[Indexed as: Callon v. Callon]
Tamera Callon, Plaintiff/Appellant (Wife) and Thomas Peter Callon, Defendant/Respondent (Husband)
Ontario Divisional Court
MacFarland, Winkler, Ferrier JJ.
Judgment: August 12, 1999
Docket: Toronto 308/99
Sheila Holmes and Tom Herbert, for Plaintiff/Wife.
S. Grant and Sarah Boulby, for Defendant/Husband.
Ferrier J. (orally):
In our view, letters to third parties by a spouse which contain scurrilous allegations against the other spouse whether true or not, can constitute annoyance, harassment or both within the meaning of the section. The purpose of Section 46 as it relates to interim orders is to permit both litigants the opportunity to conduct their litigation in as reasoned an atmosphere as may be possible. It is no answer to suggest that there may be other remedies available in law.
2 The parties concede that the order infringes the plaintiff's section 2(b) Charter right to freedom of speech. The only issue is whether the order can be justified under section 1.
3 In argument Ms. Holmes conceded that in essence the only real issue is proportionality under the third branch of the Oakes test [R. v. Oakes (1986), 26 D.L.R. (4th) 200 (S.C.C.)]. In our view the order meets that test bearing in mind the narrowness of its scope and its limited duration and having regard for the purpose of section 46.
4 As for the sealing order, we are not persuaded that there was any improper exercise of discretion in the circumstances.
5 Accordingly, the appeal is dismissed.
6 The endorsement is as follows: For reasons given this day the appeal is dismissed. Costs of the appeal and the application for leave to appeal are fixed in the sum of $2,500.00 and are ordered payable to the respondent in any event of the cause.
Appeal dismissed.