Court File and Parties

COURT FILE NO.: 421/21 DATE: December 19, 2024 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Joshua Markowitz, Applicant AND: Julia Paolini, Respondent

BEFORE: The Honourable Mr. Justice A. Pazaratz

COUNSEL: Jordan Welsh, Counsel for the Applicant Monica Scholz, Counsel for the Respondent

HEARD: December 18, 2024

Endorsement

[1] This motion to adjourn a trial boils down to a very simple policy issue: If a lawyer commits to appearing for a 10-day trial on a specific trial sitting – and if the trial is not reached – should the trial automatically carry over into the next (or subsequent) trial sitting(s)? Has the lawyer made a blanket commitment to proceed with this trial, whenever it is called?

[2] The Respondent mother’s December 10, 2024 motion requests:

a. That a trial be adjourned to the next sitting able to accommodate a 10-day trial, that is available to the court, the parties and counsel. b. That the father pay costs “thrown away” in favour of the mother, as a result of the adjournment.

[3] The mother’s December 10, 2024 affidavit includes the following narrative:

a. The parties lived together between October 2018 and February 2021. b. They have a six-year-old daughter Brooklyn who has resided with the mother since separation. The mother was always the primary caregiver. c. The father was always fixated on making money and worked long hours as an HVAC technician. d. The mother had to bring a motion to obtain child support. e. The father has claimed equal parenting time to minimize his child support. f. The father has not served updated financial statements as required by the Rules. g. The father’s February 2022 financial statement did not mention a company which he had incorporated in January 2022, but only recently disclosed. h. At the February 2024 Trial Scheduling Conference the father did not provide an updated financial statement or other information indicating any change in circumstances. The TSEF indicated the father’s boss at Lancaster Heating & Air would be giving evidence about the father’s work schedule and availability -- a key trial issue. i. An 8-to-10 day trial was set for the four-week sittings commencing October 28, 2024, Purge Court on October 21, 2024 at 9 a.m. j. Updated financial statements were to be exchanged by October 7, 2024. The mother provided her financial statement. The father did not. k. On October 8, 2024 the mother’s lawyer Scholz emailed the father’s lawyer Welsh addressing a number of trial issues, and specifically requesting disclosure and an updated financial statement. l. On October 10, 2024 Welsh emailed Scholz that a financial statement would be sent the following day. m. On October 16, 2024 Scholz sent the mother’s Trial Readiness Form, indicating she was prepared to proceed to trial. The mother anticipated that the father’s pending disclosure would confirm that the father’s income as an HVAC installer had continued to increase, and that the father’s employer would give vital evidence relating to the father’s work schedule. n. At 4:40 p.m. on Friday October 18, 2024 – 20 minutes before the close of business and without enough time to try to add the matter to the October 21, 2024 Purge Court list – the father served a “bombshell” financial statement which indicated that the father had apparently quit his job months earlier, but hadn’t disclosed this. Although he had barely finished his apprenticeship, he decided to start his own business. The father’s lawyer sent an email advising that the father anticipated his annual income from the business would be around $100,000.00, which was lower than his 2023 employment income. However the father was agreeable to basing support for 2024 on his 2023 employment income. o. This significant change in the father’s circumstances meant that much of the preparation by the mother’s lawyer had been wasted. p. The lawyers communicated with the family court trial co-ordinator exploring the possibility of a short adjournment of the trial. They were advised that (as of October 2024) the next available date for a 10 day-trial was the sittings of July 28, 2025. q. The mother now requests an adjournment for the following reasons: i. The matter was not reached during the October 28, 2024 sittings. It was carried over into the November 25, 2024 sittings, but again it was not reached. ii. Scholz does not have 10 days available until early June 2024. iii. The father still hasn’t provided basic disclosure, as requested on October 10, 2024. iv. Given the disclosure problems and a complete change in the father’s employment circumstances, a further settlement conference would be appropriate. r. The mother has incurred approximately $20,000.00 in costs which are now wasted because of the father’s refusal to disclose his finances and significant changes to his personal situation. The mother seeks $20,000.00 costs “thrown away.”

[4] The father’s December 12, 2024 affidavit includes the following narrative:

a. There is no justification for adjourning the trial. The mother’s motion should be dismissed. b. The father’s change from “employment” to “self-employment” does not impact the main issue for trial which is parenting. c. It is unreasonable for the mother’s lawyer to be unavailable for an 8-10 day trial until June 2025. Scholz has presumably prepared for trial and should be ready to attend when called. d. The matter was not reached during the October 28, 2024 sittings. It was to be spoken to on the November 18, 2024 Purge Court list, but Scholz was unavailable (at a medical appointment) when the matter was called. Justice Walters left the matter on the trial list for the subsequent three-week trial sitting commencing November 25, 2024. e. The mother has been unreasonably restrictive with respect to the father’s time and involvement with Brooklyn. f. A May 31, 2023 OCL report concluded the interim arrangement is not in Brooklyn’s best interest and she needed more time with the father. The father relies on this report which included a recommendation of a 2-2-3 shared parenting arrangement. g. The father suspects the mother is seeking to adjourn the trial to prolong a favourable status quo and deprive Brooklyn of additional time with the father. h. The father’s switch to self-employment does not impact on the primary issue: parenting. He has more control of his schedule so he is more available to be with the child. i. Self-employment may mean the father’s income may drop slightly to around $100,000.00 as the business is just starting on a full-time basis, but the father is prepared to continue to use his 2023 income of $137,313.00 for support purposes. j. The mother has been aware of his new self-employment situation since October 18, 2024. The father has provided comprehensive financial disclosure about his business. k. The father had incorporated his company on October 31, 2022, and not in January 2022 as the mother alleges. l. There are no property issues in dispute. m. The father adjusted his interim child support after disclosing his 2023 income tax return. n. The father’s lawyer never agreed to adjourn the trial for a lengthy period. He advised that if necessary the father would agree to adjourn the trial for one month, but it turned out that wasn’t an option. o. The father disputes the request for costs of $20,000.00 “thrown away”. The trial is mainly about parenting, and the change in employment status does not affect parenting. p. The father seeks costs in relation to this motion and also for November 18, 2024 when the mother’s lawyer failed to attend for Purge Court.

[5] The mother’s December 16, 2024 responding affidavit includes the following narrative:

a. There are two issues for trial: parenting and the father’s income for support purposes. b. All of the settlement discussions, conferences, and trial preparation were based on the assumption that the father’s employment income and hours would remain the same. c. She denies withholding the child from the father. d. Both parties took issue with the OCL’s section 112 report. Both filed notices of objection. The father is simply selecting portions of the report that he likes. e. There are no urgent parenting issues. f. The mother filed a Trial Readiness Form which indicated she was ready to proceed during the October 28, 2024 sittings. The mother did not want to adjourn the trial. The issue of an adjournment only arose because of the father’s late disclosure of information he should have disclosed months earlier. g. The father has never provided an explanation for his non-disclosure.

[6] The non-disclosure issue is much more important than the father contends.

a. If part of the parenting issue related to the father’s work schedule and his availability to be with the child, any change in his schedule and availability would have been quite relevant and should have been communicated not only when it occurred – but actually as soon as it was contemplated. Self-employment might make the father more available. It might make him less available. It might change when he’s available. The mother was entitled to immediate notification of this change, to be able to prepare for trial. b. Similarly, the father’s switch from employment to self-employment is more relevant to the support issue than he acknowledges. It’s not good enough to say his income from self-employment will be a bit lower, but he’s prepared to use his 2023 employment income. Timely disclosure would have better enabled the mother’s lawyer to determine the father’s actual income from self-employment, taking into account the various factors which might lead to income being imputed to a self-employed payor. As well, the mother should have had an opportunity to address what the father’s current income would have been had he remained at his place of employment.

[7] I accept that this is primarily a parenting dispute.

a. Cases involving children should be resolved as quickly as possible. Parenting trials should not be delayed. b. The father says there is an urgent need to address the current parenting schedule. The mother says there is nothing particularly urgent about this case. While the parties filed extensive materials, they provided scant information about the issue of urgency. c. I am mindful that there is a May 2023 OCL report which is already a year-and-a-half old. The report is disputed by both parents (although neither advised me which portions of the report they dispute). If the report identified an urgent or emergency situation, either party could have taken the necessary steps to have any urgency addressed. d. Where an OCL report has been prepared, it is important to ensure that a trial takes place as quickly as possible, while the clinician’s factual observations and recommendations are still timely. The older the report, the less weight it may attract. At a certain point the report may become so old that an update is contemplated. This could add the additional complication of having to expose a subject child to further intrusion. e. The priority to be given to parenting cases generally mitigates against an adjournment. f. But the reality is that most of the cases which have created a backlog in our family court trial list involve parenting issues. g. I agree with the father that all parenting cases are important and should be dealt with quickly. But we don’t have a magic wand to create more judicial resources than the government has provided.

[8] Although the father’s disclosure was inexcusably -- and unexplainably -- late, during the intervening period sufficient time has elapsed that many of the disclosure deficiencies or questions could have been addressed.

[9] So while there are many relevant considerations here, ultimately the adjournment request boils down to the delicate balancing of judicial availability and solicitor availability.

a. The mother’s lawyer made a commitment to be ready for trial during the sittings of October 28, 2024. Notwithstanding everything else, the mother’s lawyer filed a Trial Readiness Form which confirmed her availability. b. As it happens, through no fault of either party, the matter was not reached during the sittings of October 28, 2024. It carried over into the sittings of November 25, 2024, but once again as a result of a backlog in our court system, and a lack of available judges, the trial was not reached. c. As an aside, my most recent information from the trial co-ordinator is that we anticipate more judicial availability during January 2025. So there is perhaps an increased likelihood that this trial could be reached during the four week sittings commencing January 6, 2025 (but no guarantees). d. However, Scholz advises that she is not available to do an 8-to-10 day trial in January, and she wouldn’t have time in her schedule until the summer of 2025. e. And my most recent information from our trial office is that a 10 day trial now can’t be scheduled prior to the October 6, 2025 sittings. That’s a significant further delay which obviously isn’t satisfactory.

[10] The obvious best result would be to roll the matter over to the next trial list and hope that it gets called in January 2025.

[11] But our family court system needs to consider many factors, including encouraging and respecting the solicitor-client relationship.

a. We want people to have legal representation, whenever possible. b. We want experienced lawyers to continue to do family law. c. When lawyers make a commitment to be available to proceed with a trial during a specific trial sitting, we impose an absolute expectation that the lawyer will be available for the trial sitting they agreed to. We rarely accept excuses. d. But we cannot expect or presume that if a lawyer commits to a specific trial sitting, that they will necessarily be available during the following trial sitting (or successive trial sittings). e. Everyone – judges, lawyers, litigants, witnesses – all have to make adjustments, to give priority to important cases – particularly children’s cases. f. But since the court was unable to call this matter during the October 28, 2024 sittings (which Scholz committed to) or even the November 25, 2024 sittings (which Scholz didn’t commit to), I am not prepared to force Scholz to proceed with this trial during months in 2025 which Scholz was never asked to commit to. g. An 8-to-10 day trial is a major undertaking for a lawyer. Particularly when dealing with senior counsel, the court cannot simply expect a lawyer to disregard commitments to other clients and other courts – or even personal commitments. h. Where a lawyer commits to a particular trial sitting, we cannot impose an expectation that they will be on permanent standby to be available for every subsequent sitting until the matter is called.

[12] The motion for the adjournment is granted. (Both counsel confirmed that, if necessary, they are available for the sittings of October 6, 2025.) The 8-to-10 day trial is adjourned to the sittings of October 6, 2025, Purge Court September 29, 2025 at 9 a.m.

[13] The motion for costs “thrown away” is dismissed.

a. As stated, it is quite arguable that the father’s late disclosure impacts on both the support and parenting issues. b. But the magnitude of that impact – the amount of legal preparation which was potentially wasted – is unclear at this point. The trial judge will be in a better position to determine this aspect of costs at trial. c. Not to be forgotten: Neither party is really to blame for the fact that the court simply didn’t have sufficient judicial resources to call the matter to trial during the scheduled sittings. The significant and unavoidable rescheduling of the trial will inevitably result in both lawyers having to update their files and refresh their preparation.

[14] I am also not prepared to deal with the father’s request for costs in relation to the November 18, 2024 Purge Court attendance with Justice Walters. Costs should be dealt with at each step, and Justice Walters’ endorsement is silent on the issue of costs.

[15] I am prepared to deal with costs in relation to today’s motion. I would remind the parties however about divided success (the mother was successful on the adjournment; the father was successful resisting the very sizeable “costs thrown away” request). If the parties cannot resolve costs, written submissions (no longer than two pages, including hyperlinks, plus any offers) to be served on the following schedule:

a. Mother’s submissions by January 10, 2025. b. Father’s submissions by January 20, 2025. c. Any reply by mother by January 27, 2025.

[16] Finally, the mother has requested a further Settlement Conference. This is where we need to get the parties to pay more attention to this file.

a. It is inexcusable that previous attendances (eg. the February 2024 Trial Scheduling Conference) were undermined by the fact that relevant disclosure was missing and/or concealed. It is inexcusable that there was a flurry of disclosure immediately prior to the scheduled trial, after many months of inactivity. b. We’re not going to allocate any more conference time until both parties have done everything possible to be trial ready (which is usually a good way to actually avoid a trial). c. There shall be a mutual order for Questioning, if it has not yet taken place. This is mandatory. The materials confirm that there are far too many unanswered questions on this file, and if parties want to ask for an 8-to-10 day trial, they need to put more work into being ready for that trial. The Questioning is to be completed no later than March 31, 2025. d. Only after all disclosure issues have been fully resolved, and only after Questioning has been completed: the parties may then request a further Settlement Conference if both parties agree that it would be helpful.

Justice Alex Pazaratz Date: December 19, 2024