t find a lawyer in time for the March 11, 2024 trial sittings, he shouldn’t be forced to represent himself.

a. The mother’s counsel suggests that with the file having been made “trial ready” by former counsel, the father’s legal training equips him to represent himself at a March 2024 trial, in the event that he can’t find another lawyer.

b. But I agree with the father. He may be a lawyer, but he has no experience in family law. And even family lawyers are unwise to represent themselves.

c. He’s an unrepresented litigant who wants to be represented. The fact that he’s a lawyer does not diminish his entitlement to proper legal representation.

[20] It is regrettable that the father is currently without counsel.

a. I draw no inference against him from the fact that there was a breakdown in the solicitor-client relationship which caused his former lawyer to bring a successful motion to be removed from the record. His changed circumstance constitutes a reasonable explanation for his request to adjourn the trial.

b. But on the issue of how much more time he needs, I question the suggestion during submissions that the father was “thrown a curveball” when his lawyer was removed from the record on January 3, 2024.

c. His solicitor of record brought the motion in December 2023, just weeks after both lawyer and client committed to the March 11, 2024 trial sitting.

d. The father’s extensive list of complaints about former counsel suggests he must have been aware that his legal representation required review. Once he suspected or concluded that he needed a new lawyer, he should have initiated a search for replacement counsel in a more timely manner. Neither he nor his lawyer should have committed to the March 2024 trial date if either of them had reason to suspect their solicitor-client relationship was insecure.

e. As well, it would have helped if the father participated when his lawyer brought a motion to be removed. If he agreed to discharge his lawyer he could have signed a Notice of Change of Representation. If he didn’t agree, he should have filed responding motion materials and he should have attended (or had an agent attend) for the two court dates which were scheduled.

f. The essence of the father’s position is that he hasn’t had enough time to find replacement counsel. That may or may not be true. But he likely wouldn’t be in this predicament if he had started looking sooner.

[21] The mother strenuously opposes any adjournment of the trial.

a. Her lawyer suggests the father’s dilemma is of his own making, and he has to accept the consequences. He shouldn’t have “lost” his former lawyer. He should have started looking for a new lawyer sooner. There are lots of lawyers to choose from and with time running out, the father needs to focus on lawyers who would be available quickly.

b. While the mother’s frustration is understandable, I find that it is reasonable for the father to want to retain experienced counsel to deal with some extremely important parenting issues (what could be more important than permanent relocation of a child, out of Canada?).

c. Every day in family court we deal with people who could and should have done things differently. But that’s not the test. However we got here, it is in everyone’s best interests that the father have counsel at this trial. Indeed, the trial is more likely to proceed efficiently and productively if both sides have legal representation.

[22] But having said that, the mother’s frustration – and concern about procedural fairness – is more than justified.

a. While both parties have to assume some responsibility for the various delays, even the father acknowledges that much (if not most) of the delay has been created by him and/or his former lawyer. And clearly, the mother is entirely blameless for the significant additional delay which the father now proposes.

b. The issues in any family case should be dealt with quickly and efficiently. That applies doubly where children’s issues are involved. And in this case there is a pivotally important relocation issue, the determination of which will have enormous impact on the best interests of four-year-old Bryce.

c. Beyond “time always being of the essence”, in this case we have a real and immovable deadline. I make no comment on the merit of the mother’s request to relocate to Ireland. But that question has been long-delayed and needs to be answered before September 2024, when Bryce starts school.

d. In determining a request for an adjournment of a hearing, I must consider the potential (and comparative) prejudice to each party, depending on whether the adjournment request is granted or declined.

e. While the father claims the mother would not be prejudiced by adjourning the trial, in reality the father’s proposal to adjourn the trial to October 2024 would create significant strategic advantage for the father, and corresponding disadvantage for the mother. Most importantly, by seeking to delay the trial until after a critical date in the mother’s relocation proposal, the father is prejudicing the child by pre-empting the court’s ability to give timely consideration to an arrangement which the mother characterizes as being in the best interests of the child.

f. The father seeks an adjournment of the trial so that he is given a fair opportunity to present his case. Fairness is a theme which transcends all consideration of adjournment requests. But fairness for the father should not come at the expense of depriving the mother of her opportunity to have her position considered fairly and in a timely manner.

g. Any adjournment of the trial will create some prejudice for the mother. A shorter adjournment which still leaves time for consideration of the September school deadline is more likely to be compensable in costs. A longer adjournment which extends beyond September 2024 would create serious prejudice for the mother which would not be compensable in costs.

[23] The court is left with three basic choices. Fortunately, there is common ground in each party’s “second choice”.

a. The mother’s first choice is to leave the trial on the March 2024 list. I agree it should have proceeded on that list, and there may be cost consequences for wasted preparation if the trial is delayed. But the importance and complexity of the issues mitigates in favour of an adjournment. Despite his legal qualifications, the father can’t be expected to represent himself at a 10-day March 2024 trial. I accept his explanation that he should have a reasonable opportunity to retain experienced counsel.

b. The father’s first choice is to adjourn the trial to October or November 2024. Quite apart from the fact that the mother’s lawyer is unavailable in October, the father’s request for such a lengthy adjournment is unreasonable. The mother clearly identified her proposal to relocate to Ireland long ago. Previous delays caused by the father have thwarted the mother’s opportunity to have her claims dealt with in a timely manner. The father is fully aware that an integral part of the mother’s proposal is that the child should start school in Ireland in September 2024. I make no prediction as to the likely result at trial (and I won’t be the trial judge). But it would be unfair to the mother (and to Bryce) to have this important issue decided by default, by virtue of the trial occurring after the intended departure date had gone by.

[24] As stated, both parties say a summer 2024 trial is their second choice. But even that is somewhat complicated and contentious.

a. In Hamilton, we have trial sittings essentially on a monthly basis. Most trial sittings run four weeks. But the sittings in each of June, July and August 2024 are only two weeks long.

b. For a number of reasons, nobody is suggesting the August 2024 sittings. Apart from the availability of the participants, a trial in August really wouldn’t allow enough time for a decision to be made in time for the September 2024 school issue.

c. The parties have primarily discussed the sittings commencing July 1, 2024. But even that entails uncertainties.

d. With a trial estimate of 10 days, and with July 1st, being a holiday, even if this trial is called on the very first day of the sitting, it may not be completed. If it’s not completed, it’s unclear when a partially heard trial could be resumed. We don’t yet know the judge or the judge’s availability, but it’s not uncommon for judges and lawyers to have vacation plans during the summer.

e. Beyond that, even if the trial is completed during the July 1st sittings, on a complicated case like this the judge will require time to write a decision. Customarily, judges are allowed up to six months to issue their decisions. We frequently try to issue them much more quickly. But I cannot commit an unknown judge to an unrealistic deadline, bearing in mind that the parties would be hoping for a decision on the relocation issue prior to September.

f. The alternative is the two-week trial sittings commencing June 10, 2024. With no intervening statutory holiday, this sitting really is 10 days long. On the one hand, I am advised by the Trial Co-ordinator that this list is more crowded than the July 1st list. But there’s still a realistic likelihood that the trial would be reached. And while there are the same uncertainties about whether the trial would be completed within the sitting, starting in June would create a greater likelihood of finishing the trial prior to September, if more trial days were needed. The June sittings would also give the trial judge more time to render a decision.

[25] Obviously, the purpose of the adjournment is to accede to the father’s request that he be given more time to retain replacement counsel.

a. While a July trial date would give the father a bit more time, I am confident that a June 2024 trial date will still give the father a reasonable amount of time to retain and instruct a lawyer.

b. He knew by December 2023 that he needed to find a new lawyer. Now that he can tell prospective lawyers the actual date of the trial, this gives the father a reasonable amount of time retain replacement counsel.

c. As with everything else on this motion, it’s a balancing act, trying to maintain fairness for both parents, while also giving primacy to this young child’s need for timely resolution of important issues.

[26] The mother requests that if the March trial is adjourned, any new date should be peremptory on the father. The father does not agree that a summer trial date should be peremptory.

a. This brings us back to overriding considerations including the primary objective of the Family Law Rules; the practical consequences of adjournments on both substantive and procedural justice; and the need for the administration of justice to effectively manage and control its process.

b. The reality is that the father has been responsible for significant delay, and any further delay beyond June 2024 will give him strategic advantage.

c. I have given the father the benefit of doubt on many topics. But during the course of this litigation he has demonstrated a tendency to come up with a lot of complaints and excuses, and I must apply a realistic assessment of his conduct and approach during this litigation.

d. The father needs to clearly understand that he is being granted a time-limited adjournment for very specific reasons. But after that, there is no room for further excuses or delay.

e. The adjourned trial will be peremptory on the father.

[27] The mother requests that the father be prohibited from bringing any further motions.

a. The father’s resistance to this restriction likely re-enforces the mother’s fear that the father intends to use the extra time he is being given add further pre-trial complication and expense to this case.

b. I would echo Justice Brown’s earlier comments on this file. After about six Trial Scheduling Conferences on this two-year-old file, the expectation would be that all disclosure or other interim issues should have been resolved long ago, and any motions should have been brought before the matter was placed on the trial list.

c. However, if the father is going to be retaining new counsel – and in light of the father’s allusion to ineffective representation by former counsel – I will not predetermine the issue of what his future lawyer can or cannot do.

d. Fortunately, I don’t have to make a determination in this respect. The November 2023 Trial Scheduling Endorsement Form agreed to by the father while he had counsel sets out that no further motions are to be brought without the permission of the case management judge.

e. So a mechanism to regulate future motions is already in place.

f. For clarity, the father should understand that the only reason the trial is being adjourned is for the express purpose of allowing him to find a new lawyer. In every other respect, he and his former lawyer made a representation at the November 2023 Trial Scheduling Conference that the case is “trial ready”. The adjournment should not be perceived as an opportunity to add further complication and delay to the case.

[28] The mother requests that the order in relation to the sale of the matrimonial home be changed. If the trial is being delayed, the sale should also be delayed.

a. As stated, the mother submits there is a sequential relationship between the trial and the sale. She says the trial should go first, because the parties need to know the outcome of the substantive issues in this case – not only relocation, but also property and support -- in order to plan their lives and arrange future housing. If the house sells before the parties know where they stand, the mother and child will have to scramble to find temporary accommodation, creating needless disruption and uncertainty for Bryce.

b. The father insists the house needs to be listed for sale by May 1, 2024 – as previously agreed – because it is unaffordable.

c. In Adler v. Adler, 2016 ONSC 386 Justice Kiteley held that in granting an adjournment request, the court has discretion to impose conditions.

d. I agree with the mother that as a condition of the adjournment granted to the father, there should be a brief delay in the listing of the matrimonial home. Considering that the parties separated in September 2021, a slight delay in listing the house would not be unreasonable.

e. The court’s objective is to promote stability and certainty in the lives of the parties and the child. This is the only home Bryce has lived in. Eventually he will have to move. But it is not in the child’s best interest for the mother to prematurely interrupt that stable environment for the child, without being in a position to arrange reasonable alternate accommodation.

f. The listing date will be delayed to better align with the re-scheduled trial.

The Order

[29] The trial of this action is adjourned from the March 11, 2024 sittings to the sittings of June 10, 2024, Purge Court June 3, 2024 at 9:00 a.m.

[30] The purpose of the adjournment is to allow the father a reasonable opportunity to retain counsel to represent him at trial.

[31] If the trial is not reached during the two-week June 10, 2024 sittings, there shall be a presumption that the trial will carry over and be heard during the two-week sittings of July 1, 2024, with Purge Court June 24, 2024 at 9:00 a.m.

[32] If the trial is reached but not completed during the June 10, 2024 sittings, there shall be a presumption that the trial will continue as soon as possible after the completion of those sittings, and subject to any other direction based on the availability of the presiding trial Judge, if possible the trial shall continue on the July 1, 2024 sittings.

[33] Counsel (including future counsel) and parties should be mindful of these scheduling commitments, as the priority will be to complete this trial as early in the summer of 2024 as possible.

[34] These adjournment dates are peremptory on the father.

[35] The deadline for the listing of the matrimonial home for sale shall be changed as follows: The property shall be listed for sale by June 3, 2024, with a closing date no sooner than August 2, 2024. These dates shall be subject to change by mutual agreement between the parties.

[36] Previous deadlines for filing documents and disclosure prior to trial, as set out in the Trial Scheduling Endorsement Form, are extended by 60 days, subject to any other written agreement between the parties.

[37] This court makes no determination with respect to the ability of either party to bring further motions, as this contingency is specifically dealt with in the Trial Scheduling Endorsement Form, which sets out that no motions are to be brought without leave of the case management judge.

[38] Neither party obtained their first choice, so it’s unclear if costs will need to be addressed.

a. If the Applicant seeks costs, his written submissions shall be served and filed by February 16, 2024.

b. If the Applicant does not serve written submissions by that date, and if the Respondent seeks costs her written submissions shall be served and filed by Feb 23, 2024.

c. In either scenario, responding submissions shall be served and filed by March 1, 2024, with any reply to be served and filed by March 8, 2024.

d. Costs submissions are to be no longer than two pages, plus a Bill of Costs and any other attachments.

Justice Alex Pazaratz Date: January 29, 2024