COURT FILE NO.: FS-24-46777-0000 DATE: 2024 04 26

SUPERIOR COURT OF JUSTICE – ONTARIO 491 Steeles Avenue East, Milton ON L9T 1Y6

RE: Bruna Andria Maria Amato, Applicant -and- Richard Brandon Hall, Respondent

BEFORE: C. Chang J.

COUNSEL: M. Rose, for the Applicant M. White, for the Respondent

HEARD: April 19, 2024 (in-person)

ENDORSEMENT

[1] The applicant brings this motion for, among other things, a restraining order and temporary orders that she have sole decision-making responsibility and primary residence for the children of the marriage and exclusive possession of the matrimonial home.

[2] The motion was initially brought without notice on February 22, 2024 and was heard on an urgent basis by Mills J., who granted the requested order pending the further return of the motion on notice to the respondent (the “ex parte order”). The applicant requests that the ex parte order be continued and the respondent requests that it be set aside.

[3] Given the nature and effect of the ex parte order, I note the urgency associated with the release of this decision.

[4] Despite the passage of almost two months since the issuance of the ex parte order, the applicant has not commenced her application. Therefore, at the beginning of the hearing before me, I made a timetable order respecting the delivery of pleadings and scheduled the case conference.

FACTS

[5] The facts relevant to this motion are, for the most part, uncontested and can be summarized as follows:

a. the two children of the marriage are AH (currently 9 years old) and NH (currently 7 years old);

b. on February 22, 2024, further to the applicant’s request for the urgent scheduling of an ex parte motion, Mills J. heard that motion and made the ex parte order;

c. on that motion, the applicant filed her affidavit sworn February 20, 2024, in which she deposed to what she says is the risk of harm that the respondent poses to her, AH and NH;

d. after receiving the applicant’s motion materials, the respondent delivered responding materials, in which he denied all of the applicant’s allegations about the risk of harm to the applicant and the children and adduced evidence respecting what he says are material facts that the applicant omitted from the motion materials put before Mills J. on February 22, 2024;

e. during the hearing before me, the applicant’s counsel confirmed that the entirety of the applicant’s motion is based on the risk of harm that she says the respondent poses to her, AH and NH; and

f. the applicant has not yet commenced her application in this matter.

ISSUES

[6] The issue to be decided on this motion is whether the ex parte order should be set aside or continued.

ANALYSIS

Parties’ Positions

[7] The applicant submits that the ex parte order should be continued, as the respondent continues to pose a risk of harm to her, AH and NH. She argues that the respondent has been physically, emotionally and financially abusive toward her, “has become physically and mentally aggressive with” AH and NH, suffers from mental illness and is at significant risk of self-harm.

[8] The respondent requests that the ex parte order be set aside. He submits that the applicant omitted material facts in the motion materials put before Mills J. on February 22, 2024. The respondent further submits that the applicant’s allegations of the risk of harm that he poses to her, AH and NH are false and completely unsupported by the evidence.

[9] The applicant denies the respondent’s claims that she omitted material facts from her ex parte motion materials and submits that: 1) the applicable page limits set out in the Notice to the Profession and Parties limited her ability to file fulsome materials; and 2) the subject omissions were immaterial, as they were not “serious” or “significant”.

Law

[10] The law respecting the bringing of ex parte motions is settled.

[11] Absent exceptional circumstances, matters brought before the court should be on notice to any party that may be affected by the order sought.

[12] The applicable rationale is as set out by D. M. Brown J. (as he then was) in Re Sprott Resources Lending Corp., 2013 ONSC 4350, at para. 11,

[j]udges learn from experience that most stories have two sides to them, thus the great reluctance of judges to deal with requests for orders on an ex parte basis... Such applications mark a radical departure from the adversarial approach to truth-finding upon which our common law system is built and an exception to the general transparency and openness of our courts when they make orders which affect other parties.

[13] A party moving ex parte must fully and frankly disclose all material facts, including those that do not support that party’s position (see: Ruby v Canada (Solicitor General), 2002 SCC 75, at para. 27; A.M. v J.M., 2016 ONCA 644, at para. 28).

[14] The applicable rationale is fairness and of particular concern is the reliance placed by the court on the applicant’s full and proper discharge its duty to fully and fairly disclose all material facts. As stated by Cameron J. in McGrath v B.G. Schickedanz Homes Inc. (2000), 11 C.P.C. (5th) 235 (Ont. S.C.), at paras. 34 and 36,

[e]x parte motions are a very serious matter. They can have a devastating effect on an absent responding party. The Court relies upon the applicant for full and frank disclosure of all the relevant facts in the supporting affidavit material.

[a] Judge of this Court preparing for a motion brought ex parte cannot be expected to read and analyze long and complex agreements and lengthy correspondence searching out positions which might be taken by the absent party. Judges do feel compelled to prepare an ex parte matter with particular care, to the extent time permits, in an effort to prevent abuse of the absent party’s rights. The urgency of some matters often prevents preparation with the care the situation may require.

[15] The failure of the moving party on an ex parte motion to discharge its duty of full and fair disclosure is, in and of itself, sufficient grounds to set aside the resulting order (see: Misir v Misir, 2017 ONCA 675, at para. 17).

[16] In determining whether the moving party has failed to fully and frankly disclose all material facts, the applicable inquiry is not whether the subject order would have been granted had the omitted facts been disclosed, but “whether the omitted facts might have had an impact on the original granting of the order” [emphasis in original] (see: Mazza v Gucciardi, 2013 ONSC 4882, at paras. 24-26).

[17] Although most of the applicable reported jurisprudence is in the context of civil cases, the relevant principles apply equally in family cases (see: Thompson v Moldovan, 2018 ONSC 1895, at paras. 46-51).

Decision

[18] I find that the ex parte order should be set aside. The applicant made material omissions in the motion materials she put before Mills J. on February 22, 2024, which warrant the resulting order being set aside.

[19] The applicant does not dispute that she omitted from her ex parte motion materials the facts specified in the respondent’s factum. However, she argues that any omissions should be excused because she was “constrained” by the page limits set out in the Notice to the Profession and Parties. She submits that she would have properly disclosed the applicable facts if she wasn’t so “constrained”. The applicant further argues that, in any event, those omissions are immaterial, as they were neither “serious” nor “significant”.

[20] I do not accept the applicant’s arguments.

[21] That the applicant felt constrained by the applicable page limits is of no moment and does not excuse the factual omissions in her February 20, 2024 affidavit.

[22] The Notice to the Profession and Parties provides that affidavits on motions “shall not exceed 12 pages of narrative” and that exhibits “shall be limited to only the necessary and relevant evidence and are generally expected not to exceed 10 pages”. The applicant’s February 20, 2024 affidavit comprised less than ten pages of narrative and exhibited a one-page document. Furthermore, if the applicant required more affidavit and/or exhibit pages, she could have requested leave to exceed the applicable page limits. She did not.

[23] The applicant’s argument respecting the immateriality of the factual omissions in her February 20, 2024 affidavit is similarly problematic.

[24] While I do not accept that all of the items referred to in the respondent’s factum constitute material omissions, the preponderance are. In my view, those omitted facts would have had an impact on the granting of the ex parte order.

[25] The following are, in my view, some of the more significant material omissions:

a. despite specifically referring to the respondent’s mental health condition as evidence of the risk of harm that he poses, the applicant failed to advise Mills J. that the respondent’s condition is being monitored by his doctor and the respondent is receiving related therapy;

b. the applicant also failed to advise Mills J. that she also suffers from the same mental health conditions as the respondent;

c. despite specifically referring to the February 6, 2024 when she called police because the respondent allegedly assaulted her, the applicant failed to advise Mills J. that the respondent was not charged arrested or removed from the home;

d. despite alleging that the respondent has financially abused her by preventing her access to a credit card, the applicant failed to advise Mills J. that she had access to the parties’ joint account (from which account she unilaterally withdrew $50,000.00 on February 23, 2024);

e. despite stating that the respondent was previously terminated from his job due to misconduct caused by his alcoholism, the applicant failed to advise Mills J. that the subject termination was on a “without cause” basis; and

f. in support of her claim for exclusive possession of the matrimonial home in Milton, the applicant stated that the respondent “can reside with his parents; I have spoken with his mother who has agreed to let him live with her”, but she failed to advise Mills J. that the respondent’s parents live in Sarnia.

[26] The most concerning material omission from the applicant’s February 20, 2024 affidavit is the fact that, despite her claim that the respondent poses a significant risk of harm to AH and NH, the applicant left both children in his sole care on each of the four days leading up to the February 22, 2024 motion hearing. On three of those four occasions, the applicant left the children with the respondent so that she could go to the gym.

[27] The applicant submits that this omission was immaterial because: 1) “things happen” (her counsel’s words); and 2) the risk of harm posed by the respondent arises predominantly at night when he drinks, not during the day when she left AH and NH with him. Not only does this argument fail to address the issue or mitigate the impact of the applicable omission, but it is also puzzling, given that the applicant’s entire motion is premised on the significant risk of harm allegedly posed by the respondent.

[28] The applicant’s failure to fully and frankly disclose all material facts before Mills J. was, in my view, an abrogation of her duty to be honest and candid with the court. Regardless of her intention, that failure resulted in an inaccurate factual picture upon which Mills J. was asked to – and did – make the ex parte order.

[29] The ex parte order cannot stand and must be set aside.

[30] If I am incorrect in my conclusion that the ex parte order should be set aside, I would deny the applicant’s request to continue it.

[31] Other than the self-serving statements in her affidavits, the applicant has adduced no evidence to satisfy me that the respondent poses a risk of harm to her, AH or NH. The documentary evidence now before the court does not, as the applicant claims, corroborate the statements in her affidavits. Indeed, the alleged corroboration does not come from the exhibited documents themselves, but from the applicant’s opinions and conclusions drawn from her interpretations of them. I find those interpretations to be neither reasonable nor persuasive.

[32] Furthermore, there is insufficient evidence of this family’s relevant circumstances prior to February 22, 2024 – particularly respecting its finances and parenting arrangements – to justify continuing the ex parte order. Also, as noted above, the applicant has yet to issue her application and there are therefore no pleadings to properly frame the disputed issues in this matter.

[33] The applicant’s conduct is also a relevant consideration. Her approach to this motion cannot be countenanced. Not only did the applicant disregarded her duty of honesty and candour on her motion before Mills J., but she compounded that error by the positions she took on the motion before me. Among other things, the applicant’s requested that I continue the improperly obtained ex parte order without sufficient credible and/or corroborated evidence of, at least, the parenting issues. This conduct raises a serious concern that she is attempting to artificially manufacture a status quo that advantages her to the respondent’s detriment.

[34] The spectre of the chaos and “needless judicial headaches [that] have been occasioned by the improvident signing of ex parte orders” (see: J.A. v O.G., 2011 ONSC 3302, at para. 89) must be exorcised.

[35] There is therefore no reasonable basis upon which to continue the ex parte order and I would refuse to do so.

[36] In addition to the applicant’s request that I continue the ex parte order, she also made a request for alternate relief in the form of various parenting orders, including supervised parenting time for the respondent. As I advised counsel during the hearing, I decline to consider the applicant’s request for alternate relief. That request is not properly before the court (no applicable notice of motion having been served) and, in any event, the evidence does not support the granting of it.

Summary and Conclusion

[37] Based on the applicant’s material omissions in the evidence put before Mills J., the ex parte order must be set aside. Alternatively, based on the evidence and the applicant’s conduct on this motion, the ex parte order should be terminated.

[38] The applicant’s motion should therefore be dismissed and the respondent’s request to set aside the ex parte order should be granted.

COSTS

[39] At the conclusion of the hearing, counsel advised that both sides have served offers to settle that may impact the determination of costs. I therefore advised that I would receive their respective costs submissions in writing following the release of this decision.

[40] I recommend that the parties resolve the issue of costs, failing which, they are to deliver written submissions in accordance with the timetable set out below.

DISPOSITION

[41] I therefore make the following orders:

a. the applicant’s motion is dismissed;

b. the February 22, 2024 order of Mills J. is set aside; and

c. if the parties are able to resolve the issue of costs, they are to advise me through the Milton Administration Office by no later than 4:00 p.m. on May 3, 2024;

d. if the parties are unable to resolve the issue of costs, they shall deliver their respective written submissions (limited to two pages each plus bills of costs and offers to settle) to me through the Milton Administration Office as follows:

i. the respondent by no later than May 10, 2024,

ii. the applicant by no later than May 17, 2024, and

iii. there shall be no reply.

C. Chang J. Date: April 26, 2024