F. (K.) v. F. (P), 2014 NUCJ 36

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: F. (K.) v. F. (P), 2014 NUCJ 36 Date of Judgment: 20141205 Docket Number: 08-11-055- CHL Registry: Iqaluit Applicant: K. F. -and- Respondent: P.C.B.F. _____________________________________________________________ Before: The Honourable Mr. Justice E.

Johnson Counsel (Applicant): Self-represented Counsel (Respondent): Self-represented Location Heard: Iqaluit Nunavut Date Heard: November 12, 2014 Matters: Children’s Law Act, S.N.W.T. 1997, c.14 , as enacted for Nunavut, pursuant to the Nunavut Act, SC 1993, c 28 ; Family Law Act (Nunavut) , S.N.W.T. 1997, c. 18 , ss 33-36 and 38-47, as enacted for Nunavut, pursuant to the Nunavut Act, SC 1993, c 28. REASONS FOR JUDGEMENT (NOTE: This document may have been edited for publication) DISCLAIMER PAGE

Anonymized Judgment Disclaimer: This judgment has been has been anonymized at the discretion of the authoring Justice to protect vulnerable parties. Amended Decision: An amended decision was issued on December 9, 2014; the corrections have been made to the text and the amendment is appended to this judgment. I.

INTRODUCTION [ 1 ] The applicant and the respondent have litigated for the past five years while represented by lawyers over custody and access issues and the sale of a home in Newfoundland. [ 2 ] This Court made a number of orders in 2011 dealing with access issues. [ 3 ] An attempt at Judicial Dispute Resolution [JDR] in March 2012 was not successful and, later in 2012, this Court made more orders settling access issues. [ 4 ] On November 16, 2012, Justice Cooper signed a Consent Order agreed to by the solicitors for both parties that appeared to settle custody and access issues.

The division of net family property, claims for pension division, claims for reimbursement of joint payments, and the alleged diminution of investments and family monies was adjourned sine die to be brought back by either party on at least seven days notice. [ 5 ] The Consent Order also contained a number of clauses concerning the particulars of the sale of the home in Newfoundland including a clause that the net proceeds would be held in trust by the solicitor for the respondent pending the conclusion of the litigation on the matrimonial property issues. [ 6 ] In due course, the solicitors for the respondent received $63,311.67 from the sale of the home. [ 7 ] The Consent Order also contained a clause that stated The Applicant Mother shall within 15 days of execution of these Minutes of Settlement provide a written authorization to afford [the respondent] at his expense, if any, an ability to obtain copies of all investment statements, bank statements, Visa statements and all other financial statements relating to the personal financial history of the Applicant Mother during the years of marriage, and those accounts, investments and/or financial holdings currently in the name of one or both of the children of the marriage at no cost to the Applicant Mother. [ 8 ] The applicant provided the respondent with financial disclosure on September 27, 2012 and again in August 2013. [ 9 ] The applicant and respondent and their solicitors agreed to participate in a second more formal JDR on June 12-13, 2014, with Justice Tulloch in Iqaluit.

Both parties submitted details regarding their positions on the matters of division of net family property, claims for pension division, and claims reimbursement of joint payments.

[ 10 ] The JDR was not successful and I later granted the request of the solicitor for the respondent to be removed as the solicitor for the respondent and ordered that the funds held in trust be paid into the court. Those funds were paid into the court as ordered. [ 11 ] The applicant filed a motion as an unrepresented litigant returnable on September 15, 2014, requesting payment of some funds out of court.

After hearing both unrepresented parties, I issued an Order that the Clerk of the Court pay $10,273.56 to the applicant out of the $63,311.67 in court to pay debts leaving a balance in court of $53,038.11. [ 12 ] On October 14, 2014, the parties appeared before Justice Kilpatrick to address the outstanding issues that were not resolved at the JDR with Justice Tulloch. He told the parties to obtain a date for a special chambers hearing that could be heard over the telephone. There was some discussion about the propriety of some of the documents that had been filed by the respondent.

Justice Kilpatrick told the parties to ensure that all affidavits had the exhibits properly attached to the affidavits and set timelines for filing the affidavits. [ 13 ] The Trial Coordinator set the special chambers date for November 12, 2014. [ 14 ] The applicant then filed a lengthy affidavit in support of her motion to have the remainder of the money paid out of court to her in payment of what she had calculated was owed to her by the respondent for the equalization of matrimonial property, division of pensions, and for reimbursement of joint debts paid by her. [ 15 ] The respondent subsequently told the Clerk that he wanted to adjourn the special chambers motion and was given the forms to do so on consent. [ 16 ] When the respondent realized the applicant would not consent to the adjournment, he filed a lengthy affidavit with numerous exhibits.

Unfortunately it was not filed on time and I had not received the affidavit when we started the special hearing on November 12. I adjourned the hearing to November 14 to digest the respondent’s affidavit. [ 17 ] I heard from both parties again on Friday November 14. Although the applicant was self-represented at the hearing, she did have her former lawyer with her to assist her and I permitted him to address the Court.

The respondent was self-represented and requested an adjournment until sometime in the New Year so he could save the money to pay a $5,000 retainer to his lawyer. [ 18 ] At the hearing I learned that the respondent has now moved to Newfoundland with the two children while the applicant resides in Gatineau, Quebec.

There are no assets in Nunavut except for the money in court and it appeared there could have been some proceedings commenced in Newfoundland by the applicant’s family to gain access to the children. [ 19 ] The respondent’s affidavit sworn on October 8, 2014, introduced new facts that apparently contradicted his pleadings about the date of the separation and also contradicted the applicant’s affidavit sworn October 31, 2014. In that affidavit she deposes that they separated in February 2009. The respondent now deposes that they stopped living under the same roof in January 2011.

Since I did not have the pleadings with me at the time of the hearing, I was unable to verify the applicant’s allegation that the respondent’s affidavit contradicted his pleading. [ 20 ] The conflict over the date of separation is a major factual issue that impacts all of the applicant’s arguments supporting her calculations regarding the payment of the money in court to her because they are based on the February 2009 separation date. [ 21 ] In addition, the respondent’s affidavit contains allegations about the applicant’s failure to provide the appropriate access to their financial records.

He alleges that the applicant transferred $118,000 to nine accounts “unknown by and undisclosed to the respondent”. He concludes “However we cannot separate family assets without [the applicant] authorizing full disclosure of family assets she has held in trust”. [ 22 ] These issues cannot be resolved by affidavits in a telephone hearing. The parties must appear in court to give oral evidence and be subject to cross-examination before a judge can consider any factual or legal arguments. Before that occurs, the parties must follow the rules about the production of documents in civil proceedings.

Part 15 of the Nunavut Rules of Court, N.W.T. R-010-96, Rule 27, as duplicated for Nunavut by s. 29 of the Nunavut Act, S.C. 1993, c. 28 [Rules of Court], sets out detailed rules for document production.

Both parties are required to file a statement of documents. The parties must produce to the other party those documents listed in the statement requested by the other party. If either party is dissatisfied with the actions of the other party, the dissatisfied party can file a motion for the appropriate relief. [ 23 ] These steps have not occurred in this file because the parties did not focus on a trial. Instead they have engaged in protracted interlocutory proceedings over access and maintenance and now matrimonial property issues that have cost both a lot of money.

During the hearing the applicant stated that she had spent $102,000 on legal fees. The respondent must have spent a similar amount because his lawyer eventually ceased acting for him and he now needs time to save money to pay for a new lawyer to take over the file. [ 24 ] The parties are at a crossroad on this file. They can either negotiate a settlement or spend more money on legal fees. If they keep going as they have in the past there will be no money in court to divide.

The parties may also wish to consider commencing proceedings in Newfoundland and discontinue the Nunavut action because of the higher costs to litigate in Nunavut. That province would also have jurisdiction because the respondent and their children live there and the only asset in Nunavut is the money in Court. [ 25 ] The parties continue to have issues with access that were argued before me as well. However they have now agreed that the applicant will have access to the children in Newfoundland over the Christmas holidays.

The applicant will pick up the children from the respondent’s home in Lewisporte on the morning of December 19, 2014, and return them on the morning of December 28, 2014. The applicant will be responsible for all access costs. [ 26 ] It was further agreed that the applicant will have 6 additional days of access this summer to compensate for those days she will lose under the current Order of Justice Cooper because Newfoundland has more school days than Nunavut. [ 27 ] I direct that the Trial Coordinator is not to

schedule any further special chambers dates to deal with the issues in this motion without leave of a judge of this Court. When the parties have completed their document production and are ready to proceed to a trial they must file a certificate of readiness setting out the dates that they are available for a trial and a trial date will be set by the Trial Coordinator and the Senior Judge. Either party may file motions dealing with issues concerning the production of documents on a regular chambers date. Dated at the City of Iqaluit this 5th day of December, 2014. _______________________ Justice Earl D.

Johnson Nunavut Court of Justice _______________________________________________________ Amendment of the Reasons for Judgment Reserved of

The Honourable Mr. Justice Name of Judge _______________________________________________________ In paragraph [07] the pinpoint of “The Applicant Mother…”, has been changed from “Mr. F__” to “[the respondent].” Please replace the amended pages in your hard copy of the judgment.