Endorsement
Part One – Introduction
[1] On January 31, 2025, for brief oral reasons given, the court struck the applicant’s (the mother’s) Reply. The court gave her until February 18, 2025, to serve and file a fresh Reply.
[2] The court indicated it would provide written reasons for its decision. These are those reasons.
Part Two – Brief background
[3] The parties are the parents of two teenage children (the children).
[4] On August 6, 2024, the mother issued her Application for parenting and child support orders. She also made a claim for a restraining order.
[5] On October 30, 2024, the mother consented at First Appearance Court to the respondent (the father) having an extension until December 3, 2024 to serve and file his Answer/Claim.
[6] On December 9, 2024, Justice Danielle Szandtner granted another extension for the father to serve and file his Answer/Claim, as he had just retained his present counsel.
[7] The father served his Answer/Claim on January 13, 2025. He filed it on January 23, 2025.
[8] The father disputed all claims made by the mother in her Application and sought sole decision-making responsibility for the children.
[9] The mother served and filed her Reply on January 23, 2025.
Part Three – The problem
[10] The mother’s Reply consisted of twenty-three paragraphs. Thirteen of these paragraphs referred to Exhibits that were attached to the Reply.
[11] The Exhibits were screenshots of:
a) text exchanges between the parties;
b) text exchanges between the mother and one of the children;
c) text exchanges between the mother and the father’s wife;
d) e-transfers of child support payments;
e) court documents from other proceedings;
f) receipts for section 7 expenses being claimed by the mother; and
g) photographs of the mother and the children.
[12] In short, the mother included extensive evidence in her Reply.
Part Four – Discussion
[13] Subrule 1(8.2) of the Family Law Rules (the rules) permits the court to strike out all or part of any document that may delay or make it difficult to have a fair trial or that is inflammatory, a waste of time, a nuisance or an abuse of the court process.
[14] This subrule can be used to strike all or part of an Application, Answer/Claim or Reply. See: Frick v. Frick, 2016 ONCA 799.
[15] In Frick, the court dealt with an appeal of a decision to strike an Amended Application. It wrote at paragraph 11 that the rules were enacted to reflect the fact that litigation in family law is different from civil litigation. They embody a philosophy peculiar to a lawsuit that involves a family.
[16] At paragraph 15 in Frick, the court sets out that in a Form 8 Application, the party is required to set out the details of the orders sought and the important facts supporting their claims. The form does not require that all the material facts relied on be set out because a party will often not know, at that time, all the facts supporting a claim.
[17] Similarly, the Form 10A Reply sets out that the party should provide the following information:
a) The claims in the other party’s Answer/Claim they agree to.
b) The claims they do not agree to.
c) The important facts supporting their position.
[18] The Form 8 Application, the Form 10 Answer/Claim and the Form 10A Reply do not include provisions for a party to file evidence.
[19] The Application, Answer/Claim and Reply define the issues in the case and they inform the other party of the case they need to meet. They are not vehicles to provide evidence to the court.
[20] In M.S. v. S.B., 2021 ONSC 8574, the court applied subrule 1(8.2) in a family law case to strike portions of a parties’ Answer, including a lengthy text message included in the body of the Answer because it was evidence and inappropriate to include. See paragraph 16 of that judgment.
[21] The inappropriate inclusion of evidence in these documents is problematic:
a) What is the opposing lawyer supposed to do when faced with this? Do they let it go, or do they incur the time, expense, and delay in moving to strike all or part of the document?
b) The opposing party will often have the perception that the other side has obtained an unfair litigation advantage. This increases the distrust and conflict in the case and creates a barrier to productive problem-solving.
c) The opposing lawyer will often be faced with pressure from their own client to respond in kind with their own evidence.
d) If the offending document is unanswered, in some cases there may be a litigation disadvantage.
e) The family law rules were designed to move away from the damage caused by the early exchange of affidavit evidence, often escalating, except in urgent situations. This is why case conferences are required before motions are scheduled. To permit evidence to be filed in an Application, Answer/Claim and Reply would defeat this purpose. It would lead to more conflict, expense and delay for families. It would not be good for children.
f) When courts do not respond to the inappropriate inclusion of evidence in an Application, Answer/Claim and Reply, they enable this improper practice. This leads more lawyers to believe it is appropriate to include evidence in these documents.
[22] Subrule 2(2) states that the primary objective of the rules is to enable the court to deal with cases justly.
[23] Subrule 2(3) reads as follows:
Dealing with cases justly
(3) Dealing with a case justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.
[24] Subrule 2(4) reads as follows:
Duty to promote primary objective
(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.
[25] It was just, in these circumstances, for the court to strike the mother’s Reply for its inclusion of extensive evidence. This was done to ensure the procedure was fair to all parties and to save time, expense and delay.
[26] The evidence in the mother’s Reply was so extensive that it could not be extricated from the balance of the document. The court found it was just to strike the entire Reply and give her the opportunity to serve and file her Reply in proper form.
[27] It is also important for lawyers to understand the purpose of a Reply. It is to set out the claims made by the other party they agree to, the claims they disagree to, and to set out the important facts supporting their position. It is not to be used to make new claims or to make new allegations. The other party has no mechanism to respond to this. If a party wishes to make new claims, the proper process for them to follow is to seek an amendment to their Application.
Part Five – Conclusion
[28] The message from this endorsement is simple. Do not include evidence in an Application, Answer/Claim or Reply.
Date released: February 3, 2025
Justice Stanley B. Sherr