Court Information

Citation: Bursey v. Mirabi, 2017 ONCJ 157

Court: Ontario Court of Justice Location: A. Grenville & William Davis Courthouse, 7755 Hurontario Street, Suite 100, Brampton, Ontario, L6W 4T6V

Date: March 6, 2017

Court File: Brampton 997/13

Parties and Counsel

Applicant: Christina Maria Bursey Counsel: Mark E. Skursky Esq.

Respondent: Suhrab Mirabi Counsel: Reesa Heft

Before: Justice P.W. Dunn

Decision

[1] Motion Before the Court

Before the Court was the Respondent's motion dated 24 January 2017. It requested permission to file an Amended Answer to change the original one dated 9 September 2013, filed over three-and-a-half years ago. The Applicant opposed this motion and asked that it be dismissed.

[2] Legal Authority Cited

Ms. Heft relied on Rule 11(3) as authority for the Respondent's right to file an Amended Answer (Family Law Rules O.Reg. 1149/99 as am.) which states:

On motion, the Court shall give permission to a party to amend an application, answer or reply, unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate.

[3] Respondent's Arguments

Ms. Heft argued that the Amended Answer must be accepted by the Court because the Applicant would not be disadvantaged by an Amended Answer, and even if she was, costs or an adjournment would compensate her.

The Respondent's lawyer further submitted that:

a) There is no time limit in Rule 11(3) for when an Amended Answer can be brought, and over three years after the filing of the original Answer is not a barrier;

b) Rule 11(3) does not require that the merits of an Amended Answer need be addressed, so there should not be an assessment of the facts;

c) If the Applicant wished to file a Reply to an Amended Answer, she could be compensated in costs, and an adjournment would give time for the Applicant to produce a Reply.

[4] Court's Consideration of Merits

Although Rule 11(3) does not stipulate that the merits of a proposed Amended Answer be considered, it would be sagacious to consider them and not regard Rule 11(3) in a vacuum.

[5] Case History

In the history of this case, on 25 November 2013, the Respondent was present with a lawyer for an initial case conference, and the next return date of 5 March 2014 was established and the Respondent would have known about it.

On 21 January 2014, the Respondent's then lawyer was removed as his counsel of record, and thereafter he was self-represented until 29 April 2016.

On 5 March 2014, the Applicant and Mr. Skursky attended, and the Respondent was absent. Final Orders were granted that day. The Applicant received final custody and primary residence of both children and the Respondent was granted final access.

After the 5 March 2014 Final Orders, the Respondent attended Court without a lawyer for seven case conferences between 2 June 2014 and 24 February 2016, without making any request to file an amended Answer.

At the 29 April 2016 conference, Ms. Heft attended with the Respondent as his new lawyer with a request that the Court accept an amended Answer.

[6] Respondent's Proposed Changes

The Respondent was now seeking in his Amended Answer:

(1) Joint custody with shared residency.

(2) Substantially increased access.

(3) The temporary 25 November 2013 Order that required the Respondent to pay child support be terminated, and the Applicant should now pay child support and special expenses to the Respondent. (The Applicant had withdrawn her request on 12 September 2016 for the Respondent to pay special expenses).

(4) The Court should dismiss the Applicant's claim for spousal support. (The Applicant had already withdrawn her request on 24 February 2016 for the Respondent to pay spousal support).

[7] Court's Decision

The Respondent's motion is dismissed. The reasons are:

1. An Amended Answer should not be accepted in a proceeding to amend Final Orders.

2. It is arguable that an Amended Answer should not be accepted even where temporary orders have been made.

3. For the Court to accept this Amended Answer would disadvantage the Applicant because:

   (i) It would have the effect of restarting the entire litigation process.

   (ii) The Applicant and most importantly the children have relied on the provisions of the 5 March 2014 Orders for almost three years. A litigant should be entitled to depend on the status achieved to date. If not, there would be uncertainty at all stages, up to the point of final judgment.

   (iii) Even if the Applicant could receive costs for the time and effort to submit a Reply to the Respondent's Amended Answer, it would not compensate her for the large legal costs in defending her position reached in the original Final Orders.

4. This case is essentially complete. All that is left is to determine the Respondent's income and settle an order for child support.

5. Rule 11(3) could not have been intended to open the door to a complete reassessment of a party's case. Take the hypothetical example of a party who wishes to file an Amended Answer to request new claims on the verge of trial. In my opinion, that would be unreasonable.

6. The appropriate time for bringing amended documents is relatively early in the proceeding, when the parties are still formulating their positions, and certainly before there are Final Orders.

7. The proper forum for this Respondent's demands is in a Motion to Change. A Rule 11(3) Amended Answer is not an alternative to it.

Costs Submissions

Any request for costs regarding the Respondent's motion is to be served on the other party's lawyer and to be submitted to Court by 31 March 2017 to Marty Starkman, Judicial Secretary, Ontario Court of Justice, 7755 Hurontario Street, Brampton, Ontario L6W 4T6 by facsimile at 905-456-4829 or email at Martin.Starkman@ontario.ca.

An Answer to a Request for Costs is to be served and filed by 15 April 2017.

A Reply to an Answer for a Request for Costs is to be served and filed by 28 April 2017.

Next Steps

The return date is 16 May 2017, 10 a.m., courtroom 202 for a settlement conference before Justice L.S. Parent as case management Justice.

Justice P.W. Dunn