Court File and Parties

Citation: Rubatto v. Sandoval, 2017 ONCJ 652

Date: July 14, 2017

Court File #: 526-09

Ontario Court of Justice In Chambers

Applicant(s): Vanessa Rubatto Counsel: Unrepresented

Respondent(s): Alvaro Ernesto Martinez Sandoval Counsel: Dion R. McClean

Before: Justice Marvin Kurz

Motion Notice

Motion Notice dated: June 27, 2016

On Notice: No

Filed by: Respondent

Court Order

The court orders on a temporary final basis:

1. Other: MOTION DISMISSED

Formal Order NOT required to be issued.

Reasons for Order

Background

1. This is a motion seeking leave to bring a Family Law Rule ("FLR") r. 15 motion to change a child support order. The Respondent brings this motion without notice to the Applicant and without offering his reason for his failure to serve her.

2. On May 13, 2011, Justice Sheilagh O'Connell of this court struck the Respondent's pleadings. She granted the Applicant custody and made an order that the terms of a previous temporary child support order be made final. O'Connell J. also ordered that the Respondent may not bring any future proceedings without leave of the Court.

3. O'Connell J.'s endorsement of May 13, 2011 demonstrates that she struck the Respondent's pleadings and limited the Respondent's right to bring future proceedings because she found that the Respondent misled the court, filed a false affidavit, failed to provide disclosure ordered by the court and failed to pay support, also in breach of a court order.

4. I also note that O'Connell J. refers to the fact that the Respondent had relocated to Uruguay. It is not clear whether this state of affairs was in accord with his representations to the court.

5. Despite all of the facts set out above, the Respondent now moves ex parte for the leave required by O'Connell J. As if that were not troubling enough, he relies on the hearsay affidavit of his lawyer's law clerk, without any reference to any of the matters set out above. How he or his lawyer believes that bringing a motion such as this, without notice and with such "evidence", complies with the direction of O'Connell J. eludes me. For the reasons that follow, I dismiss this motion.

Duty of Candour

6. In Sangster v. Sangster, [2003] O.J. No. 69, the Ontario Court of Appeal stated with regard to the failure to make full and fair disclosure on an ex-parte motion:

The want of full and fair disclosure is sufficient reason to allow the appeal and we would allow the appeal on that basis alone. The court is entitled to rely on materials filed being full and frank, particularly where, as here, the motion is brought on an ex parte basis.

7. In Alexander v. Cherry, [2007] A.J. No. 632, Paperny J.A., on behalf of the Alberta Court of Appeal stated that when counsel proceeds on an ex parte basis, he or she does so "...with a significant burden, namely to make full, fair and candid disclosure of all non-confidential, non-privileged material facts, including those that are adverse to his position..."

8. Rule 5.1.2 of the Law Society of Upper Canada's Rules of Professional Conduct requires of counsel:

When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy and respect.

9. Commentary 6 to that rule states that:

When opposing interests are not represented, for example, in without notice or uncontested matters or in other situations in which the full proof and argument inherent in the adversarial system cannot be achieved, the lawyer must take particular care to be accurate, candid and comprehensive in presenting the client's case so as to ensure that the tribunal is not misled.

10. Here, the duty of candour set out in the authorities cited above has not been met. In fact, it appears that vital information has been withheld, and then shielded by the use of a law clerk as the affiant, rather than the Respondent himself. I am quite concerned by that state of affairs.

Improper "Information and Belief" Affidavit of Law Clerk

11. Further, I note that the affidavit of the law clerk states that she has knowledge of the matters to which she swears because of her role as a law clerk in the firm of Rutman and Rutman PC. She then goes on to make representations about the Respondent's income without citing the source of what is clearly single or even double hearsay evidence.

12. This kind of affidavit violates Family Law Rule ("FLR") r. 14 (18) and (19). Subrule 14(18) sets out that an affidavit for a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit. Subrule 14 (19) requires a person swearing an affidavit containing information learned from somebody else to identify the source of the information by name. That requirement has not been met here.

13. The practice of swearing such affidavits, where someone with no obvious knowledge of a matter swears to a state of affairs without following the very clear directions of the FLR is a clear and obvious impropriety. That practice must end as it violates the primary objective of the FLR, to deal with cases justly. That process includes "ensuring that the procedure is fair to all parties."

14. The obligation to promote the primary objective of the FLR applies to lawyers as well as judges (see FLR 2(4)). The court's concern with the fairness of relying on so improper an affidavit is magnified when it is filed on a motion without notice, where the obligations set out above apply.

15. To be clear, such clerk's affidavits, based on hearsay knowledge provided by the instructing lawyer or the client, should not be encouraged. They should only be relied upon in simple procedural and/or uncontested matters, if at all (see Ensign Group Inc. v. Saine Estate, [2007] O.J. No. 1586 (SCJ) at par. 15 and footnote 5).

FLR Requirements for Motion Without Notice Not Met

16. I add that I would not be inclined to grant the relief sought on the "evidence" before me, even if the improprieties cited above did not occur. FLR 14(12) sets out the requirements of a motion without notice. It reads as follows:

MOTION WITHOUT NOTICE

(12) A motion may be made without notice if,

(a) the nature or circumstances of the motion make notice unnecessary or not reasonably possible;

(b) there is an immediate danger of a child's removal from Ontario, and the delay involved in serving a notice of motion would probably have serious consequences;

(c) there is an immediate danger to the health or safety of a child or of the party making the motion, and the delay involved in serving a notice of motion would probably have serious consequences; or

(d) service of a notice of motion would probably have serious consequences.

17. Nothing in the materials before me demonstrates that the conditions for bringing a motion without notice under FLR 14(12) have been met in this case.

Conclusion

18. For all of the reasons cited above, this motion is dismissed. In dismissing it, I have not ruled on the merits of the motion. However I note that the materials in support of the motion read as the purported grounds for an appeal never brought, of a decision made years ago. They do not read as the grounds for a motion to change based on an unidentified material change in circumstances.

19. If the Respondent wishes to bring a proper motion for leave to bring a motion to change, under FLR r. 15, he will file materials that include his affidavit and financial statement (including last three years' notices of assessment). He will serve those materials on the Applicant, along with a copy of this endorsement.

20. On an abundance of caution, I ask the court staff to mail a copy of this endorsement to the Applicant at her last known address.

Released: July 14, 2017

Justice Marvin Kurz